What Exactly is a "Statutory Nuisance"
Nighttime noise in breach of the WHO's Criteria is often interpreted as being prejudicial to health. Also see "Cunningham v Birmingham CC" at Swarbrick and Co Solicitors - "Whether premises are 'prejudicial to health' is objective not subjective test; there is no contrast with the test for nuisance."
With regard to the term "nuisance" there is no specific definition in the act so the tests as at common law apply. A definition often used in Court is: "A nuisance is a material interference with a person's use or enjoyment of their land or property"
Case law supports the view that most of the factors listed in our Environmental Introduction should be taken into account when deciding whether the interference is material, as well as whether those affected are overly sensitive or whether they represent the "Man on the Clapham Omnibus". Therefore, a resident may suffer perfectly genuinely disturbance, say because they are a shift worker and have to sleep during the day, but a Court may decide that the average man would not be trying to sleep during the day and would therefore not be disturbed, i.e. no nuisance.
As part of deciding whether there has been an unreasonable
interference with the use and enjoyment of nearby premises, it would be good
practice to refer to relevant assessment methodologies or standards. In the
absence of any well-accepted standards that quantitatively rate a given noise,
establishing the existence of a nuisance will have to be a matter of judgement,
taking into account factors such as the following:-
On Whom is the Notice/Order Served?
Sometimes statutory nuisance actions are taken under Section 79(1)(a), which defines a statutory nuisance as "any premises in such a state as to be prejudicial to health or a nuisance". Section 80(2)(b) [84(4)(b)] provides that the Notice [Order] should be served on the owner of the premises where the nuisance arises "from any defect of a structural character".
Therefore the Act requires the owner of the building to carry out the works; it also recognises that the owner may not be "the person responsible for the nuisance" (contrast the wording of 80(2)(a) and 80(2)(b). See "Camden London Borough Council v Gunby" at Swarbrick and Co Solicitors for ruling on the term "owner".