A local authority has an implied power to withdraw and to vary an abatement notice for statutory noise nuisance under section 80 of the Environmental Protection Act 1990.
The Administrative Court has dismissed an application that variation of an enforcement notice was unlawful in R (on the application of Ball) v Hinckley and Bosworth Borough Council [2023] EWHC 1922 (Admin); [2023] PLSCS 132.
Real Motorsport Ltd, the interested party, operated the Mallory Park Circuit, a car and motorcycle racing circuit in Kirkby Mallory in Leicestershire. Most of the properties in the village were within 500 metres of the circuit, which had been used regularly for motor sports since the mid-1950s.
A local government ombudsman’s report into failures to take action following breach of a noise abatement notice served in December 1985 resulted in service of a noise abatement notice on the company then operating the circuit in November 2014. The notice stated that the noise from racing activities at the circuit had given rise to a statutory nuisance and required RML to restrict that nuisance by operating the circuit in accordance with the regime in an attached schedule.
The schedule defined noisy days, non-noise event days and quiet days, set an annual limit for high-noise and medium-noise days, regulated hours of motor vehicle activities and laid down noise level limits. It also provided that the operator could request a variation of the schedule. Temporary variations were requested and agreed in subsequent years.
Permanent variations were requested in December 2021 following local consultation. The defendant granted three variations in March 2022, having decided that there was no evidence of increased noise from previous variations and the level of control provided by the original notice would continue. The variations reduced a lunch break from one hour to 30 minutes on Boxing Day and, while the total number of noisy days remained the same, some were allowed on consecutive days. The claimant argued that the defendant had no power to vary the enforcement notice which had worsened the noise landscape.
A local authority’s duty under the 1990 Act is to serve an abatement notice where a statutory nuisance exists and to prosecute where necessary. There is a continuing duty of review and an implied power of withdrawal where the statutory nuisance no longer exists: see R v Bristol City Council, ex p Everett [1999] 3 PLR 14; [1999] 1 WLR 92/1170. The court concluded that the material considerations were the same for a power to withdraw and a power to vary. Consequently, there were implied powers to both vary and withdraw an enforcement notice.
Louise Clark is a property law consultant and mediator
