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

A local authority has no implied power under section 80 of the Environmental Protection Act 1990 to vary an abatement notice which it has served for a statutory nuisance. The statutory scheme gives the Magistrates’ Court, not the authority, a defined power to vary a notice on an appeal.

A necessary implication must follow clearly from the statutory language, context and purpose. Administrative flexibility, economy, technological change and a desire for continuing dialogue do not meet that test. An implied local-authority power would undermine the appeal time limit, the finality of a judicial variation, certainty in a criminal regime, and the statutory division between the authority and the court.

The authority may withdraw a notice where it no longer considers a statutory nuisance to exist, but that distinct power does not entail a power to alter a notice governing an ongoing nuisance.

The Council had served an abatement notice controlling noise from a motor-racing circuit. The notice contained a schedule of operating restrictions. In March 2022 the Council purported to make permanent variations to that schedule, subject to annual review.

A local resident sought judicial review, contending that the Council lacked power to relax the notice. Eyre J dismissed the claim, holding that a power to vary arose by necessary implication, principally by analogy with the implied power to withdraw an abatement notice recognised in R v Bristol City Council, ex parte Everett.

The claimant appealed from the Administrative Court’s decision, [2023] EWHC 1922 (Admin). The central issue was whether the statutory nuisance regime conferred, expressly or by implication, a power for a local authority to vary its own abatement notice.

1. Appeal allowed. Section 80 of the Environmental Protection Act 1990 gives a local authority no express power to vary its own abatement notice. The statutory scheme instead envisages and confers a power on the Magistrates’ Court to vary a notice on an appeal. That express and limited allocation of power was a decisive indication against implying a parallel local-authority power.

2. The proposed power could not arise by necessary implication. Such an implication must necessarily follow from the statute’s express provisions, construed in their context and in light of their purpose. It is insufficient that the power might be useful, flexible, economical or sensible. Here, an implied variation power would conflict with the 21-day appeal limit, the finality of a variation made by the Magistrates’ Court, and the certainty required where breach of a notice is criminal.

3. Sections 79 and 80 treat service of an abatement notice as a discrete enforcement act following inspection, not as the beginning of a continuing dialogue or a continuing duty to review the notice. Where a statutory nuisance exists, the authority must serve a notice. Questions concerning the best-practicable-means defence are for the Magistrates’ Court on appeal or in criminal proceedings, not for the authority when deciding whether to issue or alter a notice.

4. Everett was correctly decided but distinguishable. Its recognition of an implied power to withdraw a notice concerned the exceptional position where the authority no longer considered there to be a statutory nuisance. Withdrawal in those circumstances is fundamentally different from varying a notice which continues to govern an admitted ongoing nuisance. If circumstances materially change, the authority may withdraw an outdated notice and, following inspection, issue a fresh one.

5. As an alternative basis, neither section 111 of the Local Government Act 1972 nor section 1 of the Localism Act 2011 supplied the asserted power. The March 2022 variation was therefore unlawful. All three grounds of appeal succeeded.

• Court of Appeal (Civil Division) Allowed the claimant’s appeal and held that the Council lacked power to vary its abatement notice: [2024] EWCA Civ 433 .
• High Court, King’s Bench Division, Administrative Court Dismissed the judicial-review claim, holding that the Council had an implied power to vary the notice: [2023] EWHC 1922 (Admin) .