Q283: My neighbour always lights a smoky fire in their garden, can I do anything about it?

The refusal to give something back which has been borrowed is not automatically theft. In some cases it might have to be resolved using the Civil Courts and you may need to seek a solicitor for advice.

Example:

B borrows C's power drill. B keeps promising to return it, B does not intend to keep it and it is just left in the garage, but B doesn't get round to giving it back. If this is pure forgetfulness, which goes on for a fairly long period (despite reminders) it would not be theft. However, eventually there comes a point where C has been deprived of their property for so long that B has no excuse for not returning it (perhaps a year or more) and the Criminal Courts could consider if B had stolen the drill.

If you have a problem with someone who has borrowed your property and has not given it back, keep a record of all the occasions you have asked for it and then ask a solicitor to send a formal letter asking for the return of the property. If the property is still not returned, there may be sufficient reason to justify making a complaint of theft to the police.

Every case will be different and it may be, for example, that the borrower claims the property was a gift. In circumstances like that, the police may not be willing to take action and you could go to the Civil Courts for help to get your property back. In the case of a borrowed item up to a certain value, it may not be considered economically worthwhile to pursue.

Below is a summary of the offence of theft, it is not intended to be a comprehensive explanation.

"Theft occurs when someone dishonestly appropriates (takes possession of or makes use of exclusively for oneself/someone else without permission) some property that does not belong to him or her and treats it as his or her own with the intention of permanently depriving the rightful owner of the property."

Examples:

◾ B is sat on a park bench with their mobile phone on the bench next to them when C runs past and takes the phone from the bench and runs off with it.

◾ B takes an item from the shelf of a shop and leaves the shop without paying for it (shoplifting).

If hired property has not been returned it will only be classed as theft in certain circumstances.

Example:

B hires a wallpaper steamer from C for a week and fails to return it on the due date. This does not automatically mean it is theft. B must have somehow treated the steamer as if it was their own property, sold it on or moved from the area and taken the steamer with them and in doing so permanently deprived C of the ownership of the steamer.

In some cases, hired property is returned late or there is some misunderstanding. This is likely to be a breach of contract. It is advisable to make some basic enquiries into the matter (or speak to a solicitor) prior to making a formal complaint to the police, so you can give them as much information about the circumstances as possible. There can be a fine line between a civil dispute and theft.

If you are in any doubt (once you have found out why the goods have not been returned), contact the police or a solicitor who will help to explain the law accordingly. A summary of the offence of theft is below, although it is not intended as a comprehensive explanation:

"Theft occurs when someone dishonestly appropriates (takes possession of or makes use of exclusively for oneself/someone else without permission) some property that does not belong to him or her and treats it as his or her own with the intention of permanently depriving the rightful owner of the property."

Lighting a bonfire can be illegal if a person lights a fire, or directs/permits such a fire, on land and the fire/smoke injures, interrupts or endangers users of a highway/carriageway.

Otherwise, the smoke created by the fire can be a statutory nuisance, and the Environmental Health department of your local authority will be able to take action if the smoke is classed as a statutory nuisance. You need to record the details of who is lighting the fires, at what times, what the effects were and your details.

The council can stop the person from committing a statutory nuisance and failure to comply can lead to prosecution. However, if the fires are irregular it is unlikely that the local authority will take any action.

For more information please see the link to the Citizens Advice website in Related Information along with a link to find your local authority.

If the trespassers were on council land then the council will have the responsibility of removing it. If the rubbish is on private land then it will be the landowner's responsibility to remove the rubbish. The council can remove it, however there may be a charge.

See the website in related information to find your local authority.

Trespass is a civil wrong and the police only have powers to remove trespassers in limited circumstances. For example, if 2 or more persons are present on the land and residing there for any period, and any of those persons has caused damage to the land or to the property on the land or used threatening, abusive or insulting words or behaviour towards the occupier or someone connected with the occupier.

Another example is if those persons have 6 or more vehicles on the land. In such cases the police do have powers to direct the trespassers to leave.

Failure to leave when directed to do so by the police will amount to a criminal offence.