Environmental Protection Act 1990 prosecutions: What you need to know as a Social Housing Provider

In recent years, Registered Providers of Social Housing have seen an increase in private prosecutions brought against them under the Environmental Protection Act 1990 (“EPA 1990”).

It is important for landlords to understand that these prosecutions are very different from a Disrepair Claim and need to be approached as such.

Below is some useful information to bear in mind if your organisation is served with notice of intended prosecution or summons under the EPA.

What is an EPA 1990 Prosecution?

Section 82 of the EPA 1990 provides a remedy to a tenant who is suffering a statutory nuisance.

Section 79 of the EPA 1990 defines statutory nuisance. An example of what constitutes as ‘statutory nuisances’ includes ‘any premises in such a state as to be prejudicial to health and or nuisance’ (Section 79 (1) (a)). A thorough breakdown of S.79 can be found, here.

There are usually two distinct limbs to statutory nuisance, the ‘nuisance’ and that it is ‘prejudicial to health’.

At MSB, our experience has been that the most common EPA prosecutions relate to premises which are allegedly suffering infestations of rodents.

In many cases, the tenant has contacted the landlord to report rodents and has found either no action has been made to resolve the problem, or pest control have been unable to eradicate the infestation. The tenant then instructs a solicitor, usually alongside a disrepair claim, and the solicitor will then serve a Notice of Intended Prosecution.

If the nuisance is not abated within 21 days from receiving the Notice of Intended Prosecution, the tenant can ask the Magistrates Court to issue a summons to prosecute the responsible person (in this case, the Registered Provider of Social Housing) to abate or prevent the nuisance. These proceedings are criminal in nature.

If your organisation is found guilty of statutory nuisance and the Court enters a criminal conviction, the Magistrates may impose an unlimited fine, compensation, a nuisance order requiring the landlord to do any work that is necessary to abate the nuisance and/or prevent reoccurrence, and costs.

What to do?

In the event that a tenant brings a prosecution against your organisation, there are various steps we recommend you take:

1. If a tenant reports a statutory nuisance (for example, rats), attend, and abate the nuisance – this could involve instructing pest control.
2. Complete any repairs to the premises that are needed to abate the nuisance, for example proofing works.
3. If your organisation received a Notice of Intended Prosecution, take steps to abate the nuisance. This means eradicate it! Remember, you only have 21 days to abate the nuisance and if you don’t, your organisation may receive a criminal summons.
4. If your organisation receives a Notice of Intended Prosecution and/or a Court Summons, take legal advice immediately.
5. Keep accurate and comprehensive records of:
   • Any correspondence with the tenant
   • Appointments that have been arranged/carried out and if there have been any failed access issues
   • If there are any contributory factors from the tenant encouraging the nuisance, i.e., a cluttered garden or internal maintenance issues.

Remember, this is not a disrepair claim and the consequences of failing to respond / abate the nuisance are much more severe.