Council loses Court of Appeal battle over determination of complaint about cats fouling in garden

In Caerphilly County Borough Council v Williamson, R (on the application of) [2026] EWCA Civ 1402, Lord Justices Miles, Nugee and Males all agreed that an argument advanced by the council regarding the definition of “deposits” under section 79 of the Environmental Protection Act 1990 was not made out.

In December 2025, His Honour Judge Jarman KC, sitting as a judge of the High Court, concluded that Caerphilly County Borough Council’s decision could not stand.

The claimant/respondent had formally complained to Caerphilly in October 2024, saying that he woke "with dread each day wondering if there is yet more cat mess for me to have to clean up".

The local authority subsequently determined that the matters complained of did not amount to a statutory nuisance within the meaning of section 79 of the Environmental Protection Act 1990 (EPA 1990). An officer suggested that the claimant should consider civil action.

However, HHJ Jarman KC found that the claimant’s main ground – that the council approached his complaint by considering the manner in which the cats were kept and/or the right at common law for cats to roam rather than whether there was a statutory nuisance because the fouling amounted to “deposits” prejudicial to health – was made out.

Caerphilly re-determined the original complaint following the judgment, and in March this year told the claimant that the evidence "does not support an Accumulation or Deposit Prejudicial to Health as defined by Section 79(1)(e) of [the EPA 1990]".

The council meanwhile appealed the High Court's decision, arguing that HHJ Jarman KC erred in law in concluding that the complaint fell to be determined under s. 79(1)(e) of the EPA 1990 as "deposits" within the meaning of that provision.

Section 79 of the EPA 1990 sets out the circumstances in which a matter can constitute a statutory nuisance, which includes, under subsection (1)(e), “any accumulation or deposit which is prejudicial to health or a nuisance”

Section 79(1)(e) of the Environmental Protection Act 1990 provides that “any accumulation or deposit which is prejudicial to health or a nuisance” can amount to a statutory nuisance.

Lord Justice Miles said the council's challenge under the first ground was founded on the proposition that in order for something to constitute "any deposit" within the meaning of s. 79(1)(e), it had to be shown that the thing had been deposited by a purposeful or wilful act.

The judge said he was "unable to accept" this argument for a number of reasons, including that there is no basis for it in the statutory text.

Lord Miles said: "Section 79(1) defines statutory nuisance by reference to the listed ‘matters’. Those matters are all things. They include anything from premises, to smoke, fumes or gases, to smells, to artificial light, and to noise. In each case there is also a requirement that the listed item is ‘so as to be prejudicial to health or a nuisance’.

"The provision contains no requirement that any person must have acted purposefully or wilfully in relation to the listed matters."

He later said that the specific definition arising on the appeal is "any accumulation or deposit which is prejudicial to health or a nuisance", adding: "This is all about the physical world and has nothing to do with anybody's actions or responsibility."

Caerphilly also submitted under this ground that the word "deposit" infers an act of depositing, so that there is a causal element.

The judge did not accept this either, stating that 'deposit' was being used as a noun and not as a verbal participle.

Miles LJ meanwhile said that accepting the council’s submissions would import a responsibility test into the definition of a statutory nuisance different from the statutory one found in s. 79(7).

“In my view that is particularly improbable and would lead to confusion. There is a single test of responsibility and it is expressly stipulated,” he said.

He also said he could not accept the submission because it was not supported by any of the authorities relied on by the appellant.

“Indeed in my judgment the cases all go the other way,” he added.

Miles LJ ultimately dismissed the first ground.

The council had submitted four grounds in total, but said that, should the first ground fail, the remaining three would be redundant.  

The judgment read: “I would dismiss the appeal. The consequence is that the declaration made by the Judge will stand.

“I should finally comment on the appellant's submission that the Judge's decision will have profound consequences for cat owners and local authorities. I would reiterate the comments made by the Judge and set out in [35] above.

“The outcome of the Judge's declaration is that the complaint must be redetermined in accordance with the correct principles. Nothing in this judgment should be taken as expressing a view one way or the other on the outcome of the redetermination.

“It emphatically does not decide that the cat fouling about which the respondent has complained constitutes a statutory nuisance.”

Lord Justice Nugee and Lord Justice Males both agreed.

Commenting on the case, Males LJ said: "The appeal must therefore be dismissed on the narrow basis that section 79(1)(e) of the EPA does not require that an accumulation or deposit within the meaning of the section is the result of a purposeful or wilful act."

Adam Carey