A 67-year-old retired primary school teacher who has a neurological disorder that causes her to make involuntary sounds and noises has failed in a judicial review challenge over a noise abatement notice.
The notice was served on Ms Fisher by Durham County Council on 30 November 2018 pursuant to s 80(1) of the Environmental Protection Act 1990 (the EPA 1990).
The claimant lives in a mid-terraced house, let by a private landlord, in a village in County Durham. The disorder means she shouts and screams loudly, often during the night. This noise has caused and is causing serious distress and unhappiness to her neighbours.
The notice served on the claimant requires to stop making the noises. If she does not comply with the requirements of the notice, she commits a criminal offence under s 80(4) of the EPA 1990 (subject to a defence of reasonable excuse).
In Fisher, R (On the Application Of) v Durham County Council  EWHC 1277 (Admin) she sought to quash the notice.
Her case was that:
- She suffers from a disability; that the service of the notice arose in consequence of her disability; that she could not control the vocalisations and the decision to serve the notice was therefore unlawfully discriminatory in that it was unfavourable treatment by reason of disability contrary to s 15(1)(a) and s 29(6) of the Equality Act 2010 (EA 2010);
- The council breached its Public Sector Equality Duty (PSED) in its decision to issue the notice (s 149, EA 2010);
- The service of the notice breached Article 14 of the European Convention on Human Rights (the Convention) read with Article 8 and/or Article 1 of Protocol 1, and/or was irrational in the traditional public law sense.
Durham Council contended that Ms Fisher should not be permitted to raise these issues by way of judicial review, but should pursue the same arguments by way of her statutory appeal to the Magistrates' Court against the notice.
Further or alternatively, the council accepted that the claimant was disabled and the notice constituted unfavourable treatment of the grounds of disability but it contended that serving the notice was lawful and justified owing to its desire to protect the interests of the neighbours.
It contended it had full regard to its PSED and that it sought to engage with the claimant in various ways over a long period of time before it served the notice on her as a last resort. It said its actions were proportionate, not in violation of the Convention, and not irrational.
The judicial review challenge failed. Mr Justice Julian Knowles found:
- How far grounds of appeal based on alleged contraventions of Part 3 of the EA 2010 could be raised on a statutory appeal in the Magistrates' Court was uncertain, and this was a further factor which weighed in favour of him dealing with the issues on this application.
- The notice was a necessary first step in solving what had been a long running and serious issue which had caused a lot of distress and upset to a number of people, whose lives had been significantly impacted by the claimant's behaviour. “It is to their credit that many of them, despite everything, have expressed a degree of sympathy and understanding for the claimant's medical condition. Nonetheless, they are entitled to look for the council to provide a solution and the Notice is a fair first step in that process.”
- The claimant had not been the victim of unlawful disability discrimination contrary to s 15(1)(a) of the EA 2010. Applying the test for proportionality set out by the Supreme Court in Akerman-Livingstone v Aster Communities Ltd  AC 1399, the judge found that the council had acted in a proportionate way towards her in pursuant of an important and legitimate aim and so had discharged the burden upon it pursuant to s 15(1)(b). Amongst other things, the judge said he accepted the council’s submission that service of the notice was a necessary precondition before High Court injunctive relief could be sought. He also noted that the notice itself would not have any – or scarcely any – impact on the claimant and she could take reassurance from the council’s stance that criminal proceedings were most unlikely.
- He was satisfied that the council complied with its PSED, even though it had not carried out an assessment in terms. “It seems to me that the Council explored every viable option before concluding that service of the Notice was necessary as a precursor not to criminal proceedings but to High Court civil injunctive relief. It was faced with the very difficult situation of a disabled person who could not help her disability, but who had the capacity to, and did, decline to cooperate with those who had a statutory duty to deal with the nuisance which that disability was causing. I consider that it got the balance of its duties entirely right.” Overall the judge was satisfied that the council gave full appraisal to the claimant’s disability before taking the action it did under the EPA 1990.
- In relation to the claim of a breach of Article 14, the council’s actions were proportionate and in pursuit of a legitimate aim.
- The service of the notice was not absurd or irrational. “[A]lthough the Council knew that the Claimant would not be able to comply with the Notice, there were other valid reasons for serving it, not least of which the Council concluded that it was a necessary statutory precondition to taking High Court action which it has concluded is the only likely solution to a hitherto intractable problem.”
Ms Fisher was represented pro bono by Justin Bates of Landmark Chambers and Alice Richardson of Trinity Chambers. The council was represented by Charles Holland of Trinity Chambers.
See also: The interface between statutory nuisance and disability discrimination - Charles Holland's in-depth analysis of the ruling.