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Elvington Park Ltd v City of York Council Queens Bench Division [2009] EWHC 1805 |
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Background and decision The facts of the case were simple and straightforward. Essentially, Elvinton Park Ltd. (E) occupied land which was once an airfield which was used by the military but which E currently used, inter alia, for motor sports. Such a use gave rise to complaints from residents of houses which were situated nearby. The City of York Council served two abatement notices in terms of section 79(1)(g) of the Environmental Protection Act 1990 (the Act) on E. The substantive issue which concerned the subject matter of the appeal concerned the content of the notices which required E not simply to abate the nuisance in question, but also to take steps which were necessary to prevent the nuisance from continuing. The court held that it was settled law that if an abatement notice required not merely the abatement of a nuisance but also required steps to be taken by the person responsible to abate the same, the requisite steps required to be specified. If they did not, the notice is rendered invalid. Comment This decision is in line with a number of cases where the content of nuisance abatement notices has been challenged. Elvington, in effect, takes the law no further forward. There was little dispute that the noise from E’s premises constituted a nuisance. The decision may prompt local authorities to require the person responsible for the nuisance simply to abate it, thereby reducing possible grounds for challenge in the courts. The practical disadvantage of this, of course, is that often recipients of abatement notices which fail to advise as to how to abate the nuisance in question may lack the technical expertise to do so. They may also lack the financial wherewithal to employ those with such expertise. The upshot is that the nuisance may continue to the public’s detriment. Francis McManus Edinburgh Napier University |