Wildlife rescuer who kept 16 foxes on property wins odour abatement notice dispute

A magistrates' court has found that a wildlife rescuer was not guilty of breaching an abatement notice issued by East Hampshire District Council (EHDC) over odour nuisances from foxes she looked after on her property.

Juliet Auburn cared for an average of 16 foxes in pens at any given time on her property as a hobby. Most were released back into the wild, while some required permanent care or rehoming.

The district council handed Auburn an abatement notice in 2017 under the Environmental Protection Act 1990 over smells emanating from the fox pens.

She complied with the notice, which required her to control the odours, by implementing an odour management plan and planting barriers around the enclosures.

Council monitoring in 2017 and 2018 confirmed no further nuisance.

In December 2020, Auburn was told by the council that she would need planning permission for the activity despite being told two years earlier by the council that it was not necessary.

She submitted a planning application, which the council refused.

A few days later, the council served her with a planning enforcement notice requiring her to remove all foxes and enclosures. Auburn appealed that decision to the Planning Inspector.

Before the planning appeal was determined, the council served Auburn with a Community Protection Notice under the Anti-social Behaviour, Crime and Policing Act 2014, alleging persistent odour having a detrimental effect on neighbours.

Auburn successfully appealed that notice in June 2022. In that case, The Magistrates' Court found insufficient evidence of any persistent odour from the activity.

The appeal against the planning enforcement notice was meanwhile determined in August 2023. The planning inspectorate concluded that she was required to remove the foxes and enclosures by December 2023. 

The deadline was later extended to January 2024, and Auburn took immediate steps to comply with the enforcement notice and kept the council informed of those steps.

The council then commenced a criminal prosecution against Auburn for a breach of the 2017 Abatement Notice, which they considered was breached between April and July 2023. 

Auburn was first informed of the prosecution in October 2023, after EHDC failed to inform her of her first appearance.

Auburn removed the foxes and enclosures in compliance with the deadline of 18 January 2024.

The council returned to the site and confirmed that she had complied with the enforcement notice. However, it decided to continue the prosecution for the alleged breach of the 2017 Abatement Notice.

Auburn's legal team invited the council to withdraw its prosecution because of alleged flaws in the investigation, subsequent doubt about the existence of a breach, the existence of a reasonable excuse for any alleged breach, and a lack of public interest in bringing the prosecution once it was confirmed that Auburn had removed the alleged source of the odour. 

It also called for the disclosure of documents which should have been provided to Auburn at the time that she was charged with the offence but were not.

In a 3-day hearing on 21, 23 and 25 October in Basingstoke and Aldershot Magistrates' Courts, DJ Apted heard evidence from council officers, Auburn, and an odour expert. 

The court found that the abatement notice had been breached on five days during the alleged 3-month charge period.

However, the court found that Auburn could not be expected to know that the council was of the view that a statutory nuisance was occurring given the mitigation measures she had implemented in 2017 and the lack of communication by the council in the intervening period to suggest otherwise.

Auburn was represented by Richard Buxton Solicitors in the case. The firm instructed Angelica Rokad of Six Pump Court.

East Hampshire District Council has expressed disappointment with the court’s decision.

EHDC's portfolio holder for regulation and enforcement, Cllr Angela Glass, said: “We are disappointed by this verdict. Our officers acted fully within the law in issuing and enforcing the abatement notice to protect the well-being of neighbouring residents and contacted Ms Auburn several times by letter and phone to remind her of her obligations. Abatement notices are indefinite by nature, and regular reminders should not be necessary to ensure compliance."

Cllr Glass added: “Thanks to the diligent work of EHDC’s Planning Enforcement Team, the fox sanctuary was closed earlier this year, and the structures were removed after a planning inspector found the setup inappropriate for residential land.”

Adam Carey