Jersey Unreported Judgments

Hearing (Civil) re abatement notice directions hearing re appeal.

[2020]JRC236

Royal Court

(Samedi)

9 November 2020

Before     :

Sir Michael Birt, Commissioner sitting alone

 

Advocate I. C. Jones for the Appellant.

Advocate J. P. Rondel for the Respondent.

judgment

the commissioner:

1.        On 29^th October, 2020, I sat at short notice on a directions hearing which required me to consider, amongst other matters, the correct method for appealing against a decision of the Minister for the Environment ("the Minister") to issue an abatement notice pursuant to Article 9 of the Statutory Nuisances (Jersey) Law 1999 ("the Law").  It also required me to consider the consequences of the appeal not having been brought in the correct manner. 

2.        I announced my decision at the conclusion of the hearing but now provide brief reasons in case this is of assistance on future occasions.

Background

3.        The Appellant runs a restaurant.  Having visited the site of the restaurant, Mr R Bowditch, an Environmental Health Officer, concluded that the noise from two extractor fans at the premises was 'such as to be 'prejudicial to health or a nuisance''.  Accordingly, on 23^rd September 2020, an abatement notice was issued on behalf of the Minister.  Having recorded the above matters the notice went on to say that the Minister....."HEREBY REQUIRES you as the occupier of the premises on which the nuisance arises within 56 days from the service of this Notice, abate the same and prohibit the recurrence....",

4.        Article 9(1) of the Law provides for a right of appeal in the following terms:-

"(1)     A person aggrieved by the service of an abatement notice has a right of appeal in the manner and on a ground set out in the Schedule and the Schedule shall have effect with regard to such appeals."

5.        The Schedule deals mostly with the substantive grounds for appeal and the powers of the court on hearing any appeal.  The only relevant procedural aspect is contained at paragraph (1) in the following terms:-

(1)       A person served with an abatement notice under Article 5 may appeal against the notice to the Court within the period of 21 days beginning with the day on which the person was served the notice."

6.        Advocate Jones, who acts for the Appellant, formed the view, for reasons I shall refer to shortly, that issue of an abatement notice was not an 'administrative decision' for the purposes of part 15 of the Royal Court Rules 2004 and that accordingly Rule 15 was of no application. 

7.        On 13^th October (i.e. 20 days after the issue of the abatement notice) he sent a detailed Notice of Appeal by email to the Bailiff's Judicial Secretary, the Judicial Greffe and Mr Bowditch.  In his email to the Judicial Secretary, he pointed out that the abatement notice required the Appellant to take action within 56 days (which at that stage he incorrectly calculated as being 11^th November).       He therefore asked if the appeal could be listed for half a day to be heard before 11^th November so that, in the event the appeal was not successful, the Appellant still had an opportunity to comply with the notice.    

8.        Mr Bowditch appears to have contacted Mr Simon Crowder of the Criminal Division of the Law Officers' Department ("LOD").  Mr Crowder emailed Advocate Jones on 20^th October and following further exchanges, a hearing date of 9^th November 2020 was agreed in principle.    However, Mr Crowder made clear that he thought the appeal was probably a civil matter.  He appears to have referred the matter to advocates in the civil division of the LOD on the afternoon of 22^nd October.  On 23^rd October the LOD emailed Advocate Jones to advise that, because the Appellant had not served the Notice of Appeal on the Minister in accordance with Rule 15, there was no appeal; the Appellant was out of time and accordingly leave would be needed to appeal out of time.  As a precaution, Advocate Jones caused the Notice of Appeal to be served on the Minister on 23^rd October by arranging for the Viscount to deliver the documents to Advocate Meiklejohn at the LOD, who accepted service on behalf of the Minister without prejudice to the Minister's right to submit that the appeal was out of time. 

9.        I was informed by the Judicial Secretary on 27^th October that there was an issue between the parties as to whether the appeal was in time and whether it could or should go ahead on 9^th November.  I therefore directed an urgent hearing to resolve matters.  Advocate Jones and Advocate Rondel both put in written submissions and I was most grateful for their prompt assistance.

The rival contentions

10.      The position of Advocate Rondel on behalf of the Minister was straightforward.  He referred to RCR 15/1(1) which is in the following terms:-

"(1)     Except where provision is otherwise made, this Part applies to appeals to the Court from an administrative decision of a person, or body, in exercise of a right of appeal conferred by or under any enactment...."

He submitted that a decision of the Minister to issue an abatement notice under the Law was clearly an 'administrative decision' and that the right of appeal against that decision was conferred by an enactment, namely Article 9(1) of the Law.  The appeal therefore fell within Rule 15.  Rule 15/2(1) was clear and provided:-

"(1)     An appeal to the Court shall be brought by serving, through the intermediary of the Viscount, on the respondent a Notice of Appeal:

           (a)        in the case of an appeal other than a High Hedges Law appeal, in the form set out in Schedule 4......" [Emphasis added]

11.      The service effected by email on Mr Bowditch on 13^th October did not comply with the requirements of Rule 15/2(1) and was therefore of no effect.  Although valid service had been effected through the Viscount on 23^rd October, this was outside the statutory 21 day period for appeal.  It followed, he submitted, that no valid appeal had been commenced within the 21 day period.

12.      The question then arose as to whether there was any power in the Court to extend the time for appealing.  The starting point was that, as the 21 day period was fixed by statute and there was nothing in the statute conferring a power upon the Court to extend time, the period for appealing could not be extended.  The only exception, he submitted, was as set out in Minister for Planning and Environment v Herold 2014(1) JLR 160, where a 'civil right' for the purposes of Article 6 of the European Convention on Human Rights is involved and application of the time limit to the particular facts would 'impair the very essence' of the right of access to the court.  The court in Herold summarised the position in the following terms at [51]:-

"51. In my judgment, this court should adopt the principles established in Mucelli and Pomiechowski.  I would summarise the position as follows:-

(i)        Subject to (ii), where a statute provides a fixed time limit for an appeal, the court has no discretion under RCR, r.1/5 or under its inherent jurisdiction to extend that period. It has no jurisdiction to hear an appeal brought out of time. If the States wishes to confer a discretion on the court to extend the time limit, it may of course do so by specifically conferring such a power in the relevant statute; but if it does not do so, that is the end of the matter.

(ii)       However, where an appeal involves the determination of a "civil right" for the purposes of art. 6 of the ECHR (but not otherwise), the court may read down the provisions of the statute in accordance with art. 4(1) of the Human Rights (Jersey) Law 2000 so as to give effect to the statute in a way which is compatible with Convention rights. This involves asserting a discretion to extend the time limit in the case before it if it concludes that application of the time limit to the particular facts would "impair the very essence" of the right of access to the court for the appeal.

(iii) Such a discretion can only arise in exceptional circumstances and where the appellant personally has done all he can to bring the appeal timeously (i.e. within the prescribed time limit). Adesina (1) indicates how difficult it may be for an appellant to convince the court that his circumstances are exceptional and emphasizes that the scope for departure from the time limit is extremely narrow."

13.      Advocate Rondel accepted that the present case engages a civil right, namely the peaceful enjoyment of property.  However, he submitted that there is nothing exceptional to justify extending the time limit for appealing.  The 21 day period in the statute is not particularly short and the Appellant was legally advised.  Herold - and the English cases upon which it is based - emphasises that the scope for departure from a time limit on this ground is extremely narrow and an appellant must convince the court that his circumstances are exceptional.  That, submitted Advocate Rondel, was not the position here.

14.      On behalf of the Appellant, Advocate Jones submitted that the appeal did not fall within Rule 15.  Article 5(1) of the Law is in the following terms:-

"(1)     Where the Minister is satisfied that a statutory nuisance exists, or is likely to occur or recur, the Minister shall serve [an abatement notice]..." [emphasis added]

15.      It follows, said Advocate Jones, that the Minister has no discretion.  Once he is satisfied that a statutory nuisance exists, he is obliged to serve an abatement notice.  He is not therefore reaching a decision, whether administrative or otherwise; he is simply carrying out a statutory function which he is obliged to undertake.  Article 9(1) of the Law emphasises that the appeal is against service of the notice and that is not a matter upon which the Minister has any discretion once he is satisfied that a statutory nuisance exists.  A decision to serve an abatement notice is not therefore an 'administrative decision' for the purposes of Article 15.  He further submitted that, there being no other procedure for appeal set out in the Royal Court Rules, it was open to the Appellant to proceed as he did.

16.      If he was wrong about Rule 15, so that service of the Notice of Appeal should have been through the Viscount, he submitted that this Court should waive any irregularity, as no prejudice had been caused to the Minister, who was fully aware of the Appellant's wish to appeal within the 21 day period.    

17.      Finally, if the Court was against him on both these grounds, he submitted that the Court should extend time for appealing pursuant to the exception set out in Herold, referred to above.

Discussion

(i)         Is the appeal covered by Rule 15?

18.      I accept the submission of Advocate Rondel that the appeal falls within Rule 15.  Whilst, as Advocate Jones submits, it is true that, once he is satisfied that a statutory nuisance exists, the Minister has no option but to issue an abatement notice, it must be a matter of assessment and judgment on his part as to whether a statutory nuisance exists.  In my view, the process of assessing whether there is a statutory nuisance and, if so, issuing an abatement notice is all part of a single process leading to an 'administrative decision' by the Minister to issue an abatement notice.  Article 9(1) provides for a right of appeal and in my judgment such an appeal clearly falls within Rule 15.

19.      It follows that the Notice of Appeal should have been in accordance with the form set out in Schedule 4 of the Royal Court Rules and should have been served through the intermediary of the Viscount.  On the face of it therefore, the appeal was not validly brought within the 21 day period and is now out of time.

(ii)        Waiver of irregularity

20.      Somewhat surprisingly, neither counsel referred me to RCR 10/6, which is in the following terms:-

"10/6  Non-compliance with Rules of Court or rule of practice

Subject to Rule 10/7, non-compliance with Rules of Court, or with any rule of practice for the time being in force, shall not render any proceeding void unless the court so directs, but the proceeding may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the Court thinks fit."

21.      Rule 10/6 was considered in some detail in United Capital Corporation Limited v Bender [2006] JLR 1 at paras 36-41.  I would in particular refer to the following extract:-

"38. In my judgment, the views of Lord Denning are to be preferred to those of the other two judges in Pritchard.  The natural meaning of r.10/6 is that it confers a general discretion on the court.  Where there is non-compliance with the Rules, the court has at least three options.  It may treat the proceedings as being void (i.e. a nullity); it may find an irregularity and set them aside, either wholly or in part; or, despite an irregularity, it may amend or otherwise deal with the proceedings in such manner as it thinks fit.  Furthermore, there are strong policy grounds for interpreting the rule widely.  The days when proceedings were routinely defeated by technicalities are long since gone.  The court nowadays is much more interested in looking to the substance and justice of the matter.  In my judgment, r 10/6 gives just as wide a power to this court as is conferred upon the High Court by O.2/1 and the English cases on the application of that order will therefore be of assistance to this court.

39. The commentary on O.2/1 in 1 Supreme Court Practice 1999 (para 2/1/3, at 10) states as follows:-

           "Defective service of proceedings, however gross the defect, and even a total failure to serve, where the existence of the proceedings is nevertheless known to the defendant, is an irregularity which can be cured by the court by the exercise of discretion under O.2, r.1."

...."

22.      In my judgment, there would be no material prejudice to the Minister by allowing this appeal to proceed.  Through his department, he was aware within the 21 day period that the Appellant wished to appeal against the abatement notice and of the grounds for that appeal.  It was simply a matter of technicality that service was effected by email on Mr Bowditch rather than, as it should have been, through the Viscount on the Minister.  Conversely, it would in my judgment be harsh on the Appellant to proceed as the Minister submits and accordingly deny him the ability to appeal despite his clear attempt to do so within the statutory period and his notification to the Minister (albeit in a procedurally incorrect manner) that he wished to do so. 

23.      In my judgment, the balance of fairness comes down strongly in favour of exercising my power under Rule 10/6 and accordingly I directed at the hearing that the appeal should proceed on the basis that the Minister was validly served with the Notice of Appeal on 13^th October. 

24.      In those circumstances it is not necessary for me to consider whether I would have extended time for appealing pursuant to the exception in Herold, but it is fair to say that the Appellant would have clearly faced a high hurdle in showing that the circumstances were exceptional.

(iii)    The way ahead

25.      The Court having held that the appeal falls within Rule 15, the timetable set out in Rule 15/3 is applicable unless the Court varies the time periods set out for the various steps envisaged therein.    

26.      This gives rise to a difficulty which clearly influenced Advocate Jones in his desire to have the appeal heard on 9^th November.  The abatement notice requires the Appellant to abate the nuisance within 56 days.  Article 5(4) of the Law makes it an offence for a person to fail to comply with the requirements of an abatement notice without reasonable excuse. 

27.      Advocate Jones submitted that, unless the appeal was heard before 18^th November (being 56 days after the issue of the abatement notice), the Appellant would automatically commit an offence punishable by fine unless he decided to undertake the necessary work before then despite the existence of his appeal.  Thus, unless the abatement notice was stayed by the Court, his appeal would in effect be rendered ineffective.   

28.      This potentially gave rise to an issue as to whether, in the light of the provisions of paragraphs (9) - (11) of the Schedule to the Law, the Court has an inherent jurisdiction to stay an abatement notice if satisfied that it is necessary to do so in order to render the right of appeal effective.  At the conclusion of the hearing, without objection from either side, I stayed the abatement notice pending appeal. 

29.      Following the hearing, the Attorney General wrote to the Court submitting that, by reason of the provisions in the Schedule, the Court did not have jurisdiction to grant a stay of the abatement notice.  However, at the same time, he provided the following undertakings to the Court:

(i)        of himself not to bring any prosecution against the Appellant in relation to the enforcement of the abatement notice whilst the appeal under the Law is outstanding, allowing a reasonable passage of time for compliance in the event the appeal is unsuccessful; and

(ii)       of the Minister likewise to take no other enforcement action in respect of the abatement notice whilst the appeal under the Law is outstanding, allowing a reasonable passage of time for compliance in the event the appeal is unsuccessful.

30.      In the circumstances, it was not necessary to give further consideration to the issue of whether the Court has an inherent jurisdiction to order a stay, as the position is fully protected pending the outcome of the appeal by reason of the undertakings.  I accordingly made an order lifting the stay which I had granted at the conclusion of the hearing.    

31.      I had given procedural directions at the hearing with a view to the appeal being heard in early 2021.

Authorities

Statutory Nuisances (Jersey) Law 1999.

Royal Court Rules 2004.

Minister for Planning and Environment v Herold [2014] (1) JLR 160.

United Capital Corporation Limited v Bender [2006] JLR 1 at paras 36-41.