England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		24th July 2008

1. DEPUTY HIGH COURT JUDGE:
2. This is an appeal by way of case stated from the Magistrates' Court for Central Buckinghamshire. The essential facts are these: on 15th September 2006 the appellant, a local authority, served the respondent company, Wren Davis Limited, with an abatement notice pursuant to section 80 of the Environmental Protection Act 1990 (as amended). The notice required the abatement of a nuisance, namely noise from the use of a cooling tower at Collings Hanger Farm, Prestwood, Great Missenden. It required the restriction of the recurrence of any nuisance and the taking of such steps as may be necessary to achieve this within 1 month from the date of the notice.
3. The respondent appealed by way of complaint to the Central Buckinghamshire magistrates on 5th October 2006. At the hearing on 7th February 2007 the justices, having heard evidence, ordered as follows: they determined that the grounds of appeal which had been advanced against the validity of the abatement notice failed. Nevertheless, by the time the hearing had come up on 7th February 2007, the time for ceasing the noise and complying with the abatement notice had expired a long time ago. The magistrates determined, as was inevitable, that the time in the notice should be extended, and they concluded that 6 months was an appropriate period of time, on the basis that whatever system had to be installed would take some months to install, taking into account the character of the company. At that stage the issue of costs was raised, but it was apparently late in the day and consideration was adjourned until 22nd March 2007. The magistrates who sat on that date were not the magistrates who had determined the appeal on 7th February 2007, but no objections were taken to the fresh bench. They then turned to consider the question of costs.
4. The local authority argued that the justices had upheld the notice and as a result costs should be awarded against the local authority only where the local authority had acted in bad faith or unreasonably. The position recognised by the cases was that local authorities acting in good faith and reasonably should not be deterred from exercising their obligations under statute through the court. The local authority could have also said, and no doubt the complete record would show that they did, that they were the successful party on the appeal before the magistrates.
5. So far as the grant of more time is concerned, the respondent company never asked for more time, never put before the local authority any reasons why they should have more time. They had simply pursued an appeal against the validity of the abatement notice.
6. On the occasion when costs were reviewed, someone appeared for the company, who had not appeared below, and argued that the company had been at the site for 50 years and using a cooling system for 26 years, that it had been given 1 month to remedy the nuisance and that that was insufficient. It was added, according to paragraph 6 of the case stated:

"6... The council had not offered the option of reasonable discussions."

It is confirmed that it was not suggested that the council had acted in bad faith but that the matters could have been dealt with in a different way. It was submitted that the council had acted unreasonably. It was said that this was a small business and it had not benefited financially from its action.

7. So far as the matters before the magistrates on the hearing as to costs are concerned, I am entirely satisfied that the appraisal of what had occurred should have led the magistrates to conclude that the council had successfully contested the appeal and the abatement notice had been upheld. That prima facie meant that the council were entitled to their costs, having succeeded in the appeal. That is not invariably the case, but if one looks in this case to reasons why they should not have recovered their costs, it appears that the magistrates took the view that the reason why they should not recover their costs at all but, worse than that, should pay £1,000 towards the costs of the company, was because the company had maintained that it had not been offered the option of reasonable discussions. In the context of what had taken place, those reasonable discussions could only have been addressed to the question of an extension of time. The fact of the matter is that the company had never requested an extension of time. They had never said, "This is valid abatement notice and we will comply, but please give us more time"; they had, from the outset, appealed the notice on the basis it was not valid. In those circumstances, reasonable discussion could not have taken place unless the company had said it accepted the notice. It had never done that.
8. In those circumstances, I am entirely satisfied that the bench of magistrates hearing the argument as to costs misconceived the position, misapprehended the principle which should be applied and wrongly deprived the council of being in a position to recover its costs. In my judgment, it was plainly wrong that the council, having reasonably pursued its statutory duty at public expense, and having succeeded in the appeal, should then be ordered to pay £1,000 to the company simply on the basis that the inevitable had to occur, namely that the abatement notice had to be extended.
9. Those familiar with abatement notices know that in all cases councils normally gratefully receive suggestions as to an extension of time where a case is put forward in which the relevant party, having received the abatement notice, is saying, "We will comply but we need a bit more time". No sensible council will not grant the time then, if it is reasonably proposed.
10. I am entirely satisfied that this appeal should succeed. The order for the payment of the costs to Wren Davis Limited for £1,000 is set aside. I invited the appellant to say whether or not they wish the matter to be remitted to another bench of magistrates to consider the grounds for making an order for costs in favour of the council, but they rightly, and sensibly, in my judgment, have not taken up that option. The sensible course is that the order for costs is set aside but this appeal is allowed.
11. As to the questions, first whether the justices, not being the justices who adjudicated on the appeal, were correct to determine the issue of costs. The answer is yes. In response to the second and third questions, it follows from what I have said that the answer to each of those questions is no.
12. What do you want to say about the costs of the appeal?
13. MISS BHOGAL: In relation to the costs of the appeal, there has been a schedule of costs filed.
14. DEPUTY HIGH COURT JUDGE: Can I see it?
15. MISS BHOGAL: I have my copy. At the time of preparing the schedule the fee for my attendance today had not been settled but it has now been inserted. The total sum asked for is £3,540.50. I make an application in that sum.
16. DEPUTY HIGH COURT JUDGE: It seems an awful lot.
17. MISS BHOGAL: (Handed). I invite the court to assess costs in a sum it considers reasonable. You have seen the work that has gone into preparing the case. The skeleton argument is comprehensive and there is a bundle of documents that has been prepared. The breakdown is in the schedule.
18. DEPUTY HIGH COURT JUDGE: How long did it take you to do the opinion on merits and skeleton argument and so forth?
19. MISS BHOGAL: I do not recall the specific time.
20. DEPUTY HIGH COURT JUDGE: Do you have an hourly rate?
21. MISS BHOGAL: I do. It is £125 per hour.
22. DEPUTY HIGH COURT JUDGE: That is something like more than 10 hours.
23. MISS BHOGAL: That would not be unusual. My Lord, I would like you to look at the length of the skeleton argument. Perhaps that is why I have not needed to say too much today, because it is a document that deals comprehensively with the issues, the facts and the authorities. I go back to my submission that I would like the court to assess the costs in a sum it considers reasonable. The case had initially been listed for a day.
24. DEPUTY HIGH COURT JUDGE: There are the costs of the solicitor in drafting it, putting forward a stated case and so forth, and attendance today.
25. MISS BHOGAL: Yes, and there was some reluctance on the part of the court to state a case.
26. DEPUTY HIGH COURT JUDGE: I saw that and I am not surprised.
27. MISS BHOGAL: So there has been more correspondence than usual.
28. DEPUTY HIGH COURT JUDGE: It would be like hauling down the flag and conceding --
29. MISS BHOGAL: Yes.
30. DEPUTY HIGH COURT JUDGE: There we are, £2,000.
31. MISS BHOGAL: I am in your hands.
32. DEPUTY HIGH COURT JUDGE: It seems to me that your costs plus solicitors' costs -- it leaves you out of your fee for today, but £2,000 seems to me to be a fair proportion of that. You will have your costs against the company for this appeal in the sum of £2,000.
33. MISS BHOGAL: I am grateful.
34. DEPUTY HIGH COURT JUDGE: Thank you very much.