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Guidance to Accompany the Statutory Nuisance Provisions of the Public Health etc (Scotland) Act 2008

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7.0 - WATER NUISANCE PROVISIONS

7.1 The new provisions for water nuisance are included in section 111 of the 2008 Act. These controls are implemented by amendment of the 1990 Act. The provisions are as follows:-

111 Statutory nuisance: land covered with water

(1) Section 79 of the 1990 Act is further amended as follows.

(2) In subsection (1), after paragraph (e), insert-

"(ea) any water covering land or land covered with water which is in such a state as to be prejudicial to health or a nuisance;".

(3) After subsection (5), insert-

"(5ZA) For the purposes of subsection (1)(ea) above, "land"-

(a) includes structures (other than buildings) in, on or over land;

(b) does not include-

(i) mains or other pipes used for carrying a water supply;

(ii) any part of the public sewerage system;

(iii) any other sewers, drains or other pipes used for carrying sewage;

(iv) the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides;

(v) the seabed.

(5ZB) In subsection (5ZA) above-

"drain", "sewage" and "sewer" have the meanings given by section 59 of the Sewerage (Scotland) Act 1968 (c.47);

"main" has the meaning given by section 109(1) of the Water (Scotland) Act 1980 (c.45);

"pipe" includes a service pipe within the meaning of that section of that Act;

"public sewerage system" has the meaning given by section 29 of the Water Services etc. (Scotland) Act 2005 (asp 3).".

7.2 The introduction of the water nuisance provision is to plug a perceived gap in the statutory nuisance provisions in Scotland. Under section 79(1)(h) of the 1990 Act, matters other than those listed in section 79 may constitute a statutory nuisance to the extent that they are declared as such by any enactment. A number of matters were declared to be statutory nuisances in the Public Health Act 1936, but these provisions did not extend to Scotland. These provisions related to wells, tanks and cisterns use for domestic water (section 141), ponds and watercourses (section 259) and moveable dwellings (section 268).

7.3 On review it was determined that the provisions relating to tanks, wells and cisterns were adequately covered by drinking water legislation and although the definition of a house in the Housing (Scotland) Act 2006 excludes moveable dwellings they were covered generally under the definition of premises and the current controls appear adequate.

7.4 However the equivalent provisions covering ponds, pools, ditches and watercourses were felt to be missing from the legislative regime. The new statutory nuisance of water covering land (or land covered with water) was introduced to address this. It is recognised that SEPA are the main enforcement body in relation to the water environment in Scotland, but evidence suggests that there can be nuisances caused by pond and ditches and other bodies of water which are not related to issues of pollution or water quality and which could therefore (if included in the 1990 Act definition) fall under local authority nuisance jurisdiction.

7.5 The majority of water legislation is based on either drinking water quality or bathing water quality and has the aim of :

(a) preventing further deterioration of, and protecting and enhancing, the status of aquatic ecosystems and terrestrial ecosystems and wetlands directly depending on those aquatic ecosystems,

(b) promoting sustainable water use based on the long-term protection of available water resources,

(c) enhancing protection and improvement of the aquatic environment through, amongst other things, specific measures for the progressive reduction of discharges, emissions and losses of priority substances and the cessation or phasing out of discharges, emissions and losses of the priority hazardous substances,

(d) ensuring the progressive reduction of pollution of groundwater and preventing further pollution of it,

(e) contributing to mitigating the effects of floods and droughts,

(f) protecting bathing waters

(g) protection of drinking water quality.

The principle behind section 79(1)(ea) is to regulate nuisance and risk to health but not that arising from chemical characteristics of water, or by regulating discharges, drinking water or water quality standards.

7.6 The section relates to any water covering land or land covered with water in such a state as to be prejudicial to health or a nuisance. The new provision is further clarified by stating that for this nuisance 'land' includes structures other than buildings (such as swimming pools, tanks etc) but does not include water supply pipes, sewerage pipework (including the public sewerage system), the foreshore or the seabed. The interpretation of drain", "sewage" and "sewer" is as given by section 59 of the Sewerage (Scotland) Act 1968, "main" has the meaning given by section 109(1) of the Water (Scotland) Act 1980, "pipe" includes a service pipe within the meaning of that section of that Act and "public sewerage system" has the meaning given by section 29 of the Water Services etc. (Scotland) Act 2005.

7.7 To understand the new nuisance provision it may be useful to consider the application of section 259 of the Public Health Act 1936 which includes as a statutory nuisance:-

a) any pond, pool, ditch or watercourse which is so foul or in such a state as to be prejudicial to health or a nuisance,

b) any part of a watercourse which is so choked or silted up as to obstruct or impede the proper flow of water and thereby to cause a nuisance or give rise to conditions prejudicial to health.

7.8 The first limb of the nuisance would cover for example fetid, stagnant water such as slurry pools or industrial waste ponds. The second limb refers more specifically to impeding the flow of watercourses but does not apply to watercourses navigable by vessels carrying goods. In general a landowner has no duty to clear obstructions occurring naturally on a watercourse (for example where natural silting occurs and restricts the flow there was no liability - Neath RDC v Williams 1951)).

7.9 The drafting of the new section 79(1)(ea) takes a much broader but complementary view and has modernised the concept. The extent of coverage firstly (subject to the specific exemptions) covers all water covering land and the land beneath the water. This is a very broad definition and given that land includes structures covers not only moving water such as rivers, lochs, canals, but also static water in ponds, reservoirs, pools, open tanks and ditches whether natural or man made. However it does not cover the sea or water supplies or the public sewerage system (the latter because the provisions of the Water Services etc. (Scotland) Act 2005 allow statutory sewerage code to be developed for such locations).

7.10 Issues that could fall within this new nuisance might include water that is foul, obstructed or in any other condition creating a nuisance, perhaps because of something in or on the water (such as algae and bacteria) and anything emanating from the land covered by water (such as gases). It can also be used in conjunction with the new section 79(1)(fa) to control conditions that may result in proliferation of insects such as mosquitoes.

7.11 It is not anticipated that this provision will apply to the impacts of flooding (such controls already lie with SEPA) but rather the state of any pond, pool, ditch or watercourse or obstruction of a watercourse.