Merren Jones & Ors v Chapel-en-le Frith Council

On an appeal by way of case stated arising from proceedings under section 82 of the Environmental Protection Act 1990, the High Court has a broad discretion as to costs under section 28A(3) of the Senior Courts Act 1981. Because the underlying proceedings are criminal in character, that discretion should normally be exercised consistently with the applicable criminal-costs framework. Section 82 proceedings nevertheless have a sui generis costs regime. The regime in section 82(12), requiring compensation for properly incurred expenses where the alleged nuisance was proved to exist when the complaint was made, normally provides the appropriate basis for costs both below and on the appeal. Costs should be subject to detailed assessment where they are not agreed.

The appellants lived near a multi-use games area and skate park operated by the respondent council. They brought proceedings under section 82 of the Environmental Protection Act 1990, alleging statutory nuisance from noise. The magistrates’ court dismissed the application. On a case-stated appeal, the High Court held that all relevant noise had to be considered and made a general abatement order. The parties then disputed the appropriate costs order on the appeal and below. The central issue was whether the High Court should apply the general criminal-costs approach or the special regime in section 82(12) of the 1990 Act.

1. Costs discretion. Section 28A(3) of the Senior Courts Act 1981 gives the High Court a very wide discretion on an appeal by way of case stated, including as to costs. Where the underlying proceedings are criminal in character, that discretion should normally be exercised consistently with the regime applicable to criminal cases.
2. Section 82 proceedings. Proceedings under section 82 of the Environmental Protection Act 1990 are criminal in character but subject to a sui generis costs regime. Section 82(12) requires the defendant to pay an amount reasonably sufficient to compensate the applicant for properly incurred expenses where the alleged nuisance was proved to exist when the complaint or summary application was made. The provision applies whether or not the nuisance continues or is likely to recur at the hearing.
3. The practical consequences of section 82(12), identified in R. (on the application of Parker) v Magistrates Court at Teesside [2022] EWHC 358 (Admin), are more generous to the appellants than the general criminal-costs rules. The court agreed that consistency between the costs below and on a case-stated appeal ordinarily favoured using section 82(12) as the basis for both.
4. There were no features justifying departure from that approach. The court declined the respondent’s invitation summarily to assess costs at £35,000, having regard to the three-day hearing below and the half-day appeal. The respondent was ordered to pay the appellants’ costs in the court below and on appeal on the section 82(12) basis, subject to detailed assessment if not agreed.

• Manchester Magistrates’ Court: dismissed the appellants’ section 82 application on 4 November 2021.
• High Court (King’s Bench Division): on the case-stated appeal, held that the distinction between intended and anti-social noise was impermissible and directed a general abatement order: [2022] EWHC 1909. The remedy was subsequently determined in [2022] EWHC 2709.
• High Court (King’s Bench Division): determined the disputed costs and ordered the respondent to pay the appellants’ costs below and on appeal under section 82(12), subject to detailed assessment.