Abatement Notice and potential consequences of a breach

We had a party in our garden and have been served with an abatement notice which prevents the use of amplified sound at our house at any time such that it is audible from a neighbouring property. We thought we were being fairly reasonable as it was a special occasion, we notified all the neighbours in writing well in advance (about 60 letters) and included our phone numbers to contact on the evening. We have lived in the area a long time, have a good relationship with most and a number of our neighbours were guests at the party. Over the course of the evening we progressively turned the volume down, although obviously not enough because because someone complained directly to the council. When noise control appeared they asked us to move the party inside and we cooperated by immediately ending the party.

The council said they had no discretion about whether to issue an abatement notice when a nuisance had been identified, even though we had fully cooperated, although I have since learned that statutory amendments were made to allow for discretion.  Rather than discuss why they felt unable to exercise their discretion their solicitor twice informally gave me the unusual advice that I should not let it worry me since the notice is no big deal and even if I had a party every year a future breach would simply attract a small fine.

Whilst I don't want to inconvenience anyone unduly I also don't want to overcompensate because I am living in fear of a criminal record if I happened to overstep the mark! For instance, I'd like to be able to hold my 40th in the garden in two years time. What kind of fine could I realistically expect to get if I were found to be in breach in, say, one or two year's time (I appreciate that the max is £5,000 - but in practice?)? At what point can bailiffs get called in to remove my stereo? Is there much chance of a criminal record?

I hope to let you have a

I hope to let you have a reply by tomorrow on this question.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

A Local Authority does have a

A Local Authority does have a specific duty to serve an abatement notice where it is satisfied that a statutory nuisance exists.

The only exception to this specific duty on a Local Authority to serve an abatement notice is in relation to statutory noise nuisance from premises.

In such a case the LA has the alternative option of taking such other steps as it thinks appropriate to persuade the person to abate or restrict the recurrence of the statutory noise nuisance.

You can appeal against the abatement notice to a magistrates court but you have to do this within 21 days of service of the notice.

If you breach the order without reasonable excuse then as you rightly say the court can impose a fine of up to £5000.00 together with continuing charges for each day the offence continues.

You would acquire a criminal record.

It is very difficult to estimate the level of fine without a specific case save to say that it depends on the seriousness of the breach and the behaviour of defendant.

Obviously if we are talking about a serious breach when the defendant did not cooperate the fine will be that much greater. 

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Thanks Ian. How does this

Thanks Ian. How does this from Defra's Neighbourhood Noise Policies and Practice for Local Authorities – a Management Guide 4.3.4 fit in?:

 

"An amendment to section 80 of the Environmental Protection Act 1990 made by section 86 of the Clean Neighbourhoods and Environment Act 2005 has regularised the practice common to many local authorities of allowing a short period for alternative means of dispute resolution before service of an abatement notice through, for example, mediation or the use of the Noise Act 1996, where appropriate. Section 80(2A)-(2D) of the 1990 Act now permits a deferral of service for up to seven days after the council has satisfied itself of the existence of a statutory nuisance but the notice must still be served if abatement is not achieved within that time."

 

 

Profile: Property developer/investor.

Yes - this is the statutory

Yes - this is the statutory basis for my comment above that the LA does have an alternative option.

THe LA can " take such other steps as it thinks appropriate for the purpose of persuading the appropriate person to abate the nuisance or prohibit or restrict it's occurrence or recurrence". EPA 1990 sec80(2A)(b).

If these other steps are not working then at the end of seven days or earlier if the LA take the view that these steps are not going to work in any event the LA must issue their abatement notice.EPA 1990 sec80(2B) (2C) and (2D).

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Thanks again Ian. When we

Thanks again Ian. When we asked whether he would consider a deferral and seek an opportunity for us to open some form of dialogue with the complainant he advised us that his hands are tied because he is obliged to serve an abatement notice where a nuisance has been witnessed. We think it would be worth speaking to the complainant so that a) we can apologise and b) so that they can feel confident about approaching us directly if we happen to be annoying them. I know that they are not obliged to consider any other options but do you think it would be fair grounds for appeal to argue that the officer did not give due consideration to other options available to him because he did not have a full understanding of the law?

Profile: Property developer/investor.

The Statutory Nuisance

The Statutory Nuisance (Appeals) Regulations 1995 set out the grounds for appeal.

 Section 2(c) of those regulations states:-

unreasonable refusal by the LA to accept compliance with alternative requirements, or the notice is unreasonable in character or extent or is unnecessary.

This could apply in your case.

Do not forget however that you only have 21 days in which to appeal. The 21 days includes the day of service.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Thanks. All good advice!

Thanks. All good advice!

Profile: Property developer/investor.

No problem - perhaps you

No problem - perhaps you could pass on details of this site to others.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Certainly will.

Certainly will.

Profile: Property developer/investor.

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