Tamworth Borough Council v Cocking

In proceedings for statutory nuisance, a local authority’s choice to invoke section 81(5) of the Environmental Protection Act 1990 is largely a matter of judgment, subject to the court deciding whether proceedings are justified by the history. A litigant’s lack of legal representation does not, by itself, make a trial unfair under article 6 of the European Convention on Human Rights. The relevant question is whether the proceedings could reasonably be conducted and understood by a self-represented party. Straightforward nuisance proceedings may satisfy that standard where the judge assists the litigant. Matters outside the statutory-nuisance claim, including proposed trespass complaints, may properly be excluded and pursued separately.

Tamworth Borough Council brought proceedings under section 81(5) of the Environmental Protection Act 1990, alleging that Byril Cocking caused statutory nuisance by playing loud music and running the water system throughout the night. His Honour Judge Coles QC found the nuisance proved and made an order against her.

Mrs Cocking, who had represented herself, sought permission to appeal. She complained about the judge’s demeanour, the absence of legal representation, the exclusion of complaints concerning alleged trespass and local-authority conduct, the decision to proceed under the statutory nuisance provision, and the terms of the order as drawn. The central issues were whether the trial was fair, whether the judge had erred in permitting the statutory proceedings, and whether any discrepancy in the drawn order justified appellate intervention.

Permission to appeal was refused. Lord Justice Buxton concluded that none of the grounds disclosed an arguable error requiring permission.

1. Under article 6 of the European Convention on Human Rights, the absence of legal representation does not automatically make proceedings unfair. The question is whether the proceedings could reasonably be conducted and reasonably understood by a person representing themselves. These statutory-nuisance proceedings were comparatively straightforward, and the judge’s assistance was sufficient to ensure a fair trial.
2. The decision whether a local authority should proceed under section 81(5) of the Environmental Protection Act 1990 was largely a matter for the authority’s judgment. The provision had been introduced because other means of recourse were often inadequate. The trial judge had considered the detailed history and was entitled to conclude that proceedings under the section were appropriate. No error of law was shown.
3. The judge was right not to entertain alleged trespass and wider complaints about the local authority in the statutory-nuisance proceedings. They were not reasonable grounds of counterclaim in those proceedings and had not been raised sufficiently early. Separate proceedings remained available.
4. A possible discrepancy between the intended injunction and the order as drawn could be raised with the Birmingham County Court office. Even if the order required correction, that would not undermine the substantive judgment or the finding that the authority was entitled to an order.
5. The order under section 135(1) of the Mental Health Act 1983 was outside the scope of the application. Any error in drawing the nuisance order could not have had a dispositive effect on the magistrates’ decision, which was likely based on the wider history.

1. Court of Appeal (Civil Division): Application for permission to appeal refused: [2002] EWCA Civ 61.
2. Birmingham County Court: On 14 September 2001, His Honour Judge Coles QC found statutory nuisance proved and made the order sought under section 81(5) of the Environmental Protection Act 1990.