Environment – Protection – Noise nuisance – Appellants carrying on motor sports on airfield site – Respondent council issuing abatement notices alleging statutory nuisance – Notices requiring steps taken to prevent noise but failing to specify steps — Whether notices valid – Appeal allowed
The appellants occupied an airfield that was surrounded by private homes and farms. Light aircrafts regularly used the site without anyone complaining. However, the respondent council received complaints following the appellants’ use of the airfield for testing Formula 1 motor cars, with unsilenced engines operating at up to 24,000 rpm; on 2007, there were 21 test days. The airfield had also been used for Auto 66 and Straightliner racing activities.
The respondents issued two noise abatement notices, alleging that motor racing and testing activities constituted a statutory nuisance, contrary to section 79(1) of the Environmental Protection Act 1990. The district judge and the crown court both dismissed the appellants’ appeals against those notices and the appellants appealed to the High Court by way of case stated. They argued that the abatement notices should be set aside as either being defective or irrational since they required the appellants not merely to abate the nuisance but also to take steps necessary to prevent the noise, pursuant to section 80(1)(b) of the 1990 Act, without having defined those steps.
The issues for the court were whether: (i) the abatement notices should have specified the steps to be taken by the appellants (the invalidity issue); and (ii) if not it was irrational of the respondents not to set them out (the irrationality issue).
Held: The appeal was allowed.
If an abatement notice required not merely the abatement of noise but also steps to be taken, the notice had to specify those steps; if, as in the instant case, the notices failed to specify the steps to be taken, they were invalid. Any other conclusion would result in the recipients not knowing what they had to do to avoid criminal proceedings. An abatement notice issued under section 80(1)(b) of the 1990 Act that failed to specify the works or other steps to be taken fell short of the minimum legal requirement to convey to its recipient in clear terms what it had to do. That was a particularly potent point in the instant case since, at the crown court, neither the appellants’ nor the respondents’ expert could clarify what work had to be done to abate the nuisance.
Accordingly, the use of the words “take the steps necessary to prevent noise… causing statutory nuisances” in the notices without particularising them, combined with the wording of the letter accompanying the notices and the fact that the respondents might execute the works themselves showed that the notices were defective: Sterling Homes (Midlands) Ltd v Birmingham City Council [199] Env LR 121; Network Housing Association Ltd v Westminster City Council (1995) 93 LGR 280; [1994] EGCS 173; Camden London Borough Council v London Underground Ltd [2000] Env LR 369 and Camden London Borough Council v Easynet Ltd [2002] EWHC 2929 (Admin); [2003] EHLR 5 followed; Sevenoaks District Council v Brands Hatch Leisure Group Ltd [2001] Env LR 5 distinguished.
As regards the second issue, had the court concluded that the enforcement notices were valid, it was difficult to see why it would have been irrational to mention that steps were to be taken without particularising them. In many cases the courts had held that, in the ordinary way, a local authority were entitled, under section 80(1)(a), to serve a notice simply requiring the recipient to abate the nuisance. Moreover, the experts’ views in this case undermined the case of irrationality because if they did not know what steps the appellants had to take to abate the noise, it could not have been irrational for the respondents to have failed to specify those steps: Budd v Colchester Borough Council [1999] JPL 717 considered.
Richard Harwood (instructed by Elvington Park Ltd and Elvington Events Ltd) appeared for the appellants; Stephen Sauvain QC (instructed by the legal department of York City Council) appeared for the respondents.
Eileen O’Grady, barrister
