Text Box: R (on the application of Ethos Recycling Ltd.) v Barking and Dagenham Magistrates Court [2009] EWHC 2885 Background An abatement notice was served on a recycling company Ethos Recycling Ltd. (E) by a local authority in terms of s79 of the Environmental Protection Act 1990 (EPA) after the local authority had received a number of complaints from neighbours about dust emanating from premises which was occupied by E. The local authority had not obtained the approval of the Secretary of State prior to serving the notice. E appealed against the notice to the Magistrates Court, claiming that such approval was a condition precedent to the validity of the notice on the basis that s79(10) provides that a local authority may not, without the consent of the Secretary of State, institute summary proceedings in terms of s79 if proceedings could be instituted under Part 1 of the Pollution Prevention and Control Act 1999 or regulations made thereunder. However, the EPA does not define the expression, ‘summary proceedings’. The district judge, sitting in the magistrates court, rejected the contention that such consent was necessary. E appealed against the decision to the Queens Bench Divisional Court. Decision It was held that the expression ‘summary proceedings’ as used in s79(10) did not include the serving of an abatement notice under the EPA. The appeal was, therefore, dismissed. In the opinion of the Court it would be wholly artificial for a local authority to be required to obtain the approval of the Secretary of State before serving an abatement notice under the EPA, since such a step would take time which is frequently of the essence in effective environmental control. Members of the public who complain to local authorities expect prompt action to be taken by the latter. Comment The decision of the Divisional Court seems quite correct, in that to require local authorities to obtain central government approval before serving an abatement notice on the occupiers of premises which are polluting the environment, would impose an unnecessary constraint on local authorities . On the other hand, the institution of court proceedings is a different matter. Indeed, it would be wasteful of public money for separate enforcement bodies to simultaneously be taking action in the criminal courts in order to abate the same environmental nuisance. While the decision is not, of course, binding on the Scottish courts the author is of the view that the decision would be followed north of the Border. Francis McManus Edinburgh Napier University March 2010

Casenote: Ethos Recycling Ltd v Barking and Dagenham