England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(BIRMINGHAM DISTRICT REGISTRY)
(HIS HONOUR JUDGE COLES QC)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 24 January 2002

1. LORD JUSTICE BUXTON: This is an application by Mrs Byril Cocking for permission to appeal against a decision of His Honour Judge Coles in the Birmingham County Court on 14 September 2001. The proceedings concerned an application under section 81(5) of the Environmental Protection Act 1990 brought by the Tamworth Borough Council as local authority against Mrs Cocking.
2. The action concerned complaints made by particular neighbours of Mrs Cocking that she had caused a statutory nuisance by playing loud music in the house, and eventually also running the water system throughout the night so as to disturb the neighbours' sleep and reasonable comfort.
3. The judge considered the extensive evidence, which he related in considerable detail in a long and careful judgment. He concluded that the complaint of statutory nuisance had been made out and he made the order sought against Mrs Cocking. A point arises as to the exact terms of the judge's order, to which I will return.
4. In her written grounds of appeal, Mrs Cocking has made a series of complaints, some of which concern the demeanour of the judge, others concern the nature of the trial. So far as the demeanour of the judge is concerned, the main complaint is that he described certain complaints made by Mrs Cocking as being imaginary. The fact that he so spoke does not indicate that he was dealing with the case unfairly.
5. Mrs Cocking also complains that she did not have the benefit of legal representation at the trial. Having heard her, albeit briefly, I very much doubt whether that was any handicap to her at all. However, it is not the case that, even under article 6 of the European Convention on Human Rights, absence of legal representation indicates an unfair trial in every case. The question is whether these proceedings could reasonably be conducted and reasonably understood by a person representing themselves. I have no doubt that they are such. Although Mrs Cocking has strong feelings about the issues, they are comparatively straightforward, and I have no doubt, with the assistance of the judge, that Mrs Cocking was afforded a fair trial. She also complains that various matters she wished to ventilate herself concerning trespass on her property, as she sees it by the local authority, and also more fundamental complaints about the behaviour of the local authority, were not allowed to be ventilated. The judge explained that these matters, first, were not a reasonable ground of counterclaim in the particular proceedings; and, secondly, were not in any event brought forward sufficiently early. He advised Mrs Cocking that, if she wished to pursue those matters, she should take out separate proceedings. The judge was quite right not to deal with them in these proceedings.
6. Before me today Mrs Cocking has raised principally two points. First, she says that it was wrong for the local authority to proceed under section 81(5) of the Environmental Protection Act. They should have sought other means of controlling the matter and dealing with the complaints. To a large extent that is a matter for the local authority's judgement. Section 81(5) was inserted in the 1985 Act precisely because other means of recourse were often seen as being inadequate. It was a matter for the judge to decide whether, in view of the history, which he related in great detail, it was correct for proceedings to be brought under that section. I see no reason to think that he erred in law in so doing.
7. Secondly, Mrs Cocking has raised a point that may be one of substance, although it is not one that would lead to this court granting leave to appeal. The local authority sought an order from Judge Coles that Mrs Cocking would not play music, or otherwise cause noise, at such a volume and in such a manner "as would be likely to cause nuisance to her neighbours". In discussion after judgment, and at his own initiative (not as far as I can see because of any complaint by Mrs Cocking, and much less because of anything that had actually happened during the case), the judge expressed some concern about the width of the injunction. He suggested that a more limited order might be appropriate; limited to the residents of the adjoining property, 33 Sefton Road. That is what appears to have happened on the transcript; the actual order we have drawn appears to be in the same terms as the original order sought. It may be therefore that the order as it appears in the court record is in wider terms than order Judge Coles intended. I cannot say more than that because we have no information on this and, as far as I can see, it does not form any part of Mrs Cocking's original complaints. The matter having been raised it is open to Mrs Cocking to seek to have it put right, if indeed there is an error. It would be open to her to draw this matter to the attention of the court office in Birmingham and ask whether the order as drawn properly represents what Judge Coles was intending.
8. I emphasise two things. First, that point, if it is a point, has no effect at all upon Judge Coles' judgment. Judge Coles found that the local authority was entitled to an order against Mrs Cocking and the order they were seeking was the order that was made. It may well be therefore that the effect of the judge's judgment is that that is the correct terms of the order. Nonetheless, if the judge intended to limit it, that should be recorded, and it is up to Mrs Cocking to take it up with the court office. It does not undermine anything found against her by Judge Coles.
9. Secondly, Mrs Cocking has drawn my attention to the fact that she has been removed from her home under an order made by the Justices of the Peace in Tamworth under section 135(1) of the Mental Health Act 1983. She is still a patient detained under that Act in a psychiatric hospital, or so she tells me. I made it clear to her that in this court I am not in any way concerned, and cannot be, with anything to do with that order. She claims that it was an underlying part of the argument in favour of that order that Judge Coles' order had been made against her and in the terms recorded in the court record. It seems to me extremely unlikely that the Magistrates will have pursued the matter simply on the basis of the narrow terms of the order made in Mrs Cocking's case, rather than on the basis of the long history of this unfortunate matter set out by Judge Coles. Even if there was some error in drawing the order, that cannot have had a dispositive effect upon the decision of the Magistrates' Court.
10. However, so far as the drawing of the order is concerned, that is not a matter for this court, but it is something that it would be open to Mrs Cocking, if so minded, to draw to the attention of the Birmingham County Court.
11. I would refuse permission to appeal.
Order: Permission to appeal refused.