Rock face and wall in imminent danger of collapse – Owners of nearby houses responsible for face and wall – Council issuing abatement notice on owners – Abatement notice failing to specify work or other steps to be carried out – Whether notice valid – Justice holding notice valid – Crown Court allowing appeal and holding notice invalid – Court of Appeal dismissing appeal
In 1994 the respondents owned and lived in cottages known as Rock Cottages, New Mill, Huddersfield. Behind the cottages there was still a looming rock face and wall which was in imminent danger of collapse. The appellant local authority decided that the face and wall constituted a statutory nuisance and following extensive inquiries it was concluded that responsibility for the face and wall lay with the respondents. The council served an abatement notice under section 80 of the Environmental Protection Act 1990 on the respondents. It was estimated that the works necessary to remove all the danger would cost approximately £56,000. It was common ground that the notice did not specify what works were considered necessary. The respondents appealed against the notice to the justices under section 80(3) of the 1990 Act. The justices held the notice to be valid.
The respondents appealed to the Crown Court on the ground that the notice was not valid because it failed to specify or describe any or any sufficient particulars of the works required to be done for the purpose of abating the statutory nuisance as required by section 80(2) of the 1990 Act. The respondents contended that there was a clear distinction to be drawn between an abatement notice simply requiring cessation and a notice which expressly or impliedly require work to be done in order to abate the nuisance, and it was submitted that where a notice required work to be done, as in this case, the notice had to particularise the works to be done.
Held The appeal was dismissed.
When the 1990 Act had been enacted parliament had intended that the interpretation that the court had put on the Public Health Act 1875 Act should be perpetuated. Therefore an abatement notice must inform the landowner of what is wrong and where works or action were required they should be specified if there were any doubt as to what was required. That conclusion accorded with the intention stated in the preamble to the 1990 Act. Accordingly, there was a defect in the notice which was a material defect and it could not be remedied by the court under the power given by regulation 2(5) of the Statutory Nuisance (Appeals) Regulations 1995: see Sterling Homes (Midlands) Ltd v Birmingham City Council [1996] Env LR 121 followed.
Tobias Davey (instructed by Sharpe Pritchard) appeared for the appellants; Charles Machin (instructed by Eaton Smith & Downey, of Huddersfield) appeared for the respondents.