III. Statutory nuisance
A. What is a statutory nuisance?
A statutory nuisance is one which, whether or not it constitutes a nuisance in common law, is made a nuisance by statute, either in express terms or by implication.
A statutory nuisance must satisfy the requirements of a private or public nuisance, namely the existence of an act or omission which materially affects the comfort and quality of life of a section of the public (a public nuisance) or which interferes with the use and enjoyment of a neighbouring property by the owner or occupier of the property (a private nuisance). Please note that public nuisances will not be discussed here.
B. Statutory nuisances under the Public Health and Municipal Services Ordinance
Section 12 of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong), provides that the following matters constitute statutory nuisances:
- any premises (including any cemetery) or vessel in such a state as to be a nuisance or injurious or dangerous to health;
- any pool, well, ditch, gutter, watercourse, drain, sewer, water tank or container, cesspool, pond, pit, sanitary convenience, soil, waste or rainwater pipe, dust bin or refuse container or other like place or thing so foul, or in such a state, as to be a nuisance or injurious or dangerous to health;
- any accumulation or deposit (including any dead body) which is a nuisance or injurious or dangerous to health;
- any animal or bird kept in such a place, or in such a manner, as to be a nuisance or injurious or dangerous to health;
- the emission of dust, fumes or effluvia from any premises in such a manner as to be a nuisance;
- the emission of dust from any building under construction or demolition in such a manner as to be a nuisance;
- the emission of air either above or below the temperature of the external air, or the discharge of water, whether waste or otherwise, from the ventilating system in any premises in such a manner as to be a nuisance.
There are also various legislations which specifically regulate different types of nuisances, which will be discussed in detail in a later section.
The Food and Environmental Hygiene Department (FEHD) is responsible for handling statutory nuisances under section 12 of the Public Health and Municipal Services Ordinance . If you have any complaints about statutory nuisances, you may call 1823.
1. Nuisance notice
If the Food and Environmental Hygiene Department (FEHD) is satisfied that a statutory nuisance exists, or is likely to recur, it may serve a nuisance notice on the person causing the nuisance, whether by action or inaction, requiring the abatement of the nuisance and/or the prevention of its recurrence within the period specified in the notice, and doing whatever is necessary (which may be specified in the notice, if the FEHD thinks fit) to abate or prevent the nuisance.
If a nuisance notice is served on a person, then if either (a) the nuisance to which the notice relates arose by reason of the wilful action or inaction of that person; or (b) the person fails to comply with any of the requirements of the notice within the period specified therein, the person is guilty of an offence. The maximum penalty is a fine of $10,000 and a daily fine of $200 as long as the nuisance continues ( section 127(3) and schedule 9 of the Public Health and Municipal Services Ordinance ).
2. Nuisance order
If a nuisance notice is served on a person and that person fails to comply with any of the requirements of the notice within the period specified in the notice; or if the nuisance to which the order relates, although abated after the notice is served, is, in the opinion of the FEHD, likely to recur on the same premises or vessel, the FEHD may make a complaint to the court, and the court hearing the complaint may make a nuisance order.
A nuisance order may be an abatement order, prohibition order, closing order, or combination of such orders.
An abatement order may require a person to comply with any or all of the requirements of a nuisance notice, or otherwise to abate the nuisance or do whatever necessary to prevent the recurrence of the nuisance within the period specified in the order.
A prohibition order may prohibit the recurrence of a nuisance.
A closing order may prohibit the use of any premises or vessel for human habitation, but is only made if it is proved to the satisfaction of the court that, by reason of a nuisance, the premises or vessel is unfit for human habitation.
Any person who fails without a reasonable excuse to comply with, or knowingly contravenes, a nuisance order is guilty of an offence. The maximum penalty is a fine of $25,000 and a daily fine of $450 as long as the offence continues ( section 127(7)(a) and schedule 9 of the Public Health and Municipal Services Ordinance ).