Butland v Powys County Council

This is an appeal from the decision of McCombe J of 15 March 2007, in which he allowed an appeal by way of a case stated from the decision of the magistrates sitting in Welshpool on 18 January 2006. In their decision, the magistrates held that they had no jurisdiction to deal with an appeal by way of complaint from a noise abatement notice, dated of 14 April 2005, because the twenty-one day period for the appeal to be lodged had not been met by the respondent to this appeal.

The position was that the noise abatement notice had been served by being sent to an address -- Woodland Park Shooting Ground, Talachddu, Brecon, Powys -- and the evidence was that it was sent on 14 April 2005 to that address. It was common ground that Mr Butland, the respondent, did not see that document himself until 16 April. His notice of appeal to the magistrates was dated 6 May 2005, which was within time if service had been affected on 16 April, but was not within time if service was properly affected on 14 April.

The problem arises because the address at which the notice was served was not Mr Butland’s home address; it was the address of the business which was in issue, in relation to the noise abatement notice. The council had served it there, because they concluded that that was the proper address to which such a notice has to be served in accordance with section 160 of the Environmental Protection Act 1990, but in particular subsection 5. Section 160, so far as relevant, provides as follows:

The basis upon which the council considered that the business address was the appropriate address needs to be explained against the context of the history of the problem relating to noise, with which the council were concerned. Mr Butland had, at all material times, been running a shooting ground at Woodland Park, and there had been complaints about noise resulting from that activity, which had resulted in September 2003 in the service of an abatement notice which was, it is accepted, served at Woodland Park. There was clearly considerable correspondence and other discussion about that particular abatement notice, between September 2003 and January 2005. No enforcement proceedings were, however, taken.

On 17 January 2005, in that context, Mr Butland wrote the following letter from Woodland Park to the team leader of the Environmental Health Department of Powys County Council, Mr Gregory. It reads as follows:

The next step in the story, as far as we know, was the service of the notice under cover of a letter of 14 April 2005, which is the notice in question before us. The letter simply stated that the abatement notice was attached to it and that Mr Butland, if he wished for clarification, should contact Mr Gregory. It is not necessary for the purpose of this judgment to detail the terms of the abatement notice.

As I have indicated, that notice was the subject of an appeal to the magistrates. The magistrates concluded that, in the light of the facts as I have related, the notice had been served at the proper address on the basis that the letter of 17 January had indicated in the terms of section 160(5), sufficient to justify the conclusion that Mr Butland was notifying the council that that was the appropriate address for service of such a document.

When the matter came before McCombe J, he, however, concluded that on a proper construction of, on the one hand, section 160(5), and on the other, the letter, the letter was not indicating that Woodland Park was the appropriate address for the service of a notice; it was simply an indication as to the appropriate address for correspondence. Accordingly, he allowed the appeal. It is in those circumstances that the matter comes before us.

On behalf of the council, Mr Crowther submits that the magistrates were correct. This was a case where, throughout the whole history of the complaints about noise, Mr Butland had accepted, in effect, that Woodland Park was the appropriate place for the service of any documents. That was the place where the original abatement notice had been served, without complaint, by Mr Butland. That was clearly where Mr Butland considered correspondence, at the very least, should go; and the letter of 17 January 2005, whilst referring, in its last sentence, simply to correspondence, was, in the context of “Noise Issues,” which was the heading to the letter. In those circumstances, Mr Crowther submits, it was open for the magistrates to conclude that Mr Butland was giving an indication in the terms required by section 160(5), entitling the council to treat Woodland Park as his proper address for the purposes of this notice.

Mr Heap, for Mr Butland, submits firstly that McCombe J was correct in making the distinction that he did between notices and correspondence, and he supports the judge’s reasoning. He further points out, as my Lord, Dyson LJ indicated, that the context of the letter is not properly to be taken as widely as Mr Crowther submits; the context of the letter is the indication that Mr Butland was intending to seek advice as to judicial review, and it is in that narrow context that the final sentence of the letter is to be read. In other words, that he was merely indicating that correspondence, in relation to his proposed judicial review, should be sent to Woodland Park.

If we may say so, both Mr Crowther and Mr Heap have put their respective submissions attractively and economically. I am firmly of the view that Mr Crowther’s submissions are correct. It seems to me that, looking at the whole story, leaving for the moment the word “context” to one side, the whole story starts with an abatement notice which was served without demur at Woodland Park, and that is the background against which the council were entitled to consider the proper meaning to be given to the letter of 17 January 2005. They were, in my view, fully entitled to take the view that Mr Butland was indicating clearly that matters relating to noise issues, arising out of the activities of the shooting ground, were to be dealt with through Woodland Park, which was the place of the business itself and where, indeed, the activity in question was being carried out.

That was, in my view, sufficient to entitle the council to conclude that, by virtue of section 160(5), that was the proper address for the service of this abatement notice. I would accordingly conclude that the magistrates were correct in their approach to this question and that service was accordingly effected -- this being accepted, if that is the right conclusion -- on 14 April 2005 and not 16 April 2005. Accordingly, the complaint by way of appeal was out of time, and the magistrates were correct in finding that they had no jurisdiction to hear that complaint. I would, accordingly, allow this appeal from McCombe J and restore the decision of the magistrates.

I agree.

I also agree.