Appellant authority serving abatement notice upon respondent – Respondent appealing – Magistrate finding notice requiring works to be carried out but failing to specify those works – Whether magistrate erred in law in finding notice defective – Appeal dismissed
On 22 November 1996 the appellant council served an abatement notice, in respect of noise nuisance, upon London Underground (the respondent). The notice stated that a statutory nuisance existed from the use of the plant room at Russell Square underground station and the noise emanating therefrom. The respondent was required to abate the noise and prevent its recurrence. The notice concluded by stating “if you fail to execute all or any of the works in accordance with this notice, the council may execute the works and recover from you the necessary expenditure incurred”. The notice was accompanied by a letter from the appellants, which stated: “The Environmental Protection Act 1990 s 80 requires this local authority to serve a notice where a statutory nuisance exists making it mandatory for works to be carried out to reduce the noise levels … to a level which will not cause a noise nuisance.
In December 1996 the respondent appealed against the abatement notice. The magistrate held that the notice was defective and concluded that the words in the notice describing the source of the noise and/or the words “special attention should be paid to the low frequency element of the noise, ie those frequencies from 31 Hz to 500 Hz” amounted to a requirement that the complainants execute works to abate the alleged statutory nuisance within the meaning of section 80(1)(b) of the 1990 Act, which was an “informality, defect or error in, or in connection with, the notice” within the meaning of Regulation 2(2)(b) of the Statutory Nuisance (Appeals) Regulations 1995. The appellants appealed.
Held: The appeal was dismissed.
If the appellants chose to issue a notice requiring works to be carried out, they had to specify the works required, otherwise the notice would be defective and invalid: see Kirklees Metropolitan Borough Council v Field (1997) 30 HLR 869. It was permissible to refer to the letter that accompanied the notice in order to construe the notice: (i) because no form of notice was prescribed by section 80 of the Act; and (ii) it was sensible to look at the letter, particularly if there was ambiguity in the notice, to determine objectively how it was understood by its recipient: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57 applied. It was plain that the notice required abatement and the words used required payment of special attention, which necessarily involved the taking of remedial steps. Looking at the final paragraph of the notice, which stated “if you fail to execute all or any of the works” and the accompanying letter, the notice did require works to be carried out but failed to specify what they were. The magistrate was correct to conclude that the notice was defective.
A John Williams (instructed by the solicitor to Camden London Borough Council) appeared for the appellants; Jonathan Manning (instructed by the solicitor for the London Transport Group) appeared for the respondent.
Sarah Addenbrooke, barrister
