Statutory nuisance and why permission is no defence

Planning permission is no defence to a statutory nuisance. If your extract fan, your plant deck or your delivery yard causes a nuisance, the council's environmental health team can serve an abatement notice under Part III of the Environmental Protection Act 1990 whether or not the planning permission expressly allowed the thing causing it. The two regimes run in parallel, they are administered by different teams, and the statutory nuisance regime contains no defence of "I have permission". For a restaurant, gym, nursery or small workshop, that is the single most expensive thing to misunderstand.

What Part III covers

Section 79 of the 1990 Act lists the statutory nuisances. The ones that catch commercial occupiers are:

• Premises in such a state as to be prejudicial to health or a nuisance.
• Smoke emitted from premises.
• Dust, steam, smell or other effluvia arising on industrial, trade or business premises.
• Any accumulation or deposit that is prejudicial to health or a nuisance.
• Insects emanating from relevant industrial, trade or business premises.
• Artificial light emitted from premises.
• Noise emitted from premises that is prejudicial to health or a nuisance.

Two words carry the weight. "Prejudicial to health" means injurious, or likely to cause injury, to health. "Nuisance" imports the common law meaning: an unreasonable interference with the use and enjoyment of neighbouring land, judged against the character of the locality. An officer does not need to prove harm to health if the interference is unreasonable in that place.

Note the limitation on smell. Odour is only a statutory nuisance where it arises on industrial, trade or business premises, so a neighbour's barbecue is outside the regime while your kitchen extract is squarely inside it.

Who investigates and what they can serve

The district or unitary council's environmental health service investigates, usually on a complaint. Officers will visit, take measurements where the complaint is about noise or light, and keep a record over several occasions before acting.

Section 80 then imposes a duty rather than a discretion. Where the authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an abatement notice. The notice can require the nuisance to be abated, prohibit or restrict its occurrence, and require specified works, and it must state the time for compliance.

Contravening an abatement notice without reasonable excuse is a criminal offence. On industrial, trade or business premises the fine on summary conviction can be up to £20,000 under section 80(6), and the offence can be repeated, so a notice that is ignored becomes a series of prosecutions rather than a single fine.

There is a second route that catches people out. Under section 82 an individual can go directly to the magistrates' court without the council's involvement. A determined neighbour does not need environmental health to agree with them.

Why a permission does not authorise a nuisance

Statutory authority is a defence to a nuisance claim where Parliament has authorised the activity and the nuisance is an inevitable consequence of it. A planning permission is not statutory authority of that kind. It permits a change of use or a building. It does not license the consequences.

The Supreme Court considered the relationship in Coventry v Lawrence in 2014. The reasoning there, and in the earlier authorities on planning permission and nuisance, is that a permission may be relevant to the character of the locality against which reasonableness is judged, but it cannot of itself make a nuisance lawful. A permission for a hot food takeaway does not entitle the operator to vent fryer odour across a neighbour's garden.

The practical consequence is a sequencing problem. You can hold a lawful permission, build exactly what was approved, comply with every condition, and still receive an abatement notice. That happens most often where the condition was drafted loosely, where the plant installed differs from the plant assessed, or where the operating hours in practice differ from those assumed in the acoustic report.

The best practicable means defence

For trade and business premises, section 80 provides a defence that the best practicable means were used to prevent, or to counteract the effects of, the nuisance. It applies to the smell, dust and effluvia category, to noise, to insects and to artificial light from such premises. It is the defence that decides most contested cases.

Section 79(9) defines the term. "Practicable" means reasonably practicable having regard to local conditions and circumstances, to the current state of technical knowledge and to the financial implications. The means 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.

Three things follow for an operator.

1. Maintenance records are evidence. Grease filters changed on a logged schedule, carbon media replaced at the manufacturer's interval, fan bearings serviced: all of this goes to whether the means were practicable and used.
2. Financial implications are relevant but not decisive. The cost of an upgrade is weighed against the severity of the nuisance, and a small operator is not held to the standard of a national chain.
3. The state of technical knowledge moves. A system that was acceptable practice when installed may no longer satisfy the test a decade later, and the authority will point to current national guidance on kitchen extract or on plant selection.

Construction noise has its own route. A prior consent for the works under section 61 of the Control of Pollution Act 1974, agreed with the council before work starts, gives protection against proceedings for noise within the consented terms. It is under-used on small commercial fit-outs and it is worth the application fee.

Appealing an abatement notice

An appeal lies to the magistrates' court and it must be lodged within 21 days of service. The grounds are set out in the Statutory Nuisance (Appeals) Regulations 1995, and they include that the notice is not justified, that there is an informality or error in it, that the requirements are unreasonable in character or extent, that the time for compliance is insufficient, and that best practicable means were used.

Whether the notice is suspended pending appeal depends on its terms and on whether the nuisance is injurious to health, so take advice on that point immediately rather than assuming you have 21 days of grace.

Where planning conditions fit

A well-drafted planning condition reduces statutory nuisance risk because it fixes the standard in advance. The standard form for plant noise is a rating level derived under BS 4142:2014+A1:2019 set at or below the measured background level at the nearest noise-sensitive facade, verified by post-installation testing.

That verification condition matters more than the number. A condition requiring a commissioning test, with the results submitted to the authority, converts an argument about perception into an argument about measurement. Secure it at application stage through the Noise Impact Assessment rather than negotiating it after complaints start.

The Framework's agent of change approach cuts the other way too. Where a new residential scheme arrives next to your established business, the applicant carries the burden of designing out the conflict, and an early look at strategic noise mapping will show whether your premises are the constraint on their site.

Reducing the risk before you open

Five decisions at fit-out stage prevent most notices.

Specify the extract system for the odour risk of the menu rather than the kitchen's air volume alone, with filtration selected accordingly and a discharge point at high level clear of windows and neighbouring facades, as national guidance on commercial kitchen exhaust recommends. Set out that specification in a Ventilation and Extraction Statement so the approved system is the installed system.

Put condensers and air handling units behind acoustic screening at the design stage, not after a complaint, and select units on sound power data rather than a sales sheet. Fix delivery and waste collection times in writing with suppliers, because early morning bin lifts generate more complaints than kitchens do. Where the use involves anything beyond cooking odour, an Odour Assessment sets out the risk banding and the abatement that follows from it.

And keep the logbook. Nothing else does as much work in a best practicable means defence.

Noise, odour and air quality reports are areas where councils expect a suitably qualified author, and professional review is strongly advised before anything is submitted. Enter your postcode on PlanScope to see which reports your premises are likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.