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

This Court of Appeal allowed the appellant's challenge to a local authority variation of an existing abatement notice issued under section 80 of the Environmental Protection Act 1990. The court held that there is no express power in the 1990 Act or in the appeals Regulations for a local authority to vary an abatement notice and that no such power arises by necessary implication. The statutory scheme gives an express power to the Magistrates' Court, on appeal, to quash or vary an abatement notice; implying an ongoing local authority power to vary would be inconsistent with that scheme, would undermine statutory appeal rights and certainty, and would risk permitting the authority to intrude into matters (such as the best practicable means defence) reserved to the courts.

Background and procedural history

The appellant is a local resident affected by noise from Mallory Park Circuit. The respondent local authority served an abatement notice on 21 November 2014 under the Environmental Protection Act 1990. A schedule to that notice limited operations at the Circuit. The operator sought variations and, on 31 March 2022, the council agreed three variations (described as permanent but subject to annual review) and refused a fourth. The appellant applied for judicial review of the Variation of 31 March, contending it unlawfully altered the protective scheme and would worsen noise impacts.

Nature of the claim / relief sought

• (i) The appellant sought judicial review of the Variation of 31 March 2022; in substance he sought to challenge the lawfulness of the local authority’s agreement to vary an existing abatement notice.

Issues framed by the court

• (ii) The principal issue was whether a local authority has power, either expressly or by necessary implication, to vary an abatement notice issued under s.80 of the Environmental Protection Act 1990, or whether that power is (as the legislative scheme indicates) vested with the Magistrates' Court on appeal.
• Subsidiary issues included whether earlier authority (R v Bristol City Council ex parte Everett) compelled implying such a power, whether the local authority's continuing engagement with the operator or considerations of administrative flexibility and economy justified implication, and whether the judge below erred in the scope of issues he considered (including variations that increase restrictions).

Court’s reasoning

The Court of Appeal analysed the statutory framework: s.79 and s.80 of the 1990 Act, the appeals Regulations, and Schedule 3. It emphasised that s.80 obliges a local authority, if satisfied a statutory nuisance exists or is likely to recur, to serve an abatement notice, and that the appeals Regulations expressly give the Magistrates' Court power on appeal to quash or to vary the notice. The court found no express provision giving a local authority a power to vary its abatement notice.

The court applied the high test for necessary implication and concluded that implication was not justified. Reasons included (a) Parliament had expressly provided for variation by the Magistrates' Court on appeal and had omitted any equivalent express local authority power, (b) implication would be inconsistent with the statutory scheme and with the appeal and criminal enforcement regime (including the best practicable means defence which the courts, not the authority, determine), (c) practical consequences of an implied variation power would create uncertainty for the public and criminal liability, and (d) Everett (on withdrawal) was distinguishable and did not support implying a variation power where the underlying nuisance continues to exist. The court also considered, as an alternative analysis, that wider general powers in s.111 Local Government Act 1972 or s.1 Localism Act 2011 did not supply the missing power.

Other comments The court noted there was no prior authority directly on point and observed that permitting a local-authority variation regime would raise numerous unresolved procedural questions (publication, appeals, time-limits) which Parliament had not addressed.

This is an appeal from the Administrative Court (Eyre J, [2023] EWHC 1922 (Admin)). The Court of Appeal allowed the appeal. The court held that a local authority has no express power under the Environmental Protection Act 1990 to vary an abatement notice and that no such power arises by necessary implication. The appeal court distinguished Everett (on withdrawal) and concluded that the statutory scheme reserves variation power to the Magistrates' Court on appeal; implying an ongoing local-authority power to vary would contradict the scheme and create legal uncertainty.

Appeal to the Court of Appeal from the High Court, Administrative Court (Eyre J) [2023] EWHC 1922 (Admin). Permission to appeal was granted and the Court of Appeal handed down judgment allowing the appeal ([2024] EWCA Civ 433).