Statutory nuisance — Application for injunction to abate — Whether service of abatement notice a prerequisite for injunction — Judge finding no duty to serve abatement notice — Appeal allowed
Pursuant to section 81(5) of the Environmental Protection Act 1990, the respondent council applied for an injunction against the appellants, to abate an alleged statutory nuisance consisting of the burning of controlled waste. Prior to the application, the respondents had not served an abatement notice under section 80(1). Section 80(1) provides that where a local authority is satisfied that a statutory nuisance exists or is likely to recur, “the local authority shall serve a notice”.
At first instance, the judge concluded that there was no requirement to serve an abatement notice and that, in any event, it could be dispensed with in the instant case because the appellants’ previous conduct indicated that the service of such a notice would be ineffective.
On appeal, the appellants submitted that the use of the word “shall” in section 80(1) indicates that local authorities are under a positive duty to serve a notice where they believe that a statutory nuisance has arisen, and that they had no discretion in the matter.
Held: The appeal was allowed.
Section 80(1) imposed a positive duty on a local authority to serve an abatement notice where necessary, and the local authority could not obtain an injunction without having done so: R v Carrick District Council, ex parte Shelley [1996] JPL 857 and Hammersmith London Borough Council v Magnum Automated Forecourts Ltd [1977]
1 All ER 401 applied. The aim of the statutory provisions set out in sections 80 and 81 of the 1990 Act was to warn individuals against causing a nuisance and if that nuisance could be put right without the need for further action, that was to be encouraged. It could not be assumed that a wrongdoer, even one who had previously been reluctant to comply with the law, would fail to comply with an abatement notice. The provisions in sections 80 and 81 were intended to be consecutive steps, namely: (i)an abatement notice; (ii) either, prosecution under section 80 for non-compliance, or, under section 81(3) and (4), the right of the local authority to abate the nuisance and recover the expenses of doing so; and (iii)as a last resort, an action in the High Court for an injunction.
Robert McCracken QC and Meyric Lewis (instructed by Jamieson & Brown, of Newcastle upon Tyne) appeared for the appellants; Christopher Vane (instructed by the solicitor to Newcastle City Council) appeared for the respondents.
Sally Dobson, barrister
