The Barns (NE) Ltd & Anor v Newcastle-Upon-Tyne [2005] EWCA Civ 1274

Case No A2/2005/0638[2005] EWCA Civ 1274
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(HHJ LANGAN)
Venue Royal Courts of JusticeDate Tuesday, 11 October 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE MOSES
SIR CHRISTOPHER STAUGHTON
(Sitting as a Judge of the Court of Appeal, Civil Division)
Between
THE BARNS (NE) LIMITEDAppellantSHABAN SULEMANAppellant-v-
Between
THE COUNCIL OF THE CITY OF NEWCASTLE-UPON-TYNERespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ROBERT MCCRACKEN QC AND MR MEYRIC LEWIS (instructed by Messrs Jamieson Brown) appeared for AppellantsMR CHRISTOPHER VANE (instructed by Council of the City of Newcastle-upon-Tyne) appeared for Respondent
J U D G M E N T

SIR CHRISTOPHER STAUGHTON: The second defendant, Mr Shaban Suleman, was formerly the owner of Pecks House Farm, Newbiggin Lane, Newcastle-upon-Tyne. On 17 March 2004 he transferred part of it to the first defendant, The Barns (NE) Limited. The remainder he kept for himself. On 25 January 2005 the Council of the city of Newcastle-upon-Tyne started this action against the two defendants in the Chancery Division of the High Court.

[2]The particulars of claim alleged that the defendants were the proprietors of Pecks House Farm and together occupied it. That was admitted in the defence. The Council claimed that on 22 December 2004 smoke from open burning was seen amongst a number of large deposits of burning material and demolition waste in a fenced area at Pecks House Farm. That too was admitted. In particular, it was said in paragraph 10 that the collection and burning of the waste was "caused and/or permitted by the first and second defendants on premises(sic)" (that presumably was a reference to Pecks House Farm). That paragraph 10 was denied.[3]Another earlier event is alleged against the defendants, in respect of which proceedings have been begun and, I gather, completed in the Newcastle Magistrates' Court. The defendants require the claimants to prove the assertions made in paragraphs 11 to 14 of the particulars of claim. But the defendants admit that if the claimants are able to prove the contents of those paragraphs, then the matter alleged in those paragraphs amounted to a statutory nuisance under section 79 of the Environmental Protection Act 1990. Then the Council alleged this in paragraph 20 of the particulars of claim:
"The Claimant by its duly authorised officer Stephen Savage, Head of Public Health and Environmental Protection, has formed the opinion that proceedings for an offence under section 80(4) Environmental Protection Act 1990 would afford inadequate remedy in respect of the said statutory nuisance and the threat that it is likely to recur, and the Claimant applies under section 81(5) Environmental Protection Act 1990 for an order prohibiting the statutory nuisance and any repetition thereof."
That too is denied. In particular, referring to paragraph 7 of the defence:
"Paragraph 20 is denied. The Claimant is required to prove that the decision referred to in that paragraph was properly considered and carefully made and is also required to prove that the person or body who made that decision was an appropriate person or body and that the same accorded properly with any such policy as may be in place governing such decisions. Further, the Defendants submit as a matter of law that an injunction pursued under section 81(5) of the Environmental Protection Act 1990 should not be considered by the Court unless an abatement notice has first been served on the Defendants in accordance with section 80 of the 1990 Act. No such notice has been served."
[4]It is thought that it will take some time to bring the issues of fact in this trial to determination, and that it would be sensible to try, first, the issue raised by paragraph 7 of the defence; that is, whether there can be a claim for an injunction before the Council has served an abatement notice on the defendants.[5]The law on this subject is to be found in the Environmental Protection Act 1990. It was set out clearly by Judge Langan, sitting as a judge of the High Court, and in his judgment on 17 March 2005. There are three measures which a Council may take in a case of statutory nuisance:(1) they can prosecute the wrongdoer in the Magistrates' Court;(2) they can, by self-help, procure abatement of the wrong-doing;(3) by an action in the High Court, they can seek an injunction. These are dealt with in sections 80 and 81 of the statute.[6]Section 80 has a title, "Summary proceedings for statutory nuisances". It says this in sub-section (1):
"Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ("an abatement notice") imposing all or any of the following requirements- (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes, And the notice shall specify the time or times within which the requirements of the notice are to be complied with."
[7]Sub-section (4) provides:
"If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence."
That, we are to assume, would lead to a prosecution in the Magistrates' Court. That is the first of the possible routes by which the Council may seek to put a stop to the nuisance. It is to be noticed that in sub-section (1) the local authority shall serve a notice, that is to say the abatement notice. It is said by Mr Mccracken that that is mandatory, that the Council is obliged to serve the abatement notice. That is not entirely accepted by Mr Vane for the Council, but he accepts that something must be done. The Council cannot simply keep quiet and take no action.[8]I must say that my impression is that it is mandatory, but I do not think it is necessary to decide that in this case. So that is the first of the three possibilities.[9]We then turn to section 81, which has the heading, "Supplementary provisions". That is not wholly accurate, and indeed it is misleading in some respects, because what follows is not necessarily a supplementary provision. But I do not know that much turns on that. Carnwath J decided in the case of R v Carrick District Council, ex parte Shelley and Anr [1996] Env LR 273 that once it was found that a statutory nuisance existed, the respondent was under a duty, not a discretion, to serve an abatement notice. However, it does not necessarily follow that every remedy must be insisted upon. There is a discretion thereafter.[10]Lord Denning, in the case of London Borough of Hammersmith v Magnum Automated Forecourts Limited [1978] 1 All ER 401, said that it should be noticed that "that section imposes a positive duty on the local authority. They 'shall serve a notice'". That was a reference to the Control of Pollution Act 1974. The important part in section 81 is in sub-sections (3), (4) and (5). Sub-section (3) provides:
"Where an abatement notice has not been complied with the local authority may, whether or not they take proceedings for an offence under section 80(4) above, abate the nuisance and do whatever may be necessary in execution of the Notice."
Then there is provision in sub-section (4) for the expenses of the task and such like.[11]So there we have the second of the measures which the Council can take, and in that case, as in the provision in section 80(1), there is express provision for an abatement notice.[12]Then there is the last of the three, sub-section (5) in section 81:
"If a local authority is of opinion that proceedings for an offence under section 80(4) above would afford an inadequate remedy in the case of any statutory nuisance, they may, subject to subsection (6) below, take proceedings in the High Court for the purpose of securing the abatement, prohibition or restriction of the nuisance, and the proceedings shall be maintainable notwithstanding the local authority have suffered no damage from the nuisance."
[13]There, the third method of proceeding is available to the Council. There is no express requirement that there shall be an abatement notice in such a case. But it is provided in sub-section (5) that it is made available for securing the abatement, prohibition or restriction of the nuisance. It is to be noted that prohibition and restriction are provided for in section 80.[14]The judge said in his judgment in paragraph 14 that sub-section (5) was silent on the subject of abatement notice, and so it was. The judge went on to say that there was no requirement of any abatement in a case such as this one. I refer to paragraphs 16, 17 and 18 of the judge's judgment:
"16. It is easy to grasp why Parliament should have made service of an abatement notice a prerequisite to the adoption by the local authority of self-help under section 81(3). If this had not been done, a person called upon to pay for the local authority's expenses of entering on land and carrying out work would have had no prior opportunity to contend that no statutory nuisance exists or that he is not the person responsible for it. He has such an opportunity by way of an appeal against the notice under section 80(3). There is no corresponding need for prior warning under the section 81(5) procedure, because these contentions, if open to a defendant, can be raised by him on the hearing of the application for an injunction. 17. Service of an abatement notice prior to the institution of civil proceedings does not appear to serve any purpose. 18. There are cases in which service of an abatement notice would be futile. For example, it might be plain from the previous conduct of a defendant that he would pay no attention to an abatement notice, perhaps because his profit from the activity to which objection was taken outweighs any fine that could be imposed by the magistrates."
[15]Those were, in principle, the judge's reasons. It will not always be the case that the service of an abatement notice would be futile, even if the wrongdoer was shown to have been reluctant to comply with the law in the past. It may be that an abatement notice on a later occasion would procure compliance from the wrongdoer. It cannot be assumed that he is going to disregard the notice as he had done in the past. The aim, after all, of this part of the law is to persuade people not to infringe against it, rather than to promote the enforcement of the law. The statutory nuisance may be put right. No further action would then be required. That is to be encouraged. Surely when there is a more drastic measure of compulsion, that is not to be assumed as necessary without an abatement notice.[16]A parallel example of a law which took a different course is to be found in the Town and Country Planning Act 1990 and, in particular, section 187B, which was brought into force in 1991. That had express provision, as I understand it, that it will not be necessary to give the sort of notice that had been required in other cases if it was not thought necessary. So, in that case, there was express provision, and it can no longer be said that the absence of such a provision in sub-section (5) of section 80 in the present statute must indicate the contrary.[17]For my part, I consider that there is a series of provisions here which were intended to be consecutive steps in a line. First of all, there is to be an abatement notice. Then, if there has not been compliance, there is to be either a prosecution in the Magistrates' Court or self-help by the Council and the requirement of payment to compensate the Council for its expenses; or, as the last resort (the third measure) the action in the High Court and an injunction.[18]In my judgment, it must have been intended that the abatement notice should apply as much to that third more drastic measure as it does in the two other measures. I would allow this appeal.[19]MR JUSTICE MOSES: I agree. A local authority cannot seek injunctive relief pursuant to section 81(5) of the Environmental Protection Act 1990 ("the 1990 Act") unless it is first served an abatement notice under section 80(1). I reach that conclusion for the reasons my Lord has given. But out of deference to the judge, add reasons of my own.[20]Firstly, the wording of section 81(5) identifies the matters about which a local authority must form an opinion before it may seek an injunction. It must be of the opinion that proceedings for an offence would afford an inadequate remedy. Those words are plainly a reference to section 80(4). There can be no proceedings for an offence unless it is alleged that an abatement notice has been served and that a person has failed to comply with any requirement or prohibition imposed by that notice. It is not possible to identify the alleged failure until the requirement or prohibition has been identified. It is not possible to identify such a requirement or prohibition until the notice specifies one or both. The requirement or prohibition can only be identified in an abatement notice served under section 80.[21]The judge took the view that the local authority might take the view that the service of an abatement notice was futile. But section 81(5) makes no reference to an abatement notice, but rather to the futility of proceedings.[22]Secondly, section 80(1) imposes, in my view, a duty to serve an abatement notice once a local authority is satisfied that a statutory nuisance exists. It is not possible to discover any power to dispense with that obligation within the scheme of Part III of the 1990 Act unless one is prepared to subsume the service of an abatement notice within the words "proceedings for an offence". I am not. In London Borough of Hammersmith v Magnum Automated Forecourts Limited [1978] 1 All ER 401, Lord Denning referred to the obligation of the local authority under the Control of Pollution Act 1974, a predecessor of these provisions, but the question of whether the local authority was under such an obligation was not in issue.[23]But I do agree with Carnwath J, who, after all, knew a thing or two about enforcing planning control, in Carrick District Council ex parte Shelley and Anr [1996] Env LR 273 at page 277, that section 80(1) imposes a duty. Dicta by Lord Widgery CJ in Nottingham Corporation v Newton [1974] 2 All ER 760 at page 762 are not in question, because he was concerned with the power of a local authority to choose between enforcement under two available statutory regimes.[24]Thirdly, it is odd to suppose that Parliament would have conferred the radical power on a local authority to go to the High Court without first serving an abatement notice in a sub-section tucked away in a congeries of provisions described as supplementary. Those provisions are truly supplementary, as sub-section (7) of section 81 makes plain. It would have been a radical power, since examination of predecessors to these provisions show that no such power had previously been conferred.[25]Fourthly, the purpose of these sections is explicit. Section 80(5) makes it plain that the purpose is best achieved by first giving an opportunity of complying with an abatement notice. That may well be thought to be futile, but abatement notices are flexible. If action is urgent, only a short time may need to be given for compliance. Parliament plainly intended that even a serial offender should be given an opportunity to comply.[26]I too would allow this appeal.

LORD JUSTICE JONATHAN PARKER: I agree with both judgments. Reading section 81(5) in the context of the two preceding sections, it seems to me that had Parliament intended to empower a local authority to apply in the High Court for relief in respect of a statutory nuisance without having first served an abatement notice, then one would have expected to find a clear provision to that effect. As it is, section 81(5) is expressly described as a supplementary provision (see sub-section (7) of that section), and in context it cannot, in my judgment, bear the meaning which the Council seeks to place on it. I too would allow this appeal.

Order

appeal allowed. Judge Langan's order set aside. Order for costs in this court and below in favour of successful appellant, to be subject to detailed assessment. Permission to appeal refused.