Statutory Ambiguity: On Whom Can an Abatement Notice Be Served?

On whom should an abatement notice (per section 80 of the Environmental Protection Act 1990) be served? The answer should be obvious: on the person responsible for causing it or, at least, responsible from the property from which it emanates. But what happens when these are two different people? It’s a point of statutory ambiguity with which District Judge Thorn, in Baldock Industrial Estate v North Hertfordshire District Council (Stevenage Magistrates Court, 29 September 2025, unreported), recently grappled.

The matter arose in the context of nuisance created by asbestos. The Appellant is the freehold owner of the common parts of the industrial estate (mainly consisting of access roads). The individual units are owned by a variety of different individuals and companies (on varying freehold or leasehold bases – the Appellant was not the freehold or leasehold owner of any). In July 2023 a fire destroyed or severely damaged a substantial number of the buildings on the estate. Many of these contained asbestos. The fire exposed the asbestos and caused it to spread over a large area, with much of it congregating on the common parts owned by the Appellant. Even after the initial clear up, since the fire damaged buildings remained in a state of disrepair, asbestos particles continued to emanate onto the common parts (and, presumably, from there to other places).

None of the parties disputed that the asbestos emanating onto the Appellant’s land (and, likely, subsequently therefrom) was potentially harmful. The Council served concluded that, since (a) it could not identify which specific properties were responsible for the emanation of which specific asbestos, (b) the Appellant was the owner of the common parts which surrounded the fire damaged buildings, and (c) the asbestos was on the common parts, it would serve an abatement notice on the Appellant. The notice required the Appellant, inter alia, to abate the nuisance and ensure that it did not continue. The Appellant appealed.

At the hearing the primary issue (and the one on which the judge decided the matter) was whether the Appellant was the correct person on whom to serve the notice. Section 80 requires a Council to serve an abatement notice where it forms the view that a statutory nuisance has occurred. Section 80(2) permits a notice to be served on one of three classes of person:

(a) except in a case falling within paragraph (b) or (c) below, on the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, on the owner of the premises;

(c) where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, on the owner or occupier of the premises.

The Council said that the Appellant was either the person responsible for the nuisance or, alternatively, the owner of the land from which it emanated. It also argued that, since it had a duty to serve a notice on someone, and the Appellant was the most obvious candidate, the notice had been properly issued.

The Appellant argued that:

1. The parties agreed that the asbestos emanated from the fire damaged buildings. The Appellant was a victim of nuisance, since it emanated onto its land.
2. Neither section 80(2)(1) nor (3) were broad enough to encompass the Appellant in those circumstances. They required the Council to serve the notice on the land from which the nuisance emanated, not the land to which it emanated (even if it might subsequently travel further from that land).
3. The proper target for the notice was the owners of the fire damaged buildings. If the Council wanted to know who they were then it could look up the ownership on the Land Register and serve notices on all the registered owners.
4. The Appellant accepted that there was dangerous asbestos on its land (that could emanate further) but the responsibility for addressing the nuisance must lie with those who caused it or owned the land from which it emanated. The fact that this would likely require a notice to compel them to clean up land which they did not own was no barrier. The proper recipients should seek permission of the owner of the affected land and, if it was refused, regulation 2 of the Statutory Nuisance (Appeals) Regulations 2005 provided for a ground of appeal where it was not possible to comply with the requirements of the notice.

The judge, giving an extempore judgment (but after taking time for consideration) held that, as a matter of fact, the Appellant did not fall into any of the three classes on which section 80 permitted the service of an enforcement notice. The appeal, consequently, succeeded. He did not, explicitly, grapple with the extent or flexibility of the statutory language. His decision indicates, however, that he at least had some sympathy with the Appellant’s analysis of the statutory scheme.

The decision does not, of course, provide a conclusive answer to the question of whether a council can, in principle, serve an abatement notice on land affected by a nuisance (caused by/on some other land). There is a clear argument in favour of such an interpretation (albeit not advanced by the Council), which is that parliament, in passing a law to address nuisance which impacts the public after emanating from land, must have intended that it could be imposed on any land from which it emanates (even if it did not originate on that land). Equally, however, such an interpretation would, in theory, where a chemical plant discharged toxic waste onto a public park, to serve a notice on the park (without any explicit statutory obligation to also serve a notice on the chemical plant).

Local authorities would nevertheless be well advised to spend some time identifying the origin of a statutory nuisance and, at least in the first instance, target that person or land with an abatement notice before considering serving notices on the owners of neighbouring land. Recipients of abatement notices, seeking to appeal, may see this case as a clear route to success. They should be careful, however, to ensure that they have convincing evidence that the nuisance did not, in fact, originate on their land.

Sam Fowles, instructed by rradar Solicitors, acted for the successful appellant.