Garry Ball, R (on the application of) v Hinckley & Bosworth Borough Council

A local authority has an implied power to vary an abatement notice issued under section 80 of the Environmental Protection Act 1990, including by reducing its restrictions. The power arises from necessary implication, having regard to the statutory language, context and purpose.

The power to vary is materially analogous to the implied power to withdraw an abatement notice. It promotes the statutory scheme by avoiding undue rigidity, reflecting the authority’s discretion whether to prosecute, and formalising the circumstances in which activity will not be prosecuted. The decision does not determine whether a variation increasing restrictions would be lawful.

The claimant sought judicial review of Hinckley & Bosworth Borough Council’s decision to vary an abatement notice served in 2014 concerning noise from the Mallory Park racing circuit. The variation altered restrictions governing operating days and the Boxing Day lunch interval. The claimant argued that the Council had no power to vary an abatement notice.

The Council relied principally on the implied power recognised in R v Bristol City Council ex p Everett and, alternatively, section 111 of the Local Government Act 1972. The central issue was whether the statutory scheme implied a local-authority power to vary an abatement notice, including a variation which arguably reduced the restrictions.

1. Claim dismissed. The Council had power to make the March 2022 Variation.
2. The statutory scheme under sections 79 and 80 of the Environmental Protection Act 1990 primarily seeks the prevention and removal of statutory nuisances, but it recognises practicality and the possibility that the best practicable means may counteract rather than eliminate nuisance. The scheme therefore does not operate in absolutes.
3. The distinction between withdrawal and variation was not material. The considerations supporting the implied power to withdraw an abatement notice in R v Bristol City Council ex p Everett also supported a power to vary. Without such a power, the enforcement scheme would be unduly rigid and potentially artificial, particularly because an authority has discretion whether to prosecute for breach.
4. A variation can promote certainty by recording and publicising the authority’s position while retaining statutory control in appropriately modified terms. The express power of the magistrates’ court to vary a notice on appeal did not indicate that a local authority lacked a different, implied power to vary an operative notice.
5. The power was one of necessary implication. Necessity is required; reasonableness, desirability or convenience alone would not suffice. The statutory provisions had to be considered together with their context and purpose.
6. Section 111(1) of the Local Government Act 1972 did not need to be relied on. If the implied-power analysis were wrong, section 111 could not provide an escape route from a statutory scheme inconsistent with local-authority variation.
7. The Court was concerned with a variation reducing or modifying restrictions, not with a variation increasing restrictions. The lawfulness of an upward variation would require consideration if such a case arose.