Councils cannot alter their own noise abatement orders, Court of Appeal rules

Local authorities do not have the power to withdraw or vary noise abatement notices, the Court of Appeal ruled today, overturning an earlier ruling. The case centres on Mallory Park Circuit, a motorsports track in Leicestershire that has been holding noisy events since the 1950s. The track is close to the village of Kirkby Mallory and has been the subject of ongoing issues of noise nuisance leading to the council serving a noise abatement notice on the track in November 2014. The notice was served because the sound from racing activities was deemed to be a statutory notice. The abatement notice set down a detailed regime for operating the circuit, allowing the organisers a set number of high-noise days, medium-noise days, non-noise event days and quiet days. In March 2021 the operators of the circuit asked for some variations to the schedule. The local council agreed, and a local resident took the council to court, arguing that it did not have the power, under the Environmental Protection Act 1990, to vary noise abatement orders. In a ruling handed down today, a three-judge panel at the Court of Appeal agreed, overturning a High Court ruling last year that found the opposite ([2023] EWHC 1922 (Admin); [2023] PLSCS 132). The judgment, written by Lord Justice Coulson, stated that the Magistrates’ Court had the power to vary such an order, not local authorities. “This express power to vary on the part of the Magistrates’ Court is not new,” he said in the ruling. Magistrates’ Courts have had the power to quash notices, vary notices or dismiss appeals since 1975, he said. “It seems equally clear that the local authority has no power to vary its own abatement notice because any such power resides with the Magistrates’ Court,” the judge said. If the local authority did have the power to make changes, “it would lead to considerable uncertainty”, the judge said, adding: “It needs to be remembered that a breach of the abatement notice is a criminal offence. “That does not sit comfortably with an alleged power to vary by the very authority who issued the notice in the first place… Certainty is a vital requisite of the criminal law. It would be lost if the precise terms of the abatement notice – the cornerstone of any criminal offence in this regard – could be varied in a haphazard and random fashion. “Furthermore, there would be at least the risk of considerable uncertainty for the public. It is unclear how the public would know that a variation had been applied for, let alone granted.” R (on the application of Ball) v Hinckley and Bosworth Borough Council [2024] EWCA Civ 433, [2024] PLSCS 81 Court of Appeal (Coulson, Baker and Elisabeth Laing LJJ) 29 April 2024 Photo © Charlie Larkman/Unsplash