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

The claimant sought judicial review to quash a noise abatement notice served under section 80(1) of the Environmental Protection Act 1990. She relied on disability discrimination (sections 15(1) and 29(6) Equality Act 2010), breach of the public sector equality duty (section 149 EA 2010), Article 14 read with Article 8 and/or Article 1 of Protocol 1 ECHR, and irrationality/Wednesbury unreasonableness. The council did not dispute that the claimant was disabled or that the noise arose from her disability but justified the notice as a proportionate means to protect neighbours and as a statutory precondition to other remedies (including potential High Court injunctive relief under section 81(5) EPA 1990).

The court exercised its discretion to hear the judicial review despite the claimant having an appeal to the magistrates, concluding that final determination in the High Court would avoid delay and further duplicative litigation. Applying the proportionality framework in Akerman-Livingstone, the court held that the service of the abatement notice pursued a legitimate aim, was rationally connected to that aim, was no more than necessary given the council's extensive attempts to engage and explore alternatives, and struck a fair balance between the claimant's rights and the community interest.

Accordingly, the claim for judicial review failed on all grounds: no unlawful discrimination under section 15, no breach of the PSED, no Convention breach under Article 14 read with Article 8/A1P1, and the decision was not irrational.

The claimant, a disabled occupant who makes involuntary vocalisations, challenged a noise abatement notice served by the local authority under section 80(1) Environmental Protection Act 1990. The notice required cessation of excessive vocalisation likely to cause a statutory noise nuisance. The claimant appealed to the magistrates but brought judicial review arguing (i) unlawful disability discrimination contrary to sections 15(1) and 29(6) Equality Act 2010, (ii) breach of the public sector equality duty under section 149 EA 2010, (iii) breach of Article 14 read with Article 8 and/or Article 1 Protocol 1 ECHR, and (iv) irrationality.

Procedural posture: permission had been granted to apply for judicial review; an appeal to the magistrates was extant but stayed pending this application. The court decided to proceed to the merits rather than decline jurisdiction in favour of the magistrates' appeal.

Issues for decision:

• whether the High Court should exercise its discretion to hear the claim despite an available statutory appeal;
• whether serving the abatement notice amounted to discriminatory treatment arising from disability which was not a proportionate means of achieving a legitimate aim (section 15 EA 2010);
• whether the council breached its public sector equality duty (section 149 EA 2010);
• whether the notice engaged Article 14 read with Article 8/A1P1 ECHR; and
• whether the decision was irrational.

Court's reasoning: The court concluded it was appropriate in the exercise of discretion to determine the judicial review to avoid delay and duplication, gave careful weight to alternative remedy authority (including Falmouth and Ferrero) but found this case distinguishable and suitable for immediate resolution. On the merits the court accepted the council had a legitimate aim in protecting neighbours from a statutory nuisance. Applying the proportionality test from Akerman-Livingstone, the court found the notice was rationally connected to that aim, that less intrusive alternatives had been explored (including multi-agency engagement, seeking medical evidence, offers of housing assistance and consideration of soundproofing) and that the notice was a necessary preliminary step to obtain other remedies (notably possible injunctive relief under section 81(5) EPA 1990). The council had given due regard to equality considerations in substance and had not reduced the PSED to a tick-box exercise. Similar proportionality reasoning disposed of the Convention claim. The decision to serve the notice was not irrational.

Result: the claim for judicial review was dismissed.

The claim for judicial review is dismissed. The court held that it was appropriate to determine the judicial review despite an extant statutory appeal, and on the merits found that serving the noise abatement notice pursued a legitimate aim, was rationally connected to that aim, was no more than necessary given the council's extensive attempts to find alternatives and engagement with the claimant, complied in substance with the public sector equality duty, and therefore did not amount to unlawful disability discrimination, a Convention breach, or irrationality.