Councils serving abatement notices – Whether notice invalid for failing to specify works or steps required for compliance – Whether Crown Court appropriately considering state of nuisance as at date of hearing – Divisional Court setting aside Crown Court’s decisions – Appeals dismissed
The appellant in the first matter (SFI) was the owner of licensed premises with an entertainment licence. It was served with an abatement notice by the respondent council (Gosport) pursuant to section 80(1) of the Environmental Protection Act 1990. The notice required SFI “… within 24 hours … to abate the [noise]” and prohibited “the recurrence of the [noise] .. and required the cessation of “the playing of amplified music at levels which cause a nuisance at neighboring premises”. The magistrates dismissed SFI’s appeal against the notice.
The Crown Court held that it was appropriate to consider the situation as at the time of the Crown Court hearing, and, on that basis, it concluded that SFI’s appeal was allowed since statutory nuisance did not exist or was not likely to recur. The Divisional Court held that, although the notice had failed to specify works or steps to be taken, it was not a nullity. However, it allowed Gosport’s appeal on the ground that the Crown Court should have answered the question of whether a nuisance existed by considering the situation at the time the notice was served: see [1998] PLSCS 19.
The appellant in the second matter (C) was the lessee of premises in which he ran a restaurant. He was served with an abatement notice by Hammersmith and Fulham London Borough Council (Hammersmith), in respect of noise nuisance. The magistrates’ court allowed C’s appeal against the notice. The Crown Court considered the situation as at the date of the Crown Court hearing and held that, although the nuisance had been abated, the council’s appeal was to be allowed because the nuisance was likely to recur. C sought judicial review of the Crown Court’s decision that the nuisance was likely to recur and Hammersmith sought judicial review of the decision that the situation should be considered as at the date of the Crown Court hearing. The Divisional Court dismissed C’s application but granted Hammersmith’s.
On appeal SFI and C contended, inter alia, that by the use of the present tense in regulation 2(2)(a) of the Environmental Protection (Statutory Nuisance Appeals) Regulation 1990, it was clear that the court should consider the situation of whether a nuisance existed as at the time of the hearing rather than at the time the notice was served. Regulation 2(2)(a) provided that a person may appeal against a notice under section 80(3) of the 1990 Act if “the abatement notice is not justified by section 80 of the 1990 Act”.
Held: The appeals were dismissed.
1. The Divisional Court had been correct to conclude that the notice served on SFI had been valid, since SFI could abate the nuisance without works or other positive steps within section 80(1)(b) of the 1990 Act. A notice only had to specify the works or steps to be taken where the only way that a nuisance could be abated was by works or steps: Kirklees Metropolitan Borough Council v Field [1997] PLSCS 287 and Budd v Colchester Borough Council (1997) Env LR 128 approved.
2. The phrase “is not justified” in regulation 2(2)(a) was simply intended to cross-refer to the provisions of section 80(1) of the 1990 Act which, on its true construction, required the situation to be tested at the time of the service of the enforcement notice. The procedure under section 80 of the 1990 Act was quite different from that of the previous regime contained in sections 93 and 94 of the Public Health Act 1936, and there was no sensible reason for importing the express words contained in section 94 to the wholly different situation of an appeal under section 80(3) of the 1990 Act. If abatement notices were to be quashed where there was no existing nuisance or likely recurrence when the appeal came before the magistrates’ or Crown Court, any conviction that might have been made was at least, arguably, equally open to being quashed: Johnson News of London v Ealing London Borough Council (1990) 154 JP 33 not followed.
Timothy Straker QC (instructed by Fynn & Partners, of Bournemouth) for SFI Group plc; David Holgate QC and Malcolm Gibney (instructed by Moore & Blatch, of Southampton) appeared for Gosport Borough Council; Timothy Spencer (instructed by Gordon Dadds) appeared for Cataldi; Knightsbridge Crown Court did not appear and was not represented.
Thomas Elliott, barrister
