Elvington Park Ltd & Anor v City of York Council

Elvington Park Limited and Elvington Events Limited (“the appellants”) appeal by way of case stated against a decision of the Crown Court at York made on 13 June 2008 by which it dismissed an appeal from a decision of District Judge Elsey made on 23 November 2006. The District Judge had dismissed an appeal by the appellants who had appealed against two identical noise abatement notices (“the notices”) which had been issued to each of the appellants by City of York Council (“the Council”) pursuant to a section 79(1)(g) of the Environmental Protection Act 1990 (“the Act”) and which had been served on each of the appellants.

The background to this application is that the appellants occupy Elvington Airfield (“the Airfield”), which is situated to the south east of the City of York and it is surrounded by private residences and farms. The airfield was constructed in the 1950’s for the American Air Force. It was designed to carry nuclear bombers and so it was particularly long and strong. Military use of the airfield ceased in about 1992.

There has been continued aircraft activity at Elvington from light planes and no complaint has been made about it. The complaints relate to the motor sports which had been carried out at the airfield. It has been used by Formula 1 motor cars for testing purposes with the engines completely unsilenced and operating at up to 24,000rpm. There were twenty-one Formula 1 test days in 2007. The airfield has also been used for Auto 66 and Straight liner activities by cars and motor cycles.

The Council issued the two notices both dated 23 March 2005, which are the subject matter of this appeal and which alleged that the carrying on of various motor racing and testing activities at Elvington airfield constituted a statutory nuisance contrary to the Environmental Protection Act 1990, s79(1).

The appellants initially denied that a noise nuisance had been created but shortly before the matter came before the Magistrates Court in July 2006, they conceded that a statutory nuisance had been created by their activities on the airfield. The issue on this appeal relates to whether the abatement notices can be set aside as either being defective or irrational as they require the appellants not merely to abate the nuisance but also “to take steps necessary to prevent noise” without defining the steps. Only the irrationality argument was raised in front of the Crown Court and, as I will explain, this has meant that the questions raised for the opinion of this court do not coincide with what both counsel consider to be the live issues for me to decide.

As prepared by the Crown Court, the Case Stated specified that the questions for the opinion of the High Court were:-

During the course of the hearing, it became clear that Mr Richard Harwood for the appellant and Mr Stephen Sauvain QC for the respondent both agreed that issues (3) and (4) were no longer of any significance and so neither issue was the subject of any submissions. In those circumstances, I will not answer either question. It was further agreed that the two questions that I should resolve and which would answer questions (1) and (2) and they are whether:-

To understand the submissions it is necessary to explain the statutory landscape. Section 79(1) of the Act provides (in so far as is material) that:-

“Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say…

(g)

noise emitted from premises so as to be prejudicial to health or a nuisance,

And it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below [or sections 80 and 80A below,] and, where a complaint of statutory nuisance is made to it by a person living in its area, to take such steps as are reasonably practicable to investigate the complaint.”

Section 80(1) of the Act provides (in so far as is material) that:-

“Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements –

Section 80(4) of the Act very significantly provides for criminal sanctions to be applied for a failure to comply with a requirement or prohibition imposed by the notice while section 80 (5) of the Act makes provision for the local authority to take proceedings in the High Court for the purpose of securing the abatement, prohibition or restriction of nuisance.

The terms of the two identical notices issued to the appellants stated (with underlining added) that:-

“TAKE NOTICE that under the provision of the Environmental Protection Act 1990 the City of York Council (“the Council”) being satisfied of the existence of a statutory nuisance under section 79(1)(g) of that Act at the premises known as

Elvington Airfield, Elvington Lane, York

within the district of the Council arising from the

noise caused by motor vehicles and associated activities

HEREBY REQUIRE YOU as the person responsible for the said nuisance within 3 months from the service of this notice, to abate the same and also

HEREBY PROHIBIT the recurrence of the same and for that purpose require you to:

take the steps necessary to prevent noise from motor vehicles and associated activities causing a statutory nuisance at other premises.”

The notices were served under cover of a letter and the notice also stated that:-

“The council may also take proceedings in the High Court for securing the abatement, prohibition or restriction of the nuisance. Further, if you fail to execute all or any of the works in accordance with this notice, the Council may execute the works and recover from you the necessary expenditure incurred”.

It is settled law that section 80(1) of the Act means that a local authority has a choice as to whether either first to secure the abatement of a nuisance under sub paragraph (a) requiring the nuisance to be abated under sub-paragraph (a) or second alternatively to require the execution of works and the taking of such other steps as may be necessary for any of those purposes under sub-paragraph (b). These different notices are frequently referred to respectively as “single barrelled” and “double barrelled”. The case for the appellants is that the notices in this case fall under sub-paragraph (b) because not merely do they require the appellants to abate the nuisance but each notice also “prohibits the recurrence of the [nuisance] and for that purpose require you to: take the steps necessary to prevent noise from motor vehicles and associated activities causing a statutory nuisance at other premises”.

Mr Harwood attaches crucial importance to the requirement for recipients of the notices “to take the steps necessary” in the abatement notice. His submission is that this required the council to specify those steps but it did not do so with the consequence that the notices are invalid. In support of that contention, he relies on a number of cases starting with Sterling Homes (Midlands Limited) v Birmingham City Council [1995] Env LR 121 in which the Divisional Court had to consider an abatement notice relating to noise which (with underlining added) informed the recipient that the council:-

“do hereby require you to abate the said nuisance within 56 days and service of this notice upon you, and for that purpose require you to carry out such works as may be necessary to ensure that the noise and vibration does not cause prejudice to health or a nuisance, take any other steps as may be necessary for that purpose”

Although that case was dealing with the enforcement of this notice, it is noteworthy that McCullough J (with whose judgment Kennedy LJ agreed) stated at page 133 that:-

“As the law stands, local authorities are not, in any event, obliged to require works to be done or other steps to be taken: they can.. simply require the nuisance to be abated; the obligation to specify the “works” and the “steps” only arises if they choose to include in their notices a requirement for work to be done or steps to be taken”.

It is noteworthy that McCullough J also stated at page 131 that “I therefore conclude ..that such works and other steps as are required by an abatement notice issued under section 80(1) of the 1990 Act must specify the works or other steps”. For that reason the Divisional Court held that the abatement notice was inadequate as it included a requirement to carry out works and steps, which were not particularised with the consequence that the notice was inadequate.

In R v Falmouth and Truro Port Health Authority ex parte South West Water Limited [2001] QB 445, the Court of Appeal reviewed the relevant authorities and Simon Brown LJ (as he then was) with whom Pill and Hale LJJ agreed on this point at page 467H concluded that:-

“Analysis of those authorities seem to me to reveal the following (1) McCullough J in the Sterling case was holding that in all cases a local authority has a choice whether simply to require abatement of the nuisance or whether also to require works or steps, a requirement to specify those works or steps arising only in the later event”.

In that case, Simon Brown LJ (with the agreement of Pill and Hale LJJ) expressly approved at page 469 the decision in The Network Housing Association Limited v Westminster City Council [1995] Env LR 176 in which the abatement notice was invalid as inadequately specifying the works required the recipient (with the amendments made by the magistrates) to:-

“provide as far as reasonably practicable suitable and effective sound insulation in the void between flats D and C, so as to provide as far as reasonably practicable a level of airborne sound insulation (measured as Dn Tw in accordance with BS2750 part 4 1980 and BS5821 part 1 1984) of not less than 42db or carry out such works as will achieve as far as reasonably practicable the above required degree of airborne sound insulation between flats D and C. In improving the airborne sound insulation take all reasonable steps to ensure that no degradation occurs in the existing level of structured -borne sound insulation”.

It was held that the notice:-

“fell short of the minimum legal requirement to convey to its recipient clearly what it had to do”( per Buckley J at page 183 and with whom Simon Brown LJ agreed).

In London Borough of Camden v London Underground Limited [2000] Env LR 369 the Divisional Court (Rose LJ and Smith J) had to consider in a noise nuisance case a notice which stated that “Special attention should be paid to the low frequency element of the noise i.e. those frequencies from 31Hz to 500Hz”.

It was unnecessary to pay special attention to a particular element of the noise unless works were to be carried out in order to mitigate the effect of the noise. The final paragraph of the notice concluded with the sentence:-

“Further if you fail to execute all or any of the works in accordance with this notice the Council may execute the works and recover from you the necessary expenditure incurred”.

Rose LJ explained when giving the judgment of the Divisional Court that (with our underlining added and with case references omitted):-

“20 We turn to consider question 1 – the meaning of the notice. It is common ground that, by virtue of section 80(1) a local authority may choose to give a notice which either simply requires abatement or requires work to be carried out. If, however, it chooses to require works, it must specify the works required. If it does not, the notice will be defective and invalid (see R v Wheatley and Kirklees MBC v Field). The first matter for consideration of this aspect is whether it is permissible and appropriate in the present case to refer to the letter which accompanied the abatement notice when construing a notice. In our judgment it is. ..

21..it is plain that this notice requires abatement. The crucial question is as to the significance of the words “special attention should be paid to the low frequency element of the noise, i.e. those frequencies form 31Hz to 500Hz”.. The words require the payment of special attention which, it seems to us, necessarily involves examination, consideration and the taking of appropriate remedial steps i.e. the words require work to be carried out. Indeed the final paragraph of the notice concludes with the sentence “if you fail to execute all or any of the works in accordance with this notice the council may execute the works”.

The Divisional Court concluded that the Stipendiary Magistrate had been correct to conclude that the notice required works to be carried and so the local authority was required to set out detail of the work to be done. The notices were held to be defective by failing to specify what works were required.

A similar conclusion was reached by Stanley Burnton J (as he then was) in R (London Borough of Camden) v Easynet Limited [2002] EWHC 2929 Admin in which there was a letter accompanying the abatement notice requiring Easynet to expedite works to abate a statutory nuisance within 40 days from service. The Judge took the view that anyone reading the letter having regard to there being discussions relating to the works and then turning to the notice would have understood the notice as requiring the recipients of it to abate the nuisance by carrying out the works. In consequence, as the works were unspecified, the notice failed.

Pausing at this stage, there would appear to be powerful authority to support the proposition of the appellants that in cases in which a notice required work to be done or steps to be taken but which were not specified, the notice would be invalid.

In the present case, there was with the notices identical accompanying letters which stated:-

“as you will see, the notice that is being served requires that all steps are taken to prevent noise causing a statutory nuisance at other premises. The notice does not specify how you should abate the nuisance – this is in accordance with current case law. I must make it clear that it is your responsibility to abate the statutory nuisance. Under the following headings I have outlined the steps that in the opinion of the counsel, you should be taking to prevent a statutory nuisance occurring. It is important to note that compliance with these suggested steps does not in itself mean that a statutory nuisance will not have arisen”.

The last sentence was underlined in the original by the Council and the underlining indicates that the appellants were not being told what had to be done to ensure there was compliance. This would indicate that in this case, the notices were defective because they did not set out the relevant particulars. In brief, the appellant’s case is the use of the words “take the steps necessary to prevent noise.. causing statutory nuisances” in the notice without particularising them combined with the wording of the letter and the fact that the council might execute the works itself shows that this notice was defective.

In response, the Council attach importance to the contention that in this case there was a clear requirement to abate the nuisance and prohibition of its recurrence but there was no requirement that any work should be carried out. It is pointed out that there was no attempt to require any specific steps to be taken and that the taking of steps (which could include ceasing or reducing the level of activity on the site) added nothing to the effect of the notice requiring that the nuisance be abated.

Mr Sauvain seeks to obtain support from the decision of the Divisional Court in Sevenoaks District Council v Brands Hatch Leisure Group Limited [2001] Env LR 86 in which the abatement notice required the person responsible for the nuisance to “(i) abate the nuisance and (ii) to take steps necessary for the purposes prohibiting the recurrence of the said nuisance as are specified in the schedule attached hereto”. On the next page of the abatement notice, there was a schedule which required the recipient to “reduce the noise from tyre squeal as measured at any point along the boundary marked red on the attached plan” to certain levels of db at 1000Hz.

In that case the notice was upheld and Laws LJ giving the main judgment with which I agreed explained that:-

“19... Conceptually, every abatement of a nuisance must require some steps to be taken if only because, by definition, the status quo is being changed; so the taking of some steps is inherent in the requirement of a notice which is strictly expressed only in terms of section 80(1)(a). Section 80(1)(b), I apprehend, in line with earlier learning and not least the Falmouth & Truro case, bites where the local authority choose to specify how the abatement is to be achieved. In a noise case such as this, as I have already indicated by reference to Fenny Stratford, what may be very important is to identify the level of noise which the enforcing authority will take as being acceptable. In my judgment, the notice in the present case does precisely this. It specifies also how sound measurements are to be taken. In truth, the schedule there set out, properly understood, does no more nor less than give particulars of the abatement requirement under section 80(1)(a). A case where works had to be done would, I think, be a different case”.

In my view, there is a considerable difference between that case and the present case because in that case, the works had to be done and there was the schedule to which Laws LJ attached such importance. In other words, where an abatement notice gives particulars of the abatement requirement, it will be valid but where works had to be done, the position would in Laws LJ’s words be “a different case” and therefore would be invalid.

Mr Sauvain contends that the respondent council in this case as in the Brands Hatch case has not sought to specify how the nuisance should be abated. He says of the present case that objectively construed from the point of view of the reasonable recipient (see Mannai Investment Co Limited v Eagle Star Life Assurance [1997] AC 749 at 767), this was a simple case which will be complied with by abating the nuisance rather than by carrying out any specific work or taking any specific steps. He contends the fact that in this case, the notice did not purport to set out any steps in the schedule makes it a stronger case than the Brands Hatch point.

I am unable to agree because in the Brands Hatch case, it was made very clear what had to be achieved so as to eradicate the statutory nuisance. There was no such information available in the present case other than an obligation on the appellants to “to take the steps necessary to prevent noise”. This is a critical difference which shows why the Brands Hatch case does not assist the Council in showing that the notices were valid.

A final point taken by Mr Sauvain is that the notice in this case should be upheld as being a simple notice requiring the abatement of the notice. He relies on the decision of the Divisional Court in R v Crown Court at Canterbury exp Howson Ball [2001] Env LR 639. In that case, an abatement notice was upheld on the authority of the Brands Hatch case. It was very different from the present case because the abatement notice in that case required the recipients of it to:-

“exercise such an effective control over the volume of sound produced from within the licensed premises so that on any day: (i) no nuisance from noise or any amplified live or recorded music and entertainment or the use of any public address system or other use of sound and amplifying equipment is caused to the occupier or occupiers of any adjoining or neighbouring residential accommodation, and (ii) the sound pressure level and noise from the playing of live or recorded amplified music or the use of the public address system or other use of sound amplifying equipment, when measured at a distance of 2 metres from any speaker shall not exceed 75DBL Aeq (1 minute) slow response”.

The present case is a long way removed from that case as no equivalent information to that specified in the previous paragraph was contained in the abatement notices sent to the appellants.

The authorities show clearly that if an abatement notice requires not merely abatement of noise but also steps to be taken, they should be specified but if as in the present case, the notices did not do so, they are invalid. Unless this was so, the recipients of these notices would not know what they had to do to avoid criminal proceedings being brought against them. In this case, this is a particularly potent point because, as I will explain, at the Crown Court neither the expert called by the appellant nor the expert of the Council could state what work had to be done to abate the nuisance. Finally a decision that the notices in the present case were valid, would be inconsistent with the decisions in the Sterling Homes case, the Network case, the London Underground case or the Easynet case to which I have referred and with which I respectfully agree.

The appellant contends that even if the abatement notices were valid, they should be struck out as being irrational. This issue is now academic in the light of my finding on the legality issue which was that the notices served on the appellants were not valid. Accordingly I will deal with the rationality issue much more briefly than I would have done if it were still a live issue on this appeal.

The case for the appellants is first that the notice should have stated what level of activity should have been carried out and second that they should have described in some details the steps to be taken especially as the sanction for non-compliance with the notices was as it stated that the appellants would be guilty of an offence and that they might have to pay the costs incurred by the respondent in carrying out the works.

Simon Brown LJ was concerned as to whether a claim could be brought on grounds of the irrationality of an abatement notice because he explained at page 469 in the Falmouth (supra) case that:-

“even if I was prepared (like the Court of Appeal in the Budd case, strictly obiter as I think) to recognise a class of case where it was irrational for a local authority not to use its discretion to require specific words for the abatement of the nuisance, the present case would not fall within it”.

In response Mr Harwood relies on the comment by Laws LJ in the Brands Hatch case where he said at page 91 that:-

“13.

With very great deference to Simon Brown LJ, I venture to think there may well be some utility in recognising a class of case, as he puts it, where it may be irrational for the local authority not to specify works, but no such point arises for consideration in the present case in which no Wednesbury challenge to the notice was launched”.

My initial reaction is that if a notice was valid even though it did not require any steps to be taken by the recipients of it, then it is difficult to see why it would be irrational if it mentioned that steps were to be taken without particularising them. Indeed, the respondents point out that there are many cases in which the courts have held that “in the ordinary way a local authority is entitled under section 80(1) to serve a notice simply requiring the recipient to abate the nuisance.” (Budd v Colchester Borough Council [1999] Env LR 739 at 747).

Indeed, it has been said that “it may clearly be helpful if local authorities feel able to specify what works should be done or what steps should be taken but I see little advantage in obliging them to do so.” (per McCullough J in Sterling Homes (supra)) at page 138). I find that reasoning convincing as it acknowledges the difficulties for a local authority in specifying the works to be done and establishes their right to refrain from specifying the work to be done or the steps to be taken by it.

That right undermines the appellants’ case on irrationality but if I had been in any doubt, there are two additional reasons why I would have come to the same conclusion. First, Mr. Harwood was unable to produce any case in which a local authority had been held to have been irrational for failing to specify the work to be done in an abatement notice.

Second and more importantly, on the facts of this case, it is of vital importance that neither of the experts called by the parties at the Crown Court was able to say what steps should have been taken by the appellants to comply with the requirements in the notices.

Both sides called experts. Mr Sharps, who was the expert called by the appellants, explained to the Crown Court that he thought that the assistance that he could give would be limited. In his view “there was a need to return to previous levels of activity but acknowledged now the difficulty of assessing what those had been” (paragraph 46 of the Crown Court’s judgment).

Mr Sharps went on to say according to the judgment of the Crown Court that this case “was a difficult one for an acoustics expert to advise on because mere measurement of sound levels did not help to quantify the nuisance, there were a variety of contextual measures that are equally as important in assessing the overall impact”. The view of the Crown Court was that Mr Sharps with all his expertise appeared to be “genuinely confounded” by the complexities of the Elvington problem.

If the appellants’ expert could not particularise the steps required to comply with the notices, this is clear evidence that the council was not irrational in not setting out the details in the notices. I am fortified in coming to this conclusion by the approach of Mr Stigwood, who was the respondent’s expert and who told the Crown Court that it was very difficult to quantify noise impact by reference to sound levels alone. The Crown Court found him to be a “helpful and descriptive witness” but he had in the words of the Crown Court “no confidence that anyone could stipulate a level of activity that would abate the nuisance, particularly as there had been no trial period in which to monitor the potential effects of the appellant’s proposals for reduced activity”.

These views of the experts totally undermine the case of irrationality because if they have no idea what the appellants should do to abate the noise, then it could not have been irrational for the council to have failed to specify those steps.

For the reasons which I have explained, the notices can be impugned and I can understand why those who live close to the airfield will be disappointed. This conclusion means that the council will have to consider serving new abatement notices. I wonder if the parties might consider using mediation so as to specify what steps the appellants should take to end the statutory nuisance and to prevent it recurring.

In answer to questions in the case stated, my answers are: