Take your own legal action

Information if you decide to take your own legal action

If North Devon Council can't take action against alleged nuisance, or if you do not wish to involve us, you can complain about a nuisance problem direct to the magistrates court.

The magistrates court will need to be persuaded by you and the evidence you provide that the problem amounts to a statutory nuisance.

When contemplating action, you are strongly advised to take legal advice. We can provide broad guidance, but we can't provide formal legal advice and we do not accept any responsibility for the correctness of the information.

How to proceed

It is important that you keep a nuisance diary, which is a written record of the dates, times and duration of the offending nuisance, as well as a description of its nature and the distress it causes you in the reasonable occupation of your home.

Try to resolve the problem informally before contacting the court, by speaking or writing to the person responsible. If you know where the nuisance is coming from but do not know what or who is causing it, then making contact with the owner or occupier of the premises may help.

If you decide to take action, you must give at least three days notice in writing to the person responsible of your intentions and provide them with details of your complaint. Deliver your notice by post or hand and make sure your letter is dated and you have kept a copy.

A nuisance diary

You can start your diary with the following suggested statement:

"This log is true to the best of my knowledge and belief and I make it knowing that if it tendered in evidence I shall be liable to prosecution if I have wilfully stated anything in it which I know to be false or do not believe to be true."

Only record nuisance – do not include any other information on your neighbours or their family life.

State the address from where the nuisance originates.

You may want to draw up a table showing the date, duration times (from and to), a description of nuisance and how it affected you.

Letter of intention to start action

This is an example of letter of intention to start action for a noise nuisance.

Dear Sir/Madam,

I write to give you notice of my intention to start proceedings under section 82 of the Environmental Protection Act 1990 due to the unreasonable amount of noise (loud music) coming from your property.

The noise is so bad that it can clearly be heard in my bedroom in the early hours of the morning, preventing me from getting to sleep. I have gathered months of evidence to support this and will be presenting this to the magistrate.

Unless you stop the noise, I shall have no alternative than to take my complaint to the magistrates court and apply for an abatement order under section 82 of the Environmental Protection Act 1990.

I intend to start this action on (date).

Working with the magistrates court

When you contact the court, tell them you wish to make a complaint under section 82 of the Environmental Protection Act 1990. You will probably need to visit the court where the procedure will be explained to you and you may be asked for evidence of the problem (such as a nuisance diary). This will show the magistrates that you have an arguable case.

You should also let the court know if you have advised NDC officers of the problem.

The court will decide if a summons can be issued and may ask you to serve it (by hand or by post) on the person responsible for the nuisance, stating the date and time of the court hearing. If you serve the notice, you should keep a careful record and ensure that the notice is served well before the hearing date. When the time comes for the hearing, you will have to attend court to give evidence. Ensure that your records, and those of any other witnesses, are kept up to date and that these witnesses will support you in court. In court you will be required to explain your case, produce your diary and any witnesses.

The person responsible for the nuisance will very likely come to the court to defend themselves and may even make counter-accusations. You do not need to have a solicitor to represent you at the hearing, although you may do so if you wish.

You will need to be prepared for the possibility of having to pay the costs of taking the case to court. These costs will include your costs, those of your solicitor if you have one, and any witnesses you may call in support of your case.

Getting help with costs

Legal representation is not available for this type of case through the legal aid scheme. However, you may be financially eligible under the 'legal help' scheme and this may provide free or subsidised legal advice and assistance in preparation of your case.

Your local Citizens Advice service may be able to offer assistance.

The outcome

If the court decides in your favour, it will make an order requiring the offender to abate the nuisance and specify the measures they will have to take to achieve this. The order may also prohibit or restrict a recurrence of the nuisance. The court may also impose a fine at the same time as making the order.

If the court finds that the nuisance existed at the date of making the complaint, they will award you the reasonable costs incurred by you in bringing the action against the nuisance maker. These costs will be awarded whether or not the nuisance still exists or an abatement order is made. If an order is made, the court will generally require the nuisance maker to pay your costs.

If the case is dismissed, you will normally incur your own costs in bringing the case to court and you may incur the costs of the other party.

If the nuisance persists

Should the nuisance continue, any person contravening the requirements of an abatement order without reasonable excuse can be found guilty of an offence under the Act and can be fined.

You should keep your record of nuisance occurrences up to date in case the order is being ignored and it proves necessary to return to court. The procedure for initiating a future case will be the same as for the original proceedings.

Taking civil action

You can take civil action for noise nuisance at common law by seeking either an injunction to restrain the defendant from continuing the nuisance or by issuing a claim for damages or loss.