QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE FULFORD
|WINKFIELD PARISH COUNCIL||Respondent|
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"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."
"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."
"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."
"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."
"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."
(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".
" (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."
"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."
"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."
"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."