Ethos Recycling Ltd v Barking & Dagenham Magistrates Court & Anor

“Summary proceedings” in section 79(10) of the Environmental Protection Act 1990 means proceedings instituted in a court of summary jurisdiction. It does not include the prior service of an abatement notice under section 80. A local authority therefore need not obtain the Secretary of State’s consent before serving such a notice, even where the nuisance falls within section 79(10). Consent is required before proceedings are commenced for failure to comply with the notice. That construction accords with the statutory history, the distinction between procedures and proceedings, and the practical division of responsibilities between local authorities and the Environment Agency.

Ethos Recycling operated a waste recycling site subject to an environmental permit. Following complaints about dust, the London Borough of Barking and Dagenham served an abatement notice under section 80 of the Environmental Protection Act 1990. The nuisance fell within section 79(1)(d), so section 79(10) prohibited the local authority from instituting summary proceedings without the Secretary of State’s consent.

On appeal to the magistrates’ court, Ethos argued that the notice was a nullity because consent had not been obtained before service. The District Judge rejected that argument. The central issue on judicial review was whether “summary proceedings” included service of an abatement notice or referred only to later court proceedings for non-compliance.

1. Application dismissed. The court upheld the District Judge’s construction of section 79(10) of the Environmental Protection Act 1990.

2. The natural meaning of “summary proceedings” is proceedings in a court of summary jurisdiction, namely a magistrates’ court. The expression does not ordinarily include steps taken outside court, such as serving an abatement notice. The heading to section 80 was admissible as an aid to construction, but the distinction between “procedures” and “proceedings” limited its significance.

3. The legislative history supported that construction. The Public Health Act 1936 distinguished service of an abatement notice from proceedings before a court. Other provisions referred expressly to summary proceedings in the context of court proceedings. Section 58 of the Control of Pollution Act 1974 did not alter that conclusion.

4. The court rejected the argument that effective enforcement required consent before service. Local authorities have responsibility for responding promptly to complaints of statutory nuisance. Requiring prior consent would cause delay, whereas the person served with the notice could appeal against it. The statutory scheme and the practical relationship between local authorities and the Environment Agency were consistent with consent being required only before proceedings for failure to comply with the notice.

5. The wording of section 82 provided further support: its reference to “summary proceedings” plainly concerned court proceedings, despite the requirement for prior notice of the nuisance. The abatement notice was therefore validly served without the Secretary of State’s consent.

The claimant appealed against the abatement notice to Barking and Dagenham Magistrates’ Court. The District Judge rejected the preliminary argument that the notice was a nullity. The appeal was adjourned pending the judicial review. The Administrative Court dismissed the judicial review application.