Pelling, R (on the application of) v Newham London Borough Council

A local authority deciding a high-hedge complaint under Part 8 of the Antisocial Behaviour Act 2003 performs an administrative public-law function, not a judicial adjudication. The initial decision-making stage is not, of itself, required to provide the full procedural protections of Article 6, including a public hearing and cross-examination. If Article 6 is engaged by a remedial notice, compliance must be assessed by examining the process as a whole, including any appeal to a planning inspector and subsequent judicial review. The court should not determine that composite question hypothetically before a concrete dispute and remedial notice exist.

A neighbour complained to Newham London Borough Council under Part 8 of the Antisocial Behaviour Act 2003 that a high hedge adversely affected the reasonable enjoyment of his property. The council issued a remedial notice but withdrew it after recognising that it had acted prematurely.

Dr Pelling brought judicial review proceedings challenging the procedure. Blake J held that common-law procedural fairness requirements supplemented the statutory scheme, but rejected the argument that the council’s decision was itself a determination of civil rights requiring the full protections of Article 6. Permission to appeal was refused on paper by Sir Richard Buxton and renewed before the Court of Appeal. The central issue was whether the initial council procedure had to replicate a judicial determination and whether Article 6 compliance could be assessed before the statutory process had produced a live remedial notice.

The application for permission to appeal was refused.

1. Administrative character. The procedure under Part 8 of the Antisocial Behaviour Act 2003 involved the exercise of a public-law power. The council acted as guardian of the public interest in deciding whether a high hedge adversely affected reasonable enjoyment and what remedial action, if any, should be taken. The procedure was materially different from a judicial determination of a nuisance claim.
2. Initial decision-making stage. Taken by itself, the council’s procedure was not subject to the full panoply of Article 6. It was therefore unnecessary to provide procedures such as a public hearing, attendant publicity or cross-examination of witnesses. The common-law fairness requirements identified by Blake J were sufficient for the initial stage.
3. Article 6 and the process as a whole. The possibility that issuing a remedial notice might engage Article 6 could not be excluded. If that issue arose, satisfaction of Article 6 would have to be assessed by reference to the nature of the decision and the process as a whole, including the original council decision, any appeal to a planning inspector under the High Hedges (Appeals) (England) Regulations 2005, and any subsequent judicial review. It did not follow that the initial administrative stage had to be conducted as a judicial determination.
4. Prematurity. There was no extant remedial notice. The council might decide against issuing one, and any appeal or judicial review remained hypothetical. It was consequently unhelpful and inappropriate to determine whether the composite process complied with Article 6 without a concrete case showing how factual disputes and other matters had been dealt with at each stage.
5. The only live issue had no real prospect of success. The order was: application refused.

• Court of Appeal (Civil Division): Richards LJ refused permission to appeal, holding that the only live issue had no real prospect of success: [2012] EWCA Civ 679.
• Queen’s Bench Division, Administrative Court: Blake J held that common-law procedural fairness requirements supplemented the statutory procedure, but rejected the claim that the initial council decision required the full protections of Article 6.
• Permission stage: Sir Richard Buxton refused permission on the papers and agreed with Blake J’s characterisation of the process.