The King on the application of Garry Ball v Hinckley & Bosworth Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 01 August 2023 |
| Neutral Citation | [2023] EWHC 1922 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1792/2022 |
and
[2023] EWHC 1922 (Admin)
Mr Justice Eyre
Case No: CO/1792/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Piers Riley-Smith (instructed by Richard Buxton Solicitors) for the Claimant
Gordon Wignall (instructed by Defendant Legal Department) for the Defendant
Hearing date: 19 th July 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 1 st August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The issue I am to address turns on a shortly stated point of law. The question is whether a local authority which has issued an abatement notice under section 80 of the Environmental Protection Act 1990 (“the 1990 Act”) in respect of a statutory nuisance in the form of noise emitted from premises has the power subsequently to vary that abatement notice. The Claimant says that a local authority has no such power. He says that as a consequence the Defendant's variation on 31 st March 2022 (“the Variation”) of an abatement notice issued on 21 st November 2014 (“the Abatement Notice”) relating to premises operated by the Interested Party was unlawful and falls to be quashed.
Permission was given by Steyn J who noted that there is no direct authority on this issue. The Interested Party has taken no part in the proceedings.
The Claimant's case is simply that the Variation was unlawful because the Defendant had no power to vary the Abatement Notice. He does not make any other public law challenge to the decision to vary. It follows that I am to approach the case on the footing that if the Defendant has a power to vary an abatement notice that power was validly exercised in this case.
As I will explain below the parties disagree as to whether the Variation had the effect of watering down the restrictions imposed by the Abatement Notice. I will address the issue in the first instance on the basis that the Variation had the effect of at least arguably reducing the restrictions imposed by the Abatement Notice on the Interested Party and will consider whether such a variation was lawful. If a local authority has power to make such a variation then it is not suggested that it does not also have power to make a variation which maintains the same overall level of restriction (as the Defendant says was the position here). If I conclude that there was no power to make a variation reducing the restrictions it will then be necessary to consider whether a variation which does not reduce the overall level of restriction can nonetheless be made lawfully. It will only be if I conclude that the latter is lawfully permissible but the former is not that it will be necessary to consider the actual effect of the Variation.
The Factual Background .
The Interested Party operates the Mallory Park Circuit (“the Circuit”). This is a car and motor cycle racing circuit in the village of Kirkby Mallory. Most of the properties in the village are within 500 metres of the Circuit and some are even closer.
The Circuit has been used regularly for motor sports since the mid 1950s with the frequency of events varying over the years depending on the popularity of that sport. In December 1985 the Defendant served a noise abatement notice on the company which was then operating the Circuit. In March 2014 the Local Government Ombudsman reported on a complaint made by some of the residents in the village that the Defendant had delayed in taking enforcement action for breaches of that notice. As that report noted “many residents of the village can hear motorsport noise whenever the track is used” and “motor racing on a hard surface is clearly audible throughout a large part of the village.”
The Ombudsman's report was followed by the issuing of the Abatement Notice. This gave notice that the noise from racing activities at the Circuit had given rise to a statutory nuisance which the Defendant was satisfied was likely to recur. The Abatement Notice required the Interested Party to restrict the recurrence of that nuisance and “from 1 st January 2015 to cease or cause to cease the operation of the Mallory Park Racing Circuit by motor vehicles other than in accordance with the Schedule … attached.”
The Schedule laid down a regime for the operation of the Circuit. It defined noisy days, non-noise event days, and quiet days with noisy days being sub-divided into race days, high noise days, and medium noise days. The Schedule set an annual limit on the number of high noise and medium noise days; limited the number of noisy days which there could be in any seven day period; provided for intervals between noisy days; and regulated the hours when motor vehicle activities could be undertaken. In addition it laid down limits on the noise level for vehicles using the Circuit and provided for the publication of a calendar of activities. At clause 21 the Schedule provided for variation thus:
“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 on receipt by the Operator of the Council's written confirmation.”
The procedure laid down in clause 21 led to variations of the Schedule in 2015, 2017, 2018, and in 2021.
The Variation of 31 st March 2022 followed a request made by the Interested Party on 1 st December 2021 and was made after consultation with those living in the village and others. Five variations were requested although the fifth of those was withdrawn by the Interested Party following the consultation exercise. The Defendant agreed to three of the variations but refused to make the fourth requested.
The Schedule had provided that there should be a minimum one hour continuous lunch break on race days. The Variation in this regard was to permit the lunch break to be reduced to 30 minutes on 26 th December when the Interested Party held its Boxing Day Plum Pudding event. The Interested Party had sought this variation because at that event the operating hours were only from 10.00am to 3.30pm rather than the normal operating hours for race days of 9.30am to 6.00pm. The Defendant's decision said that the reason for this variation 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 other two permitted variations did not change the total annual number of noisy days but did alter the days when these could occur. The effect of the second variation was to allow there to be three consecutive noisy days once a year. The effect of the third was allow there to be once a month a noisy day on a Friday followed immediately by another noisy day. In each of those instances the reason was the same as had been given for the first variation.
The variations which had been made in earlier years had expressly been temporary but those made in March 2022 were expressed to be permanent albeit subject to annual review.
The Claimant lives in the village and he contends that the effect of the Variation is to increase the impact which noise from motor racing at the Circuit will have on him and on other residents. He says that the increased impact will come from the reduction in the required lunch interval on Boxing Day and the provision for noisy days to be permitted in close proximity to each other. In his skeleton argument Mr Riley-Smith put it thus:
“The impact of these changes self-evidently worsened the noise landscape in the locality by together reducing the period of quiet during Boxing Day; allowing 3 days of consecutive noise on occasions and by reducing the respite between noisy weekends. Cumulatively, the noise effects from the operations are, on their face, worse than they were when the Notice was issued.”
The Defendant does not accept that the Variation amounts to any watering down of the protection which the Abatement Notice provides to local residents nor that there will be an increased effect on them. It says that the limit on the total number of noisy days will remain unchanged and that the rationale for allowing the variation was that the previous variations showed that there would be no increased noise nuisance from the variation allowed.
As explained above the question of whether the Variation does or does or not have the effect of permitting an increased impact will only be material if I conclude that the Defendant could not lawfully vary the Abatement Notice to reduce the restrictions imposed but could make a variation which did not have that effect.
It is not suggested that the Variation operated to increase the restrictions imposed on the Interested Party by the Abatement Notice and the Schedule. Mr Riley-Smith submitted that because the Variation provided for an annual review of the changes which had been made it envisaged the prospect of the restrictions being tightened. I do not accept that analysis. The Variation says that on the annual review the Defendant “will consider the impact of the change and if it should remain or revert back to the original”. The effect is that the annual review will be with a view to a removal of the March 2022 variations or of one or more of them with the consequence that the Schedule would revert in respect of such variation to its original unvaried terms. If there is such reversion the restrictions after the reversion would be tighter than those before the reversion but the...
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