Hemming MP v Birmingham City Council

On a case stated appeal, the High Court may return a case for amendment where it is materially deficient, including following a timely application by an aggrieved party. It need not do so for minor drafting omissions or arguments irrelevant to the statutory question.

For costs under section 91(12) of the Environmental Protection Act 1990, whether the land was defaced and whether there were reasonable grounds for the complaint fall to be assessed when the complaint was made. Later events are irrelevant, save in exceptional circumstances such as evidence of prior lack of good faith.

The appellant brought complaints against Birmingham City Council seeking a litter abatement order under section 91 of the Environmental Protection Act 1990. The District Judge dismissed the application and refused the appellant’s costs under section 91(12), instead awarding costs to the Council under section 64 of the Magistrates’ Courts Act 1980.

On the case stated appeal, the appellant invited the High Court to require amendment under section 28A of the Senior Courts Act 1981. The issues were whether the stated case was materially deficient and whether the District Judge had lawfully concluded that there were no reasonable grounds for bringing the complaint.

1. The appeal was dismissed. The appellant was ordered to pay the respondent’s reasonable costs, to be assessed if not agreed.

2. Section 28A(2) of the Senior Courts Act 1981 gives the High Court a power, exercisable of its own motion. Following R (on the application of) Aircraft Research Association Ltd v Bedford Borough Council, an aggrieved party may invite the court to exercise that power by a timely application.

3. The alleged omissions concerning chronology were minor drafting complaints. They did not make the stated case sufficiently deficient to justify sending it back for amendment.

4. The District Judge’s reasoning under section 91(12) of the Environmental Protection Act 1990 was clear. He accepted that the highways were defaced when the complaint was made, but concluded that there were no reasonable grounds for bringing it because the appellant had refused an offered meeting before issuing proceedings.

5. The statutory questions were temporally fixed at the date of the complaint. Later evidence that the proposed clean-up was incomplete, or that identified sites were cleared only after the directions hearing, could not affect whether there were reasonable grounds when the complaint was brought. No exceptional circumstance, such as prior lack of good faith, arose.

6. The case stated therefore omitted no material matter requiring amendment. The District Judge was entitled to answer the statutory question against the appellant, and his order for the Council’s costs was lawful.

• High Court (Administrative Court): dismissed the appeal by way of case stated from the District Judge sitting at Birmingham Magistrates’ Court.
• Birmingham Magistrates’ Court: dismissed the litter abatement application and refused the appellant’s costs, awarding costs to Birmingham City Council.