Statutory nuisance – Abatement notice – Variation – Defendant local authority issuing abatement notice in respect of statutory noise nuisance at motor racing circuit – Defendant subsequently varying notice – Claimant local resident seeking to quash decision on basis that variation unlawful – Whether defendant having power to vary abatement notice issued in respect of statutory noise nuisance – Claim dismissed
The interested party operated the Mallory Park Circuit, a car and motorcycle racing circuit in the village of Kirkby Mallory, Leicestershire. Most of the properties in the village were within 500 metres of the circuit which had been used regularly for motor sports since the mid-1950s with the frequency of events varying, depending on the popularity of the sport. In December 1985, the defendant local authority served a noise abatement notice on the company operating the circuit.
In March 2014, the defendant took enforcement action for breaches of that notice by issuing an abatement notice under section 80 of the Environmental Protection Act 1990. The notice stated that the noise from racing activities at the circuit had given rise to a statutory nuisance which the defendant was satisfied was likely to recur.
The notice required the interested party to restrict the recurrence of that nuisance and to cease the operation of the circuit by motor vehicles other than in accordance with the attached schedule. The schedule provided that the operator might request any variation of the schedule in writing.
The claimant lived in the village and contended that the effect of a variation made in March 2022 was to increase the impact which noise from motor racing at the circuit would have on him and other residents.
The claimant contended that a local authority which had issued an abatement notice under section 80 of the 1990 Act in respect of a statutory nuisance, in the form of noise emitted from premises, had no power subsequently to vary that notice. Therefore, the defendant’s variation was unlawful and should be quashed.
Held: The claim was dismissed.
(1) The word “restricting” in section 80(1) and (2A) of the 1990 Act, read in context, was being applied to the occurrence or recurrence of a nuisance and was being used as the equivalent in relation to such events of abating and prohibiting. It was also significant that the section did not refer to restricting the nuisance but to restricting the occurrence or recurrence of the nuisance. Although a nuisance could be restricted in the sense of being left in being but reduced in its scope, the same could not readily be said of an occurrence or recurrence.
The purpose of the 1990 Act was to protect members of the public from statutory nuisances and to provide for the removal of statutory nuisances in a way which took account of the existence of other factors. That included the fact that the total removal of a nuisance might not be practicable and that in such circumstances the taking of the best practicable means to counteract its effects might be the most that could be achieved. It was particularly telling that the best practicable means defence could operate even when those means were directed not at preventing the nuisance but at counteracting its effects.
(2) The duty under section 80(1) was to serve a notice where the authority “is satisfied” that a statutory nuisance existed or was likely to occur or recur. It would be surprising if the authority, having served a notice on the basis that it was satisfied on the evidence available at a particular point in time, were thereafter unable to withdraw the notice even if, because of changes of expert opinion or other changes in circumstances, it ceased to be satisfied that a statutory nuisance existed or was likely to occur or recur. Further, in reaching a decision under section 80(1), the local authority was performing an executive function, not a judicial function.
In the absence of an implied power to withdraw an abatement notice, the enforcement provisions would be unduly rigid. It seemed senseless that an authority should be unable to withdraw an abatement notice which it no longer considered to be appropriate. A power of withdrawal was consistent with, and served to promote rather than to undermine, the legislative scheme. There was no difficulty in implying such a power: R v Bristol City Council, ex p Everett [1999] 3 PLR 14; [1999] 1 WLR 92 applied.
Although the withdrawal and the variation of an abatement notice were different acts, the material considerations were the same in respect of each of those powers. The considerations which led the courts in Everett to find that there was a power to withdraw were also present when considering whether there was a power to vary. Consequently, the approach taken in Everett applied equally to a power to vary and the court was bound to conclude that a local authority could lawfully exercise the latter power.
(3) A power for a local authority to vary an abatement notice would promote the purposes of the 1990 Act in the same way as a power to withdraw would and essentially for the same reasons, namely the avoidance of undue rigidity and the avoidance of artificiality flowing from the existence of the discretion not to prosecute. The existence of a power to vary would promote the purposes of the Act by regularising and formalising positions which might otherwise be unstated or unclear. In that regard, the existence of a power to vary would operate to promote the purposes of the Act rather more effectively than the use of the power of withdrawal. That was because variation meant that the control provided by an abatement notice would remain in place but, because of the variation, that control would be more appropriately directed to the circumstances at a given time.
(4) Consequently, there was no material difference between the variation of an abatement notice and its withdrawal, and substantially the same considerations applied to the question of whether the power to take either of those steps arose by way of necessary implication from the 1990 Act. There was no proper basis for distinguishing the approach applied in the circumstances of Everett from that to be applied in the present case. Therefore, the court was required to find that it was lawful for a local authority to vary an abatement notice so as to reduce the restrictions imposed thereby. Accordingly, the defendant had the power to make the variation in the present case. Everett applied.
Piers Riley-Smith (instructed by Richard Buxton Solicitors) appeared for the claimant; Gordon Wignall (instructed by Hinckley and Bosworth Borough Council) appeared for the defendant.
Eileen O’Grady, barrister