1. Introduction
This appeal concerned whether cat faeces deposited in a neighbouring garden could fall within the statutory nuisance regime under Part III of the Environmental Protection Act 1990 (“EPA”). Its central legal issue was narrower than the everyday dispute suggested: does an “accumulation or deposit” under section 79(1)(e) have to result from somebody’s purposeful or wilful act?
The Court of Appeal unanimously answered no. The provision concerns physical things or states of affairs. Whether a deposit constitutes a statutory nuisance is distinct from identifying the person legally responsible for it.
The judgment does not establish that ordinary cat fouling automatically constitutes a statutory nuisance, or that cat owners are necessarily liable whenever their animals foul neighbouring land. It establishes the correct legal approach to investigating such complaints.
2. Background and Procedural History
The respondent resident complained to Caerphilly County Borough Council that neighbouring cats repeatedly entered his front garden and left faeces. He raised concerns about risks to himself and his young child, including toxoplasmosis, and supplied CCTV footage.
The council initially considered that freely roaming animals fell outside the statutory nuisance provisions concerning the keeping of animals. It subsequently investigated, obtained footage and visited the neighbouring property. Its eventual determination, dated 11 November 2024, concentrated on the arrangements for keeping the cats, including litter facilities, and referred to common-law principles concerning cats roaming.
The council also declined to review footage that did not directly show defecation. The resident explained that some areas were outside camera coverage and that footage showing cats entering those areas could be connected with droppings found shortly afterwards.
Following unsuccessful internal complaints, the resident obtained judicial review. HH Judge Jarman KC held that the council had wrongly concentrated on section 79(1)(f), concerning animals kept in a particular place or manner, without properly considering whether the faeces themselves constituted deposits prejudicial to health under section 79(1)(e). The High Court quashed the determination and required reconsideration.
The council appealed. Although four grounds were advanced, it accepted that the other three would not independently justify allowing the appeal if its principal argument about the meaning of “deposit” failed.
The council had already reconsidered the complaint on 24 March 2026 and again concluded that the evidence did not establish the relevant statutory nuisance. The Court of Appeal heard no argument about that later decision, including whether it rendered the appeal academic, and expressed no view on its validity.
3. The Statutory Framework
Section 79: identifying and investigating statutory nuisances
Section 79(1) identifies categories of matters capable of constituting statutory nuisances. The provisions particularly relevant here were:
- Section 79(1)(e): “any accumulation or deposit which is prejudicial to health or a nuisance”;
- Section 79(1)(f): “any animal kept in such a place or manner as to be prejudicial to health or a nuisance”.
Under section 79(7), “prejudicial to health” means “injurious, or likely to cause injury, to health”. The statutory alternatives matter: a deposit may qualify because it is prejudicial to health or because it constitutes a nuisance. Mere identification of a deposit does not establish either condition.
The concluding words of section 79(1) require local authorities to inspect their areas periodically and, when a resident complains of a statutory nuisance, to take such steps as are reasonably practicable to investigate.
Section 80: abatement and responsibility
Where an authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, section 80 generally requires it to serve an abatement notice. Subject to statutory exceptions, the notice must be served on the “person responsible”. Section 79(7) defines that person by reference to the “act, default or sufferance” to which the nuisance is attributable.
The statutory structure therefore separates:
- The existence question: is there a qualifying statutory nuisance?
- The responsibility and enforcement questions: to whom is it attributable, and what notice should be served?
The council’s argument improperly sought to insert an additional responsibility requirement into the first question.
4. Summary of the Decision
Lord Justice Miles delivered the principal judgment. Lord Justice Nugee agreed, and Lord Justice Males expressly emphasised the narrow basis of the decision.
The Court dismissed the appeal because section 79(1)(e) contains no requirement that an accumulation or deposit must result from a purposeful or wilful act. Consequently:
- Animal droppings are capable of being a statutory “deposit”.
- The absence of deliberate human deposition does not exclude the complaint from section 79(1)(e).
- The statutory tests of prejudice to health or nuisance must still be established.
- Responsibility must be assessed under the EPA’s express provisions, not through an invented intention requirement.
The High Court’s declaration remained standing. Neither court decided that the particular fouling complained of actually amounted to a statutory nuisance.
5. Legal Reasoning
5.1 The statutory language describes conditions, not intentions
The council argued that the word “deposit” necessarily implied an act of depositing and therefore a purposeful or wilful act. The Court rejected that reading.
In section 79(1)(e), “deposit” is a noun identifying something present in the physical world. Its placement alongside “accumulation” reinforces that meaning. Neither term introduces an inquiry into a person’s intention.
The wider list in section 79(1) supports the same interpretation. It addresses premises, smoke, fumes, smells, artificial light, noise and other physical matters. The statutory focus is their existence and harmful or nuisance-producing character, not whether someone deliberately brought them about: paragraphs 42–46.
5.2 Classification and responsibility must remain distinct
The EPA expressly addresses responsibility through the definition of “person responsible” and the machinery for serving abatement notices. Requiring purposeful or wilful conduct at the classification stage would introduce a second, different responsibility test.
That would be particularly difficult to reconcile with the statutory inclusion of “default” and “sufferance”. Those concepts cannot simply be reduced to intentional placement of material. The Court therefore treated the express statutory responsibility provisions as controlling: paragraphs 47–52.
This is not a finding that responsibility is irrelevant throughout the statutory scheme. It is a finding about where responsibility belongs in the legal analysis. Nor does it dispense with the need to connect a nuisance to the person against whom enforcement is proposed.
5.3 Legislative history confirms the two-stage structure
The Court traced Part III’s ancestry through the Nuisances Removal Act for England 1855, the Public Health Act 1875 and the Public Health Act 1936. Although the language evolved, these statutes used a consistent technique: first identify specified harmful things or conditions, then provide machinery for their removal and for attributing responsibility.
The 1855 Act itself listed an “accumulation or deposit” alongside other physical conditions. Nothing in that history supported treating intentional human deposition as a prerequisite to statutory classification.
5.4 The council’s authorities addressed different questions
Several authorities relied on by the council concerned who could be required to abate an established nuisance, or the permissible terms of an abatement order. They did not establish that a deposit must be deliberately created before it could qualify as a statutory nuisance.
The Court’s treatment of those decisions illustrates the importance of distinguishing an authority’s actual legal issue from incidental features of its facts. The presence of deliberate conduct in a previous case does not make deliberateness an element of the statute.
5.5 The appellate holding was deliberately confined
The argument that purposeful or wilful conduct was necessary did not appear to have been advanced before the High Court. The respondent did not object to its consideration on appeal, and the Court addressed it.
Because the council accepted that its remaining grounds could not independently succeed, the Court did not need to determine them as separate appellate issues. Lord Justice Males confirmed at paragraph 70 that dismissal rested on the narrow proposition that section 79(1)(e) contains no purposeful-or-wilful-act requirement.
6. Precedents Cited and Their Significance
R (on the application of Ball) v Hinckley & Bosworth Borough Council [2024] EWCA Civ 433, [2025] 1 All ER 1025
This provided direct modern support for the EPA’s two-stage structure. The authority must first determine whether a statutory nuisance exists under section 79. If it reaches the relevant conclusion, section 80 requires an abatement notice. The present judgment applied that distinction to reject an intention requirement at the initial classification stage.
R v Bristol City Council, ex p. Everett [1999] 1 WLR 1170
The Court relied on Mummery LJ’s account of the statutory history. This supported the conclusion that the separation between defining a nuisance and addressing responsibility was a longstanding feature of the legislation, rather than a novel interpretation of the EPA.
Draper v Sperring (1861) 10 CB (NS) 113
This concerned sheep dung left where animals were penned on market days. The person holding the market rights had erected the hurdles, and the justices found that the nuisance resulted from her act or sufferance. The decision requiring removal was upheld.
The case supported the present judgment in two ways. First, it demonstrated that animal droppings can constitute a deposit or accumulation. Secondly, responsibility was determined under the relevant statutory language, not through a preliminary requirement that the droppings themselves had been purposefully deposited. The council’s reliance on it therefore worked against its proposed interpretation.
The Mayor etc. of Scarborough v The Rural Sanitary Authority of the Scarborough Poor Law Union (1876) 1 Ex D 344
A sanitary authority had placed ashes and refuse in land it did not own or control. The question was whether an order could require abatement where compliance would involve trespass. The court rejected that part of the order but upheld the prohibition on future deposits.
The case concerned the lawful scope of the remedy, not the definition of “deposit”. Although the waste had deliberately been placed in the field, that factual circumstance did not establish a statutory intention requirement.
The Bishop Auckland Local Board v The Bishop Auckland Iron and Steel Company Ltd (1882) 10 QBD 138
This concerned cinders, ashes and refuse causing offensive smells. The issue was whether injury to health had to be proved in addition to nuisance. The court held that interference with neighbouring residents’ personal comfort could suffice without demonstrated injury to health.
The decision did not address whether a deposit required purposeful conduct. Its relevance lay instead in the distinction between the statutory alternatives of nuisance and injury to health. It offered no support for the council’s central argument.
Neath Rural District Council and Williams [1951] 1 KB 115
A natural watercourse had silted up through natural causes, producing flooding. The applicable provision imposed responsibility through “act or default”, but omitted “sufferance”. The landowners were not responsible under that particular wording.
The Court regarded this authority as firmly contrary to the council’s submission. It showed that responsibility depends on the precise statutory language. The contrast between provisions including and omitting “sufferance” could not justify importing a general requirement of intentional conduct into the definition of a nuisance.
R v Walden Jones [1936] Crim LR 839
This concerned an abatement notice involving a person who owned numerous cats. Despite that factual similarity, the Court found that it threw no helpful light on the interpretative issue. The judgment appropriately declined to treat the shared subject matter of cats as establishing legal relevance.
R v Metropolitan Stipendiary Magistrate, ex parte London Waste Regulation Authority; Berkshire County Council v Scott [1993] 3 All ER 113
This authority concerned the Control of Pollution Act 1974. Its statutory language and purposes differed materially from those of the EPA. The Court therefore rejected its use as an interpretative guide to section 79(1)(e).
The distinction is important: the meaning of a term such as “deposit” cannot safely be transferred between statutory regimes without examining their respective texts and structures.
R v Carrick DC ex p. Shelley [1996] Env LR 273
This was particularly important to the High Court’s decision. Residents complained about sewage-related material reaching a beach through the sea. Carnwath J held that the local authority had failed properly to determine whether a statutory nuisance existed.
The possibility that material transported by the sea could amount to a deposit undermined attempts to confine section 79(1)(e) to material directly placed at the affected location by a responsible person. Responsibility was considered separately from the material’s classification.
The council argued that the decision implicitly depended on purposeful release from the outfalls. The Court of Appeal found no such reasoning in the report. The case instead supported both the two-stage approach and the need for a lawful determination, without prescribing the ultimate outcome.
Buckle v Holmes [1926] 2 KB 125
This concerned a roaming cat that entered neighbouring land and killed pigeons; its owner was not liable in trespass. The High Court held that the decision did not determine whether cat fouling could fall within the EPA.
Its significance is contextual. A common-law rule governing liability for a roaming animal does not itself determine whether physical deposits satisfy a statutory environmental-health provision. The appeal’s narrow disposal should not, however, be mistaken for a comprehensive appellate ruling on every interaction between common-law animal liability and statutory nuisance.
7. The High Court’s Additional Findings
The Court of Appeal recorded several aspects of the High Court’s reasoning that explain why the original determination was unlawful:
- Substance over statutory labels: the resident did not expressly invoke section 79(1)(e), but his complaint clearly concerned deposits in his garden and their alleged health effects.
- Health-risk investigation: the council had not properly considered those effects. NHS guidance identified potential risks, although there was no evidence that the particular cats carried the relevant parasites. The High Court found capability, not an established health hazard.
- Objective assessment: the High Court treated prejudice to health as an objective test, rather than one determined by individual health requirements of potential occupiers.
- Circumstantial evidence: footage showing cats in areas where droppings were subsequently discovered was not irrelevant merely because it did not record defecation directly. At the hearing, six direct instances and two more equivocal instances were identified.
- Common-law roaming principles: the High Court held that these did not answer the statutory nuisance question.
These findings remained part of the background to the undisturbed High Court decision. They should nevertheless be distinguished from the specific proposition authoritatively resolved on appeal.
Correction concerning the “best practicable means” defence
The Court of Appeal also corrected the High Court’s assumption that the defence in section 80(7) might be available to the cats’ owners. Section 80(8) excludes that defence for relevant nuisance categories unless the nuisance arises on industrial, trade or business premises. The correction did not affect the appeal’s outcome.
This concerns a defence to prosecution for non-compliance with an abatement notice. It does not itself establish either the existence of a nuisance or the owners’ responsibility.
8. Practical and Wider Impact
For local authorities
Authorities cannot reject a potentially qualifying deposit merely because no person deliberately placed it where it was found. Investigations must address the substance of the complaint and the potentially applicable statutory category, rather than only the complainant’s terminology or the source of the material.
The duty remains one of taking reasonably practicable investigative steps. The judgment does not require a particular expert report, universal laboratory testing, or any prescribed method for every cat-fouling complaint.
For residents
The decision confirms that a complaint about deposits is not necessarily answered by showing that the animals producing them are adequately housed. However, identifying droppings is only the beginning: the relevant prejudice to health or nuisance must still be established.
For animal owners
The judgment creates no automatic liability for roaming cats and imposes no general obligation to confine them. Any enforcement action must satisfy the EPA’s requirements, including the proper attribution of responsibility and the requirements governing notices.
For statutory nuisance law generally
The reasoning extends beyond cats because it interprets “any accumulation or deposit”. Its broader importance is structural: a statutory scheme that separately addresses harmful conditions and legal responsibility should not be rewritten by importing an unstated mental element into the definition of those conditions.
The decision does not settle every question involving naturally occurring material, landowner responsibility or enforcement against third parties. Those questions remain dependent on the relevant facts and statutory provisions.
9. Complex Concepts Simplified
- Statutory nuisance
- A condition falling within a category specified by legislation and meeting its harmfulness or nuisance threshold—not simply something unpleasant or inconvenient.
- Deposit
- Material present at a location. Under section 79(1)(e), it need not have been deliberately placed there.
- Act, default or sufferance
- The statutory language for attributing responsibility through conduct, omission or allowing a nuisance to occur or continue. Its application to the particular owners was not decided.
- Abatement notice
- A formal notice requiring a nuisance to stop, restricting its recurrence, or requiring necessary remedial steps.
- Judicial review
- Review of whether a public authority acted lawfully. Here, success required lawful reconsideration; it did not mean the court found the alleged nuisance proved.
- Quashing and redetermination
- Setting aside an unlawful decision and requiring the authority to decide again using the correct legal approach.
10. Conclusion
The precedent is narrow but important: an accumulation or deposit under section 79(1)(e) EPA need not result from a purposeful or wilful act. Whether material constitutes a statutory nuisance must be distinguished from who is responsible for it.
The appeal’s dismissal preserved the requirement for a lawful assessment of the resident’s complaint. It did not establish that the particular cat fouling was a statutory nuisance, validate or invalidate the later redetermination, or impose automatic liability on cat owners.