Don't be a nuisance this harvest time

Nuisance is unreasonable interference with another party’s use of land.  Harvest and certain industrial practices always brings out some instances of conflict between the use of land and other's reasonable enjoyment. See below for a timely revival of our assessment on the different sorts of nuisance and how best to avoid them:

Nuisance can be public, private or statutory.

Public

• Public nuisance affects classes of people and can constitute a criminal offence. For example obstructing the highway or pollution of water supplies.

Private

• Private nuisance affects a specific person’s right to use or enjoy land. A person does not have to have a proprietary interest in land to suffer nuisance.

Private nuisance might be caused by:

1. Encroachment onto land, for example by mud and debris.
2. Damage to land or buildings.
3. Interference with a party’s enjoyment of the land, for example by generating excessive noise or smells.

For nuisance to be actionable, there must be actual or prospective damage, although this damage need not be physical, and might be demonstrated by encroachment or unreasonable material interference. However, a person with a particularly sensitive olfactory or auditory response is not given any higher standard of protection.

There is no objective standard or definition of unreasonable interference, rather it is a matter of balance and degree, such as duration, frequency etc.  This in turn can depend on circumstance, and can include the character of a particular location and the types of activities that are carried out there. Activities that constitute nuisance in one location might be acceptable in another, as stated in Sturges v Bridgman [1879], by Thesiger LJ; “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.

The courts will also consider the intention of the defendant and whether there was any malice. Liability for nuisance requires that damage is foreseeable, although this does not necessarily constitute negligence.

Action may result in damages, abatement or injunctions.

Statutory

 Under Part III of the Environmental Protection Act 1990 (EPA 1990) certain matters may constitute statutory nuisances: 

• Noise.
• Artificial light.
• Smoke.
• Dust.
• Fumes or gases.
• Accumulation or deposit.
• Animals kept in such a place or manner as to be prejudicial to health or a nuisance. 
• Any other matter declared by any enactment to be a statutory nuisance. 

For something to amount to a statutory nuisance, it must be "prejudicial to health or a nuisance."  

The EPA 1990 provides two routes: one for local authorities to act (often following complaints to them, though also on their own volition), and another which allows people to act directly, without involving the local authority. Complaints can be made in person, by telephone or by email to the environmental health department of the local authority. 

Where a local authority establishes any one of these issues constitutes a nuisance (i.e. is unreasonably interfering with the use or enjoyment of someone’s premises) or is prejudicial to health they must generally serve an abatement notice on the person responsible. Failure to comply with the notice could result prosecution.

However, if a farm possesses an Environmental Permitting Regulations (EPR) Permit then the Environment Agency is responsible. Further guidance is available at Environmental permitting: Core guidance (publishing.service.gov.uk)

Individuals can take action themselves, under section 82 EPA 1990. The essential step is to serve a notice on the person responsible for the alleged nuisance requiring that it be abated within 21 days (3 days in the case of noise nuisance). If the nuisance continues, the complainant then lays a complaint with the local Magistrates Court, which will issue a summons. The magistrates have power to order that the nuisance is abated and to pay compensation. If the nuisance is not abated, this is a criminal offence.

The best response to either such action would be to mount a defence of "Best Practical Means”.

Best Practicable Means (BPM) is a widely-used defence that is available against statutory nuisance actions relating to trade or business premises. It is available both as a defence against prosecution and as grounds for appeal.

Part III of the EPA 1990 defines BPM as:

‘Practicable’ means reasonably practicable in terms of local conditions/circumstances, the current state of technical knowledge, and financial implications.

‘Means’ refers to the ‘design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures.’

The defence of BPM does not negate the existence of a statutory nuisance, rather it recognises that the defendant should not be held liable for it since they have taken the ‘best practicable means’ to either prevent or counteract the effects of the nuisance. It is only applicable as far as it is compatible with any legally-imposed duty and has to conform with safety requirements.

Good Neighbourly Behaviour

The very best defence is to prevent complaints/prosecutions in the first place.

Key issues to consider will be :
(i) Impact, i.e. number of people affected, objective measurements (such as noise level);
(ii) locality, i.e. if the complaint concerns an agricultural area there is the expectation that land management and harvest activities will be undertaken and that certain amount of associated noise, smell and debris may be generated,
(ii) frequency, how often is the practice complained about undertaken? Can this be reduced?
(iii) duration, how long does the complained about nuisance subsist for?
(iv) reasonableness, on an objective calculation does this have a significant adverse impact on an individual’s right to use or enjoy land?
(v) importance i.e. harvest of food, local sustainability and employment, and finally,
(vi) avoidability; can another way of acting still complete the objective and reduce the impact on neighbours?   

The following is recommended:

• Comply with terms of any permits and licences;
• Follow best practice and guidance in working practices; Example Protecting our water, soil and air: A code of Good Agricultural Practice for farmers, growers and land managers (publishing.service.gov.uk) and Burning crop residues: restrictions and rules for farmers and land managers - GOV.UK (www.gov.uk); 
• Keep records of measurable limits to evidence compliance also working steps that are generally taken to remedy and/or ameliorate nuisance i.e. sweeping roads of mud after concentrated activity / planting trees to reduce noise pollution / limiting activity to certain times of the day, try to avoid unnecessary noises, fumes etc, for example by turning off idling machinery/vehicles; 
• Ensure complaints are recorded and investigated; If a complaint is made then follow industry standard recommendations i.e NFU re odour complaints archive (nfuonline.com);
• Proactively communicate and engage with community/neighbours.

The harvest period is weather driven and has a limited window of opportunity; however, where possible, reduce the likelihood of complaints by taking into account a neighbours activities and communicate with them to help keep harmonious relations.