England and Wales High Court (Administrative Court) Decisions

ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		11 March 2015

1. MR JUSTICE WILKIE: The Appellant, John Hemming, is the Member of Parliament for a parliamentary constituency, Yardley, which falls within the area of the Respondent, the Birmingham City Council.
2. He appeals against certain elements of a decision made by District Judge Zara sitting at Birmingham Magistrates' Court on 10 October 2014. That was the hearing of his complaints against Birmingham City Council in which he sought a litter abatement order against the Council pursuant to section 91 of the Environmental Protection Act 1990.
3. He asked the magistrate to state a case in respect of decisions made adverse to him in relation to the costs of the hearing of the complaint. The judge had refused to make an order for costs in favour of Mr Hemming by virtue of section 91(12) of the 1990 Act and, instead, made a costs order in favour of Birmingham City Council against him, acting pursuant to his powers under section 64 of the Magistrates' Courts Act 1980.
4. Responding to the request to state a case, District Judge Zara stated a case comprising some seven paragraphs. Particular focus in the course of argument has been on paragraphs 5 and 6 of that stated case.
5. The Appellant has referred to section 28A of the Senior Courts Act 1981. This section applies where a case is stated for the opinion of the High Court, in this particular case by a Magistrates' Court, pursuant to section 111 of the Magistrates' Courts Act 1980. Sub-section (2) of section 28A provides:

"The High Court may, if it thinks fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly."

6. On the face of it, that seems to be a power in the High Court to be exercised of its own motion. It is common ground, however, that by virtue of a decision of Dyson J, as he then was, in R (on the application of) Aircraft Research Association Ltd v Bedford Borough Council, case number CO/3352/00 and CO/2905/00, a party aggrieved by the form of the case stated may invite the court to exercise its power under section 28A effectively by making a timely application to do so.
7. The case stated was dated 2 December 2014. Following upon that case being stated, Mr Hemming has submitted a notice of appeal and grounds of appeal in which the court is invited to exercise its powers under section 28A. That document is dated 11 December 2014, which the Respondent accepts constitutes a timely application.
8. Mr Langham, who has appeared this morning for Mr Hemming, has accepted that, if the case stated stood as it presently stands, then it is inevitable that his appeal would fail on both of the issues posed by the magistrate as questions for answering by this court.
9. However, he submits that the case as stated is deficient in two particular respects. First, it is said that it does not set out as clearly as it might the relevant chronology of events with dates attached. Second, and more significantly, he says that the District Judge has failed to rehearse what he says were relevant submissions made by Mr Hemming, nor has the District Judge articulated why, if he did so, he rejected those submissions in coming to the conclusions that he did.
10. Having given this legal introduction to the proceedings this morning, I now turn relatively briefly to the factual background as well as the statutory regime.
11. Birmingham City Council is the waste collection authority for the area within which Mr Hemming's parliamentary constituency lies. Until February 2014, the Council collected both general waste and green waste separately, but without charging for either of them.
12. The Controlled Waste (England and Wales) Regulations 2012 empowered Councils, such as the Respondent, to make a charge per household for the removal of green waste. In February 2014, the Council, exercising that power, introduced a charge for the collection of green waste. The charge is £35 per annum. In return for that, the Council provides green waste bins and sacks into which those paying the charge may place their green waste for collection and it is duly collected.
13. The change in the regime was expected to be, and in fact turned out to be, problematic in that there were significant problems of people putting out green waste in the hope of collection, as they no doubt had done previously, but not having paid the charge and entered the paid collection scheme. It emerged during the early months of this policy that there was a significant accumulation of green waste deposited by those who were not participants in the scheme and, accordingly, not collected by the Council.
14. The Council, according to the evidence which was placed before the District Judge in the form of a witness statement of Thomas Wallis, the director of fleet and waste management for Birmingham City Council, dated 19 September 2014, described the fact that the Council had anticipated such problems and had formulated a multifaceted approach: to seek to encourage the highest level of take up of their "paid for" scheme; to encourage those who did not wish to take up that scheme to dispose of their waste, either in one of five household recycling centres, which did provide for free garden waste disposal, or by the supply of home composting bins to residents at cost price; by seeking to educate the population as to the merits of the "paid for" green waste collection scheme by giving them information and advice; and, ultimately, by enforcement to deal with what would be unlawful fly-tipping of green waste.
15. It was an intrinsic part of that scheme that it had to take account of the statutory obligations placed upon the Council pursuant to the Environmental Protection Act 1990, to which I will turn in a moment. Therefore, that scheme had to involve, at some point, the collection by the Council of green waste from the streets, even though deposited by those who had not entered the paid scheme. One element, therefore, of the scheme was a blitz on clearing the streets of green waste, which had accumulated over a period of weeks and months because of the teething difficulties in introducing the paid for green waste scheme. That was the background context.
16. Mr Hemming in his capacity as constituency MP, no doubt as a result of complaints to him by his constituents, became concerned about the accumulation of green waste in the streets within his constituency and he engaged with the Council in order to persuade them to perform what he regarded as its primary statutory duty to collect the accumulating waste. This process ultimately resulted in him giving notice of his intentions to make a complaint to the Magistrates' Court seeking a litter abatement notice in respect of the accumulation of green waste in the streets throughout his constituency.
17. That completes the factual background. I now turn to the relevant legislative provisions.
18. Section 89 of the Environmental Protection Act 1990 imposes a duty to keep land and highways clear of litter. Sub-section (1) provides:

"(1) It shall be the duty of -

(a) each local authority, as respects any relevant highway... for which it is responsible...

to ensure that the land is, so far as is practicable, kept clear of litter and refuse...

(3) In determining what standard is required, as respects any description of land, highway or road, for compliance with subsections (1)... regard shall be had to the character and use of the land, highway or road as well as the measures which are practicable in the circumstances...

(7) The Secretary of State shall prepare and issue a code of practice for the purpose of providing practical guidance on the discharge of the duties imposed by subsections (1)...

(10) Any person subject to any duty imposed by subsection (1)... shall have regard to the code of practice in force under subsection (7) above in discharging that duty."

19. Section 91 of the Act provides for enforcement by way of summary proceedings brought by persons aggrieved by litter. Insofar as is relevant, it provides as follows:

"(1) A magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by the defacement, by litter or refuse, of -

(a) any relevant highway...

(4) Proceedings under this section shall be brought against the person who has the duty to keep the land clear under section 89(1) above... as the case may be.

(5) Before instituting proceedings under this section against any person, the complainant shall give to the person not less than five days written notice of his intention to make the complaint and the notice shall specify the matter complained of.

(6) If the magistrates' court is satisfied that the highway or land in question is defaced by litter or refuse... the court may, subject to subsections (7) and (8) below, make an order ("a litter abatement order") requiring the defendant to clear the litter or refuse away or, as the case may be, clean the highway within a time specified in the order.

(7) The magistrates' court shall not make a litter abatement order if the defendant proves that he has complied, as respects the highway or land in question, with his duty under section 89(1)... above.

(9) A person who, without reasonable excuse, fails to comply with a litter abatement order shall be guilty of an offence and liable on summary conviction to a fine...

(12) Where a magistrates' court is satisfied on the hearing of a complaint under this section -

(a) that, when the complaint was made to it, the highway or land in question was defaced by litter or refuse... and

(b) that there were reasonable grounds for bringing the complaint,

the court shall order the defendant to pay such reasonable sum to the complainant as the court may determine in respect of the expenses incurred by the complainant in bringing the complaint and the proceedings before the court."

20. The chronology of events leading up to, during and after the complaint was launched by Mr Hemming is of some significance.
21. On 24 April 2014, Mr Hemming had notified the Council of the problem of mass fly-tipping by his constituents who, in large numbers, were not opting into the paid for green waste disposal scheme.
22. On 4 May 2014, he gave the Council due notice of his intention to make a complaint seeking a litter abatement order from the Magistrates' Court by reason of the defacement of the highways arising from the fly-tipping of green waste in his constituency.
23. On 7 May 2014, there was an e-mail exchange between the Council and Mr Hemming. The Council e-mailed him at 14.32 on that date in the following terms:

"I refer to recent e-mails regarding the above matter. As you are aware, the duty on the Local Authority to ensure that land is kept clear of litter and refuse stems from section 89 of the Environmental Protection Act 1990. The duty, however, is only "so far as is practicable" and is not therefore an absolute duty. I am aware that the department has a robust procedure in place for responding to reports of refuse/litter and am assured that these are being adhered to. The department would be willing to meet you to discuss the issue, however, if you feel that this would be beneficial."

That e-mail was from the Council's senior solicitor in the criminal and regulatory law team.

24. Mr Hemming responded to that at 4.49 pm on 7 May. He thanked the solicitor for her e-mail. He then says:

"'So far as practicable' relates in essence to the standard of cleanliness. In terms of the code of practice, all of the locations I have identified fall into the category of D; that is heavily affected by litter and/or refuse with significant accumulations. From paragraph 7.3, the presence of litter and/or refuse (and/or detritus where applicable) that is significant enough to form a few minor accumulations (grade C) or significant accumulations (grade D) is regarded as unacceptable."

He then continued:

"The fact is that the authority has a policy of leaving these accumulations of rubbish. I understand why. However, when you read the EPA 1990 together with the statutory code of practice, it is clear that this is failing the duty. I attach a copy of the relevant statutory code of practice. I don't need a meeting. What I need is to be told what is being done about the 338 grade D dumps of refuse that I have referred to the Local Authority in its function as a litter authority."

Accordingly, Mr Hemming declined the offer of a meeting.

25. On 15 May 2014, he launched his complaint in the Magistrates' Court seeking a litter abatement order.
26. In fact, on 17 and 18 May the Council carried into effect the "blitz" to clear green waste from the streets, including within Mr Hemming's constituency, which I have described as forming a part of its overall strategy.
27. The evidence of Mr Wallis was to the effect that that blitz was to be performed "under the radar" without undue publicity, lest it give rise to opportunistic fly-tipping. He had said in his statement before the Magistrates' Court, and it was not contested, that had Mr Hemming taken up the offer of the meeting, the Council would have explained its multifaceted approach with a view to achieving a balance between successfully carrying into effect what it was permitted to do, by way of charging for the removal of green waste, and performing its statutory obligations under section 89 and 91 and would, in particular, have informed Mr Hemming on a confidential basis of the impending "blitz" to be carried into effect on 17 and 18 May.
28. From the evidence of Mr Wallis, it is apparent that the attempts to deny any publicity for what was to happen on 17 and 18 May was not wholly successful. As a result, there was a significant amount of opportunist fly-tipping. It may be as a result of that, that the exercise of 17 and 18 May did not provide the comprehensive cleaning of all the highways in Mr Hemming's constituency which had been intended.
29. The complaint which was launched by Mr Hemming was launched on 15 May. As it was initially launched, it was very wide in its scope and the court eventually acceded to an argument made by the Defendant that the order in the terms sought in the complaint was outside the scope of the section.
30. As part of an exercise in case management, there was a directions hearing before District Judge Zara on 4 July 2014. In the course of that, Mr Hemming sought to narrow the scope of the inquiry by the District Judge to a much smaller number of sites. It may have been as few as five, but anyway, it specified identified sites.
31. In his evidence on the hearing of the complaint on 10 October 2014, Mr Hemming gave evidence that those sites had not been cleared of the litter until after 4 July, though he did accept that, by the time of the hearing of the complaint on 10 October, all of the identified sites had been fully cleared of litter.
32. The position of the Respondent was that it was unable to accept the proposition that those sites had not been cleared before 4 July, but they did acknowledge that there was litter and green waste at those sites subsequent to 4 July which was cleared away: as to four of the five sites on 11 July; and as to the fifth on a date in September.
33. The case stated by the District Judge is not criticised by Mr Hemming in relation to paragraphs 1 to 4. Those paragraphs recorded that the complaint had been heard by him and determined on the basis of submissions. No live evidence was heard, but he did have written submissions and, as I have indicated, there was written evidence from both sides.
34. Mr Zara recorded the various arguments about the form of the abatement order sought and the legal argument of the Defendant that the terms of the order sought were too wide and outside the scope of the section. He accepted that submission and ruled that a breach of the qualified duty could only be proved by evidence of litter deposited at a particular place, with an order correspondingly limited to those specific sites.
35. The Appellant was seeking an order covering the whole of his constituency which, in Mr Zara's judgment, fell outside his powers. Accordingly, in paragraph 4 of the case stated he described that he dismissed the Appellant's application for a litter abatement order.
36. The judge then went on to consider the question of costs. There were two issues on costs. The first was the question whether the complainant, Mr Hemming, was nonetheless entitled to his costs, notwithstanding the fact that he had not succeeded in obtaining a litter abatement order. That required the judge to consider the provisions of section 91(12).
37. In that respect, and as a precursor to consideration of the issue of costs, in paragraph 5 of the case stated the judge had said as follows:

"There was further discussion about a number of specific sites where refuse had been deposited which had been specifically identified at a directions hearing on 4 July. The Appellant had accepted in a witness statement filed by him that refuse had subsequently been cleared from those particular sites, but claimed that he had now identified several other sites where refuse had not yet been cleared. I ruled that the court could not consider those sites. The Appellant had first to give notice to the City Council and then issue a fresh application for an order in respect of those specific sites."

38. He then went on expressly to consider the issue of costs pursuant to section 91(12). In paragraph 6 of the case stated, he said:

"I then proceeded to consider the cross applications for costs. The Appellant applied for costs pursuant to section 91(12). I was satisfied that at the time the complaint was made, the land in question was defaced by litter or refuse and accordingly, the Appellant met the first test under the sub-section. However, I was referred to correspondence between the Appellant and Defendant in which the City Council offered to meet him to discuss its policy of not removing garden refuse. The Appellant chose not to avail himself of that offer and instead issued proceedings. I concluded that that was unreasonable. I therefore refused to make an order for costs in his favour."

39. Mr Langham accepts that, on the face of those two paragraphs unamplified, the learned District Judge addressed himself to the two necessary questions posed in section 91(12). The first was: at the time the complaint was made, was the highway or land in question defaced by litter or refuse? Having done so, he had decided that it was, thereby satisfying the first of the two conditions to be satisfied by Mr Hemming to entitle him to an order for costs.
40. The second question, was whether there were reasonable grounds for bringing the complaint? The learned District Judge had concluded that there were not, relying explicitly on the fact that an offer had been made for a meeting at which the Council would discuss and explain its policy of not removing garden refuse, an offer which Mr Hemming had refused.
41. That was the basis upon which the judge had concluded that were no reasonable grounds for bringing the complaint at that point, notwithstanding the fact that, at that point, the highway in question was defaced by litter or refuse.
42. Mr Langham's criticism of those two paragraphs is that they are insufficient adequately to rehearse the arguments sought to be advanced by Mr Hemming and, accordingly, failed to identify why it was that the judge either rejected or paid no heed to those arguments. Those points have been helpfully summarised in five sub-paragraphs in paragraph 12 of his skeleton argument.
43. As to A, B and C, Mr Langham accepted in the course of oral argument that the elements of the various events referred to by him in those three sub-paragraphs were indeed present in paragraphs 5 and 6 of the case stated. True it was that specific dates were not attributed to the various meetings and actions, but paragraphs 5 and 6 did nonetheless contain that information. In my judgment, that was an appropriate concession by Mr Langham.
44. It is clear from paragraphs 5 and 6 that: there had been a invitation to a meeting, on 7 May; that invitation had been made and refused before the complaint was launched on 15 May; and the policy of the Council, which would have been explained at the meeting, was the policy in relation to, and including, the proposed blitz for 17 and 18 May. Those matters, as is common ground, were referred to by Mr Wallis in his witness statement and were the matters that would have been explained to Mr Hemming had he taken up the offer of the meeting. That was the entirety of what would have been explained at the meeting.
45. Implicitly, and notwithstanding arguments to the contrary by Mr Green, paragraphs 5 and 6 of the case stated involve the acceptance of the evidence of Mr Hemming that the specific sites which he had identified at the directions hearing on 4 July were sites which had not been cleared until after the 4 July directions hearing. However, in any event, it is not in dispute that, as of 15 May, the highways complained about were defaced with litter.
46. In my judgment, there is nothing in Mr Langham's complaints about the case stated in paragraphs 12A, B and C which amount to anything more than minor drafting complaints and do not remotely give rise to a situation in which this court may exercise the power which it has under section 28A of the Senior Courts Act to send the case stated back to the District Judge for amendment.
47. Of greater substance, however, are the points made by Mr Langham in 12D and 12E. The complaint made in 12D and E is that the judge failed to record in the case stated:

"D That the Appellant submitted that the proffered meeting was irrelevant to the reasonableness of his complaint about the complaint sites. Although he would have been informed about the planned clean up, the planned clean up did not in fact cause the complaint sites to cease to be defaced by litter.

E. The Appellant plausibly submitted that the complaint sites were only cleared as a result of his complaint being made and pursued after the directions hearing."

48. It is right to say that as far as E is concerned the District Judge did refer, as I have indicated, to the fact that the identified sites, at any rate, were not cleared until after the directions hearing. But it is right to say that the District Judge did not refer to argument: that the proffered meeting was irrelevant because, as events transpired, the proposed clean up did not comprehensively deal with the problem of the defacement of highways with litter within Mr Hemming's constituency; nor did it address the contention of the Appellant that it was only because he had persisted in pursuing his complaint beyond the directions hearing on 4 July that the clear up to those specific sites was undertaken.
49. Not having referred to those arguments, it necessarily follows that the judge did not expressly explain why, if it was the case, he did not accede to those arguments.
50. The question which the judge posed for this court to answer in relation to the section 91(12) costs application was in the following terms:

"Was I right to decide that the Appellant did not have reasonable grounds for bringing the complaint and that he did not therefore satisfy the test under section 91(12) (B)?"

51. There is no doubt that the reasoning of the judge was perfectly clear as to why he came to that conclusion. It was that, having received the offer to meet the Council to discuss its policy of not removing garden refuse, the Appellant, Mr Hemming, chose not to avail himself of that offer and, instead, issued proceedings. The judge took the view that that was unreasonable.
52. Mr Green has reminded me that the terms of section 91(12)(a) and (b) are clear in that they focus upon the time when the complaint is made to the Magistrates' Court, in this case 15 May. (12)(a) expressly refers to the time when the complaint was made as being the moment when consideration is to be given to the question whether the highway or land in question was defaced by litter. Necessarily 12(b), which relates to the bringing of the complaint and the reasonable grounds for it, is similarly focused on the point at which the complaint is brought.
53. In my judgment, it is clear from the statutory scheme that the judge would have been wrong in law to consider matters which occurred after the complaint had been made when considering whether there were reasonable grounds for bringing the complaint, unless there were exceptional circumstances, such as evidencing a lack of good faith in something which had happened prior to the bringing of the complaint. But there was no question in this case of any allegation of lack of good faith.
54. The District Judge was obliged, in my judgment, to limit his consideration to events leading up to the bringing of the complaint. Those events included the offer of the meeting and its refusal in the terms I have described.
55. The facts that: it turned out that the "comprehensive clear up" to be undertaken on the 17th and 18th was not "comprehensive"; and that the litter at some of the sites identified by Mr Hemming on 4 July, as being the focus of his complaint, was not cleared up until after 4 July, were irrelevant for the District Judge's consideration of whether, at the time the complaint was brought, there were reasonable grounds for Mr Hemming so doing.
56. The judge had to consider, as a matter of judgment, whether the offer by the Council of the meeting and its refusal by Mr Hemming, followed by his bringing the complaint, meant that there were not reasonable grounds for bringing the complaint there and then, notwithstanding the fact that, as of the date of the complaint, the sites were still defaced by litter.
57. In my judgment, the case stated, omitting as it did arguments which were irrelevant to the consideration by the judge of whether the second condition in section 91(12) was satisfied, was not deficient such as would require it to be sent back for amending. Nothing that the judge could have stated in relation to those subsequent, irrelevant, matters could effect the judgment of this court in determining whether the case stated disclosed that the judge was right, or wrong, in his conclusion that the Appellant did not have reasonable grounds for bringing the complaint.
58. Accordingly, in my judgment, there is no good reason to send the case stated back to the District Judge for amending on any of the bases argued ably for by Mr Langham.
59. Mr Langham has accepted that, in its un-amended form, the case stated results in the conclusion that the answers to the two questions posed must be "yes". The District Judge was entitled to decide that the Appellant did not have reasonable grounds for bringing the complaint. The decision to make an order for costs in favour of the Defendant was a lawful exercise of the Judge's discretionary powers. Accordingly this appeal by way of case stated is dismissed.
60. MR GREEN: My Lord, as far as the Council is concerned, that just leaves the costs of this hearing.
61. MR JUSTICE WILKIE: Yes.
62. MR GREEN: I would invite you to order that they be taxed and they be met by Mr Hemming in the usual way.
63. MR LANGHAM: Well, obviously I cannot object to that.
64. MR JUSTICE WILKIE: No.
65. MR LANGHAM: I am troubled by the decision which your Lordship has made in the sense that he proceeded to deal with the entire appeal --
66. MR JUSTICE WILKIE: Yes.
67. MR LANGHAM: -- because --
68. MR JUSTICE WILKIE: Well, that was the basis --
69. MR LANGHAM: I certainly accept that if an amendment is not made --
70. MR JUSTICE WILKIE: Yes, the appeal is lost.
71. MR LANGHAM: -- that that does raise the extremely interesting question whether if there is any power to appeal against the decision on the suggested amendment.
72. MR JUSTICE WILKIE: Well, you can only appeal to the Supreme Court, as I understand it.
73. MR LANGHAM: Well, yes. That would be the question, yes. Is that indeed the only avenue of appeal on what is in truth a interlocutory application in a case stated in circumstances where there do not appear to be any rules governing this kind of application? I quite accept the substantive decision can only go to the Supreme Court. Yes, that is quite correct.
74. MR JUSTICE WILKIE: Well, my reading of section 28A is that it is part and parcel --
75. MR LANGHAM: Yes. Well, that is why it is an interesting question.
76. MR JUSTICE WILKIE: -- of the court's consideration --
77. MR LANGHAM: Yes.
78. MR JUSTICE WILKIE: -- of the appeal by way of case stated.
79. MR LANGHAM: In which case, any permission for appeal -- I think it is called leave for appeal -- I seek from the Supreme Court.
80. MR JUSTICE WILKIE: Yes.
81. MR LANGHAM: Right.
82. MR JUSTICE WILKIE: I think so.
83. MR LANGHAM: Right, good.
84. MR JUSTICE WILKIE: At least that is my --
85. MR LANGHAM: Yes. Well, I wanted to make clear that I have raised the point.
86. MR JUSTICE WILKIE: Yes.
87. MR LANGHAM: I have been told --
88. MR JUSTICE WILKIE: Yes. That is certainly my reading.
89. MR LANGHAM: Yes. Well, I better just check in relation to costs.
90. MR JUSTICE WILKIE: Yes.
91. MR LANGHAM: Yes. I cannot oppose them.
92. MR JUSTICE WILKIE: Very well. The Appellant will pay the Respondent's reasonable costs to be assessed if not agreed.
93. MR GREEN: Thank you very much.
94. MR JUSTICE WILKIE: Thank you both very much --
95. MR GREEN: Thank you.
96. MR JUSTICE WILKIE: -- for your assistance.