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Nowhere to hide

This article first appeared in the November 2011 issue of Port Strategy and is reproduced with their kind permission. www.portstrategy.com.

The historic location of ports close to centres of population, often within towns and cities, has somewhat diminished over the years as ports have in many cases migrated downstream to the coast.

Nevertheless, whether at more remote greenfield locations or traditional brownfield sites, in many cases ports may still have residential commercial/industrial neighbours. These frequently include port-users themselves and other businesses which service the port or port users directly or indirectly.

The very nature of port operations, particularly dry bulk and break bulk cargo operations, may give rise to noise, dust and smells regardless of the time of day, or day of the week, and light pollution is a possible issue for night time operations.

As a youngster, I recall walking along a public pavement which was frequently covered in grain, feeds and fertilisers blown from the adjacent quayside port operations and residents regularly complaining to the port manager.

Even today, clients contact us expressing their concerns in relation to dust pollution from adjacent dry bulk port operations and its effects on their businesses and staff. But how does the English law concept of nuisance and statutory nuisance in particular affect ports and also their neighbours?

In order to establish whether a statutory nuisance exists it is necessary to first decide whether a common law nuisance exists. This is because each statutory nuisance must either amount to a common law nuisance, albeit without the need for property rights to be affected, or be prejudicial to health and expert evidence is often required to prove the link between the potential source and the specific health problem.

There are two types of common law nuisance: (1) a private nuisance which is usually caused by a person doing something on his own land, which he is legally entitled to do, but which becomes a nuisance when the consequences of his act extend to neighbouring land. A claimant may take civil proceedings against a defendant for damages to compensate him for his loss and/or an injunction to abate a continuing nuisance and prevent its recurrence and; (2) a public nuisance which arises from an act which endangers the life, health, property, morals or comfort of the public or prevents the public from enjoying or exercising rights common to all. As well as civil proceedings, this can also be a criminal offence.

A claimant taking common law nuisance proceedings in the civil court will face the court weighing up and balancing factors against a background of reasonableness including location, time of occurrence, duration, frequency and whether it is a reasonable use of the land by the defendant. The fact that the defendant may have planning permission for the activity causing the nuisance is no defence. A one-off event is unlikely to amount to a nuisance and the court will assess the nuisance according to the effects on a reasonable, rather than a hypersensitive, claimant.

There are a number of benefits to be derived from seeking statutory nuisance remedies, rather than common law nuisance remedies. The onus and cost is on local authorities (namely London borough, district or unitary councils) to take action to ensure that a statutory nuisance is abated. The service of an abatement notice is comparatively fast, inexpensive, effective and accessible procedure compared with common law proceedings and failure to comply carries a criminal sanction.

An action for a statutory nuisance can be taken by a local authority or a person affected by the statutory nuisance. Every local authority has a duty to take such steps as are reasonably practicable to investigate a complaint of a statutory nuisance and where it fails to do so, the person aggrieved can apply to the magistrates’ court to make an order abating the nuisance. Inspection and investigation is usually undertaken by a local authority’s environmental health officer who has powers to enter premises to determine whether a statutory nuisance exists or even undertake works to prevent it.

A local authority EHO will usually be the person deciding whether a statutory nuisance exists using his own judgment as to the severity, duration and frequency of the nuisance, possibly using scientific equipment in some instances. The EHO will invariably consult the potential recipient of the abatement notice before serving it so that he can properly identify the proper recipient of the notice, act in line with procedural fairness and reduce the risk of any expensive appeals process.

A local authority has a specific duty to serve an abatement notice where it is satisfied that a statutory nuisance exists, and is likely to occur or recur, in its area. If a person has offered to a local authority to undertake works to abate, or prevent, a statutory nuisance, those works should be undertaken promptly or otherwise the local authority shall still be bound by its duty to serve an abatement notice.

A local authority can apply to the High Court to grant an injunction requiring a statutory nuisance to be abated, prevented or restricted, if it considers an abatement notice alone would be inadequate or too slow in abating the statutory nuisance. However, this is often seen as a remedy of last resort where an abatement notice has been served but has not been complied with as it could have the major impact of preventing or limiting a business’s operations.

The High Court is only likely to grant an injunction where there is an imminent threat of significant nuisance or prior repeated and obvious disregard for environmental regulation.

If a port receives an abatement notice it can appeal to the magistrates’ court within 21 days. There are a number of grounds for appeal including that a statutory nuisance does not exist; there is a material defect in the notice; an unreasonable refusal by the local authority to accept compliance with alternative requirements or that the notice is unreasonable in character or extent; there is insufficient time specified to allow compliance; “best practical means” were used or that the notice was served on the wrong person or should have also been served on another person.

The defence of “best practicable means” is available to prevent or counteract the effects of a statutory nuisance although is subject to a number of limitations. Firstly it is only available in certain type of cases of nuisance.

If an abatement notice were to be breached, then depending upon the severity of the breach, the local authority has a number of options from taking no further action for minor breaches, using step-in powers to abate the nuisance itself, prosecute the offence in the magistrates’ court or apply to the High Court for an injunction to prevent further breaches or to require the offender to act.

“Practicable” means reasonably practicable having regard to local conditions, technical knowledge and financial implications and means covers matters such as design, installation, maintenance and the manner and period of operation of plant and machinery. The duty applies only in so far as it is compatible with any duty imposed by law, safety and safe working conditions, relevant codes of practice and guidance.

We have therefore seen that there is a statutory regime under English law applicable in the UK to protect neighbouring residents and businesses from the negative side effects of port operations. It is the responsibility of the relevant local authority to police any complaints made and where necessary to pursue the offenders by way of issuing abatement notices, stepping in and taking direct action or applying for High Court injunctions.

The system contains checks and balances with exceptions, defences and appeals allowed and also allows for individuals and businesses to pursue actions directly where a local authority may fail to do so.