Waveney District Council v Lowestoft (North East Suffolk) Magistrates' Court & Anor

An abatement notice may, after the full hearing of an appeal, be varied so as to substitute or add the person responsible for the nuisance, provided procedural fairness is observed. That power is not available as a freestanding power under regulation 2(3) of the Statutory Nuisance (Appeals) Regulations 1995, nor is it ordinarily exercisable as a preliminary determination before the merits have been heard. Whether an error in identifying the recipient is material depends on the issue actually advanced and the legal consequences of the notice. An appellate court should assess alleged error against the issues fairly placed before the magistrates. A public authority’s statutory duty does not prevent a costs order where its litigation conduct causes the court to determine an undefended merits case and the opposing party suffers relevant prejudice.

Waveney District Council appealed by way of case stated against decisions of the North East Suffolk Magistrates’ Court concerning an abatement notice under section 80 of the Environmental Protection Act 1990. The notice was addressed and served on the holding company, although the alleged noise nuisance was caused by its subsidiary tenant. The magistrates treated the identity of the recipient, service and materiality of the defect as preliminary issues, quashed the notice after the Council declined to contest the merits, and awarded costs. The appeal raised whether the magistrates had power to amend the notice, whether the defect was material, and whether the costs order was lawful.

The appeal was dismissed.

1. Materiality and the issues on appeal. The defect was material because the Council’s case required the notice to be changed so as to add or substitute the tenant, rather than merely construing an obvious clerical error as a notice to the tenant. The notice carried potential criminal liability and was required to be served on the company responsible for the nuisance. The magistrates’ finding that the subsidiary had not been served was rational and accorded with the Council’s concession.
2. Power to vary. Regulation 2(3) of the Statutory Nuisance (Appeals) Regulations 1995, considered alone, did not confer a power to amend the notice. Regulation 2(5), read with regulation 2(4), was capable of permitting variation at the end of the appeal so that the notice took effect against another person or persons. Any person thereby exposed to criminal liability required a full and proper opportunity to be heard.
3. Preliminary determination. The possible power under regulation 2(5) was not properly exercisable as a preliminary issue in the circumstances. The parties had prepared for a full merits hearing, and the Council knew that the magistrates would continue with that hearing. It chose not to participate, without seeking an adjournment or clarifying that it no longer wished the merits to be determined. The appellate court therefore considered it unfair to introduce the wider construction of the Regulations at that stage.
4. Merits and costs. The magistrates were entitled to consider the historical nuisance and later abatement evidence when deciding the issues and any variation. Their costs discretion under section 64 of the Magistrates’ Court Act was governed by what was just and reasonable. They had considered the public authority’s statutory duty, the companies’ prejudice and the Council’s conduct. The indemnity-basis reference did not make the order irrational, particularly where the Council identified no specific costs said to be unreasonable or disproportionate.

The appeal was dismissed. The interested party received £10,000 including VAT for the costs of the appeal.

1. High Court (Administrative Court): The case stated appeal from the North East Suffolk Magistrates’ Court was dismissed. The magistrates’ decision to quash the abatement notice and award costs was upheld.