The Court of Appeal has recently considered whether a local authority has the power to vary an abatement notice which it had issued under section 80 of the Environment Protection Act 1990 (the “EPA 1990”). In a significant judgment, the Court of Appeal has provided direct authority in the case of  Ball, R (On the Application Of) v Hinckley & Bosworth Council (Rev1) [2024] EWCA Civ 433 (29 April 2024) (bailii.org) that local authorities do not have a power to vary abatement notices.

The key facts:

In 2014 Hinckley and Bosworth Council (the “Council”) served an abatement notice on Mallory Park Circuit (“MPC”) which stated that the noise from racing activities at MPC had given rise to a statutory nuisance which the Council was satisfied was likely to recur. The abatement notice required MPC to cease operations other than in accordance with the regime set out in a schedule to the notice which required for example, MPC to observe non-noise events.

The schedule included a mechanism which enabled MPC to request variations to the notice if agreed by the Council. This mechanism resulted in a number of variations being made to the notice. In March 2021 MPC requested variations to the notice which would be permanent if approved.

The Council permitted three of the four variations on the basis 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”). The Variations would be subject to annual review by the Council with the ability to re-instate the original notice depending upon the impact of the Variations. 

A local resident challenged the Council’s decision to permit the Variations by way of judicial review in 2023. 

At first instance, the High Court held that the Council did have a power to vary the abatement notice. The High Court judge relied on the decision of R v Bristol City Council ex parte Everett [1999] 1 WLR 92  which considered whether local authorities have a power to withdraw an abatement notice. Applying Everett, the judge concluded that the power of local authorities to withdraw an abatement notice carries with it the power to take a “lesser step” i.e. vary a notice and found in favour of the Council.

The Claimant appealed the decision of the High Court.

The Court of Appeal’s judgment:

The Court of Appeal overtured the High Court’s decision and held that Council did not have a power to vary the abatement notice. 

The Court of Appeal rejected the Council’s argument that sections 79 and 80 of the EPA 1990 imposed a continuing duty on it to liaise with MPC. It was held that the role of the Council is to consider whether there is a statutory nuisance and, if yes, issue an abatement notice. The decision of whether or not MPC could rely on the defence that the best practicable means were used to prevent or counteract the effects of the nuisance (in the event of criminal prosecution) (the “BPM Defence”) is a matter for the Magistrates Court.  The abatement notice therefore did not give rise to a continuing duty to consider the BPM Defence.

As to the issue of whether the Council had an express or implied power to vary the abatement notice, the Court of Appeal concluded that:

1. There is no express statutory power which provides local authorities with the ability to vary an abatement notice and this express power is reserved for the Magistrates Court under the Statutory Nuisance (Appeals) Regulations 1995 – this is a clear division of powers. If the Council did have such a power this would potentially be inconsistent with the powers reserved for the Magistrates Court.
2. The High Court was wrong to find that, by necessary implication, there was an implied power for local authorities to vary an abatement notice. The local authority sought to argue that an implied power to vary would make the system more flexible and economical as opposed to issuing new abatement notices. This line of argument was rejected, and the Court of Appeal held that, simply because something would be more convenient and/or cost effective, did not provide a legitimate argument for the necessary implication of a power.

The Court of Appeal also distinguished the case from Everett on the basis that a power to withdraw a notice is an entirely different power. The court observed that the power to withdraw an abatement notice arises in circumstances where a local authority concludes that the subject matter of a notice is not a statutory nuisance. Whereas a power to vary a notice would arise in difference circumstances i.e. where the statutory nuisance is ongoing.

We have been involved in numerous appeals against abatement notices served by local authorities.  They are often complex proceedings requiring expert evidence and with potentially significant consequences for any business served with such an abatement notice.  The question of settlement often comes up and this case is helpful clarification of the limit  of the powers of the local authority in any such settlement discussions.  It is clear that it is for the court to order such a variation within the context of appeal proceedings or for the local authority to withdraw its notice and serve an amended notice if it considers there is an ongoing statutory nuisance.

If you have any questions in relation to the statutory nuisance regime, please contact Michael Barlow of another member of our environmental team.

Written by Lisa Mulholland and Mike Barlow.