Taking Legal Action (ASB4)

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• Taking Legal Action (ASB4)

The information on this page is also available in printed format as part of a Tackling Anti Social Behaviour Pack. Copies of this pack are available from your estate manager. You can also download a copy below:

Are you experiencing anti-social behaviour in your neighbourhood?

If you have tried to act reasonably and spoken to the person(s) causing the problem yet the problem continues you are no doubt fed up. You may even feel unable to cope with it anymore. When informal action is not possible or fails, there is something you can do. You can resolve the problem by taking formal action. However, legal action should always be a last resort, unless the matter is extremely serious.

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What do I do?  

The first step is to make a formal complaint to your housing officer. All local authorities have a duty to investigate complaints from premises (land and buildings) and vehicles, machinery or equipment in the street.  Under Sections 80 and 81 of the Environmental Protection Act (as amended by the Noise and Statutory Nuisance Act 1993) local authorities have a duty to deal with any noise which they consider to a be statutory nuisance.

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How the Council can help?

Serve an Abatement Notice

If, following your complaint, the Council is satisfied that a statutory nuisance has been committed under the Environmental Protection Act 1990 they will write to the person causing the nuisance asking them to reduce the noise. If the noise continues despite efforts to resolve the problem informally, the Council will then serve an Abatement Notice. If the person served with an Abatement Notice fails to comply they will have committed an offence.

For offences relating to domestic premises and private vehicles, there is a maximum fine of 5,000 with a further fine of up to £500 for each day the offence continues after conviction. However, where the nuisance relates to an industrial, trade or any other business premises, there is a maximum fine of £20,000.

The Council has powers to gain entry to premises to remove vehicles or machinery which are causing a statutory nuisance through excessive noise level.

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Seek an anti-social behaviour order

The Crime and Disorder Act 1998 requires all local authorities and the police to develop and implement strategies for reducing crime and disorder in a local area.

In conjunction with the police, the Council can seek an Anti-Social Behaviour Order (ASBO) against any resident, not just a tenant who is causing harassment, alarm and distress to others. Disobeying an ASBO carries a prison sentence of up to five years.

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Seek a possession order

If the tenant has broken the terms of their tenancy/license agreement the Council, as landlord, can commence possession proceedings and ask the court for an Order for Possession of the property. It is a condition of all tenancy/license agreements with the Council that tenants will not cause antisocial behaviour.

The court will grant an outright Possession Order against tenants in temporary accommodation or where the tenancy is not a secure tenancy (for example an introductory tenancy or a demoted tenancy). If the perpeptrator is in hostel accommodation the Council does not need to get a Possession Order. They will give notice to vacate the accommodation and evict antisocial occupants.

The court will usually give the perpetrator with a secure tenancy a last chance by granting a Postponed Possession Order unless the matter is extremely serious (for example the tenant has been found guilty of a crime). This means that as long as they do not continue with the antisocial behaviour they can remain in the property. If the problem continues they will be evicted.  Evictions remain the last resort to be used against those tenants who will not reform their behaviour and continue to make their neighbours lives a misery.

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Applying to demote a secure tenancy

Under the Anti-Social Behaviour Act 2003 the Council can now apply to the County Court to demote a secure tenancy because of antisocial behaviour by the tenant or their visitors. The tenant will then lose all their rights as a secure tenant for 12 months and if during that 12 months there are further problems of antisocial behaviour the tenant may be evicted.

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Seek an injunction

The Council has power to take legal action against any tenants or local residents who are causing nuisance or harassment to their neighbours.

Tenants who have broken the terms of their tenancy agreement due to antisocial behaviour could have an injunction awarded against them under the Housing Act 1996 (as amended by the Anti-Social Behaviour Act 2003).. The court can be asked to attach a power of arrest to such injunctions if there is violence or a threat of violence.

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Other legal options

There are various other legal remedies available to the Council that may be relevant to your specific case. These can be discussed with your housing officer. Alternatively, if a crime has been committed the police can prosecute a perpetrator of antisocial behaviour.

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How to make a complaint about the Council

If you are unhappy with the way the Council has dealt with your case, the Council has a two-stage complaints procedure. You can obtain information in a leaflet explaining the procedures from the Guildhall or from your local housing office.

If after stage two of the complaints procedure you are still not satisfied with the way your case was dealt with, or the outcome of the Council’s investigations, you can then complain to the Local Government Ombudsman. The Ombudsman is an independent body, which provides an impartial investigation into complaints against local authorities. The Ombudsman will need to be satisfied that the Council’s complaints procedure has been followed.

A complaint to the Ombudsman must be made within 12 months of the event and/or omission complained of.

You may also contact your local councillor or MP. If you don’t know who your local representatives are or how to contact them, you can obtain this information from the Guildhall or from your local housing office.

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Taking a private action

If, for whatever reason, the Council does not  take action or has taken the matter as far as it can or you do not wish to involve the Council, you can complain about the nuisance direct to the Magistrates’ Court under Section 82, Environmental Protection Act 1990.

If the matter is not a statutory nuisance it is also possible to take civil action in the County Court for antisocial behaviour at Common Law by seeking either an injunction to restrain the defendant from continuing the nuisance and/or by issuing a claim for damages or loss.

You will need a solicitor if you are considering this course of action.

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What do I do to take a private action in the Magistrates’ Court?

1. Before you decide on this route, consider if the problem constitutes a statutory nuisance. Listed nuisances are:
   1. The state of a premises
   2. Smoke, fumes and gases
   3. Dust, steam, smell or other waste (from industrial, trade or business premises only)
   4. Accumulations and deposits
   5. The irresponsible keeping of animals
   6. Unacceptable noise.
2. If possible discuss the matter with the person responsible in an attempt to resolve the matter without formal action.
3. If this fails to get the desired result, write to the person explaining the problem, ensuring that the letter is dated and a copy kept for future reference.
4. If the problem persists and you intend to make a complaint to the Magistrates’ Court, you must write to the person concerned giving at least three days notice of your intended action. A copy of this letter must be kept for future reference.
5. Put together all the relevant information that you need to present to the court. It is essential that you should be able to provide the full name and address of the defendant and a record of the dates and times of incidents of nuisance.
   
   If appropriate, take photographic evidence. Your case will be stronger if independent witnesses are also able to give evidence. You should also provide a description or statement detailing the nature of the complaint.
6. Once your evidence has  been gathered, you should go to the Clerk's Office at your local Magistrates Court and state that you want a Summons served under Section 82 of the Environmental Protection Act 1990. You should be able to produce evidence of the nuisance as detailed above to show that you have an arguable case.
   
   If the court is satisfied that you have a case that should be answered, you will be given the time and date of the hearing. The court officers will serve the Summons requiring the defendant to turn up at that time to defend the case. You will have to pay a fee for the issue of this Summons.
7. After the Summons has been issued you should still continue to keep a record of evidence as described above which you can bring to the court on the date of the hearing.
8. Legal representation by a solicitor is not essential. The defendant may however, hire a solicitor to defend the case. If you do decide to use a solicitor, make sure that you understand the basis on which you are being charged for the service (normally an hourly rate). You should also bear in mind that you may be liable for your opponent’s costs if your action does not succeed and this may be expensive.
9. If you win your case, the magistrates may decide to prohibit the defendant from making similar kinds of nuisance or limit the times when noise is permissible or the amount that is to be allowed. If the defendant does not subsequently comply with those conditions, then a second court case can be arranged and the magistrates are likely to impose a substantial fine.

The process of private action described in this leaflet could be used for any of the statutory nuisances.

We strongly recommend that you seek legal advice on the details of your case, because there are a lot of specific situations included or excluded by the detailed wording of the Act.

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Getting help with costs

Legal representation is not available for this type of case through the Legal Aid Scheme. However, you may be financially eligible under the "Green Form Scheme" and this may provide free or subsidised legal advice and assistance in the preparation of your case. Taking a civil action can be expensive, so it is highly advisable to seek the advice of a solicitor or the Citizens Advice Bureau before going ahead.

Advice from a solicitor may be free or subsidised to those who are financially eligible under the Green Form Scheme”. A solicitor will also be able to provide advice on whether you will be likely to meet the means and merit tests which apply to applications for full Legal Aid.

We hope you have found this information helpful. If you have any queries please contact your housing officer.

Please note, if you are not:

• a council tenant
• living in council temporary accommodation
• living in one of the Council's hostels

but you need help/advice on tackling anti social behaviour or reporting it, go to the related link 'Help on tackling anti social behaviour if you are not living in council property'.

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