NOTTINGHAM CITY COUNCIL v MATTHEW ZAIN ( a minor) [2001] EWCA Civ 1248

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM H.H. JUDGE HALL

Nottingham County Court

[2001] EWCA Civ 1248

Case No Case No: B2/2001/0457/A

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 31st July 2001

Between

NOTTINGHAM CITY COUNCILAppellant

MATTHEW ZAIN ( a minor)Respondent

Before

Lord Justice Schiemann

Lord Justice Mance

Lord Justice Keene

David MATTHIAS (instructed by Tony Austin for the Appellant)

Ian WISE (instructed by Bhatia Best for the Respondent)

Date 31 July 2001

LORD JUSTICE SCHIEMANN:

Introduction

[1]This appeal is concerned with the powers of a local authority to seek an injunction restraining the defendant from entering a housing estate in its area. The appellant authority had obtained an interim injunction to that effect. The authority claimed that a lot of dealing in drugs was going on publicly on the estate and that the defendant was associating there with well known drug dealers and had himself been in possession of drugs and had been arrested on suspicion of dealing in drugs. HH Judge Hall, without hearing evidence or exercising any discretion, in effect struck out an action in which the authority was claiming such an injunction. He held in an impromptu judgement that the Court had no jurisdiction to deal with the injunction sought by the authority. This appeal is against that decision.

[2]In my judgement the root question is whether a local authority has the power to bring proceedings claiming such relief, rather than whether the court has jurisdiction to grant such an application. The judge held that an authority had no such power.

[3]The local authority relied on section 222 of the Local Government Act 1972 which provides:

"(1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area – (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name."

[4]The Judge held that the authority was under no statutory or other obligation to enforce the Misuse of Drugs Act 1971 and that this was a matter for the police and not for the authority. With that premise I am in total agreement. He held, as I read his judgement, that s.222 did not empower the institution of proceedings by the authority unless the authority was under a duty to enforce the relevant enactment or was under a duty to protect the relevant interest of the local inhabitants. He held that the authority was not under any such duty and therefore could not sue. Recognising that he was breaking new ground, he gave leave to appeal.

[5]As so often happens, the arguments in this court are somewhat different from, and more developed than, those which were advanced before the judge below. The authority seek permission now to re-amend their Particulars of Claim and to amend their notice of appeal so as to rely also on s. 130 of the Highways Act 1980 which provides: "(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it. (2) …….. (3) …….. (4) …….. (5) Without prejudice to their powers under section 222 of the Local Government Act 1972, a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient. (6) ……. (7) ……..

[6]On the morning of the appeal hearing the respondent was convicted and sentenced to 3 years youth custody. In those circumstances the authority no longer pursue a claim for an injunction against him. However, at the request of both parties, we agreed to continue to hear the appeal because the point is of general importance both for this authority and no doubt for other authorities. The authority have a problem on this housing estate and wish to exclude various other persons whom they suspect of dealing in drugs there and so wish to know the extent of their powers. Given that background we grant permission to re-amend and amend as sought. The authority also had before the court an application to adduce two further witness statements. In the light of the fact that the authority no longer seek an injunction that application was not pursued and we can regard it as withdrawn. The case in public nuisance

[7]The authority plead that what the defendant has been doing and threatens to continue to do amounts to a public nuisance. The judge did not strike the case out on the basis that this could not be established evidentially and we proceed on the basis that it is possible that it can be established.

[8]The concept of public nuisance is used both in the criminal law and in the civil law. It is a concept which has given rise to criticism – see, for instance Markesinis and Deakin "Tort Law" 4 th edition page 450. The following passage from the judgement of Romer L.J. in Attorney-General v PYA Quarries Ltd.[1957] Q.B. 169 at 184 has generally been accepted as authoritative. "I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue."

[9]Not everyone however is entitled to sue in respect of a public nuisance. Private individuals can only do so if they have been caused special damage. Traditionally the action has been brought by the Attorney General, either of his own motion, or, as was the situation in the PYA case, on the relation of someone else such as a local authority. In Solihull Council v Maxfern Ltd [1977] 127, Oliver J. considered the history of the legislative predecessors of s.222 and concluded that the effect of section 222 is to enable a local authority, if it thinks it expedient for the promotion or protection of the interests of the inhabitants of their area, to do that which previously it could not do, namely, to sue in its own name without invoking the assistance of the Attorney General, to prevent a public nuisance. I recognise that in that case the Local Authority was not suing in nuisance but rather was enforcing the criminal law in an area for which it had been given express responsibility, namely the enforcement of the Sunday trading provisions of the Shops Act 1950. Nonetheless I respectfully agree with Oliver J.'s conclusion in relation to suing in nuisance.

[10]Mr Wise who appeared for the respondent rightly submitted that in cases such as the present there was another principle engaged. This was that a local authority, being a creature of statute, could only do that which it was expressly or impliedly empowered to do. However, this principle thus stated is of no assistance when the question at issue is whether s.222 enables a local authority to sue for public nuisance. If the answer to that question is in the affirmative then the principle is satisfied.

[11]There is no doubt that at common law it is a tort to create a public nuisance. What is alleged in the re-amended statement of claim amounts to the creation of a public nuisance.

[12]Mr Wise pointed out that there are many specific enactments which create statutory nuisances and impose duties on authorities to try and prevent them – see for instance section 79 of the Environmental Protection Act 1990. He pointed out that our attention had not been drawn to any enactment which imposes a duty on local authorities in relation to public nuisances which fell outside the ambit of statutory nuisances. He pointed out that the definition of local authority in section 270 of the Local Government Act 1972 is wide enough to include parishes. He submitted that in the absence of any express power to take action in relation to such non-statutory public nuisances a local authority was acting beyond its powers in busying itself with such matters.

[13]For reasons which will appear it is not necessary to decide on the correctness of that submission. However, in my judgement it is within the proper sphere of a local authority's activities to try and put an end to all public nuisances in its area provided always that it considers that it is expedient for the promotion or protection of the interests of the inhabitants of its area to do so in a particular case. Certainly my experience over the last 40 years tells me that authorities regularly do this and so far as I know this has never attracted adverse judicial comment. I consider that an authority would not be acting beyond its powers if it spent time and money in trying to persuade those who were creating a public nuisance to desist. Thus in my judgement the County Council in PYA was not acting beyond its powers in seeking the Attorney General's fiat in trying to put a stop to the nuisance by dust in that case and thus exposing itself to potential liability in costs. It follows that, provided that an authority considers it expedient for the promotion and protection of the interests of the inhabitants of its area, it can institute proceedings in its own name with a view to putting a stop to a public nuisance. The Highways Act 1980

[14]In order to meet the submission which had been accepted by the judge below, namely, that a local authority could only sue in relation to matters in respect of which it had statutory duties, Mr Matthias for the Local Authority advanced the following submission. This local authority was also a highway authority. What the authority was alleging was that the Respondent's activities on the highway interfered with the use and enjoyment of the highway and that the authority had a duty pursuant to section 130 of the Highways Act 1980 to protect that use and enjoyment. This was a submission which had not been made before the judge.

[15]To that Mr Wise riposted that it was not open to the Council to enforce the criminal law. On the assumption that I am right that an authority has the right to sue in its own name for a public nuisance, at any event if the nuisance covers a sphere in relation to which the authority has express duties, I see no reason to deprive it of that right simply because carrying out the activity which it is seeking to inhibit also involves the commission of a crime. Indeed if the fact that the acts alleged amount to a crime had the effect of depriving the authority of the right to sue in public nuisance it would do so whenever public nuisance is alleged since the commission of a public nuisance is itself a crime.

[16]Mr Wise submitted that the existence of the power conferred by s.130(5) of the Highways Act indicated that section 222 was not to be used in such Highways Act cases. I do not consider that s.130(5) in any way diminishes the power which had been conferred by section 222 of the Local Government Act which had been passed 8 years earlier. It does not purport to have that effect. Indeed the opening words of section 130 point in the opposite direction. Furthermore the preconditions which must be fulfilled in relation to the use of the section 222 power – that the authority deem that use to be expedient for the promotion or protection of the interests of the inhabitants of their area – do not need to be fulfilled in relation to the use of the powers conferred by section 130. These are imperfectly overlapping sections and it is not permissible to read down s.222 by reference to s.130(5) of the later Act.

[17]The foregoing considerations, to which the judge was not referred, to my mind clearly indicate that this action should not have been struck out. Injunctions in aid of the criminal law : powers

[18]That renders it unnecessary to delineate the circumstances in which a local authority is empowered to use section 222 to enforce the criminal law. Nevertheless in the light of the argument the following may perhaps be useful.

[19]It is well established that when an authority is charged by statute with enforcing a particular criminal law it may make use of section 222 of the Local Government Act to do so. The matter was put thus by Lord Templeman in Stoke-on-Trent Council v B & Q [1984]754 at 770 in a speech with which the rest of their Lordships agreed:- "At common law the Attorney-General may institute proceedings to enforce the terms of a public Act of Parliament and "it is not necessary for the Attorney-General to show any injury at all. The legislature is of opinion that certain acts will produce injury, and that is enough…." per Sir George Jessel M.R. in Attorney-General v Cockermouth Local Board (1874) L.R. 18 Eq. 172, 178. The Attorney-General may institute proceedings himself ex officio , and in that event is liable to incur and possibly pay costs. In the alternative the Attorney-General may authorise another person called the relator, to institute proceedings in the name of the Attorney-General and in that event, the relator is liable for costs. … At common law therefore the council could not bring proceedings against the appellants to restrain breaches of the Shops Act 1950. … The power of the Attorney-General to institute proceedings to uphold public rights and duties enables the Attorney-General, whether acting ex officio or in relator actions, to invoke the assistance of civil courts in aid of the criminal law. … Thus far the common law. But Parliament may confer, and undoubtedly has in some instances conferred, limited powers on local authorities to institute and maintain proceedings to ensure compliance with public duties. For certain purposes Parliament has supplemented the power of the Attorney-General to act in the national public interest with a power for a local authority to act in the interests of the public within the area administered by that authority."

[20]It is not necessary for us to decide in the present case whether a local authority can, provided it considers it expedient for the promotion or protection of the interests of the inhabitants of their area, use section 222 to enforce the criminal law in all fields of activities. Could they for instance seek an injunction against someone who is suspected of being a serial murderer, rapist, or burglar preventing him from entering the county? One can see that it would be arguable that this protected the interests of the inhabitants of their area.

[21]It is arguable that the Attorney General could in principle apply for such an injunction. It is arguable that s.222 enables a local authority to do anything of this kind which the Attorney General could do. However, as at present advised, I am by no means persuaded that a local authority is empowered to seek such an injunction. Injunctions in aid of the criminal law: discretion of the authority and of the court.

[22]Even where an authority is empowered to take proceedings for an injunction in aid of the criminal law, it must bear in mind that there are many arguments against authorities applying for and the courts making injunctions in such cases and caution has repeatedly been enjoined when it is sought to use the civil law in support of the criminal law. As Lord Templeman said in the Stoke-on-Trent case at page 775:

"Section 222 requires that a local authority shall only act if they "consider it expedient for the promotion or protection of the interests of the inhabitants of their area"

. Any exercise by the local authority of this statutory power is subject to the control of judicial review. … Where the local authority seeks an injunction, the court will consider whether the power was rightly exercised and whether, in all the circumstances at the date the application for an injunction is considered by the court, the equitable and discretionary remedy of an injunction should be granted." At page 776 Lord Templeman said:

" … a local authority should be reluctant to seek and the court should be reluctant to grant an injunction which if disobeyed may involve the infringer in sanctions far more onerous that the penalty imposed for the offence. In Gouriet v Union of Post Office Workers [1978] AC 435 Lord Wilberforce said at p. 481, that the right to invoke the assistance of civil courts in aid of the criminal law is "an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty… or to case of emergency…"

In my view there must certainly be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area." Conclusion

[23]For the reasons stated earlier in this judgement I would grant permission to amend the particulars of claim and the notice of appeal and I would allow the appeal. In the light of the fact that no injunctive relief is sought any longer there is no advantage in the action proceeding further. I am presently minded to give leave to the claimants to discontinue the action if that is what is sought.

LORD JUSTICE KEENE:

[24]I also agree with the judgment delivered by Schiemann L.J., and wish only to add a few comments of my own.

[25]Much reliance has been placed by the respondent on the decisions in Stoke–on-Trent Council -v- B. and Q. (ante) and City of London Corporation -v- Bovis Construction Ltd.,

[1992] 3 All ER 697

. From these and some similar decisions it seeks to derive the proposition that a local authority cannot seek an injunction to restrain a public nuisance in its own name, unless there is some express statutory underpinning from an Act of Parliament which places the responsibility for enforcement on the local authority. That was the argument which commended itself to the judge below.

[26]It is right that, in those cases relied on, there was such a statutory responsibility on the local authority. But that was an element identified by the court as important because the local authority was not seeking to rely on public nuisance. Where there is evidence of a public nuisance, it was historically always the case that the Attorney General could seek an injunction to restrain the nuisance and, before the passing of the Local Government Act 1972, a local authority could likewise sue in such cases, so long as it obtained the Attorney General's fiat: see Prestatyn U.D.C. -v- Prestatyn Raceway Ltd

[1970] 1 WLR 33

. The effect of section 222(1) of the Local Government Act 1972 was to enable a local authority to sue in its own name in such cases where its local authority area was affected, without needing the consent of the Attorney General. It is asserting a public right. That was the conclusion reached, in my judgment rightly, by Oliver J. in Solihull Metropolitan Borough Council -v- Maxfern Ltd

[1977] 1 WLR 127

and approved in the Stoke-on-Trent Council case: see p. 773 H. Dicta by Bingham L.J. in the Bovis case are to the same effect: p. 713 d-e. In essence section 222(1) reversed the Prestatyn decision.

[27]The position therefore is that where a local authority seeks an injunction in its own name to restrain a use or activity which is a breach of the criminal law but not a public nuisance, it may have to demonstrate that it has some particular responsibility for enforcement of that branch of the law. But where it seeks by injunction to restrain a public nuisance, it may do so in its own name so long as it "considers it expedient for the promotion or protection of the interests of the inhabitants" of its area (section 222(1)). That is so even though it is seeking to prevent a breach of the criminal law, public nuisance being a criminal offence. Its decision that such proceedings are expedient is controlled, as Lord Templeman pointed out in the Stoke-on-Trent Council case, by the normal judicial review criteria: see page 775 F-H. Whether it can establish that a public nuisance exists will, of course, depend on the facts of the individual case, but its entitlement to seek the injunction in its own name is clear. The court would then have to exercise its discretion, once a public nuisance was established, on the well-known principles applicable to such injunctions.

LORD JUSTICE MANCE:

[28]I have read in draft and agree with the judgments and conclusions of Schiemann and Keene L.J.J.

ORDER

Appeal allowed with costs; Respondent's costs subject to detailed assessment; Application allowed; Liability to pay costs assessed at nil; Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)