Nottingham City Council v Zain (A Minor)

A local authority may use section 222(1) of the Local Government Act 1972 to bring proceedings in its own name to restrain a public nuisance affecting its area. It must consider the proceedings expedient for promoting or protecting the inhabitants’ interests. No separate statutory duty to prevent the nuisance is required.

The authority retains that power where the conduct constituting the public nuisance is also criminal. Its decision to institute proceedings is subject to judicial review, while the grant of an injunction remains an equitable and discretionary matter for the court.

A local authority obtained an interim injunction excluding a minor from a housing estate where it alleged that public drug dealing was occurring. The authority alleged that his conduct amounted to a public nuisance. Nottingham County Court struck out the action without hearing evidence, holding that the authority lacked power to seek the injunction because it had no statutory responsibility for enforcing the drugs legislation.

The authority appealed under section 222(1) of the Local Government Act 1972 and sought permission to rely additionally on section 130 of the Highways Act 1980. Although the requested injunction became academic following the respondent’s conviction, the Court of Appeal heard the appeal because the extent of local authorities’ powers was of general importance.

1. Appeal allowed unanimously. Schiemann LJ delivered the leading judgment. Keene LJ agreed and added reasons, while Mance LJ agreed with both judgments and their conclusions. The County Court had wrongly struck out the action.

2. Section 222(1) of the Local Government Act 1972 enables a local authority to bring proceedings in its own name to restrain a public nuisance where it considers that course expedient for promoting or protecting the interests of inhabitants of its area. The power does not depend on the authority having a separate statutory duty to prevent or enforce against the particular nuisance. It replaced the former need for the authority to obtain the Attorney General’s fiat.

3. The pleaded conduct was capable of amounting to a public nuisance. Such a nuisance materially affects the reasonable comfort and convenience of a class of the public. Whether the affected local community is a sufficient class, and whether a representative cross-section has been affected, are questions dependent on the evidence.

4. The fact that the conduct also constitutes a criminal offence does not deprive the authority of its power to sue in public nuisance. Public nuisance is itself a crime. Keene LJ distinguished cases involving attempts to restrain criminal conduct which did not amount to public nuisance; in those circumstances a particular statutory enforcement responsibility may be required.

5. Section 130(5) of the Highways Act 1980 does not diminish section 222. The provisions overlap imperfectly and have different preconditions. The later provision therefore supplies no basis for reading down the earlier power.

6. Where civil proceedings are sought in aid of the criminal law, both the authority and the court must exercise caution. The authority’s decision is subject to judicial review, and the court must determine independently whether an equitable injunction should be granted. Ordinarily, something more than infringement is required, particularly where contempt sanctions could exceed the statutory criminal penalty.

7. The authority received permission to amend its particulars of claim and notice of appeal. The appeal and application were allowed with costs. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: The appeal was allowed unanimously. The authority was permitted to amend its particulars of claim and notice of appeal. The decision striking out the action was displaced.
2. Nottingham County Court: HH Judge Hall struck out the action without hearing evidence or exercising the court’s discretion. He held that section 222 of the Local Government Act 1972 did not empower the authority to sue because it had no duty to enforce the relevant legislation or protect the asserted interest.