There is no law specifically banning or restricting the lighting of bonfires in gardens. However, in certain circumstances a bonfire can amount to a “nuisance”.
When can a bonfire amount to a nuisance?
There are 2 types of nuisance, a “private nuisance” and a “public nuisance”.
A private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or connected with the land.
A public nuisance is an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public. There are a number of pieces of legislation which deal with particular types of public nuisance. Where a nuisance is created under a piece of legislation it is referred to as a “statutory nuisance”.
It is a criminal offence, under the Environmental Protection Act 1990, to get rid of domestic waste in a manner which is likely to cause pollution or harm to human health. When plastic, rubber and painted materials are burnt they create poisonous fumes and, therefore, the burning of such items is likely to constitute a criminal offence.
Under the Highways Act 1980 a person commits a criminal offence if they light a fire and smoke from that fire drifts across a highway and someone is injured, interrupted or endangered by such smoke.
People are, however, expected to tolerate a certain level of irritation and inconvenience in every day life and, therefore for something to amount to a nuisance it will be necessary to show that the interference is substantial. The occasional lighting of a bonfire is, therefore, unlikely to amount to a nuisance.
What action can be taken in relation to a bonfire that is causing a nuisance?
In many instances a friendly chat with the neighbour will resolve the problem. If the bonfire has been started by a tenant, it may be worth speaking to their landlord about the problem. It may also be possible to resolve the matter through mediation and many local authorities provide a mediation service for such purposes.
If the problem cannot be resolved informally or through mediation it may be necessary to pursue the matter by way of Court proceedings.
In the case of statutory nuisances the matter can also be pursued by way of making a complaint to the environmental health department of a local authority who has the power to issue an “abatement notice”.
Evidence of the nuisance
It is generally a good idea to keep a diary of the incidents, for example, recording when the bonfire was lit, the effects it had and when approaches were made to the neighbour for the purpose of trying to resolve the matter. This will provide valuable evidence in any court proceedings that may be brought. It may also help to persuade a local authority to take action as it is not always possible for local authorities to respond to calls to witness nuisance bonfires and it is unlikely that a local authority will witness a nuisance bonfire during a random visit due to the sporadic nature of nuisance bonfires.
It may also be a good idea to take photographs or film footage of the bonfire, although this should be carried out carefully so as not to infringe a person’s privacy and should be done without trespassing on their land.