Improving public health through better regulation of statutory nuisances
Submitting InstitutionUniversity of Surrey
Unit of AssessmentLaw
Summary Impact TypeEnvironmental
Research Subject Area(s)
Studies In Human Society: Policy and Administration
Law and Legal Studies: Law
Summary of the impact
Research conducted at the University of Surrey focused on the problems
caused by noise from wind farms, smell from sewage farms, industrial
emissions, and other forms of environmental pollution and how the quality
of public health could be improved through better regulation. The research
impacted in the following ways:
1) Changes to Government policies such as codes of practice and guidance
2) Changes to enforcement procedures of environmental health officers.
This research into statutory nuisance was the first to analyse the
regulatory framework in the UK in order to assess the strengths,
weaknesses and gaps of the existing structure and to investigate the
robustness of enforcement procedures used by official bodies (in England:
district councils, London borough councils and non-metropolitan councils;
in Wales and Scotland: unitary councils, and in Northern Ireland: district
councils) within that framework. It also considered the ways in which the
law could be used for individuals seeking redress for these public health
The main research found that the statutory nuisance legislation spanned
three centuries originally aimed at public health problems such as cholera
and was continuously amended to accommodate new forms of environmental
pollution affecting public health so that as recently as 2005 it was
amended to include pollution from artificial light and insects. It was
found that the sanitary legislation in the 1840s dealt with the problems
of lack of sanitation relating in the cholera outbreaks as well as crowded
living conditions within the slum urban developments which arose during
this period of rapid industrial growth, the keeping of animals in close
proximity with humans in towns and the problems of factory emissions
causing respiratory diseases. This same piece of legislation was then
expanded to include modern forms of pollution such as noise, light and
insects. The research found that this resulted in legislation, which was
difficult to interpret and apply on the ground by government enforcement
officers and that the regulatory framework in place was unfit for purpose
and needed root and branch overhaul by Parliament. In the absence of that
overhaul the codes of practice are a necessary bridging mechanism and the
findings of this research were fed into such policy initiatives. The
research also found that the enforcement procedures were not uniformly
applied and abatement practices were not robustly carried out resulting in
inadequate resolution of public health problems. It was strongly felt that
this coherent advice in the form of guidance and codes of practice were
required to provide some solution to this chaotic yet vital piece of law
for public health and well-being. It was concluded that the codes of
practice were the best way to address the shortcomings of the existing
legislation. The codes deal with the later forms of statutory nuisance and
play an important role as reference points for both enforcement officers
and the judiciary.
The findings and conclusions of the work were published as a book and
articles (see 3 below) that were circulated to the relevant professional
bodies including the Chartered Institute of Environmental Health (CIEH)
who are always consulted by Parliament about legislative changes and
amendments prior to any actions being taken (see `4' below)
References to the research
1. Rosalind Malcolm Statutory Nuisance: Law and Practice (with
John Pointing) (2nd ed., 2011, Oxford University Press, 429 and
xxxvii pp., ISBN 978-0-19-956402-6); (1st ed., 2002, 386 and
xlvii pp., ISBN 0 19 924246 1).
2. Rosalind Malcolm `Statutory Nuisance: the Sanitary Paradigm and
Judicial Conservatism' Journal of Environmental Law (2006) Vol 18
No 1, 37-54 (with John Pointing).
3. Rosalind Malcolm `Statutory Nuisance: The Validity of Abatement
Notices'  Journal of Planning and Environmental Law 894 -
4. Rosalind Malcolm `Organisations and environmental health — how
environmental health is delivered' Chapter 6, Clay's Handbook of
Environmental Health (ed, Battersby, S.) (20th ed., Spon
Press, Taylor & Francis Group, 2011), pp. 131 - 167.
5. Rosalind Malcolm `Statutory Nuisance Law in England and Wales'
(with L.W.Blake) Interdisciplinary Environmental Review, [ed.
Kevin L.Hickey and Demetri Kantarelis], Volume 1, Number 2, 1999, pp. 162 - 176.
6. Rosalind Malcolm `Statutory Nuisance: Enforcement Issues and the
Meaning of "Prejudice to Health"' Environmental Law Review 1
(1999) 210 - 221.
The articles are in peer reviewed journals.
Details of the impact
The work undertaken on the law and practice of statutory nuisance has
been part of a process of engagement over the last 20 years with the
environmental health profession involving most local authorities engaged
in environmental health in England, Wales, Northern Ireland and Scotland.
The research has made an impact on judicial decision-making, government
policy, better enforcement procedures through the training of enforcement
officers thus contributing to the health and wellbeing of citizens.
Impact on judicial reasoning in noise cases (wind farms and theme
The research has impacted on the way in which judges have decided their
decisions remain good law. These cases show the impact of the statutory
nuisance law where controversial planning decisions are made in areas such
as noisy wind farms, theme parks and recreational activities. The effect
of such decisions is to make the planning process cautious about granting
decisions for such controversial developments as wind farms.
So, for example, in a case concerning the noise from 7 wind turbines near
Barrow-in-Furness, the judge cited the research:
`The learned authors of Malcolm & Pointing, Statutory Nuisance — Law
and Practice state that the correct procedure is to lay an information and
that if, in error, a complaint is made, this may render any subsequent
proceedings a nullity (see para 16.31 and fn 58, p. 276).' See (a) in 5
In another case concerning noise made by the Alton Towers theme park, the
judge relied on the research as follows:
"I should perhaps add to that, helpfully set out in the written part of
the closing submissions of Mr Caplan, a passage from "Statutory Nuisance
Law and Practice, Oxford University Press" written, I assume, by Messrs
Malcolm and Pointing: 'Whereas to the lay person anything that annoys him
is a nuisance, the legal test for noise/nuisance is objective. The noise
must be both excessive and unreasonable.'" See (b) in 5 below.
Again, in a case concerning noise from racing motorcycles and cars the
research was cited in the closing submission of Counsel. See (c) in 5
Impact on Enforcement Practices
The research has impacted on the professionalism of the environmental
health services through the training of the enforcement professions in
conjunction with the CIEH, the core professional body described in section
2 above. As stated by the (now) former President of the Chartered
Institute of Environmental Health, the research at Surrey has changed "the
way many local authority officers work as Statutory Nuisance has been a
neglected area of practise in recent years. In those circumstances and
with all the cuts and changes in local government many officers have
forgotten having (or in some cases never known) how the legislation should
work. I come across many misunderstandings and misconceptions up and down
the country. I always refer them to your work when advising how the
provisions should be used and applied in their environmental health work.
It is apparent in my dealing with EHPs throughout the country that your
excellent work has changed the perception of how statutory nuisance should
operate and sometimes it has to be said, such that their own in-house
legal advisers have to be corrected." See (d) in 5 below.
Impact on government policy on health and wellbeing
The research has had an impact on the way in which businesses operate.
This is through the impact the research has made on government policy on
health and well-being where it has been cited in government codes of
practice and consultation documents. These all impact on the practice of
enforcement processes within local government.
These policy documents include nuisances from noise (for example, from
wind turbines), smells (such as from sewage farms), and artificial light
(from business and other premises).
The research is cited, for example in the Wind Farm Noise Statutory
Nuisance Complaint Methodology in relation to the economic impact of
the defence available only to business and industry in relation to wind
farm noise: `The origins of the defence were to prevent such interference
in the activities of the manufacturing and business classes as would have
harmful economic consequences'. See (e) in 5 below.
In the government guidance on smell nuisance, the research is cited in
relation to the appeals procedure which industry can bring against an
order by the local authority to abate the nuisance. See (f) in 5 below.
The research is also cited in the Noise Management Guide (Defra /
Chartered Institute of Environmental Health). This draft is held online at
the request of the environmental health service and is a continuing
reference point till a final version is produced — see (g) below.
Further, local authorities have indicated the importance of the research
on health impacts: `... one LA specifically commented on a legal
reference. The text on "prejudice to health" and "nuisance" in Malcolm
& Pointing on "Statutory Nuisance Law and Practice" was said to be
useful. See (h) in 5 below.
Sources to corroborate the impact
a) Cited in Nichols, Albion and Lainson v. Powergen Renewables
Limited and Wind Prospect Limited (South Lakeland Magistrates' Court)
b) (Everard HHJ in Roper v. Tussauds Theme Parks Ltd,
Crown Court, Ref. A20040143.
c) (Mansell Raceway Limited and (2) Dunkeswell Kart
Racing Club Limited v East Devon District Council [Central Devon
d) Email of 12 July, 2013 from Dr Stephen Battersby, Environmental
Health Consultant and former President of the Chartered Institute of
e) (Report Prepared for Defra: Contract No. NANR 277 (Defra 2011;
page 68, footnote 105; page 85, footnote122); (http://www.defra.gov.uk/publications/files/pb-13584-windfarm-noise-statutory-nuisance.pdf)
f) (Odour Guidance for Local Authorities,(Defra, 2010; page
25 footnote 32, page 92) http://www.defra.gov.uk/publications/files/pb13554-local-auth-guidance-100326.pdf).
GuideSeptember2006.pdf); the Draft Scottish Noise Management
Guide, (Scottish Executive Environment Group — final version
h) An Investigation into Artificial Light Nuisance Complaints
and Associated Guidance, Final Report, (Defra, 2010 at page 44).