England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 February 2013

1. MR JUSTICE FULFORD: This appeal is bought by way of case stated against a decision of the East Berkshire Magistrates' Court sitting at Reading when the District Judge ordered the appellant, Dr Bentley-Thomas, to pay costs of £18,008.10. This followed his dismissal of the information she had brought on 18 November 2011 against Winkfield Parish Council alleging that the council, between 19 May 2011 and 18 November 2001, caused noise nuisance, or permitted it to be caused, contrary to section 82(1) of the Environmental Protection Act 1990 ("The 1990 Act"). This provision provides that:

"A magistrates' court may act under this section on a complaint ... made by any person on the ground that he is aggrieved by the existence of a statutory nuisance."

2. The facts relevant to this appeal, which solely relates to the issue of costs, can be shortly stated. The case concerned a site known as Locks Ride Recreation Ground, and it has been used as such since the early 1960s: football and cricket, for instance, have been played there for many years. The respondent, Winkfield Parish Council, was awarded funds to implement the Government's national Playbuilder Scheme at the site. Phase 1 was to provide additional play equipment in an existing play area, and was directed at young people between the ages of 8 and 13. Phase 2 involved installing a splash pad, a beach area with sand, a barbeque, seating areas, adult gym equipment, a double-zip wire and a trampoline. The evidence indicated that the facility attracted a large number of people.
3. The alleged noise nuisance related to the equipment provided in Phase 2. The proposals were the subject of consultation with local residents, which included a meeting on 17 April 2010 and events at local schools in May 2010, although I note that one of the issues in the court below was the extent to which the appellant and other local residents had been given notice of all aspects of the consultation process. The official opening was on 15 May 2011.
4. The claimant, along with others, sent complaints in July 2011 alleging, inter alia, an increase in noise from the playground. On 30 August 2011, the appellant indicated, in a letter to the Parish Council, her intention to launch legal proceedings against the respondent. Following a meeting between the Parish Council on 9 September 2011 and some of the local residents, the appellant sent a further letter (dated the same day) in which she set out that the noise generated by the equipment prevented her from enjoying the usual use of her property, and as a consequence it constituted a statutory nuisance under the provisions of section 82 of the 1990 Act. She proposed applying to the Magistrates' Court for a hearing on the issue. It is accepted that the letter of 9 September 2011 complied with section 82(6) of the 1990 Act:

"Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of."

5. The council took certain steps to reduce the noise, including the "winterisation" of the splash pad in mid-September 2011 (earlier than planned); opening times were restricted to the splash pad and some of the water noise was reduced by removing the overhead buckets (as of 17 August 2011); and the gates to the recreation area were locked daily at dusk and reopened at 7.30 am. In addition to these steps, the Parish Council met Bracknell Forest's Environmental Health Officer in July 2011 to request monitoring of the noise. The results were communicated on 2 November 2011 in a letter from Steve Louden, the Chief Officer, Environmental and Public Protection for Bracknell Parish Council as follows .

"The data collected is within the report to me dated 21 September 2011... The noise measurements were intended as a snapshot and found to indicate that noise levels coming from the park were not significantly different to the noise levels of the traffic or aircraft in the area."

6. At some stage before these results were provided to the Parish Council, the appellant made her first attempt at prosecution by issuing a summons.
7. Given one of the appellant's central contentions was that it was necessary for the Playpark equipment as a whole to be removed and possibly relocated, she made it clear that she was unable to accept the assurance of the respondent council that it was reviewing whether measures, in addition to those just set out, were available which might reduce the noise levels. As one of her witnesses, Gareth Senior of 128 Locks Ride, observed in evidence, tinkering (as he described it) with opening hours or the water pressure would not abate the noise levels.
8. Although we have not been provided with the full details, it appears from the decision of the District Judge that in March 2012 the appellant received additional proposals from the respondent to alter the use of the equipment at the Playpark, but, as I have just noted, her consistent position was that it was necessary for the council to remove the equipment, and particularly the water splash feature and the zip wire, and that it should stop the barbeques. This was clearly set out in the appellant's letter of 9 September 2011 to the Parish Council.
9. The evidence in the trial before the District Judge was heard on 8 and 9 May 2012 and his reserved judgment was given on 25 May 2012.
10. A significant quantity of evidence was introduced by both parties. The appellant and her husband testified, along with four other local residents and she called an expert witness on the issue of noise, Mr Hawes of Sanctum Consultants. The respondent called two local residents, Steven Slator (the Playbuilder project manager), Marcia Milsom (the deputy clerk to the Parish Council), Councillor David Parkin and Dr Peter Clark (a further noise expert).
11. The District Judge rejected the core elements of the evidence of Mr Hawes and he was not persuaded to act on the testimony of the appellant and the other witnesses she called.
12. The court's findings on the issue of whether the appellant had proved her case included the following observations:

"131. It is the court's view that the decision to prosecute Winkfield Parish Council was both pre-emptive and presumptive. The Playpark had been open a matter of weeks and as a new facility satisfying the criteria that it provided activities and equipment for children not provided locally, would attract families from across Bracknell. The resident's complaints were being addressed by the Parish Council and monitored by Bracknell Forest Council. Until 2 November 2011, Dr Bentley-Thomas was under the impression that Bracknell Forest Council's Environmental Health officials considered that a noise nuisance was being caused at Locks Ride. She issued her intention to take the Parish Council to court on 30 August 2011.

132. Her action was presumptive in that it was based on a false premises that any noise from the Playpark was an unreasonable intrusion to her use of her property and that only the complete removal of all of the equipment at the developed site would be sufficient to prevent the nuisance from recurring. Her reliance on her assertions was beyond the probability of a conviction."

13. When addressing the issue of costs, the District Judge's remarks included the following:

"135. Winkfield Parish Council sought the sums in person from Dr Catherine Bentley-Thomas and not from Central Funds under Section 16 of the Prosecution of Offences Act 1985 because she had instigated the prosecution almost as soon as the Playpark was open and before there could be a settling down of the use of new equipment at the recreation site. She had insisted upon a complete removal of the equipment, as the only acceptable resolution of her complaint. In March 2012, the Council indicated a number of measures it was prepared to make in settlement of the case before trial, including the removal of the overhead bucket and to restrict the use of the splash pad feature to 11 am - 4 pm daily, inter alia. They received a reply from Dr Bentley-Thomas dated 8th April 2012 that the Council would have to remove the watersplash entirely, the zip wires and the barbeque stands and canopies entirely, amongst other operational requirements.

136. Mr Steynor indicated that his client had already incurred a substantial expense in bringing this prosecution, in excess of the Council's costs. She was disappointed by the Court's decision and could see no reason why the Council's costs could not be met out of Central Funds, as regularly ordered by courts under Section 16 of the Prosecution of Offences Act when a prosecution against a defendant had been dismissed.

137. The power for the Court to make an order for the defendant's costs to be paid by the prosecutor was provided by Section 19(1) of the Prosecution of Offences Act 1985, where the Court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission, by or on behalf of, another party to the proceedings.

138. In considering the defendant's submissions that its costs be paid by Dr Bentley-Thomas under this provision, the Court noted the following -

i) Dr Bentley-Thomas had given notice to the

defendant after a meeting with representatives of the Parish Council that she would seek a civil hearing if she was unsuccessful in the magistrates' court.

ii) Dr Bentley-Thomas was aware that

Bracknell Forest Council had responded to her complaints (to the Council) about the Playpark, and had its own Environmental Health Office recordings of the sound levels at Water Spring House.

iii) Dr Bentley-Thomas was aware that the

defendant had instigated changes to the use of the equipment, and operating times in August and September before the original complaint was actually issued.

iv) Dr Bentley-Thomas was in receipt of

further proposals to alter the use of the equipment at the Playpark in March 2012, but was adamant that only the removal of the watersplash feature, the zip wire and the barbeques would satisfy her.

139. It was on those facts that the Court was satisfied that she had instigated and continued an unnecessary prosecution in the light of her failure to establish the existence of a statutory noise nuisance at her premises when the complaint was issued, nor when the trial was heard, nor that it was likely that the nuisance would recur. She had maintained an immovable position on the equipment that was installed for Playbuilder purposes, which was unreasonable and had caused the Parish Council to incur costs to defend its liability, where, in fact, none could be established.

140. As set out above, it was the Court's view that her decision to prosecute was both pre-emptive and presumptive.

141. Pre-emptive - because the action had been taken while negotiations were still possible, where the Parish Council had altered its operation considerably and was prepared to do more. Pre-emptive - because the position of Bracknell Forest Council was that it was not satisfied that it should use its own regulatory Environmental Protection powers in respect of a noise nuisance at Locks Ride Recreation Ground.

142. Presumptive - because it was based upon a false premises, exaggerated to the degree that one child on a swing was enough to wake her up and disturb her. She had become over-sensitised to any noise, and looked for any interference in her use of her premises to begin her action. She based her action on the presumption that she had evidence of nuisance beyond the actual bounds of probability. The Court saw no reason why the taxpayer, through Central Funds, should meet the costs of the Parish Council in defending a prosecution found to be so deficient in evidence and continued in spite of the proposals put forward to continue the amelioration of the effect of the Playpark on her, in April 2012.

143. For those reasons, the Court ordered that Dr Bentley-Thomas pay £18,008.10 being the costs sought by the defendant minus the VAT element from the original sum of £21,554.10, under Section 19(1) of the Prosecution of Offences Act 1985 as her prosecution was unnecessary and improper."

14. It follows that the District Judge awarded costs for the following principle reasons:

(a) the prosecution was unnecessary, given the appellant had indicated that she would commence an action in the civil courts if she was unsuccessful in the present proceedings;

(b) the appellant "was aware that Bracknell Forest Council had responded to her complaints (to the Council) about the Playpark, and had its own Environmental Health Office recording of the sound levels at Water Spring House";

(c) the appellant "was aware that the defendant had instigated changes to the use of the equipment, and operating times in August and September before the original complaint was actually issued";

(d) the appellant "was in receipt of further proposals to alter the use of the equipment at the Playpark in March 2012, but was adamant that only the removal of the water splash feature, the zip wire and the barbeques would satisfy her";

(e) the decision to prosecute was "pre-emptive", namely "the action had been taken while negotiations were still possible, where the Parish Council had altered its position considerably and was prepared to do more" and because Bracknell Forest Council "was not satisfied that it should use its own regulatory powers" and "presumptive", because it was based on a "false and exaggerated premise", in that the appellant had become "over-sensitised to any noise" and she based her action on the presumption that she had evidence of nuisance beyond the actual bounds of probability";

(f) "the court saw no reason why the taxpayer, through Central Funds, should meets the costs of the Parish Council in defending a prosecution found to be so deficient in evidence and continued in spite of the proposals to continue the amelioration of the effect of the Playpark on her, in April 2012"; and therefore

(g) the prosecution was "unnecessary or improper".

15. Overall, therefore, the District Judge concluded that the appellant had instigated and continued an unnecessary prosecution, given she was unable to establish the existence of a statutory nuisance at any relevant stage in the proceedings and she had demonstrated an immovable position by seeking the removal of the Playbuilder equipment (if necessary by instituting proceedings in the civil courts).
16. As regards the relevant Regulations, Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 (issued pursuant to section 19 of the Prosecution of Offences Act 1985) provides:

" (1) Subject to the provisions of this regulation, where at any time during criminal proceedings—

(a)a magistrates' court,

(b)the Crown Court, or

(c)the Court of Appeal

is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party.

(2) Before making an order under paragraph (1), the court shall take into account any other order as to costs (including any legal aid order) which has been made in respect of the proceedings.

(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order.

(4) Where an order under paragraph (1) has been made, the court may take that order into account when making any other order as to costs in respect of the proceedings.

(5) No order under paragraph (1) shall be made by a magistrates' court which requires a person under the age of seventeen who has been convicted of an offence to pay an amount by way of costs which exceeds the amount of any fine imposed on him."

17. On the basis of the provision just set out, the question is whether the costs of the respondent were incurred "unnecessarily or improperly". This test was considered in the Director of Public Prosecutions v Denning [1991] 2 QB 532 when Nolan LJ observed (at page 541 C):

"I would add in this connection that the word 'improper' in this context does not necessarily connote some grave impropriety. Used, as it is in conjunction with the word 'unnecessary', it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."

18. In Suffolk County Council v Rexmore Wholesale Service Limited [1994] 159 JP 390 in the context of an order for costs made against the prosecution, this court (in the judgment of Buxton J), having expressed its approval of Nolan LJ's formulation just set out, suggested that it is critical to look at the relevant decisions at the point the proceedings were instituted rather than applying a level of knowledge gathered later:

"With the greatest respect to the Magistrates, one has to say that there is a substantial degree of hindsight in that judgment. Looking at the matter in advance, as prosecutors have to, there was clearly a serious question to be discussed, and properly brought before the Magistrates. In my judgment, had the Magistrates considered that aspect of the case, and considered the prosecutor's position before the case was brought, they could not have concluded that the prosecution had been an improper one in terms of the guidance given by Nolan LJ in DPP v Denning."

19. As Mr Butler for the appellant has correctly observed, section 82 of the 1990 Act enables individuals to seek a remedy in the courts when the local authority has failed to take action or is allegedly responsible for a nuisance. As it seems to me, it is important that this opportunity is readily available to members of the public. In this regard, Mr Butler relies on the following part of the judgment of this court in Hall v Kingston upon Hull City Council [1999] 2 ALL ER 690 (at page 624):

"This aspect of the 1990 Act is intended to provide ordinary people, numbered amongst whom are those who are disadvantaged (whether by reason of their health or their financial circumstance or otherwise), with a speedy and effective remedy for circumstances which will often have an adverse effect (or a potentially adverse effect) upon their health and/or the health of their children."

20. It is clear therefore that the courts should be aware that individuals who act in person will not necessarily have the technical expertise that lawyers and other professionals can be expected to demonstrate, and I note the approach taken in Hall V Kingston upon Hull City Council was reflected by Sedley LJ in Quigley v Liverpool Housing Trust [1999] EGCS 94.
21. It is an important factor in this appeal that Dr Bentley-Thomas followed the correct procedure throughout and the case followed a conventional course. As set out earlier, she commenced these proceedings by way of information on 18 November 2011, following the letter which she sent to the respondent on 9 September 2011 which complied with section 82(6) of the 1990 Act. At the close of the prosecution case the respondent did not seek to argue that there was no case to answer, and, instead, evidence was called to meet appellant's case. The District Judge clearly preferred the respondent's evidence to that of the appellant, but this - standing alone - does not justify the conclusion that the appellant had failed to conduct her case properly.
22. The indication by the appellant (relied on by the District Judge) that if unsuccessful in the Magistrates' Court she would consider launching civil proceedings does not, in my judgment, amount to a failure on her part to conduct her case properly. The appellant was entitled to use this summary ("speedy and effective") procedure in preference to other available remedies, irrespective of whether she contemplated taking further steps depending on the outcome of the proceedings in the Magistrates' Court. The legitimacy of any later proceedings would be a matter for the court seized of them.
23. Similarly, the recordings obtained by the respondent were simply part of the normal work undertaken by the parties in disputes of this kind. The appellant's awareness that Bracknell Forest Council had responded to her complaints about the Playpark, by taking the recordings of the sound levels at Water Spring House, does not render her conduct of the proceedings improper.
24. The core issue on this appeal, in my view, is whether the prosecution ever stood any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution (applying the approach of Buxton LJ in Suffolk County Council v Rexmore Wholesale Service Limited, set out above). Although it can be said that the appellant had expressed a clear and consistent wish that the equipment should be removed in its entirety, in my view that does not lead to the conclusion that her case as regards noise pollution was wholly without merit. It is an important consideration that on 7 October 2011 the relevant officer at Bracknell Forest Council indicated by letter that a statutory noise nuisance existed at that point in time, and, moreover, in a further letter of 2 November, sent by Bracknell Forest Council to the Parish Council, it was made clear that as of that date a final conclusion had not been reached as to whether there was a statutory noise nuisance.
25. Although the authority's position crystallised into the core assertion that there was no noise nuisance, the appellant continued with her case through to trial. As I have already indicated, she called a number of local residents living close to the PlayPark who were in a position to give evidence about the amount of noise at the site. Additionally, the appellant was able to call an expert, and although his expert opinion was not accepted by the District Judge, there is no foundation for suggesting that his evidence (as set out in his report) was so obviously unreliable that the appellant should not have called him at all.
26. On the basis of all these matters, this prosecution cannot be described as having been, at the outset and in the way that it was pursued, so self-evidently lacking in merit that the case should not have been brought or, put otherwise, it was without any realistic prospect of success. Given I have rejected the other reasons relied on by the District Judge, in my judgment his decision to award costs against the appellant was unreasonable in a Wednesbury sense, and I would allow this appeal.
27. LORD JUSTICE GOLDRING: I agree. It accordingly follows that in answer to the question posed in paragraph 10 of the District Judge's case, namely: "The question for the opinion of the High Court is: Was I correct in law to order the appellant to pay the Respondent's costs in the sum of £18.008.10 upon the dismissal of the Appellant's prosecution?", the answer is that he was not correct.
28. As far as the order that we should make is concerned, Mr Butler, it seems to me -- and I have not discussed it with my Lord -- that it would be sensible, to avoid any further costs, if we were simply to quash the order of the District Judge and substitute an order that the costs, both of the hearing below and of the present hearing, as I anticipate we shall be requested, be paid from central funds.
29. MR BUTLER: My Lord, I am not entitled to costs out of central funds as the prosecutor below, it would be the Parish Council's right to costs out of central funds, pursuant to section 16, I would be only entitled to my costs on the appeal.
30. LORD JUSTICE GOLDRING: Could you, therefore, draw up the order that you would wish us to make and submit it to the clerk, and we will check it.
31. MR BUTLER: My Lord, so far as costs are concerned, those instructing me have incurred costs of £3,000 plus VAT for this appeal.
32. LORD JUSTICE GOLDRING: That includes your costs as well?
33. MR BUTLER: That is inclusive of all costs.
34. LORD JUSTICE GOLDRING: That seems appropriate.
35. MR BUTLER: I am very grateful.
36. LORD JUSTICE GOLDRING: Thank you, Mr Butler.