Catherine Bentley-Thomas v Winkfield Parish Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fulford,Lord Justice Goldring |
| Judgment Date | 05 February 2013 |
| Neutral Citation | [2013] EWHC 356 (Admin) |
| Date | 05 February 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9695/2012 |
[2013] EWHC 356 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Goldring
Mr Justice Fulford
CO/9695/2012
Mr S Butler (instructed by Direct Access) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
(As Approved)
This appeal is bought by way of case stated against a decision of the East Berkshire Magistrates' Court sitting at Reading when the District Judge ordered the appellant, Dr Bentley-Thomas, to pay costs of £18,008.10. This followed his dismissal of the information she had brought on 18 November 2011 against Winkfield Parish Council alleging that the council, between 19 May 2011 and 18 November 2001, caused noise nuisance, or permitted it to be caused, contrary to section 82(1) of the Environmental Protection Act 1990 ("The 1990 Act"). This provision provides that:
"A magistrates' court may act under this section on a complaint … made by any person on the ground that he is aggrieved by the existence of a statutory nuisance."
The facts relevant to this appeal, which solely relates to the issue of costs, can be shortly stated. The case concerned a site known as Locks Ride Recreation Ground, and it has been used as such since the early 1960s: football and cricket, for instance, have been played there for many years. The respondent, Winkfield Parish Council, was awarded funds to implement the Government's national Playbuilder Scheme at the site. Phase 1 was to provide additional play equipment in an existing play area, and was directed at young people between the ages of 8 and 13. Phase 2 involved installing a splash pad, a beach area with sand, a barbeque, seating areas, adult gym equipment, a double-zip wire and a trampoline. The evidence indicated that the facility attracted a large number of people.
The alleged noise nuisance related to the equipment provided in Phase 2. The proposals were the subject of consultation with local residents, which included a meeting on 17 April 2010 and events at local schools in May 2010, although I note that one of the issues in the court below was the extent to which the appellant and other local residents had been given notice of all aspects of the consultation process. The official opening was on 15 May 2011.
The claimant, along with others, sent complaints in July 2011 alleging, inter alia, an increase in noise from the playground. On 30 August 2011, the appellant indicated, in a letter to the Parish Council, her intention to launch legal proceedings against the respondent. Following a meeting between the Parish Council on 9 September 2011 and some of the local residents, the appellant sent a further letter (dated the same day) in which she set out that the noise generated by the equipment prevented her from enjoying the usual use of her property, and as a consequence it constituted a statutory nuisance under the provisions of section 82 of the 1990 Act. She proposed applying to the Magistrates' Court for a hearing on the issue. It is accepted that the letter of 9 September 2011 complied with section 82(6) of the 1990 Act:
"Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of."
The council took certain steps to reduce the noise, including the "winterisation" of the splash pad in mid-September 2011 (earlier than planned); opening times were restricted to the splash pad and some of the water noise was reduced by removing the overhead buckets (as of 17 August 2011); and the gates to the recreation area were locked daily at dusk and reopened at 7.30 am. In addition to these steps, the Parish Council met Bracknell Forest's Environmental Health Officer in July 2011 to request monitoring of the noise. The results were communicated on 2 November 2011 in a letter from Steve Louden, the Chief Officer, Environmental and Public Protection for Bracknell Parish Council as follows.
"The data collected is within the report to me dated 21 September 2011… The noise measurements were intended as a snapshot and found to indicate that noise levels coming from the park were not significantly different to the noise levels of the traffic or aircraft in the area."
At some stage before these results were provided to the Parish Council, the appellant made her first attempt at prosecution by issuing a summons.
Given one of the appellant's central contentions was that it was necessary for the Playpark equipment as a whole to be removed and possibly relocated, she made it clear that she was unable to accept the assurance of the respondent council that it was reviewing whether measures, in addition to those just set out, were available which might reduce the noise levels. As one of her witnesses, Gareth Senior of 128 Locks Ride, observed in evidence, tinkering (as he described it) with opening hours or the water pressure would not abate the noise levels.
Although we have not been provided with the full details, it appears from the decision of the District Judge that in March 2012 the appellant received additional proposals from the respondent to alter the use of the equipment at the Playpark, but, as I have just noted, her consistent position was that it was necessary for the council to remove the equipment, and particularly the water splash feature and the zip wire, and that it should stop the barbeques. This was clearly set out in the appellant's letter of 9 September 2011 to the Parish Council.
The evidence in the trial before the District Judge was heard on 8 and 9 May 2012 and his reserved judgment was given on 25 May 2012.
A significant quantity of evidence was introduced by both parties. The appellant and her husband testified, along with four other local residents and she called an expert witness on the issue of noise, Mr Hawes of Sanctum Consultants. The respondent called two local residents, Steven Slator (the Playbuilder project manager), Marcia Milsom (the deputy clerk to the Parish Council), Councillor David Parkin and Dr Peter Clark (a further noise expert).
The District Judge rejected the core elements of the evidence of Mr Hawes and he was not persuaded to act on the testimony of the appellant and the other witnesses she called.
The court's findings on the issue of whether the appellant had proved her case included the following observations:
"131. It is the court's view that the decision to prosecute Winkfield Parish Council was both pre-emptive and presumptive. The Playpark had been open a matter of weeks and as a new facility satisfying the criteria that it provided activities and equipment for children not provided locally, would attract families from across Bracknell. The resident's complaints were being addressed by the Parish Council and monitored by Bracknell Forest Council. Until 2 November 2011, Dr Bentley-Thomas was under the impression that Bracknell Forest Council's Environmental Health officials considered that a noise nuisance was being caused at Locks Ride. She issued her intention to take the Parish Council to court on 30 August 2011.
132. Her action was presumptive in that it was based on a false premises that any noise from the Playpark was an unreasonable intrusion to her use of her property and that only the complete removal of all of the equipment at the developed site would be sufficient to prevent the nuisance from recurring. Her reliance on her assertions was beyond the probability of a conviction."
When addressing the issue of costs, the District Judge's remarks included the following:
"135. Winkfield Parish Council sought the sums in person from Dr Catherine Bentley-Thomas and not from Central Funds under Section 16 of the Prosecution of Offences Act 1985 because she had instigated the prosecution almost as soon as the Playpark was open and before there could be a settling down of the use of new equipment at the recreation site. She had insisted upon a complete removal of the equipment, as the only acceptable resolution of her complaint. In March 2012, the Council indicated a number of measures it was prepared to make in settlement of the case before trial, including the removal of the overhead bucket and to restrict the use of the splash pad feature to 11 am — 4 pm daily, inter alia. They received a reply from Dr Bentley-Thomas dated 8th April 2012 that the Council would have to remove the watersplash entirely, the zip wires and the barbeque stands and canopies entirely, amongst other operational requirements.
136. Mr Steynor indicated that his client had already incurred a substantial expense in bringing this prosecution, in excess of the Council's costs. She was disappointed by the Court's decision and could see no reason why the Council's costs could not be met out of Central Funds, as regularly ordered by courts under Section 16 of the Prosecution of Offences Act when a prosecution against a defendant had been dismissed.
137. The power for the...
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