The Barns (NE) Ltd & Anor v Newcastle-Upon-Tyne

A local authority cannot seek an injunction under section 81(5) of the Environmental Protection Act 1990 for a statutory nuisance unless it has first served an abatement notice under section 80(1).

The statutory scheme establishes consecutive enforcement steps. The notice identifies the requirement or prohibition whose breach could found proceedings for an offence under section 80(4), and gives the alleged wrongdoer an opportunity to abate the nuisance. Urgency or anticipated non-compliance does not dispense with the notice requirement.

The Council brought High Court proceedings seeking an injunction against The Barns (NE) Limited and Shaban Suleman concerning an alleged statutory nuisance at Pecks House Farm. The defendants contended that the Council could not invoke section 81(5) of the Environmental Protection Act 1990 without first serving an abatement notice under section 80(1).

HHJ Langan held that prior service was unnecessary. The Court of Appeal considered whether section 81(5) permitted direct recourse to the High Court, or whether an abatement notice was a necessary preliminary step.

1. Appeal allowed. The order of HHJ Langan was set aside. Costs were awarded to the successful appellants in the Court of Appeal and below, subject to detailed assessment.
2. Section 80(1) of the Environmental Protection Act 1990 imposes a duty on a local authority to serve an abatement notice once it is satisfied that a statutory nuisance exists, is likely to occur, or is likely to recur.
3. Section 81(5), read with sections 80 and 81 and the statutory scheme as a whole, does not authorise a local authority to seek injunctive relief before serving that notice. Section 81(5) refers to proceedings for an offence under section 80(4). Such proceedings presuppose an alleged failure to comply with a specified requirement or prohibition, which can be identified only through an abatement notice.
4. The enforcement provisions were intended to operate as consecutive steps: service of an abatement notice, followed, if necessary, by prosecution, self-help, or High Court proceedings for an injunction. The injunction is a last-resort remedy within the statutory structure.
5. The possibility that an abatement notice may be futile, or that the case may be urgent, does not permit the local authority to omit it. Notices are flexible, and an urgent case may justify a short compliance period. Parliament intended even a persistent offender to have an opportunity to comply.
6. Permission to appeal was refused.

• Court of Appeal (Civil Division) — [2005] EWCA Civ 1274: allowed the appeal, set aside HHJ Langan’s order, and awarded costs in the Court of Appeal and below subject to detailed assessment.
• High Court, Chancery Division — HHJ Langan’s judgment of 17 March 2005 held that prior service of an abatement notice was unnecessary before proceedings under section 81(5) of the Environmental Protection Act 1990.