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The Barns(NE) Ltd v Newcastle Upon Tyne CC [2006] Env LR 25 (Court of Appeal, Civ. Div.) |
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Statutory Nuisance Background The appellants (B) were farm owners who were considered by the respondents (N) to be responsible for smoke from the open burning of waste. It was alleged that the smoke comprise a statutory nuisance in terms of Part III of the Environmental Protection Act 1990. Under s80(1) of the Act a local authority is placed under a duty to serve an abatement notice on the person who is responsible for the nuisance if the local authority considers that a nuisance exists. Section 80(4) goes on to provide that if a person on whom an abatement notice is served fails to comply with an abatement notice he commits an offence under the Act. However, S 81(5) goes on to provide that if the local authority is of the opinion that proceedings for an offence would afford an inadequate remedy in the case of a statutory nuisance the local authority may take proceedings in the High Court. N considered that serving an abatement notice on B would be futile. Therefore, it applied to the High Court for injunctive relief. B contended that it was a condition precedent to applying for injunctive relief that N should first have served an abatement notice under s80 of the Act. The judge at first instance rejected this contention. B appealed. Decision The Court of Appeal allowed B’s appeal, holding that the procedure for dealing with statutory nuisances is intended to comprise consecutive steps in a line. Therefore, first, there requires to be served an abatement notice. Then, if there is no compliance, either prosecution or self-help by the relevant local authority is available. In the last resort it can take action in the High Court in order to avail itself of injunctive relief. Parliament intended that an abatement notice must be served prior to the local authority enlisting the aid of the High Court. There could be no proceedings for an offence unless an abatement notice has been served and that a person has failed to comply with any requirement or prohibition which is imposed in the notice. Comment This is an important judgement in terms of the enforcement of the law which relates to statutory nuisance. The Court of Appeal simply held that a local authority must invoke the statutory abatement procedure in the Act no matter how futile such action may appear. The decision will, in effect, lead to a delay in some nuisances being dealt with by local authorities and also lead to more cost. However, the author is of the view that the decision which was reached by the Court of Appeal is wrong. S81(5) is quite clear. It takes into account that in certain occasions the service of abatement notices would be quite useless. A local authority has wide discretion, subject to the Wednesbury reasonableness test, whether to avail itself of, for example an injunction or interdict. If it was necessary that a local authority had to serve an abatement notice before enlisting the aid of the High Court (a requirement which is of fundamental importance) Parliament would have so stipulated. While the decision is not, of course, binding on the Scottish courts it would be persuasive. Francis McManus Napier University November 2006 |
