Court of Appeal rules on power to vary abatement notice

Powers to vary an abatement notice issued by a local authority against a statutory nuisance under s.80 of the Environmental Protection Act 1990 rest with magistrates, not the local authority, the Court of Appeal has found.

Lord Justice Coulson gave judgment in a case brought by local resident Gary Ball against Hinckley & Bosworth Council over the operations of interested party Real Motorsport at the Mallory Park motor racing circuit.

The circuit is near the village of Kirkby Mallory and there have been disputes about noise nuisance dating back to the 1950s, leading to a number of notices being served.

Coulson LJ said: “The issue raised by this appeal is whether a local authority has the power to vary an abatement notice which it has issued against a statutory nuisance under s.80 of the Environmental Protection Act 1990.

“When granting permission to appeal, Lewison LJ said that he thought that the issue raised by the appeal was important. There is no authority directly on point.”

The council served an abatement notice in November 2014 after the Local Government Ombudsman reported a number of complaints about it failing to take action.

This said noise from racing caused a statutory nuisance and required Real Motorsport to cease operations except as allowed in a schedule in which the operator could request any variation ”and if a variation is agreed by the council it shall take effect only on receipt by the operator of written confirmation of the variation”.

Real Motorsport in December 2021 sought five variations, three of which were granted, one refused and one withdrawn, all of indefinite effect subject to an annual review.

Mr Ball challenged the validity of the variation, which he claimed would increase noise from motor racing. The matter came before Eyre J in July 2023.

Eyre J said whether the variation permitted increased noise would only be material if he concluded that the council could not lawfully vary the abatement notice to reduce the restrictions which had originally been imposed, but could make a variation which did not have that effect.

This led him to say that he was not concerned with a power to vary which restricted activities formerly permitted, where different considerations may well apply "from those which apply to a variation which either waters down the restrictions or modifies them while leaving the overall level of restriction unaltered and which is in accordance with the wishes of the party subject to the abatement notice”.

Coulson LJ said: “These passages, which I confess I have not found very easy to follow, give rise to Ground 3 of this appeal, which complains that the judge wrongly excluded from his consideration the possible use of a variation power which increased the restrictions in an abatement notice.”

He said Eyre J’s heavy reliance on R v Bristol City Council ex parte Everett [1999] was the subject of Grounds 1 and 2 of the appeal, which were that Eyre J was wrong to find that Everett was binding, and to find that a power to vary arose by necessary implication.

Coulson LJ said: “I consider that the express power to vary an abatement notice, which the legislative scheme gives to the Magistrates' Court and not to the local authority, provides a complete answer to the question as to whether the local authority has the implied power to vary its own notice.

“That follows a jurisdictional division that stretches back well over a century. The suggestion that the local authority does have such a power would be inconsistent with, and contrary to, the legislative scheme.”

He added: "I consider that, as a matter of statutory interpretation, it is not necessary to imply a right to vary an abatement notice on the part of the local authority into the Environmental Protection Act 1990. In the current legislative scheme the power to vary an abatement notice has been given to the Magistrates' Court, not the local authority.”

The decision in Everett had been that a local authority had powers to withdraw an abatement notice where there was no longer a statutory nuisance, but that was “a long way from the facts and principles in issue in this case.

“In my view, Everett is plainly right, but also plainly distinguishable. The existence of a power to withdraw the abatement notice does not undermine the analysis which I have set out.”

S.111 of the Local Government Act 1972 and s.1 of the Localism Act 2011 gave local authorities wide powers, but “a power to vary a notice is very different and is not included in a power to withdraw”, Coulson LJ said.

“Moreover…the implication of a power to vary a notice under this provision would undermine the statutory right of appeal and is inconsistent with my analysis of the legislative scheme. It is not incidental to anything, but an entirely different power.”

He allowed Mr Ball’s appeal.

Lord Justice Baker and Lady Justice Elisabeth Laing both agreed.

Mark Smulian