A local authority has a duty, under section 80(1) of the Environmental Protection Act 1990, where it is satisfied that a statutory nuisance exists or is likely to occur or recur in its area, to serve an abatement notice. By virtue of section 79(1)(d) of the 1990 Act, “statutory nuisance” includes “any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance”.
However, section 79(10) of the 1990 Act provides that a local authority shall not, without the consent of the secretary of state, institute “summary proceedings” under that part of the 1990 Act in respect of a statutory nuisance of, inter alia, that description where proceedings might be instituted under Part 1 or regulations made under section 2 of the Pollution Prevention and Control Act 1999.
In R (on the application of Ethos Recycling Ltd) v Barking and Dagenham Magistrates’ Court [2009] EWHC 2885 (Admin); [2009] NPC 131 the court had to decide – apparently for the first time – what the expression “summary proceedings” means in that context. It is not defined in the 1990 Act.
A waste-handling company ran its business from a poorly maintained site, operating under what had become an environmental permit for the purposes of the Environmental Permitting (
Although conditions attached to the environmental permit required the company to install a properly constructed concrete hard-standing and an effective dust-suppression system, it had not done so. Following complaints from neighbouring businesses about dust, the EA and the local authority inspected the site on several occasions. Despite the fact that the EA could have served an enforcement notice under the regulations, the local authority served an abatement notice under section 80 of the 1990 Act.
The company appealed against the notice to Barking and Dagenham Magistrates’ Court, contending that it was a nullity because its service was prohibited by section 79(10) of the 1990 Act without the secretary of state’s consent. The district judge held that service of an abatement notice did not amount to “summary proceedings” for the purpose of section 79(10).
The company challenged his decision in the High Court. The point for the court to decide was whether the secretary of state’s consent was required before the service of an abatement notice, or whether that consent was required only before the local authority takes proceedings in the magistrates’ court for failure to comply with the abatement notice.
The court upheld the view of the district judge, stating that the meaning that he had attributed to the expression “summary proceedings” in this context was its natural meaning. Furthermore, it accorded with the practicalities of a local authority meeting its responsibilities for dealing with a statutory nuisance. It was the natural recipient for complaints and it would be artificial in such circumstances to expect it first to obtain the consent of the secretary of state.
John Martin is a freelance writer
