A local authority has a duty, under section 80(1) of the Environmental Protection Act 1990, to serve an abatement notice where it is satisfied that a statutory nuisance exists, or is likely to occur or recur, in its area. The effect of the section is that an authority has a choice in terms of the content of the notice. It may either simply require the abatement of the nuisance or the execution of works or the taking of other steps, or it may impose both requirements.
It is clear, both from decided cases and a research report commissioned by the Department for Environment, Food and Rural Affairs in 2006 that authorities vary in their approach. Some tend to serve “single-barrelled” notices while others serve “double-barrelled” notices. In Elvington Park Ltd v York City Council [2009] EWHC 1805 (Admin); [2009] PLSCS 220 it became apparent that greater care needs to be taken in the drafting of the latter type of notice.
The occupiers of a former wartime airfield, which was surrounded by private homes and farms, used the site for testing Formula 1 racing cars with unsilenced engines. Complaints were made to the local authority, which, having decided that the resulting noise constituted a statutory nuisance within the meaning of section 79(1) of the 1990 Act, served two abatement notices in the “double-barrelled” form. They required the occupiers to abate the nuisance and to “take the steps necessary to prevent noise from motor vehicles and associated activities causing a statutory nuisance” at the airfield.
The principal question for the High Court, on an appeal by way of case stated, was whether it was essential to the validity of the abatement notices that they should have specified the steps to be taken by the occupiers. The court held that it was, and declared that the notices were invalid. The judge said:
“The authorities show clearly that if an abatement notice requires not merely the abatement of noise but also steps to be taken, they should be specified, but if as in the present case the notices did not do so they are invalid. Unless this was so, the recipients of these notices would not know what they had to do to avoid criminal proceedings against them. In this case, this is a particularly potent point because…at the crown court neither the expert called by [the occupiers] nor the expert of [the authority] could state what work had to be done to abate the nuisance.”
The lesson for local authorities is clear. Unless an authority is confident of the steps necessary to abate a nuisance or to prevent its recurrence, and of its ability to describe those steps adequately, it should use a single-barrelled notice requiring abatement only. It has to be borne in mind that, in many cases, the authority may not have the time or opportunity to investigate methods of control and include details in the notice.
John Martin is a freelance writer
