Abatement notice — Appeal — Procedure — Whether withdrawal of notice automatically terminating appeal against notice — Whether landowner should recover costs of discontinued appeal — Whether justices obliged to hear submission of no case to answer on appeal against replacement notice
The respondent council served an abatement notice on the appellant alleging a statutory nuisance caused by noise from a motorcycle scrambling event held on her land. The hearing of the appellant’s appeal against the notice had been discontinued after the chairman of the justices realised that he knew one of the interested parties, and therefore recused himself.
In the meantime, the respondents withdrew the abatement notice and issued a new one. The justices did not quash the first notice or dismiss the first appeal because they took the view that the withdrawal of the notice automatically ended the first appeal, its subject matter having ceased to exist.
The appellant appealed against the second notice and applied for her costs in respect of the first appeal. The justices decided to determine the question of costs at the conclusion of the substantive appeal. The council presented their evidence first, at the end of which the appellant sought to make a submission of no case to answer. The justices refused to hear that submission, and required the appellant to call evidence to support her appeal, which they subsequently dismissed. In the result, the justices dismissed the appeal. They declined to award the appellant her costs with regard to the first hearing, and ordered her to pay the council’s costs in the second.
The appellant appealed in respect of each notice, and these were heard together. She challenged, inter alia, the refusal to award the costs of the first appeal and the refusal to hear her submission of no case to answer. She argued that the council had not been entitled, without her consent, to withdraw the first notice and thereby avoid the costs of the hearing.
Held: The first appeal was allowed and the second was dismissed.
The justices had erred in holding that the withdrawal of the notice had had the effect of terminating the appeal. It was not the notice, but the making of a complaint in the proper form that had given jurisdiction to the justices. Although, strictly speaking, it was not true to say that a landowner’s consent to the withdrawal of a notice was required once an appeal had been brought against it, the withdrawal of the notice could not deprive the justices of the jurisdiction to adjudicate on a complaint properly put before them: R v Cannock Justices, ex parte Astbury [1972] LGR 609 applied; R v Bristol City Council, ex parte Everett [1998] 3 EGLR 25 distinguished. An authority that had served a notice, and which were respondents to an appeal before the justices, should not be able to deprive the justices of jurisdiction at the last minute, when the opposing party had already incurred costs, by withdrawing the notice. The first notice would be quashed, and the first appeal allowed. None the less, in the present case, the justices had been entitled to defer the question of costs in the first appeal until they had decided the outcome of the second: since the second appeal had failed on the substantive issues, it would have been wrong for the appellant to have received costs simply because they had arisen from the earlier hearing. The justices’ decision to uphold the second notice had been justified on the evidence before them. Their decision that each party should bear their own costs of the first appeal was entirely reasonable in all the circumstances.
The justices had been entitled to refuse to hear the appellant’s submission of no case to answer and to decline to allow the appeal without hearing the appellant’s evidence. The second appeal would be dismissed.
Peter Miller (instructed by Knights, of Tunbridge Wells) appeared for the appellant; Robert Lewis (instructed by the solicitor to Sevenoaks District Council) appeared for the respondents.
Sally Dobson, barrister
