Mar 10, 2000 - The New Law Journal/2000 Volume 150/Issue 6926, March/Articles/Problems in statutory nuisance law enforcement - 150 NLJ 340. New Law ...
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The New Law Journal/2000 Volume 150/Issue 6926, March/Articles/Problems in statutory nuisance law enforcement - 150 NLJ 340 New Law Journal 150 NLJ 340 10 March 2000
Problems in statutory nuisance law enforcement This Week Nuisance John Pointing Barrister, Field Court Chambers, 3 Field Court, Gray's Inn © Reed Elsevier (UK) Ltd 2000 There is inconsistency in recent decisions, writes John Pointing How much discretion does a local authority have to serve and enforce abatement notices under s 80 of the Environmental Protection Act 1990 [EPA]? A number of recent decisions in the Divisional Court and the 1 Court of Appeal have striven to clarify matters. The decisions are inconsistent. Judges, legal practitioners, environmental health officers and the public are entitled to be confused at the directions taken in recently decided cases. Environmental health officers responsible for enforcing the Act continue to be unsure about what type of notice they should serve under s 80, If a local authority decides to serve a notice to combat i ndustrial noise--persistent low frequency noise from a factory, for example--should it serve a simple "abate the nuisance" notice or specify in the body of the notice what works are required to restrict the noise? The wording of the statute appears to give the local authority a discretion about which type of notice to serve upon the perpetrator of a statutory nuisance. Section 80(1) states:
"Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur the local authority shall serve a notice imposing all or any of the following requirements-(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes". [my emphasis].
Discretion is confined to the form the notice takes. Once the local authority has satisfied itself that a statutory 2 nuisance exists or might recur, then it is required to serve a notice. Any decision not to do so will be subject 3 to judicial review. No court can substitute its own discretion for a decision which is for the local authority alone; the court's powers in an appeal are limited to dismissing the appeal and to quashing or varying a n o4 tice in the recipient's favour.
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However, what is the position when the local authority believes that a statutory nuisance exists, but it is not at all clear what measures are needed to abate or restrict the nuisance? Can the local authority simply tell the recipient of the notice to abate the nuisance without specifying what steps need to be taken, and if or what measures need to be put in place? The answer, if there is one to the difficulties, seems to depend on the particular characteristics of the nui5 sance. Kirklees v Field and Others is a recent Divisional Court case in which action was clearly required to deal with the nuisance caused by the imminent collapse of a rock face onto a row of cottages, Owen J decided that a notice specifying the works required should have been served by the local authority on the various owners of the properties affected. Serving a simple abatement notice was wrong in this case since the notice: "must inform the (recipient) of what is wrong and must ensure that the (recipient) knows what is required in order to correct it, which may require specification of the works required. If the notice did not meet these two requirements ... the notice would be invalid [at 337]." Authority for the line taken in Kirklees can be seen in earlier cases. In Network Housing Association v West6 minster CC, the cause of the nuisance was also the condition or state of the property, though here it was the lack of effective sound insulation in the boundary space between flats which caused noise nuisance. Again, the court found that if works are required then specification of those works needs to be contained in the body 7 of the notice. The nuisance could not be dealt with by serving a simple "abate the nuisance" notice requiring occupants to be very quiet, as ordinary living entails making a reasonable amount of noise. I am reasonably confident in coming to the conclusion that for statutory nuisances which can only be abated or restricted if works or steps are needed, the local authority is obliged to specify such works or steps, with sufficient particularity to enable the recipient of the notice to know how to keep to the right side of the notice. But, the reality is that many cases of statutory nuisance are not clear-cut and can be resolved either by carrying out works or by ceasing the activity which causes the nuisance. The Kirklees situation--where ceasing the activity that causes the nuisance cannot be an alternative solution to undertaking works --is actually quite unusual. Is it lawful to require a "nuisance offender" to stop causing the nuisance and leave it up to him to decide whether to cease the activities causing the nuisance or to undertake works to restrict it? The answer to this 8 would seem to be "yes", at least in certain circumstances, The Court of Appeal in SFI Group v Gosport BC recently upheld the validity of an entertainment noise notice in which the recipient was told: "to cease the playing of amplified music at levels which cause a nuisance at neighbouring premises". The problem could have been dealt with had adequate sound insulation to the windows been installed and in this case the recipient of the notice had been willing to install them. The Court of Appeal accepted the argument of Mance J 9 in the Divisional Court that where the local authority have a choice of remedy, involving either simple abatement or works, then they are entitled to exercise that choice by serving either form of notice. Going back to industrial noise nuisance--cases which are notoriously difficult to resolve and which pose considerable difficulties for the local authority in terms of specifying the works required--it would appear that all the local authority need do is to serve a simple abatement notice. Justification for this view can be found in 10 Sterling Homes v Birmingham City Council, " where McCullough J stated (at 133-34): "It may clearly be helpful if local authorities feel able to specify what works should be done or what steps should be taken, but I see little advantage in obliging them to do so. As the law stands, local authorities are not, in any event, 11 obliged to require works to be done or other steps to be taken; they can, consonant with R v Wheatley, simply require the nuisance to be abated ...; the obligation to specify the "works" and the; "steps" only arises if they choose [my emphasis] to include in their notices a requirement for works to be done or steps to be taken." The Court of Appeal decision in SFI v Gosport implies where there is an alternative to undertaking works, that the local authority can, if it chooses, decide to serve a simple abatement notice. This would apply not 12 only to entertainment noise but also to noisy dogs, or to noisy neighbours. But, in many situations it could be unreasonable or unfair to serve a simple abatement notices, for example because the solution to the problem is complex or where no-one can come up with a practical solution. Also, a simple abatement notice may be excessive or unreasonable because it threatens dire financial consequences for a commercial, i ndustrial or business concern.
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In a recent judicial review, involving a s 80 notice served on a water company by Falmouth and Truro Port Health Authority, the idea of requiring the company to turn off the pumps rather than specifying alternative means of disposing of the sewerage was described by the judge granting leave as "the most absurd conten13 tion that (I have) ever heard". When it came to a full hearing Harrison J agreed. The learned judge stated that a notice requiring simple abatement by turning off the pumps "could not be contemplated by any rational public health authority" [at 861]. Nevertheless, there is, as yet, no authority over the degree of choice which an enforcement authority has regarding which type of notice to serve in industrial noise cases. It is submitted that many instances occur whereby the service of a simple abatement notice, which does not specify the works or steps required to be taken, would be as absurd as in Falmouth and Truro PHA. There are circumstances when it would not be unreasonable to serve a simple abatement notice on an industrial or commercial concern. For example, an undertaking may be causing a nuisance because of an unwillingness to spend money to install equipment that would be sufficient to reduce the nuisance. However, case law fails to provide any indication of the circumstances when serving a simple abatement notice might be justified and those when it would be unreasonable. Recipients of simple noise abatement notices who run commercial enterprises are likely to be advised to appeal them on the grounds that they are excessive or 14 15 unreasonable or, in appropriate cases, a best practical means defence can be run in an appeal. Where a prosecution is proceeded with--either because an appeal against the notice did not succeed or because the defendant did not lodge an appeal--then the defence of reasonable excuse in not conforming to the notice 16 requirements could be run at the trial. Lack of clarity in the law in this area has led to inconsistency and confusion. Many enforcement authorities will be encouraged to serve simple abatement notices more often now there is an implied power to withdraw 17 a notice. What issues can be anticipated if abatement notices increasingly are served and then withdrawn? One problem is that unless the service of the notice was negligent, there would appear to be no mechanism whereby the recipient of a notice that is subsequently withdrawn by the local authority can claim any costs from the magistrates' court. The position on entitlement to costs is not clear even where a notice is withdrawn after the recipient lodges an appeal. This is because the magistrates' courts have no jurisdiction to hear the case since there is no notice in force forming the subject of appeal. On the other hand, where the local authority refused to withdraw the notice, the magistrates hearing any appeal could vary it in the appellant's favour if the appellant's alternative solution to the problem was acceptable to them. In those circumstances the appellant would be entitled to his costs. These costs anomalies may lead some authorities to serve notices only to withdraw them if challenged--a practice amounting to what might be termed a "bad faith enforcement regime", which is encouraged by the present dearth of regulations and government guidelines.
Conclusion Recent decisions of the higher courts have not helped achieve consistency or clarity in the statutory nuisance field and the magistrates' courts would do well to clear their decks for a spate of appeals. What is to be done? Rather than leaving cases encompassing complex forms of nuisance to judges to sort out, what is immediately required are detailed regulations and central government guidelines. Particular consideration needs to be given to such areas as industrial noise and odour nuisances, though neighbourhood noise co n18 tinues to provoke a high volume of complaints to local authorities. Light nuisance, which is outside the pre19 sent categories of statutory nuisance, is another area of concern. Reform needs to go beyond the substantive law. The system of prosecuting statutory nuisance offences? needs critical examination, especially consideration of the jurisdiction in which cases are heard. Magistrates' 20 courts are an inappropriate jurisdiction to hear appeals or to decide prosecutions in regulatory enforcement. The inadequacy of the venue becomes most apparent in more complex cases where magistrates have to consider expert evidence. Finally, the issue of who pays for expert opinion on the measures required to restrict nuisances--the local authority or the "nuisance offender"--needs to be decided, together with when can the local authority oblige the industrial noise offender to have a noise survey (or other expert report on abatement measures) carried out.
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1
R Malcolm, Statutory nuisance: enforcement issues and the meaning of "prejudice to health", Env L Rev [1999], 210-221.
2
Alternative action under the Act is possible such as seeking an injunction in the High Court under s 81(5).
3
R v Carrick District Council, ex p Shelley [1996] JPR 912.
4
Statutory Nuisance (Appeals) Regulations 1995, 2(5).
5
Kirklees MBC v Field and Others [1998] Env LR 337.
6
Network Housing Association Ltd v Westminster City Council [1994] Env LR 176.
7
The common local authority practice of serving a vague notice and attaching a detailed schedule to it, which the recipient is told does not form part of the notice but merely constitutes "advice", is to be deplored. The enforceability of the schedule is in doubt where it does not form part of the notice and there seems to be no statutory power to serve a schedule other than as a part of a notice. 8
SFI Group plc (formerly Surrey Free Inns plc) v Gosport BC [1999] Env LR 750.
9
Surrey Free Inns PIc v Gosport BC LGR [1998] 389.
10
Sterling Homes v Birmingham City Council [1996] Env LR 121.
11
R v Wheatley [1885] QBD 34.
12
Budd v Colchester BC [1999] JPL 717 (CA).
13
R v Falmouth and Truro Port Health Authority, ex p South-West Water Ltd [1999] En LR 833. at 856,
14
Statutory Nuisance (Appeals) Regulations 1995, reg 2(2(c).
15
Ibid, reg 2(2)(e).
16
Section 80(4) Environmental Protection Act.
17
R v Bristol City Council, ex p Everett [1999] 2 ALL ER 193.
18
R Malcolm, "Suing in Private Nuisance: the Rights of the Property Owner", in: Contemporary Property Law (ed Paul Jackson and David C Wilde), pp 254-282, 1999, Dartmouth Publishing. 19
20
P Jewkes, "Light pollution: a review of the law", [1998] JPL 10-22.
Food safety is another area suffering from jurisdiction problems. Cf J Pointing, "Food safety prosecution, due diligence and expert evidence", [1995] Tr Law 198-203.
