England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Thursday, 17th June 2004

1. MR JUSTICE McCOMBE: The present matter gives rise to certain procedural questions relating to appeals to magistrates under the Environmental Protection Act 1990 against abatement notices served under that Act by local authorities upon persons alleged to be responsible for statutory nuisances.
2. The present appeals are by way of two cases stated from two decisions of the justices for the county of Kent, acting in and for the petty sessional area of West Kent, in respect of adjudications as Magistrates' Courts sitting at Sevenoaks on 30th October and 4th December 2003.
3. On 29th September 2002 a motorcycling event took place at premises owned by the appellant, Mrs Susan Woods, at White Rocks Farm, Underriver, near Sevenoaks in Kent. A complaint was made by a member of the public about noise. The result was that an environmental health officer in the service of the respondent, Sevenoaks District Council, attended at the site that day. I was informed that that officer was a Mr Sharp, who later gave evidence in the proceedings.
4. Mr Sharp determined that a statutory nuisance existed and served on the appellant an abatement notice under the 1990 Act. That notice I shall call "the first notice".
5. By its terms the first notice stated that the respondent, the council, was satisfied of the existence and likely recurrence of a statutory nuisance at the premises arising from the use of the premises as a venue of motorcycling events, eg scrambling. It required Mrs Woods, the appellant, to abate the same immediately and prohibited the recurrence of such nuisance. It further required that, for that purpose the abatement of nuisance caused by the motorcycle and associated noise, to desist.
6. By section 80(3) of the Act there is conferred upon any person served with such a notice a right of appeal against it to a Magistrates' Court within 21 days, beginning with the date of the service of the notice. By virtue of section 81(7) of and paragraph 1(2) of Schedule 3 to the 1990 Act, such an appeal is to be by way of complaint for an order, and it is provided that the Magistrates' Courts Act 1980 shall apply to the proceedings.
7. By a complaint dated 14th October 2002 (which I shall call the "first complaint"), the appellant appealed against the first notice. The appeal came on for hearing before the justices on 20th August 2003. Substantial witness statements had been served on each side in respect of a total of 28 witnesses in all.
8. In opening the appeal before the justices, it was argued on behalf of the appellant that the first notice was invalid for various technical reasons. The justices rejected those submissions and the case proceeded for a short while. However, either during the course of the first witness's evidence or very shortly thereafter, the Chairman of the Bench realised that he knew an interested party, not himself a witness but someone who had made a complaint, and recused himself from further hearing the matter. It was directed, after a certain degree of argument, that the appeal should be reheard before a differently constituted Bench.
9. It was made clear at the time, on the appellant's behalf, that the same objections to the validity of the notice would be argued again at the new hearing before the newly constituted Bench of magistrates. The council had technical arguments against such a course, but clearly the matter would have to be re-ventilated in one form or another.
10. However, on 9th September 2003 the respondent council wrote to the appellant purporting to withdraw the first notice and serving in lieu thereof a new abatement notice (which I shall call "the second notice"). The second notice stated that upon the council being satisfied of the likely recurrence of motorcycle engine and exhaust noise, it prohibited the recurrence of the same with immediate effect.
11. By a complaint dated 29th September 2003 (which I shall call "the second complaint"), the appellant appealed against the second notice.
12. On 30th October 2003 the justices proceeded to hear an application by the appellant to determine whether the respondent council should pay all or any of the costs incurred by the appellant in pursuing her appeal against the first notice. The justices decided to make no order for costs. Their reasoning is set out in paragraph 6 of the first printed case before me, which is dated 18th February 2004. They are as follows:

"i. The Respondent had the authority to withdraw the Abatement Notice issued on the 29th of September 2002, the Notice had been served on the Appellant but the Appeal had not been determined, and therefore the Council had an implied power to withdraw the notice, which it exercised lawfully. On the basis of R v Bristol City Council ex parte Everett, we concluded that the Respondent did have power to withdraw the Notice in these circumstances."

The Bristol City Council case is reported in the Court of Appeal at [1999] 2 All ER 193 and at first instance before Richards J at [1999] 1 WLR 92:

"ii. The withdrawal by the Respondent of the original Abatement Notice would logically lead to the termination of the Appellant's appeal as there was no longer any Notice in existence for the Appellant to appeal. However, service of the Second Notice preserved the Appellant's right to question the Respondent's actions by way of further appeal.

iii. The Appeal had not been heard to conclusion and therefore we did not have the authority to dismiss the Appeal pursuant to Regulation 2(5)(c) of section 80 of the Environmental Protection Act 1990, and therefore we did not dismiss the Appeal. It was withdrawn.

iv. In any event, we could not dismiss the Appeal because we were not invited to hear the evidence in the case at that stage, and therefore could not adjudicate upon its merits or otherwise.

v. The Appeal not having been heard to conclusion and, having determined that the Respondent had the lawful authority to withdraw the Abatement Notice, we did not feel it necessary in law to quash the Notice.

vi. It would be wrong at this stage to prejudge the issue of costs without hearing the evidence in the case, particularly as the Respondent had indicated they would take no issue on the principle of costs being awarded in respect of proceedings arising from the First and Second Notices at the conclusion of the whole proceedings.

vii. The costs in respect of the First Notice were inextricably linked with the yet to be determined Appeal, as the reason for the appeal has not changed from the first to the second Abatement Notice.

viii. The Appellant had not consented to the withdrawal of the Notice.

ix. We did not feel it would be just and reasonable to award costs at this stage of the proceedings, the substantive matter having not yet been determined and these costs being clearly relevant to the second Appeal hearing, notwithstanding the considerable financial burden the Appellant faced."

13. The first appeal before me is by the appellant against that decision. She now applies for an order quashing the justices' decision and applies for an order that the first notice be quashed and that the respondent do pay her costs.
14. The appeal against the second notice was heard before the new justices on 1st and 4th December 2003, when they dismissed the appeal and upheld the second notice. Thereupon the respondent sought only its costs in relation to the second notice and the appellant was ordered to pay costs in the sum of £3,140. She now appeals against those orders also and seeks orders that the decision of 4th December 2003 be quashed, that the second notice be quashed and that the respondent do pay her costs.
15. At the hearing on 1st and 4th December 2003, at the request of and for the convenience of the parties, the justices allowed the usual order of proceedings to be reversed and the respondent council presented its case first. I say "usual" in this sense. One might have expected in the normal course for the complainant to adduce her evidence first. However, I was told that it was common practice in cases of this type that the respondent frequently presented its case before that of the complainant. That appears to be done and to have been done in this case as a matter of convenience, rather than a matter of strict law.
16. At the conclusion of the case for the respondent, the appellant wished to make a submission that there was no case to answer. The justices declined to hear that submission. The justices' reasons for that decision and for then dismissing the appeal are set out in paragraph 6 of the second case stated. Having taken that decision, evidence was called for the appellant, Mrs Woods, and the justices reached the second that I have indicated.
17. The reasons for the decision on 4th December, as I say, were set out at paragraph 6 of the second case. They are summarised as follows:

"(i) it was reasonable to conclude that as at 9th September 2003 the motorcycle event would recur and therefore the nuisance would recur;

(ii) the appeal had been pursued since October 2002. There would appear to be no reasons to pursue such an appeal unless there was an intention to hold further events;

(iii) it was correct to refuse to hear an application for no case to answer. The parties at a pre-trial review had agreed to reverse the order of giving evidence, as is customary in this type of case. At the time when the Respondent's case was completed, the Appellant had not opened her case and had not presented any evidence in support of her grounds of appeal. The Respondent was opposing the appeal, not presenting an appeal. In order to adjudicate properly upon the appeal, we would have to hear the Appellant's case. We could not dismiss the case without hearing the Appellant's evidence in support of her grounds of appeal."

18. On the present appeals before me, Mr Miller, who appears for the appellant, argues as follows. On the first appeal, namely that against the order of 30th October 2003, he submits that the justices were wrong in deciding that the withdrawal of the first notice could be effected without the appellant's consent. Alternatively, it is argued upon withdrawal of the first notice the justices were in effect obliged to quash it. In such circumstances Mr Miller submits no reasonable Bench could have refused to make an order for costs in favour of the appellant.
19. On the second appeal, that is the appeal against the order of 4th December 2003, the appellant argues that the justices were wrong to refuse to hear and to accede to a proposed submission of no case. Further, it is submitted that the justices' decision on the facts was perverse.
20. For the respondent it is contended that it was entitled to withdraw the first notice, with the consequences found by the justices on 30th October 2003. On the second appeal the respondent submits that the normal course in a civil jurisdiction is that if a party wishes to make a submission of no case, the court should put the party to his election whether or not then to all further evidence (see Alexander v Rayson [1936] 1 KB 178). This is of course permitting of variation, provided the court exercises some caution before departing from it (see Boyce v Wyatt Engineering [2001] EWCA Civ 692).
21. In the present case before the justices, the respondent argued that the appellant should either decide not to call evidence and make her submissions on the basis of the respondent's evidence (see paragraph 4(ii) of the second case stated). On this basis the appellant could not have been compelled to call any evidence at all and could have made her submissions on the basis of the evidence called by the respondent. However, the appellant declined to take this course. Accordingly, Mr Lewis for the respondent submits the justices were right not to hear the submission of no case. On the evidence the respondent submits the justices were fully entitled to find as they did and to dismiss the second appeal accordingly.
22. Turning to the first case stated on the appeal against the justices' decision of 30th September 2003, it seems to me to be clear that for many purposes the council were entitled in their discretion to withdraw the first notice. That is the clear effect of a decision at first instance and of obiter dicta in the Court of Appeal in the R v Bristol City Council ex parte Everett (already cited). However, that case was not concerned with the consequences of any such withdrawal upon pending proceedings by way of appeal properly constituted by the complainant preferred before a Magistrates' Court.
23. In my view, the justices were wrong to conclude that the effect of the withdrawal of the first notice was to terminate the appeal against that notice. Apart from authority, I would have inclined to the view that it was not the existence of a notice that confers jurisdiction upon the magistrates, but rather the making of a complaint in proper form under the Magistrates' Courts Act. Once that complaint exists, it should be for the justices to determine how it is to be disposed of. Putting aside the peculiar facts of this case, it would be monstrous if a local authority could serve an abatement notice, become respondent to an appeal against it, and then, thinking better of the merits of its actions, could deprive the court of jurisdiction, at the last minute, to award costs to an appellant, who had been put to expense, by the simple device of withdrawing its statutory notice. In such circumstances, in my view, the court would be justified in quashing the notice and making an appropriate order for costs under section 64 of the Magistrates' Courts Act 1980. Such a decision would not negative the effectiveness of the decision by the authority to withdraw its notice. The withdrawal would still be effective, as it was in the Bristol case already mentioned; for example, as in that case, to remove from a landlord a statutory obligation to remedy an unjustified allegation of nuisance at the suit of a tenant bought for the sole and simple purpose of ameliorating the amenity of a tenanted property.
24. In my view, this situation in the cases before me is analogous to that which arose before the Divisional Court (consisting of Lord Widgery CJ and Melford Stevenson and Milmo JJ) in R v Cannock Justices ex parte Astbury [1972] LGR 619. The facts of that case can be easily derived from the headnote. There a notice had been served under the Public Health Act 1936. To quote from the headnote:

"A local authority served on the applicant a notice under section 39(1) of the Public Health Act, 1936, requiring him to carry out certain drainage works to property which he then owned. The applicant appealed to justices by way of complaint under section 290(3) of the Act. On the date fixed for hearing, the appeal was adjourned for want of time. Before the adjourned hearing the applicant sold the property and the local authority purported to withdraw the notice. When the appeal came on for hearing the justices upheld the contention of the local authority that in the circumstances they had no jurisdiction to hear the appeal. The applicant applied for an order of mandamus directed to the justices requiring them to hear and determine the appeal."

25. The court held that where an authority served such a notice it could not be withdrawn without the consent of the landowner concerned. It was held that the justices retained jurisdiction to hear the complaint and ought to have done so, and the court made the order for mandamus accordingly.
26. Lord Widgery (in a judgment with which both other judges agreed) set out the reasons why the applicant had wanted his complaints to be determined and heard. He said this:

"The local authority urged the justices not to go on with the hearing of the appeal because it was now a matter of no consequence in that they, the local authority, had withdrawn the notice upon which the whole matter was based. The applicant resisted that suggestion, because he said he had a personal interest in the matter being disposed of; he had complied with the terms of the statute, and the local authority either could not or should not be allowed to withdraw the notice to put a summary end to the proceedings in that way."

27. The learned Chief Justice's conclusion on the point before that court was expressed in the following terms:

"I do not feel able to attempt any precise definition of the circumstances in which a local authority which has once served a notice under section 39 may be allowed to withdraw it. It seems to me that there must be such circumstances, in particular as was put to Mr Mellor [counsel for the applicant] in argument, if the local authority serve a notice under some mistake and discovering their mistake a few days later, before any harm has been done, seek to withdraw it. In those circumstances it would be very difficult to say that they lack the power to withdraw the notice; and there must I think be circumstances which might be explored in greater detail in another case in which a notice once served can be withdrawn, notwithstanding the mandatory terms of section 39(1).

What I do feel more confident upon is that if a local authority serve a notice and an appeal is entered thereupon, in other words if the person receiving the notice enters an appeal under section 290 as a result of the service of the notice, then in my judgment the local authority cannot subsequently withdraw the notice except, of course, by consent of the landowner. In the present case the local authority sought to withdraw the notice not only without the consent of the landowner, but in the teeth of his opposition, and they sought to withdraw it after the first appearance before the justices and, indeed, during the adjournment when the case had been put off for want of time."

28. Lord Widgery expressed the caveat in that judgment that the case had been argued on one side only and said that that should be borne in mind if the case were thereafter (as now) to be cited as authority. I have borne that caveat very much in mind, as indeed have I borne in mind that that case was concerned with notices served under the Public Health Act 1936, rather than under the Act with which I am now concerned. However, the procedure that follows upon the service of such a notice and the desire of the recipient to appeal is precisely the same: the procedure by way of complaint before the Magistrates' Court.
29. For the reasons already advanced, I consider, and with the very greatest of respect, that the decision of the Divisional Court is correct in principle. While it might not be entirely accurate to say that the notice cannot be withdrawn without the consent of the recipient of it, I think the more correct formulation would be that the withdrawal of notices such as these served in this case cannot deprive the magistrates of jurisdiction to adjudicate upon a complaint already preferred before their court. The justices' jurisdiction derives from the complaint, and no one party can deprive the justices of the jurisdiction to adjudicate thereon.
30. In the present case I would have been inclined, if I had been in the justices' position on 30th October 2003, to adjourn the matter then before them, together with the complaint as a whole, to come before the Bench that would hear the second complaint by way of appeal against the second notice. That would have enabled that second Bench to deal with all matters arising incidental to the first appeal.
31. However, they did not take that course. They simply refused the costs order sought, for the reasons which I have already quoted from the case which they have stated. They did not, on the face of the order, either dismiss the appeal or make an order quashing the first notice.
32. Nevertheless, if they had ordered the respondent to pay the costs as invited by the appellant, there would have been a danger that the appellant would recover costs incurred by her which would have been necessarily incurred in a potentially unsuccessful appeal against the second notice, which the respondent had been quite entitled to serve. They clearly considered that they were entitled to defer the question of the entitlement to such costs to be determined after the hearing of the complaint in respect of the second notice. If therefore the justices on the second appeal made a decision which is unimpeachable, it would be most unsatisfactory if the appellant were to recover the costs ultimately deployed in support of an appeal that was properly dismissed, simply because the costs had originally been incurred in resistance to the first notice and on appeal from it.
33. When one examines the course of the appeal against the second notice, I consider that the course adopted by the justices was, for practical purposes, in accord with the general principles relating to submissions of no case which I have already outlined. The appellant, on hearing the justices' refusal to entertain her submission, could have elected to call no evidence and to argue that the appeal should be allowed on the basis of the evidence presented by the respondent being insufficient. She did not take that course.
34. The question that arises accordingly is whether on all the evidence the justices were entitled to dismiss the appeal? In my view they were so entitled. The material set out in the short statement of summary of the relevant evidence in paragraph 2 of the second case, on pages 3 and 4 of that case, stated that there was such evidence. It is not for a court of supervisory jurisdiction such as this to evaluate the weight of it.
35. The whole tenor of the evidence there summarised was to the effect that the event such as that complained about by the respondent were desirable and should be staged again, absent any legal restraint. The justices' decision was in my view justified on the evidence they heard. Accordingly, the justices' decision of 30th October 2003 would in the event have been correct, and it would be wrong in my view to interfere with it in all the circumstances of the case.
36. However, the decision of 30th October 2003 was in any event a decision taken in the exercise of the justices' discretion as to costs. That is a very wide discretion and given the unusual procedural features of this case, it cannot be said that they erred in principle in refusing to order the respondent to pay the appellant's costs. The first hearing was aborted through no fault of either party. Thereafter, the respondent acted in a responsible manner to minimise further argument at the second hearing. A decision that each side should bear its own costs in those circumstances was entirely reasonable in my view.
37. Turning therefore to the questions posed by the justices in the two cases, I would answer them as follows. Addressing first the first case, I would answer question 1 "yes". Question 2(i) I would answer "no". Question 2(ii) I would answer "no". Question 2(iii) I would answer "yes". Question 3 does not arise because in fact they did not dismiss the appeal, as indeed they themselves say in paragraph 6(iii) of the same case. Question 4, I would answer that question which is stated in the following terms, "Was our decision not to award Mrs Woods all or alternatively any costs relating to the withdrawn notice perverse," I would answer that "no".
38. In relation to the second case. Question 1, "Whether the Justices were right in preventing the Appellant from making a submission of no case to answer at the close of the Respondent's case as the Appellant had not yet given evidence?", I answer that question in effect "yes". Question 2, "Were the Justices correct to conclude that there was a case to answer ..." I would answer that question "yes". It is not necessary to allude to the circumstances set out in paragraphs (a) to (d) of that paragraph in order to answer the question. Question 3, "Had the Justices entertained the Appellant's submission of no case to answer at the close of the respondent's case, on the evidence before them were they bound to find in the Appellant's favour and allow her appeal?", I would answer that question also "no". Question 4, "Was the Justices' decision perverse?", I would answer that question "no".
39. For those reasons I would, for a very limited purpose, allow the first appeal to the extent of quashing the first notice, but otherwise I dismiss that appeal. I also dismiss the second appeal.
40. MR LEWIS: My Lord, I am obliged. The parties have exchanged costs schedules and I would make an application for the local authority's costs. (Handed)
41. MR JUSTICE McCOMBE: Thank you.
42. MR LEWIS: My Lord, you will see that the majority of costs are made up of my fees. The solicitor's fees are very small. That is because the great bulk of the work of course -- it was twofold. First of all, it was responding to the justices' draft case stated, which they allowed us to do, and secondly preparing the skeleton arguments. I would simply remind your Lordship that we are dealing with two cases here, although they have of course been conjoined.
43. MR JUSTICE McCOMBE: Yes.
44. MR LEWIS: The appellant's schedule, which of course your Lordship will not be looking at in any detail, but just putting it in context came to over £14,000. So in that context I would suggest that these figures are not excessive.
45. MR JUSTICE McCOMBE: Mr Miller?
46. MR MILLER: My Lord, firstly, as to a certain extent we have had some success, the first notice was quashed. Ultimately in that respect it did not relate to questions 2(i) and 2(ii) in the first notice. That must in effect, in my submission, mean we must be entitled to some costs.
47. MR JUSTICE McCOMBE: No.
48. MR MILLER: Moving on then. In terms of Mr Lewis' costs, I would submit counsel's fees are excessive. They are more than double my fees.
49. MR JUSTICE McCOMBE: How did the solicitors' bill get to £14,000 if your bill was only that? You have done all the work, how could the solicitors' fees be anything like £12,000.
50. MR MILLER: In terms of hours, the council's solicitors did 16½ hours. Those instructing me did marginally double that.
51. MR JUSTICE McCOMBE: Doing what? On a case on appeal on a point of law?
52. MR MILLER: My Lord, yes. But in terms of counsel's fees, by way of example my fees are £2,000 all in, which is much lower than Mr Lewis' fees. I submit my Lord that I have no problem at all with the solicitors' fees. They seem very reasonable. In terms of the counsel's fees, a more reasonable sum would be £1,500.
53. MR JUSTICE McCOMBE: The appeals, so far as dismissed, will be dismissed with costs in the sum claimed in the respondent's schedule.
54. MR MILLER: My Lord, I would ask for leave to appeal.
55. MR JUSTICE McCOMBE: There is no jurisdiction to appeal in matters of case stated before the High Court.
56. MR MILLER: I am grateful.
57. MR JUSTICE McCOMBE: If you want to reargue that, I think you would have to say that the decision in Westminster City Council v O'Reilly, 1st July 2003, a decision of the Court of Appeal consisting of the Lord Chief Justice, Auld and Clarke LJJ is wrong. That case shortly, as reported in The Times, says this:

"The Court of Appeal had no jurisdiction to entertain an appeal against a High Court decision on an appeal by way of case stated in a civil matter under section 111 of the Magistrates' Courts Act 1980, since the High Court's decision in such a matter was final."

58. MR MILLER: My Lord, I am grateful.
59. MR JUSTICE McCOMBE: I am grateful to the Court Office for supplying the decision in that case.
60. Thank you both for your very interesting and helpful arguments.