Statutory nuisance – Abatement notice – Variation – Respondent local authority issuing abatement notice in respect of statutory noise nuisance at motor racing circuit – Respondent subsequently varying notice – Appellant local resident seeking to quash decision on basis that variation unlawful – High Court dismissing claim – Appellant appealing – Whether respondent having power to vary notice under section 80 of Environmental Protection Act 1990 – Appeal allowed
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 respondent local authority served a noise abatement notice on the company operating the circuit.
In March 2014, the respondent 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 respondent was satisfied was likely to recur.
The notice required the interested party to restrict the recurrence of that nuisance and cease the use 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 appellant lived in the village and applied for judicial review of a variation made in 2022 which he said was unlawful because it increased the impact of noise from the circuit on him and other residents. The High Court dismissed the application: [2023] EWHC 1922 (Admin); [2023] PLSCS 132. The appellant appealed.
Held: The appeal was allowed.
(1) A notice under section 80(1) of the 1990 Act had to require the abatement of the statutory nuisance, or the prohibition or restriction of its recurrence, and require the execution of such works, and steps, as might be necessary for those purposes. The recipient of the abatement notice could appeal under section 80(3). The grounds for any appeal were contained in the Statutory Nuisance (Appeals) Regulations 1995.
A person who, without reasonable excuse, contravened an abatement notice, or failed to comply with it, was guilty of a criminal offence under section 80(4). Prosecution of such an offence would typically be by the local authority under its powers in section 81(3), which also allowed it to abate the nuisance and do whatever might be necessary in execution of the notice. Section 82 provided for a person “aggrieved by the existence of a statutory nuisance” to complain to the magistrates’ court.
(2) If a person was charged with an offence under section 80(4) then, in addition to a defence of reasonable excuse, section 80(7) provided a defence for the person charged to prove that the best practicable means (BPM) were used to prevent or counteract the effects of the nuisance. The BPM defence could also be relevant in an appeal against a noise abatement notice: regulation 2(2)(e). The defence might involve a fact-specific analysis, and its availability and/or strength could change as the relevant technology changed. It was not for the local authority to assess whether the recipient of an abatement notice had a BPM defence.
There were two distinct stages. First, the local authority had to decide whether there was a statutory nuisance; if there was, it was obliged to issue an abatement notice. There was no relevant discretion. If there was an appeal, or a criminal prosecution, it was at that second stage that the magistrates’ court had to decide whether there was a BPM defence. Whether or not the nuisance could be addressed by that defence fell outside the local authority’s jurisdiction. In law, it was solely a matter for the magistrates. The abatement notice was not a gateway for the local authority’s ongoing consideration of BPM: Manley v New Forest District Council [1999] 4 PLR 36, Hounslow London Borough Council v Thames Water Utilities Ltd [2003] EWHC 1197 (Admin); [2003] PLSCS 125; [2004] QB 212, Tewkesbury Borough Council v Deacon [2003] EWHC 2544 (Admin); [2004] ENV LR 22 and R (South Kesteven District Council) v Grantham Magistrates’ Court [2010] EWHC 1419 (Admin); [2011] ENV LR 3 considered.
(3) The 1990 Act contemplated that the magistrates’ court might be given – and the relevant regulations, which were part of the legislative scheme, expressly provided that, in certain circumstances, the magistrates had – a power to vary the terms of an abatement notice. Under regulation 2(5)(b), that power was reserved to the magistrates’ court, which could, on appeal, vary the abatement notice in favour of the appellant “in such manner as it thinks fit”. Any such variation was final. The legislative scheme did not give the local authority the same right. The respondent, as the relevant local authority, had no express power to vary the abatement notice, either in the 1990 Act or in the relevant regulations. The suggestion that it did have such a power was inconsistent with, and contrary to, the legislative scheme: R v Fenny Stratford Justices, ex parte Watney Mann (Midlands) Ltd [1976] 1 EGLR 133 considered.
(4) The judge below found that the respondent had an implied power to vary an abatement notice. He relied heavily upon the decision in R v Bristol City Council, ex parte Everett [1999] 3 PLR 14. However, that case was about the power to withdraw an abatement notice, not an alleged power to vary that notice. The two situations were not comparable. The power to vary was not some sort of lesser power; it was entirely different. Standing back, the decision in Everett, to the effect that, in the unusual circumstances, a local authority had the power to withdraw an abatement notice that it no longer considered valid because there was no statutory nuisance, was a long way from the present case.
The judge was wrong to find that Everett was not distinguishable. It did not justify the necessary implication of a wide-ranging power on the part of a local authority to vary its own abatement notice. If the local authority deemed it necessary, it could withdraw the old abatement notice and issue a fresh notice so that everyone knew precisely where they stood: Everett distinguished. R (Kalonga) v Croydon London Borough Council [2022] PLSCS 79; [2022] PTSR 1568 and R (Piffs Elm Ltd) v Commissioner for Local Administration in England [2023] 3 WLR 610 considered.
Piers Riley-Smith (instructed by Richard Buxton Solicitors) appeared for the appellant; Gordon Wignall (instructed by Hinckley and Bosworth Borough Council) appeared for the respondent.
Eileen O’Grady, barrister
