R Susan Fisher v Durham County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 21 May 2020 |
| Neutral Citation | [2020] EWHC 1277 (Admin) |
| Docket Number | Case No: CO/841/2019 |
| Date | 21 May 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1277 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
Leeds Combined Court Centre
1 Oxford Road, Leeds, LS1 3BG
Mr Justice Julian Knowles
Case No: CO/841/2019
and
Justin Bates and Alice Richardson (instructed by Newtons Solicitors) for the Claimant
Charles Holland (instructed by Council Solicitor) for the Defendant
The Interested Parties did not appear and were not represented
Hearing dates: 29–30 April 2020
Approved Judgment
The Honourable
Introduction
This is an application for judicial review by Ms Susan Fisher, the Claimant, who seeks to quash a noise abatement notice (the Notice) that was served on her by Durham County Council (the Council) on 30 November 2018 pursuant to s 80(1) of the Environmental Protection Act 1990 (the EPA 1990).
Permission was granted by Jefford J on 15 October 2019. She expressly left open for argument the question whether the claim should be refused on the grounds that the Claimant has an adequate alternate remedy in a form of a statutory appeal to the Magistrates' Court against the Notice under s 80(3) of the EPA 1990. There is an extant appeal which is currently stayed pending the outcome of this application.
The facts of this case are certainly unusual. The Claimant lives in a mid-terraced house in a village in County Durham (the Property). She has a neurological disorder which causes her to make involuntary sounds and noises, including words and phrases. She shouts and screams loudly, often during the night. As I will explain later, this noise has caused and is causing serious distress and unhappiness to her neighbours.
It was for this reason that the Council served the Notice on the Claimant. That requires the Claimant to stop making the noises. If she does not comply with the requirements of the notice, she commits a criminal offence under s 80(4) of the EPA 1990 (subject to a defence of reasonable excuse).
In these proceedings she seeks to quash the Notice. Her case is that she suffers from a disability; that the service of the Notice arose in consequence of her disability; that she cannot control the vocalisations and the decision to serve the Notice was therefore unlawfully discriminatory in that it was unfavourable treatment by reason of disability contrary to s 15(1)(a) and s 29(6) of the Equality Act 2010 ( EA 2010); she says the Council breached its Public Sector Equality Duty (PSED) in its decision to issue the Notice ( s 149, EA 2010); she also says that the service of the Notice breached Article 14 of the European Convention on Human Rights (the Convention) read with Article 8 and/or Article 1 of Protocol 1, and/or was irrational in the traditional public law sense.
The Council contends that Ms Fisher should not be permitted to raise these issues by way of judicial review, but should pursue the same arguments by way of her statutory appeal to the Magistrates' Court against the Notice.
Further or alternatively, the Council accepts that the Claimant is disabled and the Notice constitutes unfavourable treatment of the grounds of disability but contends that serving the Notice was lawful and justified owing to its desire to protect the interests of the neighbours. It contends it had full regard to its PSED and that it sought to engage with the Claimant in various ways over a long period of time before it served the Notice on her as a last resort. It says it actions were proportionate, not in violation of the Convention, and not irrational.
Ms Fisher is represented pro bono by Mr Bates and Ms Richardson and their solicitors. I am very grateful to them for doing so. The Council is represented by Mr Holland.
Factual background
Ms Fisher is a 67-year-old retired primary school teacher. She lives alone at the Property, which is a terraced house located in the Council's catchment area. The Property is let to the Claimant by a private landlord under an assured shorthold tenancy agreement which commenced on 11 November 2016.
The Claimant's evidence is that she moved to the north-east from Luton in 2014. Shortly after she moved, since around August 2014, she has suffered with ‘tics’, ie, (broadly) involuntary vocal outbursts and physical movements. She says in her witness statement:
“3 … I suffer from involuntary vocalisation. I started having symptoms of involuntary vocalisation in 2014, about three months after I moved to Durham. I had no history of involuntary vocalisation or movement in childhood.
…
9. In or about October 2018 the vocalisation changed from screaming to shouting words and phrases, the most frequent is, ‘I want a baby’. I was also shouting out sentences such as, ‘It is nothing to do with you’; ‘You can't treat an old woman like that’; and also cry out ‘Fuck’”
The effect the Claimant's behaviour has had on the neighbours has been serious. It is graphically described in the Interested Parties' evidence. They are the owners of one of the adjourning properties:
“Our previous tenant, Ms Carol White, (20 March 2017–19 September 2017) left the property as she could no longer live with the screaming and shouting from [the Property]. Ms White advised us that not only was Ms Fisher's behaviour having an adverse affect her on own health but that her grandchildren were too frightened to visit and/or stay overnight with her.
Whilst waiting for the property to be let again we made numerous approaches to Durham County Council advising them of the noise problem coming from [the Property] …. Naturally we had hoped that the noise problem be addressed before we found another tenant as we did not wish someone else to suffer the same way as Ms White had done.
Our present tenant, Miss Newton moved in at the beginning of January 2018. Before she signed the Tenancy Agreement we made her aware of the situation with Ms Fisher. Miss Newton said that she was a Mental Health Nurse and hoped that she would be able to cope.
The morning after her first night at the property we received a text message from Ms Newton that she had been awake from the very early hours of that morning by loud screams, swearing and shouting which went on for a very long time. Miss Newton has had to live like this for over two years now and her health is suffering considerably as a result of Ms Fisher's behaviour. Miss Newton's health, welfare and rights should be of equal importance to that of Ms Fisher. Miss Newton is a young professional woman working in a very demanding environment and who simply would like the right to enjoy a peaceful life in her home.
Two other families have since had to move out of [an adjoining property] and that property remains unoccupied to date. If the situation is not resolved very soon and Miss Newton decides she can no longer live with the noise and disruption from next door, our property too will stand empty and liable for Council Tax and utility bills. We fear we may not be able to rent or sell our property as other neighbours on the street and indeed many people in the village are aware of Ms Fisher's outbursts.
How many more families, through no fault of their own, should endure Ms Fisher's behaviour before common sense prevails and a suitable all round solution is found. As Landlords, we too should be afforded some consideration, having invested in these properties we are providing reasonably priced rental accommodation for tenants, such as our present tenant, Miss Newton who is employed by the National Health Service.
We fully understand and appreciate that Ms Fisher has a medical condition and cannot help her behaviour. However, she is clearly an intelligent person and as such should give consideration to those living around her and acknowledge that their complaints are not without justification. Ms Fisher needs to understand that it cannot be acceptable to subject her neighbours to such a level of distress and inconvenience on a daily basis.”
In her witness statement Ms Newton describes the sort of things the Claimant shouts. Shortly after moving in she heard the Claimant repeatedly shouting out at night as if she were being attacked, or was in pain. Ms Newton was so worried she called the police. Over time the Claimant began to shout repeatedly things such as, ‘I want a baby’, ‘They're going to kill me’, ‘Abracadabra’, and ‘You have no idea what you're doing to me.’ She then took to swearing loudly and repeatedly. Later, she began making offensive comments to Ms Newton in the street. Ms Newton says that:
“Being disturbed by Susan Fisher every morning sometimes as early as 4am is having a massive impact on my life, especially my sleep patterns … I am so tired much of the time and it sometimes affects my work. I find it hard to concentrate. Both my old job and my new one that I have just started were and are demanding and required me to be alert. For example I currently have assess prisoners for their risk of suicide, not easy to do on a couple of hours sleep.
The tiredness makes me irritable, short tempered, stressed and is affecting my relationships. I find myself losing control of my emotions and arguing over the smallest things. It's just not me. Some mornings when Susan Fisher wakes me up I just cry.”
Since about March 2016 the Council has been involved with the Claimant in a number of different ways, following complaints from neighbours that the Claimant's behaviour was causing a noise nuisance.
The Claimant saw a consultant neurologist Dr Osei-Bonsu in October 2017. He was unable to give a definitive diagnosis other than to say the Claimant's condition was not the usual mixture of vocal and motor tics typical of Tourette's Syndrome.
At a meeting on 21...
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...against whom decisions are made and actions taken to refer the matter to a specialist tribunal.” [90] In R (Fisher) v Durham CC [2020] EWHC 1277 (Admin) the claimant sought to judicially review an abatement notice which had been served on her under the English statutory provisions and was m......