Leading law firm Roythornes has announced that its Charity of The Year will be St Barnabas...
All buildings, be they commercial or residential, can be the victim of problems with pests. For food businesses, ensuring pests are kept under control is a vital requirement and for many, a daily struggle.
Due to the many diseases which some pests carry and the resultant risk to public health, a pest infestation in a food business is likely to result in the immediate closure of the business by the regulator. Anything less than an infestation, for example where there is some evidence of pests, can result in other enforcement action, which although not as dramatic as being shut down with immediate effect, can be equally costly.
Food businesses are regulated by a number of different bodies, depending on the type of business and their location. The main ones are Trading Standards in local councils and the Food Standards Agency.
When an Environmental Health Officer (EHO) or equivalent officer attends a food business and finds evidence of pests, the options available to them are:
- advice letters
- enforcement notices such as a remedial action notice or a hygiene improvement notice
- or notices/orders which will force the immediate closure of the premises called a Hygiene Emergency Prohibition Notice/Order
If the breach is serious enough, the EHO may also make a referral for criminal investigation which could result in criminal prosecution.
The Regulatory team is experienced in challenging enforcement action and defending against prosecutions by the Regulator against food businesses. If your business has been the subject of enforcement action, please contact our recognised experts.
Abatement Notices, Statutory Nuisance and Pests
There are several types of abatement notices which can be served by Councils and the Environment Agency, which cover statutory nuisance from matters including offensive smells, artificial light, noise, smoke, insect infestations or dust and pest infestations. These can be served on owners and occupiers of land, as well as people responsible for any statutory nuisance if not an owner or occupier of the property. Residential, commercial and agricultural property and businesses can all be the subject of abatement notices for statutory nuisances.
Where circumstances constitute a statutory nuisance, the local authority will serve an abatement notice which will have conditions such as preventing you from doing something, requiring you to remedy the situation which is causing the nuisance or carry out investigations into the cause of the nuisance. As an example, we see cases where the Council will serve a notice where a business is operating very noisy equipment outside of normal working hours. The notice in such a situation is likely to require the business to cease the operation of that equipment outside certain specified time frames.
In the case of notices served in respect of pests, for example notices pursuant to section 4 of the Prevention of Destruction by Pests Act, the notice could require you to investigate the origin of the infestation, lay traps or bait for the vermin, block any entry points and confirm this to the Council.
There is some overlap between the powers and duties of the local authority and the Environment Agency. In some situations, enforcement action will be taken by the Environment Agency instead of the local authority against the alleged statutory nuisance. This is often where the person accused of the breach has or should have an environmental permit. For example, if a waste management business produces dust which both breaches the conditions of their permit and also is a statutory nuisance, usually the Environment Agency would enforce the breach of the permit.
Usually, the route of challenge for an abatement notice is by way of an appeal to the Magistrates Court, referred to as “making a complaint for an order”. You will have 21 days to appeal after the notice is served.
A breach of an abatement notice is a criminal offence and you can be prosecuted for the same. Fines can be significant and a successful prosecution will leave you with a criminal record and the costs of the prosecutor to pay, in addition to your own.
An Appeal to the Magistrates’ Court is designed to be a swift, summary procedure. Whilst you can challenge the validity of a notice as part of criminal proceedings, those proceedings will inevitably be more involved and costly. If you dispute the service of the Notice, it is far better to challenge the service of the Notice rather than waiting to do this as part of a criminal prosecution.