The Administrative Court has underlined the court’s obligation to award costs to a complainant where an offence of statutory nuisance is proved under section 82 of the Environmental Protection Act 1990 in R (on the application of Andrew Parker) v The Magistrates Court at Teeside and others [2022] EWHC 358 (Admin).
A statutory nuisance arises where “premises” are in “such a state as to be prejudicial to health or a nuisance” under section 79 of the Act. Anyone aggrieved by a statutory nuisance may, following the issue of a notice, bring proceedings by summary application in the magistrates’ court against the owner of the premises. If satisfied that a statutory nuisance exists, the magistrates must make an order requiring its abatement, by the execution of works, within a specified period and
“shall order the defendant (or defendants in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court considers reasonably sufficient to compensate… for… expenses properly incurred… in the proceedings”.
The claimant rented a property in Leeds. The neighbouring property was owned by the interested parties and a party wall formed the boundary of the back gardens. Plants in the neighbours’ garden had damaged the wall, which had not been properly maintained.
A partial collapse of the wall lacerated the claimant’s hand, requiring stitches, and he had suffered infection and scarring. He brought proceedings in the magistrates’ court for a statutory nuisance abatement order. The interested parties and the freeholder of the rented property admitted liability and agreed the terms of an abatement order whereby the freeholder would repair or replace the boundary party wall to make it structurally sound and the interested parties would bear half of the costs.
The claimant sought costs, set out in a schedule, of £15,630 plus VAT, of which the freeholder agreed to pay £4,500. The interested parties were prepared to pay costs, assessed by the court. Having heard from the first interested party that he was in debt and could not afford to pay costs, the district judge ordered the interested parties to pay the nominal sum of £100.
The Administrative Court found that the district judge had erred in his approach to the assessment of costs. Since it was proved that the statutory nuisance had existed at the date the complaint was made, there was a statutory duty to award costs according to a specific formula. The route to a verdict required answers to the following questions:
- What expenses were “properly incurred” by the private prosecutor in the proceedings? Items not properly incurred must be excluded.
- What amount is “reasonably sufficient to compensate” the private prosecutor for the properly incurred expenses? Amounts in excess of this sum need to be reduced accordingly.
- If there is more than one defendant, what is “a fair and reasonable proportion” of the expenses which any defendant should be ordered to pay?
Parliament had imposed a duty in favour of a complainant. The court had to consider the claim for costs and exercise its discretion: the paying party’s means are irrelevant.
Louise Clark is a property law consultant and mediator
