Environment – Noise abatement notice – Disability discrimination – Claimant with disability applying for judicial review of defendant’s decision to serve noise abatement notice – Whether decision amounting to unfavourable treatment by reason of disability –Whether notice proportionate means of achieving legitimate aim of abating statutory nuisance – Application dismissed
The claimant lived alone in a mid-terraced house in a village in County Durham. She had a neurological disorder which caused her to make involuntary sounds and noises. She shouted and screamed loudly, often during the night. The defendant local authority served a noise abatement notice on the claimant under section 80(1) of the Environmental Protection Act 1990 which required her to stop making the noises. Failure to comply was a criminal offence, subject to a defence of reasonable excuse.
The claimant applied to quash the notice. Her case was that she suffered from a disability; service of the notice arose in consequence of her disability; she could not control the vocalisations and the decision to serve the notice was unlawfully discriminatory in that it was unfavourable treatment by reason of disability contrary to section 15(1)(a) and section 29(6) of the Equality Act 2010; the defendant had breached its public sector equality duty (PSED) in issuing the notice contrary to section 149 of the 2010 Act. Further, service of the notice breached article 14 of the European Convention on Human Rights, read with article 8 and/or article 1 of protocol 1(A1P1), and/or was irrational in the traditional public law sense.
The defendant contended that the claimant should not be permitted to raise those issues by way of judicial review, but should pursue a statutory appeal to the magistrates’ court against the notice. Further or alternatively, the defendant contended that serving the notice was lawful and justified to protect the interests of the neighbours; it had had full regard to its PSED and sought to engage with the claimant before serving the notice as a last resort; its actions were proportionate, not in violation of the Convention, and not irrational.
Held: The application was dismissed.
(1) Even if the grounds of challenge could be raised on a statutory appeal, it was appropriate for the court, in the exercise of its discretion, to rule upon them by way of judicial review. To require them to be re-litigated before the magistrates would delay the final resolution of the case. No live evidence was required and there were no material disputes of fact. There was no question of the judicial review rendering matters moot due to the effluxion of time. The real issues were those raised in the four grounds and, in particular, the impact of the 2010 Act on the decision to serve the notice. Those were not peripheral public law issues. Given the legal complexity of the issues, on the facts, judicial review was the appropriate means of challenge: R v Birmingham City Council, Ex p Ferrero Ltd [1993] 1 All ER 530 and R v Falmouth and Truro Port Health Authority, ex parte South West Water Ltd [2001] QB 445; [2000] PLSCS 71 considered.
(2) Service of the notice served a legitimate purpose, namely the abatement of a statutory nuisance emanating from the property. There was substantial evidence that the claimant’s conduct was causing harm and distress to her neighbours. The court was satisfied that the defendant acted to protect their right and freedom to live without harmful noise nuisance. The test under section 15(1)(b) of the 2010 Act involved four questions: (i) whether the legitimate aim being pursued was sufficiently important to justify limiting a fundamental right; (ii) whether the decision to serve the notice was rationally connected to the legitimate aim; (iii) whether the means chosen were no more than was necessary to accomplish the legitimate aim; and (iv) whether the adverse impact of the infringement of the claimant’s rights was disproportionate to the likely benefit of serving the notice: Akerman-Livingstone v Aster Communities Ltd [2015] EGLR 39 applied.
In the present case, the claimant was disabled and her vocalisations were a consequence of her disability and serving the notice constituted unfavourable treatment. But it did not amount to unlawfully discriminatory treatment because it was a proportionate means of achieving the legitimate aim of abating a statutory nuisance. That aim justified restrictions on the claimant’s fundamental rights in terms of how she conducted herself in her own home. The service of the notice was rationally connected to that aim as it was a necessary precondition for obtaining High Court injunctive relief. The defendant had served a community protection warning, sought medical evidence and expert advice about soundproofing, and offered to discuss rehousing. However, the claimant had failed to engage meaningfully with it and serving the notice was a last resort. It struck a fair balance between the claimant’s rights and the interests of the community: The Barns (NE) Ltd v Newcastle City Council [2006] Env LR 25; [2005] PLSCS 173 and R (Ethos Recycling Ltd) v Barking and Dagenham Magistrates’ Court [2010] PTSR 787 followed.
(3) The court had to be satisfied that the public sector landlord had carried out a sufficiently rigorous consideration of the PSED but, once satisfied, was not entitled to substitute its own views of the relative weight to be afforded to the various competing factors informing its decision. The decision-maker had to be clear precisely what the equality implications were when he put them in the balance, and recognise the desirability of achieving them, but ultimately it was for him to decide what weight they should be given: Luton Community Housing Ltd v Durdana [2020] EWCA 445 [2020] PLSCS 57 and London and Quadrant Housing Trust v Patrick [2020] HLR 3 considered.
In the present case, although the defendant did not carry out a PSED assessment by specific reference to section 149 before serving the notice, in substance it did so. The evidence showed that the defendant had well in mind that it was dealing with a disabled person whose rights as such had to be taken firmly into account in deciding what action to take. It had due regard to its statutory equality duty towards the claimant as a disabled person. The defendant had explored every viable option before concluding that service of the notice was necessary as a precursor to High Court civil injunctive relief. It was faced with the very difficult situation of a disabled person who could not help her disability, but who had declined to cooperate with those who had a statutory duty to deal with the nuisance which that disability was causing. The defendant got the balance of its duties entirely right.
(4) The defendant’s actions were proportionate and in pursuit of a legitimate aim and there had been no violation of the Convention.
(5) The service of the notice had not been absurd or irrational. Although the defendant knew that the claimant would not be able to comply with the notice, there were other valid reasons for serving it, not least of which was that it was a necessary statutory precondition to taking High Court action which was the only likely solution to a hitherto intractable problem.
Justin Bates and Alice Richardson (instructed by Newtons Solicitors) appeared for the claimant; Charles Holland (instructed by Durham County Council) appeared for the defendant; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Fisher) v Durham County Council
