Council serving abatement notice – Notice simply identifying nuisance as dog barking and requiring abatement within 21 days – Whether notice defective – Whether local authority required to consider whether notice should be made more precise either as to the nature of the nuisance complained of or the requirements to abate nuisance – Notice held not defective – Appeal dismissed
On 31 March 1994 the respondent council served an abatement notice on the appellant, pursuant to section 80 of the Environmental Protection Act 1990, in respect of an alleged statutory nuisance. The notice identified the nuisance as “dog barking” and required him to abate the nuisance within 21 days. By section 80(1), “Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements – (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes, and the notice shall specify the time or times within which the requirements of the notice are to be complied with.”
The appellant submitted that the notice did not sufficiently identify the nuisance or identify what he was required to do in order to abate the nuisance. The justices and the Crown Court dismissed appeals by the appellant, holding that the notice was not defective. The High Court held that the notice clearly and precisely identified the nuisance complained of and that the council were not required to state in the notice what works or steps were required of the appellant to abate the nuisance. The appellant appealed contending that section 80(1) of the Act provided the local authority with a choice that gave rise to a discretion, and that a proper exercise of the discretion required the local authority and the court to consider whether the abatement notice should be made more precise either as to the nature of the nuisance complained of or the requirements placed on the appellant to abate the nuisance. It was submitted that, in the circumstances, the local authority had failed to properly exercise their discretion to make the notice sufficiently precise.
Held The appeal was dismissed.
1. There had been no duty on a local authority to consider whether or not it had been appropriate to serve the notice in the form in which it was served. In an ordinary case, such as the appellant’s, a local authority were given a choice under section 80(1) whether to serve an abatement notice calling on the recipient to abate the nuisance or, alternatively, to require him to execute works or take steps to abate the nuisance. Accordingly, they were entitled to serve a simple notice requiring the abatement of the nuisance. In such a case it was not open to the recipient to attack either the decision to serve the notice or the notice itself on the basis of a failure to exercise a discretion as to the form of the notice.
2. However, there might be cases where the facts relating to the alleged nuisance and the required abatement themselves showed on their face that the notice had to set out the works or steps required to be taken. In such a case, the local authority might well be under a duty to set out the works or steps that they required to be taken.
Gregory Stone QC and Jonathan Tod (instructed by Tilbrooks, of Ongar) appeared for the appellant; David Holborn (instructed by the solicitor to Colchester Borough Council) appeared for the respondents.
Thomas Elliott, barrister
