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Alice H
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2847
Experience:  Partner in national law firm
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Hello, our next door neighbour has been running an illegal

Resolved Question:

Hello, our next door neighbour has been running an illegal catering business out of their property for several years, despite doing everything we can to stop it continuing the Council have failed to take any action as they are leaving the property at 6:30am in the morning and returning at 9:00pm at night they have been unable to "catch them in the act" the noise and smell and mess they trail down the communal stairs are making our life a misery, cooking often goes on for 9 hours or more during the night We have reported them to the Inland Revenue, VAT, Health and Safety, Fire Safety but nothing seems to come of it. We have been down the mediation process with the Council as other neighbours are affected but they didn't turn up. We are considering taking out a private prosecution for nuisance but it's unclear what chance we stand of success, obviously they are in breach of their terms of tenancy but that does not mean they are breaking the law ? I would very much appreciate your opinion as to whether a private prosecution would be possible, we have photo's and video footage of the neighbours taking the catering equipment in and out of the property which the Council suggested we took as support of our case.
Submitted: 2 years ago.
Category: Law
Expert:  Alice H replied 2 years ago.
My name is***** and I'm happy to help with your question today. I need to ask you some preliminary questions to be able to help you.

Is this residential or commercial premises?
Customer: replied 2 years ago.

Hellos Alex - thank you for responding, it is a residential property the tenants are Council tenants


 


Angela

Expert:  Alice H replied 2 years ago.
And the council is refusing to do anything at all?

Have you supplied them with all the evidence?
Customer: replied 2 years ago.

The Council say there is no evidence because they have not actually caught them cooking in the premises but they don't attend the property during the hours that they are preparing the food

Expert:  Alice H replied 2 years ago.
I will need some time to formulate an answer because this is a complex matter. Are you content to wait - it may take me 24 hrs.
Customer: replied 2 years ago.

Hi Alex - yes sure - it's being going on for nearly 3 years so take the time you need, to note with regard to the fire risk we are 1 of 2 flats on 16th floor of a block of flats


Thanks again.


Angela

Expert:  Alice H replied 2 years ago.
Thank you. I will consider this properly and come back to you very soon.
Expert:  Alice H replied 2 years ago.
Thanks for your patience. I have considered the various issues over the last couple of days.

There are 3 ways in which you could take this matter forward:

1. Private prosecution against the neighbours on the grounds of statutory nuisance contrary to s.79 Environmental Protection Act 1990 namely: the premises are in such a state as to be prejudicial to health or a nuisance, fumes or gases emitted from premises are prejudicial to health or a nuisance, noise emitted from premises are prejudicial to health or a nuisance. You can make a complaint directly to the Magistrates Court under s.82 EPA and if the case is proved the neighbours will be served with an abatement notice and/or prohibition order and a fine. Breach of those orders is a further criminal offence;

2. A restraining order under s.3 Protection from Harassment Act 1997. This can be a stand alone application of a criminal complaint on the basis that your neighbours are pursuing a course of conduct which is causing you distress.

3. Both the private prosecution and restraining order applications can be time consuming and expensive. Therefore it might be better to make a complaint against the council. The have a duty under s.79 EPA - "...it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with s.80..." and "to take such steps as are reasonably practicable to investigate the complaint." The failure by the council to investigate your complaints properly is a failure to comply with the duty imposed by s.79. If they fail to investigate more thoroughly you could complaint to the Local Government Ombudsman.

If you have the evidence you need to establish nuisance then you ought to (1) put pressure on the council to take enforcement action (2) if they do not, you can start your private prosecution. Its impossible to say without analysing all your evidence what your chances of success are but a private prosecution is possible.

Hope this helps. Happy to discuss further if needed.

Alex


Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2847
Experience: Partner in national law firm
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