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GUY FAWKES: GUNPOWDER, TREASON, AND AN ABATEMENT NOTICE?

For 254 years following the Gunpowder plot it was a legal requirement for every person in the realm to observe the fifth of November and give thanks for the “joyful day of deliverance” which saw “many malignant and devilish Papists, Jesuits, and Seminary Priests” executed by James I of Great Britain (Observance of 5th November Act 1605).

The exacting nature of this practice was ended in 1859 by the Anniversary Days Observance Act, yet to this day many people around the country will be reveling in festivities commemorating various aspects of the foiled Gunpowder Plot. 

One such practice includes the lighting of bonfires. Initially sanctioned by King’s Council, bonfires were permitted to take place across the City of London in order to commemorate the foiling of the Gunpowder Plot, and were allowed provided that celebrations were “without any danger or disorder.” Some 400 years later this practice is considered a tradition for many. If you or your neighbours intend on having a bonfire this season, it would be a good idea to familiarise yourself with the present law surrounding the matter:

When?

There are no laws forbidding the lighting of a domestic bonfire in your garden, nor are there restrictions on when in the year you can have one. There are however restrictions on what you can burn, and liability could arise from the scale/result of your bonfire.

What can be burnt?

Burning any material which is “prejudicial to health or a nuisance” (see below) is forbidden under s79 of the Environmental Protection Act 1990 (“EPA”) and could see you faced with a fine of up to £5,000. Avoid disposing of materials such as tyres, rubber, plastics, foam or paint. This will benefit your lungs, the environment, and potentially your wallet.

Is it causing a Nuisance?

If the smoke from your bonfire starts drifting on to neighbouring properties it has the potential to be a legal Nuisance. Nuisance is a form of tort (a civil wrong) and can generally be defined as “an unacceptable interference with the personal comfort or amenity of neighbours or the nearby community” (Godfrey v Conwy County Borough Council [2000] All ER (D) 1809). The more specific Statutory Nuisances (as could be the case in this instance), are set out in the EPA and occur when the interference also has the potential to pose a risk of impacting health.

In order to constitute a Nuisance however the interference (smoke) must generally happen with a degree of frequency. So if your neighbour’s bonfire is interfering with the enjoyment of your land, but it’s only an annual happenstance, it’s unlikely that you would be able to force them to quit.

An infrequent enkindler is not necessarily free from their conflagration obligations however. Liability could still arise from any damage caused by the fire or the resulting smoke (see below). What’s more, should smoke from your bonfire drift across a road in such a way as to cause any user of the road to be “injured, interrupted or endangered,” you could be faced with a fine of up to £5,000 under s161A of the Highways Act 1980.

If a statutory Nuisance is found to be taking place, or could take place in the imminent future, your local council has the ability to serve you with an Abatement Notice. Such a notice could impose obligations on when/how you are able to have a bonfire and could even forbid you from having one again. They could also apply to the High Court for an Injunction or seize/confiscate equipment.

Failure to obey the terms of an abatement notice is an offence under s80(4) of the EPA and could result in an initial fine of up to £5,000, and daily subsequent fines until the terms of the notice is met.

Damage to property?

If you are going to be lighting a bonfire this week then consideration should be given to the scale and location of it. If any part of your neighbour’s land/property is damaged by either the fire itself, or the resulting smoke, you could be liable for damages for failing to keep the fire contained.

It’s worth noting that the tort of “Rylands v Fletcher” could still find you to be liable for damages, even if it was not caused by a negligent act (Rylands v Fletcher [1868] UKHL 1). Though admittedly this is not a conventional application of the rules established in this case, subsequent case law has shown the courts are willing to extend its application to fire and smoke (Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248).

For more information on any of the issues raised in this article, or for assistance with property damage/neighbour disputes in general, feel free to contact our Property team on 0117 904 6000.

Posted on Nov 7th, 2019 by Lyons Davidson

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