Noise abatement notice – Possession order – Anti-social behaviour order (Asbo) – Local authority making suspended possession order against claimant for noise nuisance – Claimant prosecuted for breach of noise abatement notice – Defendant Crown Court imposing indefinite Asbo – Claimant applying to quash Asbo – Whether court having discretion to impose Asbo – Whether Asbo necessary to protect public – Application granted
The claimant was the tenant of a property owned by the local authority, which had issued proceedings for possession of the premises following allegations of noise nuisance. A possession order was granted but suspended for one year, subject to the imposition of specified conditions aimed at preventing the claimant from causing a nuisance to residents in the neighbourhood or threatening local authority employees.
During that period, the claimant informed the local authority and his neighbours that he was planning to hold a wedding reception at the property. In response, the local authority served a noise abatement notice under section 80 of the Environmental Protection Act 1990. The wedding reception went ahead despite the notice. The claimant was subsequently convicted of breaching that notice and an indefinite anti-social behaviour order (Asbo) was imposed on him by the defendant crown court.
The claimant applied for judicial review to quash the Asbo, contending that: (i) its imposition was outside the sentencing discretion of the court; (ii) the offence of which he was convicted was a single offence; (iii) the judge had given inadequate reasons for imposing the Asbo; (iv) the interaction of the Asbo with the suspended possession order had not been considered; and (v) the Asbo was unclear and disproportionate.
Held: The application was granted.
The imposition of the Asbo was outside the reasonable area of the court’s discretion and amounted to a manifest error of law. The purpose of an Asbo was not to punish. Its imposition had to be justified as being necessary to protect the public from anti-social behaviour and its terms had to be proportionate to the risk to be guarded against. The order had to meet the test of necessity, but had failed to do so in the instant case: R (on the application of McCann) v Manchester Crown Court [2002] UKHL 39; [2002] 4 All ER 593 and R v Boness [2005] EWCA (Crim) 2395; [2006] Crim LR 160 applied.
It was necessary to take account of any other orders to which a person was subject before considering the Asbo. In the instant case, the court had failed to take proper steps to consider whether the order should have been imposed. The court had found no findings of fact on which to base an Asbo and the judge had failed to state precisely his concerns as to the claimant’s behaviour.
The breach of the noise abatement notice was a single offence and no other relevant offence had occurred. Although the claimant had been a nuisance in the past, there was evidence that he had changed his ways. In any event, the suspended possession order would have had the required deterrent effect on the claimant.
Matthew Feldman (instructed by Hanne & Co Solicitors) appeared for the claimant; the defendant did not appeal and was not represented.
Eileen O’Grady, barrister
