Fisher, R (On the Application Of) v Durham County Council

A statutory noise abatement notice may lawfully be served on a disabled person whose noise nuisance is involuntary where the notice is a proportionate means of protecting neighbours and a necessary first step towards effective civil relief. The court must conduct the proportionality assessment for itself, including whether less drastic measures could achieve the legitimate aim and whether a fair balance has been struck. A public authority may comply with the Public Sector Equality Duty without making a separate formal assessment where its decision-making shows a conscientious appraisal of disability and competing needs. A statutory appeal does not automatically preclude judicial review.

Susan Fisher sought judicial review of a noise abatement notice served by Durham County Council under section 80(1) of the Environmental Protection Act 1990. She had involuntary vocalisations caused by a disability. The Council accepted that the notice was unfavourable treatment arising from disability, but relied on the protection of neighbours and the statutory nuisance scheme.

The claim alleged unlawful discrimination under sections 15(1) and 29(6) of the Equality Act 2010, breach of the Public Sector Equality Duty under section 149, Convention discrimination and irrationality. The Council argued that the claimant should pursue those matters in her pending statutory appeal to the Magistrates’ Court. The issues were whether judicial review should proceed and whether service of the notice was lawful and proportionate.

1. Alternative remedy. The court exercised its discretion to determine the judicial review despite the pending statutory appeal. The suitability of an alternative remedy is fact- and issue-specific. Here, a full hearing had already taken place, the issues were legally complex, and requiring relitigation before the Magistrates’ Court would delay final resolution.
2. Disability discrimination. The Council pursued the legitimate aim of abating a statutory nuisance and protecting neighbours whose health and amenity were seriously affected. Applying the four-stage proportionality test in Akerman-Livingstone v Aster Communities Ltd [2015] AC 1399, the court held that serving the notice was rationally connected to that aim because it was a necessary statutory precondition to possible High Court injunctive relief under section 81(5) of the Environmental Protection Act 1990. The Council had delayed enforcement, sought medical information, explored support, considered rehousing and investigated soundproofing. No less drastic effective measure had been shown. The Council discharged the burden under section 15(1)(b) of the Equality Act 2010.
3. Public Sector Equality Duty. The Council had not made a standalone section 149 assessment, but its contemporaneous evidence showed a conscientious and continuing appraisal of the claimant’s disability, the needs of her neighbours and possible accommodation and support. The duty required due regard, not achievement of a particular result or complete priority for the claimant’s wishes.
4. Convention and irrationality grounds. The proportionality analysis defeated the Article 14 claim. Serving the notice was neither absurd nor irrational because it had valid statutory and remedial purposes even though immediate compliance was unlikely.
5. The claim for judicial review was dismissed. The judgment did not determine any further issue that might arise in the statutory appeal.