Noise — Clay pigeon shooting — Abatement notices issued — Statutory nuisance — Appeal against notices — Notices quashed on ground they failed to specify works required — Judicial review sought — Whether notices had to specify works required — Orders to quash justices’ decision and proceed with hearing
On August 2 1994 the applicant council issued abatement notices on Mrs E and Mrs W in connection with the noise nuisance arising from clay pigeon shooting. Mrs E was the owner of Greentrees Farm, Balcombe, and Mrs W was responsible for the nuisance on that land. They appealed against the notices. At the outset of the hearing it was submitted that, on the basis of the judgment in Network Housing Association v Westminster City Council [1994] EGCS 173 the justices had no alternative but to find that the notice, which failed to specify the works required, was defective ab initio and should be quashed as invalid.
The applicants conceded that the judgments in Network Housing Association appeared to be saying that work should be specified but also argued that the court would be entitled, if necessary, to amend the notice under regulation 2(5) of the Statutory Nuisance (Appeals) Regulations 1990. The justices decided that they had no alternative but to find the notice defective ab initio and quash it.
The applicants subsequently applied for judicial review seeking orders quashing the decision and requiring the justices to proceed with the hearing of the appeal. On a close inspection of the judgments, they contended that there was no good reason for the procedure adopted by the justices and argued that the words in the section 80(1)(b) of the Environmental Protection Act 1990 illustrated the fact that the statutory nuisance legislation did not require that works should invariably be specified in an abatement notice. It was further argued that the abatement notices contained several stipulations and only one required work. Therefore, the justices could only conclude that execution of works would be required after the hearing of evidence.
Held The orders were granted.
1. Network Housing Association v Westminster City Council was far removed from the instant case. There was ambiguity in the earlier case as to what works were to be carried out. In that instance there was some detail as to the work required but the phrase “or carry out such other works …” contributed to the ambiguity. There was also confusion as to where the work was to be done and furthermore, the notices were related to two properties under different ownership.
2. If reference to specific works was required it was open to the justices under the regulation 2(5) of the regulations that the notice be amended as the court saw fit and this could have included the deletion of the one stipulation requiring work to be carried out.
3. There was no basis on which the justices could rule on the submissions before them and the only way to know the merit of the case was to hear evidence. There was no good reason for the procedure adopted by the justices, namely to make the notice defective ab initio.
Robin Campbell (instructed by Sharpe Pritchard) appeared for the applicant council; the respondent justices did not appear and were not represented.
