Richard James Williamson, R (on the application of) v Caerphilly County Brough Council

For the purposes of statutory nuisance, animal faeces deposited on land by roaming cats may constitute a deposit under section 79(1)(e) of the Environmental Protection Act 1990. The local authority must investigate whether the deposit is prejudicial to health or a nuisance. It must not determine the complaint by focusing instead on how the cats are kept, their common-law freedom to roam, or animal-welfare considerations. The question whether a statutory nuisance exists is one of fact. If satisfied on the balance of probabilities that it exists, the authority has a duty to serve an abatement notice. Evidence relevant to the alleged deposits, including circumstantial evidence and evidence explaining gaps in direct recordings, must be considered.

The claimant sought judicial review of the council’s decision dismissing his complaint about recurring fouling of his garden by two neighbouring cats. The complaint relied on repeated deposits, alleged health risks including toxoplasmosis, and CCTV evidence. The council investigated principally under section 79(1)(f) of the Environmental Protection Act 1990, considering how the cats were kept, their litter facilities, animal welfare and their alleged common-law right to roam.

The central issues were whether the complaint should have been considered under section 79(1)(e), whether the council had properly investigated the alleged health risks and evidence, and whether it had taken irrelevant matters into account.

1. Claim succeeded. The council’s determination could not stand. The complaint was to be redetermined according to law, with the outcome left to the council.
2. Section 79(1)(e) uses wide language. Deposits made by roaming animals may in principle fall within the provision. The fact that the material is deposited on the complainant’s land, rather than where the animals are kept, does not prevent it being a relevant deposit. Cleaning the material does not necessarily prevent the deposits from amounting to a statutory nuisance.
3. The council should have considered whether the cat faeces were prejudicial to health or a nuisance under section 79(1)(e). It wrongly focused on section 79(1)(f), the adequacy of the cats’ facilities, their welfare and their alleged right to roam. Those matters did not answer the statutory question. They might be relevant to a best-practicable-means defence in later proceedings, but not to the council’s initial determination.
4. The expression prejudicial to health means injurious, or likely to cause injury, to health. The available guidance concerning toxoplasmosis and toxocariasis showed that cat faeces were capable of raising a health issue. Specific proof that the cats carried the relevant parasites was not necessary before the council considered the issue. Expert advice might be appropriate.
5. The council also failed to consider material circumstantial evidence. CCTV showing cats entering or leaving areas where fresh faeces were found could be relevant even where it did not directly record defecation. The authority was required to investigate the complaint reasonably and take account of relevant evidence.
6. Authorities concerning common-law nuisance, trespass by cats, or different statutory regimes did not determine the meaning of statutory nuisance under the 1990 Act. The appropriate relief was a declaration, in expectation that the council would reconsider the complaint lawfully.

First-instance judicial review proceedings. The judgment does not state any prior appellate decision in this dispute.