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 two 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’.
Section 79 in Pt 3 of the Environmental Protection Act 1990 states that a statutory nuisance includes ‘smoke, fumes or gasses emitted from premises so as to be prejudicial to health or a nuisance’. When plastic, rubber and painted materials are burnt, they create poisonous fumes and, therefore, the burning of such items is likely to constitute a statutory nuisance.
People are, however, expected to tolerate a certain level of irritation and inconvenience in everyday life and, therefore for something to be a nuisance, smoke must be substantially interfering with a person’s enjoyment of their property.
Under the Highways Act 1980, s161A, a person commits a criminal offence and can be fined if they light a fire and smoke from that fire drifts across a highway and someone is injured, interrupted or endangered by such smoke. If this should happen, you should contact the police.
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; 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 through the courts.
In the case of statutory nuisances, the matter can also be pursued by making a complaint to the environmental health department of a local authority, which has the power to issue an ‘abatement notice’. If your neighbour fails to abide by the abatement notice, they can be fined up to £5000.
Evidence of the nuisance
It is 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 to try to resolve the matter. This will provide valuable evidence in any subsequent court proceedings. 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.