The King on the application of Gary Ball v Hinckley & Bosworth Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Baker,Lady Justice Elisabeth Laing |
| Judgment Date | 29 April 2024 |
| Neutral Citation | [2024] EWCA Civ 433 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001649 |
and
[2024] EWCA Civ 433
Lord Justice Coulson
Lord Justice Baker
and
Lady Justice Elisabeth Laing
Case No: CA-2023-001649
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Eyre
Royal Courts of Justice
Strand, London, WC2A 2LL
Piers Riley-Smith (instructed by Richard Buxton Solicitors) for the Appellant
Gordon Wignall (instructed by Defendant Legal Department) for the Respondent
Hearing dates: 5 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 29 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The issue raised by this appeal is whether a local authority has the power to vary an abatement notice which it has issued against a statutory nuisance under s.80 of the Environmental Protection Act 1990 (“the 1990 Act”). When granting permission to appeal, Lewison LJ said that he thought that the issue raised by the appeal was important. There is no authority directly on point.
I set out the relevant factual background in Section 2. I identify some of the important parts of the judgment below in Section 3. I set out the statutory framework in Section 4. In Sections 5 and 6, I ask whether, on an application of first principles, there is an implied power under the 1990 Act for the local authority to vary an abatement notice. In Section 7, I consider whether the authorities suggest a different answer. In Section 8, I offer a brief alternative analysis of how the power might be said to arise. I give short answers to the three grounds of appeal in Section 9. I am grateful to counsel for the appellant (a local resident) and the respondent (the local authority) for the clarity of their written and oral submissions. The interested party has taken no part in the proceedings either below or before this court.
The Factual Background
The interested party operates the Mallory Park Circuit (“the Circuit”). It is a well-known motor sports venue, and has been used for motor-racing since the 1950s. It is very close to the village of Kirkby Mallory and, in consequence, there have been ongoing issues of noise nuisance.
The first notice in respect of noise was served by the respondent in December 1985 under the Control of Pollution Act 1974 (the predecessor to the 1990 Act). It was served on the company then running the Circuit. It appears that the notice did not resolve the noise issues. Matters reached a head in March 2014 when the Local Government Ombudsman reported a number of complaints to the effect that the respondent had failed to take enforcement action for breach of the 1985 notice. As a result, the respondent served an abatement notice on 21 November 2014 (“the original Abatement Notice”).
The original Abatement Notice stated that the noise from racing activities at the Circuit had given rise to a statutory nuisance which the respondent was satisfied was likely to recur. It required the interested party to restrict the recurrence of that nuisance and to cease operations at the Circuit from 1 January 2015 “other than in accordance with the Schedule hereto attached”.
The Schedule laid down a regime for the operation of the Circuit, defining noisy days (themselves sub-divided into race days, high noise days and medium noise days), non-noise event days, and quiet days. There was an annual limit set on the number of high noise and medium noise days, and also limits on the number of noisy days within any seven day period. Clause 21 of the Schedule provided for possible variations to the restrictions in the Schedule in these terms:
“The Operator may request any variation of this Schedule in writing and if a variation is agreed by the Council it shall take effect only on receipt by the Operator of written confirmation of the variation. In applying for any variation the Operator must remind the Council that the variation only takes effect from receipt by the Operator of the Council's written confirmation”
It appears that this procedure gave rise to variations to the Schedule in 2015, 2017, 2018 and in 2021.
On 1 December 2021, the interested party sought five variations from the local authority. There was a consultation exercise and the fifth variation was abandoned. In the written variation of 31 March 2022 (“the Variation of 31 March”), the respondent agreed to three of the four remaining variations requested, but refused the fourth. The generic reason given for allowing the three variations was that “there was no evidence of increased noise nuisance from previous variations and the level of control provided by the original notice would continue”.
The variations in previous years had expressly been described as temporary. However, the three variations that were permitted by the Variation of 31 March were said by the respondent to be permanent, although they were said to be the subject of “an annual review undertaken by the Council, where the Council will consider the impact of the change and if it should remain or revert back to the original. The outcome of the review will be communicated to you in writing by the 30 th November each year”. Therefore, in order to understand all the applicable restrictions, it was necessary to consider the Variation of 31 March alongside the original Abatement Notice; it was not freestanding.
The appellant challenged the validity of the Variation of 31 March. He claimed that its effect would be to increase the impact which noise from motor racing at the Circuit will have on him and the other residents of the village. Permission was given to bring judicial review proceedings. The matter came before Eyre J (“the judge”) on 19 July 2023.
The Judgment
The judgment is at [2023] EWHC 1922 (Admin). Having set out the background, the judge identified at [13] the appellant's case that the Variation of 31 March worsened the noise landscape. He noted at [14] that the respondent contested that. He said at [15] that the question of whether the Variation of 31 March did or did not have the effect of permitting increased noise would only be material if he concluded that the defendant could not lawfully vary the Abatement Notice to reduce the restrictions which had originally been imposed, but could make a variation which did not have that effect (presumably, a variation which potentially increased the restrictions). This led him to say at [16] that he was not concerned with a power to vary which restricted activities formerly permitted, where different considerations may well apply “from those which apply to a variation which either waters down the restrictions or modifies them while leaving the overall level of restriction unaltered and which is in accordance with the wishes of the party subject to the abatement notice”.
These passages, which I confess I have not found very easy to follow, give rise to Ground 3 of this appeal, which complains that the judge wrongly excluded from his consideration the possible use of a variation power which increased the restrictions in an abatement notice.
The judge set out the legislative framework from [17]–[29]. He then addressed a debate as to the purpose of the 1990 Act. He agreed with the claimant that the references in the 1990 Act to “restricting” were to restricting the occurrence or recurrence of the nuisance, not the nuisance itself. At [39] he found that the 1990 Act contemplated the nuisance remaining in being, albeit with its effects minimised to the greatest extent practicable. He said at [40] that in consequence he did not accept the claimant's characterisation of the Act as operating “in absolutes”. He went on:
“40…The purpose of the Act is indeed to protect members of the public from statutory nuisances but that purpose is to be achieved against the background of a recognition of matters of practicality and of the interests of others. The purpose cannot be said to be that local authorities are to draw a balance between the competing interests because the primary thrust of the Act is clearly the prevention and removal of statutory nuisances. To the extent that there is a balancing exercise the scales start off weighted in favour of enforcement. However, that primary thrust is not unqualified and the balance can change. The purpose of the Act is to provide for the removal of statutory nuisances but for that to be done in a way which takes account of the existence of other factors including the fact that the total removal of a nuisance might not be practicable and that in such circumstances the taking of the best practicable means to counteract its effects might be the most that can be achieved.”
At [44]–[70] the judge addressed the key question as to whether a power on the part of the local authority to vary an abatement notice arose by interpretation of and/or necessary implication into the 1990 Act. He concluded that it did; he found that there was an implied power on the part of the local authority to vary an abatement notice. In reaching that conclusion, he relied heavily on the decision in R v Bristol City Council ex parte Everett [1999] 1 WLR 92 (first instance) and [1990] 1 WLR 1170 (on appeal) (“ Everett”). That was a case concerned with whether or not there was an implied power on the part of a local authority to withdraw an abatement notice.
The judge concluded at [60] that the difference between a power to withdraw an abatement notice and a power to vary such a notice “is not material for the purposes of the approach to be taken when considering the necessary implication of such a power”. He went on:
“60…Although the...
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