A local authority has no implied power to vary an abatement notice for statutory noise nuisance under section 80 of the Environmental Protection Act 1990.
The Court of Appeal has overturned an Administrative Court decision that variation of an enforcement notice was lawful in R (on the application of Ball) v Hinckley and Bosworth Borough Council [2024] EWCA Civ 433; [2024] PLSCS 81.
Real Motorsport Ltd, the interested party, had operated the Mallory Park Circuit, a car and motor cycle racing circuit very close to the village of Kirkby Mallory, since the 1950s and there were ongoing issues of noise nuisance. A first noise abatement notice was served in December 1985.
A further notice was served in November 2014. The notice stated that the noise from racing activities at the circuit had given rise to a statutory nuisance. RML was required to restrict the nuisance by operating the circuit in accordance with a regime which 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. The operator could request a variation of the regime.
Temporary variations were requested and agreed in subsequent years. In March 2022 the local authority granted three permanent variations – which included allowing consecutive noisy days, although the overall total remained the same – 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 appellant argued that the variations had worsened the noise landscape.
The Administrative Court decided that a local authority had implied powers to both vary and withdraw an abatement notice by necessary implication: R v Bristol City Council ex parte Everett [1999] 1 WLR 92/1170 considered. The Court of Appeal disagreed.
The purpose of the 1990 Act is to prevent and remove statutory nuisances. Service of an abatement notice is a one-off event, it remains in force indefinitely, and breach of it is a criminal offence. It has similarities with an enforcement notice under the Town and Country Planning Act 1990. Everett concerned the power to withdraw an abatement notice.
There is no express power for a local authority to vary an abatement notice and the fact that the magistrates’ court has express power to vary a notice on appeal meant that there was no basis for any implied power for the local authority. As a matter of statutory interpretation, it was not necessary to imply such a right into the 1990 Act.
Louise Clark is a property law consultant and mediator
