The statutory nuisance regime

Piers Riley-Smith analyses a Court of Appeal case concerning whether there was a legal power to vary an Abatement Notice issued under s.80 of the Environmental Protection Act 1990.

The High Court had found that there was a power, but this was overturned by the Court of Appeal who found in in Ball v Hinkley & Bosworth Council [2024] EWCA Civ 433 that there was no express or implied power of variation within the 1990 Act.

However,in a detailed 54-page judgment the Court of Appeal considered and addressed the operation and purpose of the statutory nuisance regime. Several important points were addressed by the Court.

Firstly, the Court rejected the Respondent’s submission that there was a continuing duty on local authorities under s.79 and 80 to discuss and liaise with the perpetrator of a statutory nuisance before and after a Notice is issued:

23. I disagree: the 1990 Act does not envisage any such thing. On any proper reading of s.79 and s.80, they are dealing with abatement notices as a one-off event, following an inspection of the area carried out “from time to time”. That is why an ensuing abatement notice remains in force indefinitely: see R v Clerk to the Birmingham City Justices, ex parte Guppy (1988) 152 JP 159 at 163B and 163H. The sections are not couched in the language of a continuing duty, and do not suggest that inspections and subsequent notices are to be regarded as part of an obligatory continuing dialogue both before and after service of the notice…..

24.This is also how abatement notices have always been characterised by the Courts: as a one-off event. For example, when Lord Woolf was considering the ‘background and context to the introduction of the EPA 1990’ in Aitken v South Hams District Council [1995] 1 A.C. 262, he considered the service of noise abatement notices under s.58 of the Control of Pollution Act 1974. Central to that procedure, he said, was ‘the service of a notice, contravention of which, without reasonable excuse, constitutes an offence’. This suggests that the service of abatement notices is to be regarded as a one-off admonition, and not the start or continuation of a continuing dialogue.

Secondly, the Court addressed a long-standing grey area in the regime: whether it was for local authorities to consider Best Practicable Means before they issue a Notice. The Court agreed with the Appellant in robustly rejected the notion:

The authorities therefore demonstrate that there are two distinct stages. First, the local authority has to decide whether there is a statutory nuisance. If it does so decide, it is obliged to issue an abatement notice. There is no relevant discretion. If there is an appeal, or a criminal prosecution, then it is at that second stage that the Magistrates’ Court has to decide whether there is a BPM defence. This distinction between the powers of the local authority on the one hand, and those of the Magistrates’ Court on the other, is of critical importance when considering the primary issue in this appeal. Whether or not the nuisance has been or can be addressed by the use of BPM is not a matter for the local authority: it falls outside their jurisdiction. In law, it is solely a matter for the Magistrates’ Court. That is also consistent with my earlier conclusion that the abatement notice is envisaged as a one-off event which is the sole responsibility of the local authority. The abatement notice is not a gateway for the local authority’s ongoing consideration of BPM. Thirdly, the Court addressed the purpose of the 1990 Act in terms of statutory nuisance reinforcing its requirement to protect the public:

Thirdly, the Court addressed the purpose of the 1990 Act in terms of statutory nuisance reinforcing its requirement to protect the public:

64. In my view, one of the salient purposes of the 1990 Act was to protect the environment: it might fairly be said that the clue was in the title. As part of the scheme to achieve that, it was designed to protect members of the public from statutory nuisances. That is what s.80 is all about: the whole process is predicated on the basis that, if there is a statutory nuisance, it needs to be abated/prohibited/restricted. That has been the preoccupation of each of the precursors to the 1990 Act. In Great Western Railway v Bishop [1871-72] LR 7 QB 550, the intent of the 1855 Nuisances Removal Act was expressed as being ‘to protect the public health and private health of individuals living in towns’. Later, Part III of the Public Health Act 1936 framed ‘statutory nuisances’ as that which was ‘prejudicial to health or a nuisance’.

65. Mr Wignall argued that the purpose, or at least one of the purposes, of the 1990 Act was to maintain a balance between the local authority and the perpetrator of the nuisance, and that the local authority needed to maintain a continuous dialogue with the recipient of the notice. I disagree with that: for the reasons that I have set out already, I reject the notion that the maintenance of some sort of balance between local authority and the perpetrator of the nuisance was the purpose (or even one of the principal purposes) of the 1990 Act.

Fourthly, the Court of Appeal confirmed previous authority that there is a power to withdraw an Abatement Notice and that this is the appropriate response to an outdated Notice:

As to this latter point, it seems to me that, if the local authority deem it necessary, they can withdraw the old abatement notice (as per Everett) and issue a fresh notice. Then everyone would know precisely where they stood.

Overall, the Judgment considers and clarifies several previously unaddressed areas of debate in the statutory nuisance regime.

Piers Riley-Smith is a barrister at Kings Chambers. He appeared for the successful appellant, instructed by Dr Paul Stookes of Richard Buxton Solicitors.