John Butland v Powys County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 04 February 2009 |
| Neutral Citation | [2009] EWHC 151 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2009 |
| Docket Number | Case No: CO/3445/2006 |
[2009] EWHC 151 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Munby
Case No: CO/3445/2006
Mr Nigel Vaughan (of Powys County Council) for the Defendant (Applicant)
Mr Gerard M Heap (instructed by Lloyd Williams) for the Claimant (Respondent)
Mr Justice Munby:
This is an unusual application. Made pursuant to CPR 52.17, it comes before the Administrative Court in most unfortunate circumstances.
The factual background
Mr John Butland runs a clay target shooting business at Woodland Park Shooting Ground, Talachddu, Brecon (“the shooting ground”). For some time he has been in controversy with the local authority, Powys County Council, which is concerned about the noise generated by the shooting.
On 12 September 2003 the local authority served a Noise Abatement Notice pursuant to section 80 of the Environmental Protection Act 1990. This Notice, which in the event the local authority never sought to enforce, was served on Mr Butland at the shooting ground, seemingly without demur.
On 17 January 2005 Mr Butland wrote a letter to the local authority inviting it to lift the Notice. The letter concluded as follows: “Please use the address at the head of this letter for all future correspondence with me.” That address was the address of the shooting ground.
On 14 April 2005 the local authority served a second Noise Abatement Notice under section 80 of the 1990 Act, by leaving it, with a covering letter, in the post-box at the shooting ground. It did not come to Mr Butland's attention until 16 April 2005.
On 6 May 2005 Mr Butland lodged a notice of appeal in respect of the Noise Abatement Notice by way of a complaint to the Welshpool Magistrates' Court.
The original issue
It is correctly common ground that Mr Butland's notice of appeal was out of time if the Noise Abatement Notice was properly served on 14 April 2005. The statutory time for lodging an appeal is 21 days and there is no power to extend time. If the Noise Abatement Notice was properly served on 14 April 2005, then time expired on 4 May 2005, so the appeal was out of time. If it was served on 16 April, then time expired on 6 May 2005 and the appeal was in time.
The local authority has always asserted that the Noise Abatement Notice was properly served on 14 April 2005. It relies upon section 160 of the Environmental Protection Act 1990, which so far as material provides as follows:
“(2) Any such notice required or authorised to be served on or given to a person other than an inspector may be served or given by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
…
(4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person on or to whom any such notice is to be served or given shall be his last known address …
(5) If the person to be served with or given any such notice has specified an address in the United Kingdom other than his proper address within the meaning of subsection (4) above as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address.”
In these circumstances the first issue for the Justices was whether Mr Butland's appeal was in time. And that, as we have seen, had resolved itself into the question of whether Mr Butland had by his letter dated 17 January 2005, and more particularly by his direction that “all future correspondence” should be sent to the shooting ground, “specified” that address as the one at which he would accept notices given by the local authority.
The proceedings
Mr Butland's appeal came on for hearing before the Welshpool Magistrates' Court on 18 January 2006. The Justices accepted the local authority's submissions. They held that the Noise Abatement Notice had been served on 14 April 2005, that the appeal was therefore out of time and that they accordingly had no jurisdiction to hear the appeal.
On 17 March 2006 the Justices stated a Case, identifying the question for the High Court as being: “Did the alternate address given by [Mr Butland] become the proper legal address for the service of the Noise Abatement Notice?”
Mr Butland's appeal by way of Case Stated came on for hearing before McCombe J in the Administrative Court on 15 March 2007. McCombe J found for Mr Butland and allowed his appeal, remitting the case to the Justices to determine Mr Butland's appeal against the Noise Abatement Notice: Butland v Powys County Council [2007] EWHC 734 (Admin). McCombe J summarised his conclusions in paragraph 18 of his judgment:
“Each case has to be looked at in its circumstances. Here was a case where Mr Butland was writing, in quite sensible business terms, as one accepts, but the situation was obviously much more serious when the council wished to serve a formal statutory notice, noncompliance with which could have criminal sanctions. It seems to me that the enquiry that is suggested is not one that required a great exercise of effort on the council's part to make. I am not suggesting, for a minute, that the council failed to make proper effort in the case. They simply, as I have held, wrongly construed that this letter as engaging subsection (5). In my view it does not, and for those reasons this appeal is allowed.”
The local authority obtained permission to appeal to the Court of Appeal. The appeal came on for hearing before Latham, Dyson and Jacob LJJ on 15 November 2007. Latham LJ gave a judgment with which Dyson and Jacob LJJ agreed. The Court of Appeal found for the local authority and allowed the appeal: Butland v Powys County Council [2007] EWCA Civ 1298. Latham LJ summarised his conclusions at paragraphs 11–12 of his judgment:
“[11] … I am firmly of the view that [the local authority's] submissions are correct. It seems to me that, looking at the whole story, leaving for the moment the word “context” to one side, the whole story starts with an abatement notice which was served without demur at Woodland Park, and that is the background against which the council were entitled to consider the proper meaning to be given to the letter of 17 January 2005. They were, in my view, fully entitled to take the view that Mr Butland was indicating clearly that matters relating to noise issues, arising out of the activities of the shooting ground, were to be dealt with through Woodland Park, which was the place of the business itself and where, indeed, the activity in question was being carried out.
[12] That was, in my view, sufficient to entitle the council to conclude that, by virtue of section 160(5), that was the proper address for the service of this abatement notice.”
The order giving effect to that decision was sealed the same day, 15 November 2007.
Subsequently it came to the attention of the Court of Appeal that it had had no jurisdiction to hear the appeal: see sections 18(1) and 28A of the Supreme Court Act 1981 and Westminster City Council v O'Reilly [2003] EWCA Civ 1007, [2004] 1 WLR 195. Accordingly, on 19 December 2007 the Court of Appeal made a further order that its order dated 15 November 2007 “be set aside.”
The application
It was in these circumstances that on 30 April 2008 the local authority issued the application which is now before the Administrative Court. It seeks (i) an order for permission to re-open McCombe J's decision under CPR 52.17 and (ii) an order that his judgment be set aside. The application was supported by a witness statement by the local authority's solicitor, Mr Nigel Vaughan, dated 30 April 2008.
I should refer at this point to CPR 52.17, which provides as follows:
“(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In paragraphs (1), (3), (4) and (6), “appeal” includes an application for permission to appeal.
(3) This rule does not apply to appeals to a county court.
(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in the practice direction.”
CPR 52.17 reflects the reasoning and approach in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, and its extension, in Seray-Wurie v Hackney London Borough Council [2002] EWCA Civ 909, [2003] 1 WLR 257, to the appellate functions of the High Court.
The relevant part of the Practice Direction is in the following terms:
“25.1 This paragraph applies to applications under rule 52.17 for permission to reopen a final...
To continue reading
Request your trial
-
R Olobo-Lalobo v Family Court at Barnet County Court
...of that, he cites two cases: Essex County Council v Essex Incorporated Congregational Church Union HL [1963], and secondly Butland v Powys County Council [2009] EWHC 151 (Admin), a decision of Munby J, as he then was, sitting in the Administrative 25 I have read and considered those author......
-
Baldauf v Secretary of State for the Home Department
...have been excellent and I am very grateful to you both. [2009] EWHC 151 (Admin)" class="content__heading content__heading--depth1"> [2009] EWHC 151 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Before: Lord Justice Mr Justice Lloyd Jones CO/1695/2008 Between B......