Jersey Law 34/1999
STATUTORY NUISANCES (JERSEY) LAW 1999
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ARRANGEMENT OF ARTICLES
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1.
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Interpretation
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2.
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Matters constituting statutory nuisances
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3.
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Power to extend statutory nuisances
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4.
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Functions of the Committee
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5.
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Proceedings for statutory nuisances
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6.
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Abatement notice in respect of noise in street
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7.
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Supplementary provisions
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8.
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Proceedings by persons aggrieved by statutory
nuisances committed by the Committee
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9.
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Appeals
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10.
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Powers of entry to premises etc.
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11.
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Powers of entry to vehicles, machinery or equipment
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12.
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Offences relating to entry
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13.
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Criminal liability of officers; aiders and abettors
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14.
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Rules of Court
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15.
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Orders
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16.
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General provisions as to Regulations and Orders
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17.
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Service of notices
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18.
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Saving provisions
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19.
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Short title and commencement
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Schedule
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STATUTORY NUISANCES (JERSEY) LAW 1999
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A LAW to
provide for statutory nuisances; for procedures for dealing with them; and for
connected purposes; sanctioned by Order of Her Majesty in Council of the
24th day of NOVEMBER 1999
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(Registered on the 24th day of December 1999)
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STATES OF JERSEY
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The 22nd day of June
1999
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THE STATES, subject to the sanction of
Her Most Excellent Majesty in Council, have adopted the following Law –
ARTICLE
1
Interpretation
(1) In
this Law, unless the context otherwise requires –
“abatement notice” has the meaning assigned to it by
paragraph (1) of Article 5;
“authorized person” means any person authorized by the
Committee for the purposes of discharging any or all of the functions contained
in this Law;
“best practicable means” is to be interpreted by
reference to the following provisions –
(a) “practicable”
means reasonably practicable having regard among other things to local
conditions and circumstances, to the current state of technical knowledge and
to the financial implications;
(b) the
means to be employed include the design, installation, maintenance and manner
and periods of operation of plant and machinery, and the design, construction
and maintenance of buildings and structures;
(c) the
test is to apply only so far as compatible with any duty imposed by law;
(d) the
test is to apply only so far as compatible with safety and safe working conditions,
and with the exigencies of any emergency or unforeseeable circumstances;
“chimney” includes structures or openings of any kind
from or through which smoke may be emitted;
“the Committee” means the Health and Social Services
Committee;
“the Court” means the Royal Court;
“dust” does not include dust emitted from a chimney as
an ingredient of smoke;
“equipment” includes a musical instrument;
“fumes” means any airborne solid matter smaller than
dust;
“gas” includes vapour and moisture precipitated from vapour;
“industrial, agricultural, trade or business premises”
means premises used for any industrial, agricultural, trade or business
purposes or premises not so used on which matter is burnt in connection with
any industrial, agricultural, trade or business process, and premises are used
for industrial purposes where they are used for the purposes of any treatment
or process as well as where they are used for the purposes of manufacturing;
“injury to health” includes any impairment whether
permanent or temporary;
“noise” includes vibration;
“person responsible” –
(a) in
relation to a statutory nuisance, means the person to whose act, default or
sufferance the nuisance is attributable;
(b) in
relation to a vehicle, includes the owner whose vehicle is for the time being
registered under the Motor Vehicle Registration (Jersey) Law 1993 and any other
person who is for the time being the driver of the vehicle;
(c) in
relation to machinery or equipment, includes any person who is for the time
being the operator of the machinery or equipment;
“police officer” means a member of the Honorary Police
or the States of Jersey Police Force;
“prejudicial to health” means injurious, or likely to
cause injury, to health;
“prescribed” means prescribed by Regulations;
“premises” includes land and any vessel;
“private dwelling” means any building, or part of a
building, used or intended to be used, as a dwelling;
“smoke” includes soot, ash, grit, and gritty particles
emitted in smoke;
“statutory nuisance” has the meaning assigned to it by
Article 2;
“street” means any public road, any other road to which
the public has access, any road administered by the Housing Committee, any of
the roads on the Rue des Près Trading Estate, any bridge over which a
road passes, any road privately maintained and any sea beach;
“water supply” includes public and private water
supplies.
(2) In
this Law, references to premises and the occupier of premises include
respectively a vessel and the master of a vessel.
(3) Unless
the context otherwise requires, references in this Law to any other enactment
shall be construed as references to that enactment as amended, extended or
applied by or under any other enactment and to any enactment which repeals and
re-enacts the first-mentioned enactment with or without further amendment.
(4) A
reference in this Law to a numbered Article without further identification is a
reference to the Article so numbered in this Law.
(5) A
reference in any Article of this Law to a paragraph, sub-paragraph or clause by
number or letter only, and without further identification, is a reference to
the paragraph, sub-paragraph or clause of that number or letter contained in
the Article of this Law in which such reference occurs.
ARTICLE
2
Matters constituting statutory nuisances
(1) Subject
to paragraphs (2) and (3), the following matters constitute “statutory
nuisances” for the purposes of this Law –
(a) any
premises in such a state as to be prejudicial to health or a nuisance;
(b) smoke
emitted from premises so as to be prejudicial to health or a nuisance;
(c) fumes
or gas emitted from premises so as to be prejudicial to health or a nuisance;
(d) light
energy emitted from premises so as to be prejudicial to health or a nuisance;
(e) any
dust, steam, smell, or other effluvia arising on or emanating from industrial,
agricultural, trade or business premises or resulting from processes conducted
on such premises and being prejudicial to health or a nuisance;
(f) any
accumulation or deposit which is prejudicial to health or a nuisance;
(g) any
animal, bird, insect, reptile or fish kept in such a place or manner as to be
prejudicial to health or a nuisance;
(h) noise
emitted from premises so as to be prejudicial to health or a nuisance;
(j) noise
emitted from or caused by a vehicle, machinery or equipment in a street so as
to be prejudicial to health or a nuisance;
(k) any
well, tank, cistern, water-butt or other water supply howsoever constructed
which is used for the supply of water for domestic purposes which is so placed,
constructed or kept or maintained as to render the water therein liable to
contamination prejudicial to health;
(l) any
pond, pool, ditch, gutter or watercourse which is so foul or in such a state as
to be prejudicial to health or a nuisance;
(m) any
tent, van, shed or similar structure used for human habitation which is in such
a state, or so overcrowded, as to be prejudicial to the health of the inmates,
or the use of which, by reason of the absence of proper sanitary accommodation
or otherwise, gives rise, whether on the site or on other land, to a nuisance
or to conditions prejudicial to health;
(n) any
other matter constituting a statutory nuisance by virtue of Regulations made
under Article 3.
(2) Sub-paragraph
(c) of paragraph (1) does not apply in relation to premises other than private
dwellings.
(3) Sub-paragraph
(h) of paragraph (1) does not apply to noise caused by aircraft other than
model aircraft.
(4) Sub-paragraph
(j) of paragraph (1) does not apply to noise made by –
(a) traffic;
(b) any
naval, military or air force of the Crown; or
(c) a
political demonstration or a demonstration supporting or opposing a cause or
campaign.
ARTICLE
3
Power to extend statutory nuisances
(1) The
States may by Regulations modify the list of statutory nuisances set out in
Article 2.
(2) Regulations
under paragraph (1) may state whether and in what circumstances it shall be a
defence to prove that the best practical means were used to prevent or
counteract the effect of a nuisance so added or amended.
ARTICLE
4
Functions of the Committee
(1) The
Committee shall have the powers conferred on it by this Law and the duty to
take such steps as are reasonably practical to investigate a complaint of
statutory nuisance made to it.
(2) The
Committee may cause inspections to be made to detect the presence or existence
of any statutory nuisance in respect of which no complaint has been made to it.
ARTICLE
5
Proceedings for statutory nuisances
(1) Where
the Committee is satisfied that a statutory nuisance exists, or is likely to
occur or recur, it shall serve a notice (in this Law referred to as “an
abatement notice”) imposing all or any of the following requirements
–
(a) requiring
the abatement of the nuisance or prohibiting or restricting its occurrence or
recurrence;
(b) requiring
the execution of such works, and the taking of such other steps, as may be
necessary for any of those purposes.
(2) The
abatement notice shall –
(a) specify
the time or times within which the requirements of the notice are to be
complied with; and
(b) include
a statement –
(i) indicating
that an appeal against the notice lies; and
(ii) specifying
the time within which it must be brought.
(3) Subject
to paragraph (1) of Article 6, the abatement notice shall be served –
(a) except
in a case falling within sub-paragraph (b) or (c), on the person responsible
for the nuisance;
(b) where
the nuisance arises from any defect of a structural character, on the owner of
the premises;
(c) where
the person responsible for the nuisance cannot be found or the nuisance has not
yet occurred, on the owner or occupier of the premises.
(4) If
a person on whom an abatement notice is served, without reasonable excuse,
contravenes or fails to comply with any requirement or prohibition imposed by
the notice, he shall be guilty of an offence.
(5) Subject
to paragraph (6), a person who commits an offence under paragraph (4) shall be
liable to a fine not exceeding level 4 on the standard scale together with a further fine not exceeding level 2
for each day on which the offence continues after conviction for that offence.
(6) A
person who commits an offence under paragraph (4) on industrial, agricultural,
trade or business premises shall be liable to a fine.
(7) Subject
to paragraph (8), in any proceedings for an offence under paragraph (4) in
respect of a statutory nuisance, it shall be a defence to prove that the best
practicable means were used to prevent, or to counteract the effects of, the
nuisance.
(8) The
defence under paragraph (7) is not available –
(a) in
the case of a statutory nuisance falling within sub-paragraph (a), (d), (e),
(f), (g) or (h) of paragraph (1) of Article 2, except where the nuisance arises
on industrial, agricultural, trade or business premises;
(b) in
the case of a statutory nuisance falling within sub-paragraph (j) of paragraph
(1) of Article 2, except where the noise is emitted from or caused by a
vehicle, machinery or equipment being used for industrial, agricultural, trade
or business purposes;
(c) in
the case of a statutory nuisance falling within sub-paragraph (b) of paragraph
(1) of Article 2, except where the smoke is emitted from a chimney; and
(d) in
the case of a statutory nuisance falling within sub-paragraph (c) of paragraph
(1) of Article 2.
ARTICLE
6
Abatement notice in respect of noise in street
(1) In
the case of a statutory nuisance within sub-paragraph (j) of paragraph (1) of
Article 2 that –
(a) has
not yet occurred; or
(b) arises
from noise emitted from or caused by an unattended vehicle or unattended
machinery or equipment,
the abatement notice shall be served in accordance with paragraph
(2).
(2) The
notice shall be served –
(a) where
the person responsible for the vehicle, machinery or equipment can be found, on
that person;
(b) where
that person cannot be found or where the Committee determines that this
paragraph should apply, by fixing the notice to the vehicle, machinery or
equipment.
(3) Where
–
(a) an
abatement notice is served in accordance with sub-paragraph (b) of paragraph
(2) by virtue of a determination of the Committee; and
(b) the
person responsible for the vehicle, machinery or equipment can be found and
served with a copy of the notice within an hour of the notice being fixed to
the vehicle, machinery or equipment,
a copy of the notice shall be served on that person accordingly.
(4) Where
an abatement notice is served in accordance with sub-paragraph (b) of paragraph
(2) by virtue of a determination of the Committee, the notice shall state that,
if a copy of the notice is subsequently served under paragraph (3), the time
specified in the notice as the time within which its requirements are to be
complied with is extended by such further period as is specified in the notice.
(5) Where
an abatement notice is served in accordance with sub-paragraph (b) of paragraph
(2), the person responsible for the vehicle, machinery or equipment may appeal
against the notice as if he had been served with the notice on the date on
which it was fixed to the vehicle, machinery or equipment.
(6) Paragraph
(4) of Article 5 shall apply in relation to a person on whom a copy of an
abatement notice is served under paragraph (3) as if the copy were the notice
itself.
(7) A
person who removes or interferes with a notice fixed to a vehicle, machinery or
equipment in accordance with sub-paragraph (b) of paragraph (2) shall be guilty
of an offence, unless he is the person responsible for the vehicle, machinery
or equipment or he does so with the authority of that person.
(8) A
person who commits an offence under paragraph (7) shall be liable to a fine not
exceeding level 2 on the standard scale.
ARTICLE
7
Supplementary provisions
(1) Subject
to paragraph (2), where more than one person is responsible for a statutory
nuisance, Article 5 shall apply to each of those persons whether or not what
any of them is responsible for would by itself amount to a nuisance.
(2) In
relation to a statutory nuisance within sub-paragraph (j) of paragraph (1) of
Article 2 for which more than one person is responsible (whether or not what
any one of those persons is responsible for would by itself amount to such a
nuisance), sub-paragraph (a) of paragraph (3) of Article 5 shall apply with the
substitution of “any one of the persons” for “the
person”.
(3) In
relation to a statutory nuisance within sub-paragraph (j) of paragraph (1) of
Article 2 caused by noise emitted from or caused by an unattended vehicle or
unattended machinery or equipment for which more than one person is
responsible, Article 6 shall apply with the substitution –
(a) in
sub-paragraph (a) of paragraph (2), of “any one of the persons” for
“the person” and of “one such person” for “that
person”;
(b) in
sub-paragraph (b) of paragraph (2), of “such a person” for
“that person”;
(c) in
paragraph (3), of “any of the persons” for “the person”
and of “one such person” for “that person”;
(d) in
paragraph (5), of “any person” for “the person”; and
(e) in
paragraph (7), of “a person” for “the person” and of
“such a person” for “that person”.
(4) Where
an abatement notice has not been complied with, the Committee may, whether or
not proceedings are taken for an offence under paragraph (4) of Article 5,
abate the nuisance and do whatever may be necessary in execution of the notice.
(5) Any
expenses reasonably incurred by the Committee in abating, or preventing the
recurrence of, a statutory nuisance under paragraph (4) shall be recoverable as
a civil debt from the person or persons by whose act or default the nuisance
was caused, and the Court may apportion expenses between persons by whose acts
or defaults the nuisance is caused in such manner as the Court considers fair
and reasonable.
(6) If
the Committee is of the opinion that proceedings for an offence under paragraph
(4) of Article 5 would afford an inadequate remedy in the case of any statutory
nuisance, they may take proceedings in the Court for the purpose of securing
the abatement, prohibition or restriction of the nuisance, and the proceedings
shall be maintainable notwithstanding the Committee has suffered no damage from
the nuisance.
ARTICLE
8
Proceedings by persons aggrieved by statutory nuisances by
Committee
(1) The
Court may act under this Article on a representation made by any person on the
ground that he is aggrieved by the existence of a statutory nuisance for which
the Committee is responsible.
(2) If
the Court is satisfied that the alleged nuisance exists, or that although
abated it is likely to recur on the same premises or, in the case of a nuisance
within sub-paragraph (j) of paragraph (1) of Article 2, in the same street, the
Court may make an order for either or both of the following purposes –
(a) requiring
the Committee to abate the nuisance, within a time specified in the order, and
to execute any works necessary for that purpose;
(b) prohibiting
a recurrence of the nuisance, and requiring the Committee, within a time
specified in the order, to execute any works necessary to prevent the
recurrence.
(3) If
the Court is satisfied that the alleged nuisance exists and is such as, in the
opinion of the Court, to render premises unfit for human habitation, an order
under paragraph (2) may prohibit the use of the premises for human habitation
until the premises are, to the satisfaction of the Court, rendered fit for that
purpose.
ARTICLE
9
Appeals and compensation
(1) A
person aggrieved by the service of an abatement notice has a right of appeal in
the manner and on a ground set out in the Schedule and the Schedule shall have
effect with regard to such appeals.
(2) Where,
pursuant to an appeal under this Article, an abatement notice is cancelled or
modified, the Court shall have power to award compensation to the appellant.
ARTICLE
10
Powers of entry to premises etc.
(1) Subject
to paragraph (2), any authorized person may, on production, if so required, of
his authority, enter any premises at any reasonable time –
(a) if
he suspects, on reasonable grounds, that a statutory nuisance exists or will
exist on those premises;
(b) for
the purpose of taking any action, or executing any work, authorized or required
by this Law.
(2) Admission
by virtue of paragraph (1) to any premises used wholly or mainly for
residential purposes shall not except in an emergency be demanded as of right
unless twenty-four hours notice of the intended entry has been given to the
occupier.
(3) If
it is shown to the satisfaction of the Bailiff by information on oath that
–
(a) admission
to any premises has been refused, or that refusal is apprehended, or that the
premises are unoccupied or that the occupier is temporarily absent, or that the
case is one of emergency, or that an application for admission would defeat the
object of the entry; and
(b) there
is reasonable ground for entry into the premises for the purpose for which
entry is required,
the Bailiff may issue a warrant under this Article authorizing the
Committee by any authorized person to enter the premises, if need be by force.
(4) An
authorized person entering any premises by virtue of paragraph (1) or a warrant
under paragraph (3) may –
(a) take
with him such other person and such equipment as he considers necessary;
(b) carry
out such inspections, measurements and tests as he considers necessary for the
discharge of any of the Committee’s functions under this Law; and
(c) take
away such samples or articles as he considers necessary for that purpose.
(5) On
leaving any unoccupied premises which he has entered by virtue of paragraph (1)
or a warrant under paragraph (3) the authorized person shall leave them as
effectively secured against unauthorized entry as he found them.
(6) A
warrant issued in pursuance of paragraph (3) shall continue in force until the
purpose for which the entry is required has been satisfied.
(7) Any
reference in this Article to an emergency is a reference to a case where the
person requiring entry has reasonable cause to believe that circumstances exist
which are likely to endanger life or health and that immediate entry is
necessary to verify the existence of those circumstances or to ascertain their
cause and effect a remedy.
ARTICLE
11
Powers of entry to vehicles, machinery or equipment
(1) Any
authorized person may, on production, if so required, of his authority –
(a) enter
or open a vehicle, machinery or equipment, if necessary by force; or
(b) remove
a vehicle, machinery or equipment from a street to a secure place,
for the purpose of taking any action, or executing any work,
authorized by or required under this Law in relation to a statutory nuisance
within sub-paragraph (j) of paragraph (1) of Article 2 caused by noise emitted
from or caused by the vehicle, machinery or equipment.
(2) Subject
to paragraph (3), on leaving any unattended vehicle, machinery or equipment
that he has entered or opened under paragraph (1), the authorized person shall
leave it secured against interference or theft in such a manner and as
effectually as he found it.
(3) If
the authorized person is unable to comply with paragraph (2), he shall for the
purpose of securing the unattended vehicle, machinery or equipment either
–
(a) immobilise
it by such means as he considers expedient; or
(b) remove
it from the street to a secure place.
(4) In
carrying out any function under paragraph (1), (2) or (3), the authorized
person shall not cause more damage than is necessary.
(5) Before
a vehicle, machinery or equipment is entered, opened or removed under paragraph
(1), the Committee shall notify a police officer of the intention to take
action under that paragraph.
(6) After
a vehicle, machinery or equipment has been removed under paragraph (1) or (3),
the Committee shall notify a police officer of its removal and current
location.
(7) For
the purposes of paragraph (5) of Article 7, any expenses reasonably incurred by
the Committee under paragraph (2) or (3) shall be treated as incurred by the
Committee under paragraph (4) of Article 7 in abating or preventing the
recurrence of the statutory nuisance in question.
ARTICLE
12
Offences relating to entry
(1) A
person who wilfully obstructs any person acting in the exercise of any powers
conferred by Article 10 or 11 shall be guilty of an offence and liable to a
fine not exceeding level 3 on the standard scale.
(2) If
a person discloses any information relating to any trade secret obtained in the
exercise of any powers conferred by Article 10 or 11, he shall, unless the
disclosure was made in the performance of his duty, or with the consent of the
person having the right to disclose the information, be guilty of an offence
and liable to a fine not exceeding level 4 on the standard scale.
ARTICLE
13
Criminal liability of officers; aiders and abettors
(1) Where
an offence under this Law committed by a company is proved to have been
committed with the consent or connivance of, or to be attributable to any
neglect on the part of, any director, manager, secretary, or other similar
officer of the company or any person who was purporting to act in any such
capacity, he, as well as the company, shall be guilty of that offence and shall
be liable to be prosecuted and punished accordingly.
(2) Without
prejudice to paragraph (1), any person who knowingly and wilfully aids, abets,
counsels, causes, procures or commands the commission of an offence under this
Law shall be liable to be dealt with, tried and punished as a principal
offender.
ARTICLE
14
Rules of Court
Rules may be made in the manner prescribed by the Royal Court
(Jersey) Law 1948 to make such provision as
appears to the Superior Number of the Royal Court to be necessary or expedient
for the purposes of this Law.
ARTICLE
15
Orders
(1) The
Committee may make Orders for any purpose for which Orders may be made under
this Law and generally for the purposes of carrying this Law into effect.
(2) The
Subordinate Legislation (Jersey) Law 1960 shall
apply to Orders made under this Law.
ARTICLE
16
General provisions as to Regulations and Orders
Except insofar as this Law otherwise provides, any power conferred
by it to make any Regulations or Order may be exercised –
(a) either
in relation to all cases to which the power extends, or in relation to all
those cases subject to specified exceptions, or in relation to any specified
cases or classes of case; and
(b) so
as to make in relation to the cases in relation to which it is exercised
–
(i) the
full provision to which the power extends or any less provision (whether by way
of exception or otherwise), or
(ii) the
same provision for all cases in relation to which the power is exercised or
different provisions for different cases or classes of case, or different
provisions as respects the same case or class of case for different purposes of
this Law, or
(iii) any
such provision either unconditionally or subject to any specified conditions.
ARTICLE
17
Service of notices
(1) This
Article shall have effect in relation to any notice or other document required
or authorized by or under this Law to be given to or served on any person.
(2) Any
such document may be given to or served on the person in question –
(a) by
delivering it to him;
(b) by
leaving it at his proper address; or
(c) by
sending it by post to him at that address.
(3) Any
such document may –
(a) in
the case of a company, be given to or served on the secretary, clerk or other
similar officer of the company or any person who purports to act in any such
capacity, by whatever name called;
(b) in
the case of a partnership, be given to or served on a partner or a person
having the control or management of the partnership business.
(4) For
the purposes of this Article and Article 12 of the Interpretation (Jersey) Law
1954 (meaning of service by post) in its application to
this Article, the proper address of any person to or on whom a document is to
be given or served shall be his last known address, except that –
(a) in
the case of a company or its secretary, clerk or other officer or person
referred to in sub-paragraph (a) of paragraph (3), it shall be the address of
the registered or principal office of the company;
(b) in
the case of a partnership or a person having the control or management of the
partnership business, it shall be that of the principal office of the
partnership,
and for the purposes of this paragraph the principal office of a
company registered outside the Island or of a partnership carrying on business
outside the Island shall be their principal office within the Island.
(5) If
the person to be given or served with any document mentioned in paragraph (1)
has specified an address within the Island other than his proper address within
the meaning of paragraph (4) as the one at which he or someone on his behalf
will accept documents of the same description as that document, that address
shall also be treated for the purposes of this Article and Article 12 of the
Interpretation (Jersey) Law 1954 as his proper address.
ARTICLE
18
Saving provisions
This Law shall be in addition to and not in derogation of –
(a) the “Loi (1934)
sur la Santé Publique”; and
(b) any
other law relating to public health.
ARTICLE
19
Short title and commencement
This Law may be cited as the Statutory Nuisances (Jersey) Law 1999
and shall come into force on such day as the States may by Act appoint.
G.H.C. COPPOCK
Greffier of the States.
SCHEDULE
(Article 9)
APPEALS
(1) A
person served with an abatement notice under Article 5 may appeal against the
notice to the Court within the period of twenty-one days beginning with the day
on which he was served the notice.
(2) A
person referred to in paragraph (1) may appeal on any one or more of the
grounds set out in paragraph (3) that are appropriate in the circumstances of
the particular case.
(3) The
grounds referred to in paragraph (2) are –
(a) that
the abatement notice is not justified by Article 5;
(b) that
there has been some informality, defect or error in, or in connection with, the
abatement notice, or in, or in connection with, any copy of the abatement
notice served under paragraph (3) of Article 6;
(c) that
the Committee has refused unreasonably to accept compliance with alternative
requirements, or that the requirements of the abatement notice are otherwise
unreasonable in character or extent, or are unnecessary;
(d) that
the time, or where more than one time is specified, any of the times, within
which the requirements of the abatement notice are to be complied with is not
reasonably sufficient for the purpose;
(e) where
the nuisance to which the notice relates –
(i) is
a nuisance falling within sub-paragraph (a), (d), (e), (f), (g) or (h) of
paragraph (1) of Article 2 and arises on industrial, agricultural, trade or
business premises; or
(ii) is
a nuisance falling within sub-paragraph (b) of that paragraph and the smoke is
emitted from a chimney; or
(iii) is a
nuisance falling within sub-paragraph (j) of that paragraph and is noise
emitted from or caused by a vehicle, machinery or equipment being used for
industrial, agricultural, trade or business purposes,
that the best practicable means were used to prevent, or to
counteract the effects of, the nuisance;
(f) that
the abatement notice should have been served on some person instead of the
appellant, being –
(i) the
person responsible for the nuisance; or
(ii) the
person responsible for the vehicle, machinery or equipment; or
(iii) in the
case of a nuisance arising from any defect of a structural character, the owner
of the premises; or
(iv) in the
case where the person responsible for the nuisance cannot be found or the
nuisance has not yet occurred, the owner or occupier of the premises;
(g) that
the abatement notice might lawfully have been served on some person instead of
the appellant being –
(i) in
the case where the appellant is the owner of the premises, the occupier of the
premises; or
(ii) in
the case where the appellant is the occupier of the premises, the owner of the
premises,
and that it would have been equitable for it to have been so
served;
(h) that
the abatement notice might lawfully have been served on some person in addition
to the appellant, being –
(i) a
person also responsible for the nuisance; or
(ii) a
person who is also owner of the premises; or
(iii) a
person who is also an occupier of the premises; or
(iv) a
person who is also the person responsible for the vehicle, machinery or
equipment,
and that it would have been equitable for it to have been so
served.
(4) If
and so far as an appeal is based on the ground of some informality, defect or
error in, or in connection with, the abatement notice, or in, or in connection
with, any copy of the notice served under paragraph (3) of Article 6, the Court
shall dismiss the appeal if it is satisfied that the informality, defect or
error was not a material one.
(5) Where
the grounds upon which an appeal is brought include a ground specified in
sub-paragraph (g) or (h) of paragraph (3), the appellant shall serve a copy of
his notice of appeal on any other person referred to, and in the case of any
appeal to which these regulations apply he may serve a copy of his notice of
appeal on any other person having an estate or interest in the premises,
vehicle, machinery or equipment in question.
(6) On
the hearing of the appeal the Court may –
(a) quash
the abatement notice to which the appeal relates; or
(b) vary
the abatement notice in favour of the appellant in such manner as it thinks
fit; or
(c) dismiss
the appeal,
and an abatement notice that is varied under sub-paragraph (b)
shall be final and shall otherwise have effect, as so varied, as if it had been
so made by the Committee.
(7) Subject
to paragraph (8), on the hearing of an appeal the Court may make such order as
it thinks fit –
(a) with
respect to the person by whom any work is to be executed and the contribution
to be made by any person towards the cost of the work; or
(b) as
to the proportions in which any expenses which may become recoverable by the
Committee under the Law are to be borne by the appellant and by any other
person.
(8) In
exercising its powers under paragraph (7) the Court –
(a) shall
have regard, as between an owner and an occupier, to the terms and conditions
of any relevant tenancy and to the nature of the works required; and
(b) shall
be satisfied before it imposes any requirement thereunder on any person other
than the appellant, that that person has received a copy of the notice of
appeal in pursuance of paragraph (5).
(9) Where
–
(a) an
appeal is brought against an abatement notice served under Article 5 or 6; and
–
(b) either
–
(i) compliance
with the abatement notice would involve any person in expenditure on the
carrying out of works before the hearing of the appeal; or
(ii) in
the case of a nuisance under sub-paragraph (h) of paragraph (1) of Article 2,
the noise to which the abatement notice relates is noise necessarily caused in
the course of the performance of some duty imposed by law on the appellant; and
(c) either
paragraph (10) does not apply, or it does apply but the requirements of
paragraph (11) have not been met,
the abatement notice shall be suspended until the appeal has been
abandoned or decided by the Court.
(10) This
paragraph applies where –
(a) the
nuisance to which the abatement notice relates –
(i) is
injurious to health; or
(ii) is
likely to be of a limited duration such that suspension of the notice would
render it of no practical effect; or
(b) the
expenditure which would be incurred by any person in the carrying out of works
in compliance with the abatement notice before any appeal has been decided
would not be disproportionate to the public benefit to be expected in that
period from such compliance.
(11) Where
paragraph (10) applies the abatement notice –
(a) shall
include a statement that paragraph (10) applies, and that as a consequence it
shall have effect notwithstanding any appeal to the Court which has not been
decided by the Court; and
(b) shall
include a statement as to which of the grounds set out in paragraph (10) apply.