Elvington Park Ltd & Anor, R (on the application of) v The Crown Court At York

Introduction

[1] The two matters which are before the court arise from a decision of York Crown Court (Ms Recorder Sherwin and two lay magistrates) which was made on 24 November 2010. By that decision the Crown Court upheld abatement notices which had been served by York City Council (‘the Council’) on Elvington Park Limited and Elvington Events Limited (‘the Elvington companies’). The notices had been served under section 80 of the Environmental Protection Act 1990 (‘the EPA’) in respect of alleged noise nuisance.

[2] In the first case, the Elvington companies seek judicial review to quash the decision of the Crown Court. What is said on behalf of the companies is that their witnesses were excluded from the court whilst other persons were giving evidence and whilst witnesses for the Council were allowed to remain in court, with resulting unfairness in the proceedings. Permission to apply for judicial review was refused on the papers by His Honour Judge Behrens, but was granted by Her Honour Judge Belcher at the renewed oral hearing.

[3] In the second case, which comes before the court by way of a case stated by the Crown Court, the Elvington companies take issue with the substance of the decision of the court. It will be necessary later in this judgment to examine in detail the criticisms made by the companies of the judgment of Ms Recorder Sherwin. For immediate purposes it is sufficient to indicate that the complaints which have been made include (but are not limited to) objections to the abatement notices as being unclear in their terms and to the finding that the circumstances were such as to justify the issue of the notices.

[4] In the judgment I will first of all set out the relevant statutory framework. I will next deal with the relevant history in two parts: the background; and the abatement notices and subsequent proceedings. Then, in the main sections of the judgment, I will first deal with the claim for judicial review and thereafter with the appeal by way of case stated. The two cases are best kept separate, as they raise questions of very different kinds.

[5] This is not the first occasion on which abatement notices served by the Council on the Elvington companies have had to be considered in the Administrative Court. In the next two sections of the judgment, I gratefully adopt much of what was said by Silber J in Elvington Park Limited v City of York Council [2010] Env LR 179.

The statutory framework

[6] Part III of the EPA deals, inter alia, with statutory nuisances.

[7] Section 79(1) sets out those matters which constitute statutory nuisances. They include “(g) noise emitted from premises and being prejudicial to health or a nuisance.”

[8] By section 80(1):

[9] Section 80(3) of the EPA confers on a person who has been served with an enforcement notice a right of appeal to a magistrates’ court. There is a further appeal, at the instance of any party to the proceedings before the magistrates, to the Crown Court: section 81(7); Schedule 3, paragraph 1(3).

[10] The available grounds of appeal are specified in regulation 2(2) of the Statutory Nuisance (Appeals) Regulations 1995 (‘the 1995 regulations’), which were made under the EPA, Schedule 3, paragraph 1(4). The grounds include the following:

The phrase ‘best practicable means’ is the subject of statutory definition, the relevant part of which will be more conveniently set out later in this judgment.

[11] On an appeal against an abatement notice, the court may quash or vary the notice or dismiss the appeal: regulation 2(5) of the 1995 regulations.

The background

[12] Elvington Airfield (‘the airfield’) lies to the south east of York and is surrounded by private houses and by farms. The airfield was constructed for the United States Air Force in the 1950s. Military use ceased in about 1992. There has been continued use of the airfield by light planes and this does not seem to have given rise to any problem. What has led to the flow of litigation is the carrying on of various activities which fall under the broad description of motor sports. These activities have been carried on by Elvington Events Limited, which is a wholly-owned subsidiary of Elvington Park Limited, which is the present owner of the airfield.

[13] The background to the case before Silber J was described by him succinctly:

I have been told that Auto 66 and Straightliner events involve, either exclusively or mainly, motor cycles rather than cars.

[14] The proceedings before Silber J arose from the issue by the Council of an abatement notice directed to each of the Elvington companies on 23 March 2005. Appeals against the notices were dismissed by a district judge on 23 November 2006 and by the Crown Court at York on 13 June 2008. The companies launched a further appeal, and in this they were successful before Silber J on 20 July 2009. I do not think that it is unfair to say that the success was on technical grounds rather than on the merits of the case. The notices required the Elvington companies both to abate the nuisance and “to take the steps necessary to prevent noise from motor vehicles… causing a statutory nuisance.” Silber J held, consistently with established authority, that the notices were invalid. An abatement notice which requires steps to be taken must specify those steps, even though it also requires the nuisance to be abated and even though a notice which did no more than require the nuisance to be abated (without saying anything about steps to be taken) would have been valid.

[15] On or about 28 October 2008, that is, after the decision of the Crown Court but well before the appeal was heard by Silber J, the Council served on the Elvington companies an enforcement notice under section 171A(1) of the Town and Country Planning Act 1990. In this notice the Council asserted that there had been a breach of planning control, arising from a permanent and material change of use of the airfield “by reason of intensification, from a mixed use of motor vehicle activity and airfield use… to a use comprising materially more noisy and more frequent motor vehicle and related activity (including public address systems) together with airfield use.” The Elvington companies appealed against the enforcement notice, and the appeal was fixed for 6 October 2009 with a time estimate of six days.

[16] At the end of his judgment delivered on 20 July 2009 Silber J suggested that “the parties might consider using mediation so as to specify what steps the [Elvington companies] should take to end the statutory nuisance and to prevent it recurring.” The suggestion was taken up by the Council. In a letter of 27 July 2009, the Council asked Mr Chris Hudson, the company secretary, for his “thoughts [on] whether mediation between yourselves, City of York Council, local councillors and residents might be helpful in preventing recurrence of a statutory noise nuisance.” No mediation took place, as the Elvington companies were unwilling to engage in mediation unless the enforcement notice was withdrawn, and the Council was unwilling to accept this condition.

[17] Use of the airfield for motor sports continued before and after the judgment of Silber J. Although there was no more Formula 1 testing, the noise was still more than local residents were prepared to tolerate. The events which took place included Auto 66, Straightliner, and Javelin. The last-mentioned involves high-performance cars. On several days in the early autumn of 2009 officers of the Council attended the airfield when events were taking place. On one of those visits, that of 4 October 2009, they concluded that the noise level was such as to constitute a statutory nuisance.

The abatement notices and subsequent proceedings

[18] On 22 October 2009 the Council issued the abatement notices which are the subject of the present litigation. Apart from the name of the company to which they were addressed, the notices were in identical form. The important paragraphs of each notice were in these terms:

[19] The Elvington companies appealed against the abatement notices. The appeal was heard at York Magistrates Court by District Judge Foster on 16 June 2010. The district judge found against the companies, which then appealed to the Crown Court. The appeal was brought on a variety of grounds, four of which, corresponding to paragraphs (a), (b), (c) and (e) of the 1995 regulations, were pursued at the hearing.

[20] The hearing in the Crown Court took place over three days, 22, 23 and 24 November 2010. The Elvington companies were represented by Mr Nick Dewhirst, who is a non-practising barrister and is employed by the companies as their in-house lawyer. The Council was represented by counsel, Mr John Hunter.

[21] Mr Hudson’s evidence is that, before the hearing started on 22 November, he asked the court usher whether he was allowed into court before giving evidence. The usher said that he would ask the judge and, after a short time, “returned and told myself and the other witnesses that we had to stay outside until we were called as a witness.” Mr Anthony Dean, the Principal Environmental Protection Officer employed by the Council, recalls that the usher indicated that witnesses should not enter the court. No one recalls the usher saying that this was a decision made by the judge.

[22] When the case was opened, Mr Hunter addressed the court regarding the presence of witnesses. Unfortunately the recording tape was not running, but there is no serious difference between the witnesses as to what happened. Mr Hunter asked that four officers of the Council, three of whom were to give evidence, should be permitted to sit in court, as this was (in his submission) customary. The judge said that the officers might sit in court. Mr Dewhirst raised no objection, and he made no application for Mr Hudson (or any of his other witnesses) to be allowed in.

[23] At some stage the recording machine was switched on, and one can read the rest of the preliminaries in the transcript. There were just two matters of significance. First, Ms Recorder Sherwin enquired about Mr Dewhirst’s authority to appear on behalf of the Elvington companies: Mr Hudson was called into court very briefly, simply to confirm, in his capacity as company secretary, that Mr Dewhirst was duly authorised. Second, Mr Dewhirst raised three points on admissibility of evidence. Nothing now turns on any of these submissions, but it is to be noted that the points were fully and (I hope that I may say this without appearing to be condescending) ably canvassed by the advocate.

[24] Over the afternoon of 22 November 2010, and during a full court day on 23 November, the following witnesses gave oral evidence:

Closing submissions were made on the morning of 24 November 2010. In the afternoon, Ms Recorder Sherwin delivered the judgment of the court dismissing the appeals. A perfected version of the judgment was sent to the parties some days later.

[25] Subsequently, the Elvington companies requested the Crown Court to state a case for the opinion of the High Court. There was some correspondence about the terms of the case stated, which was eventually settled on or about 7 March 2011.

The claim for judicial review

[26] Before I deal with the claim for judicial review I should mention that in the Elvington companies’ first draft of the case stated, they raised questions arising from the alleged exclusion of Mr Hudson from the courtroom. Ms Recorder Sherwin rejected the question as frivolous and said this:

[27] I think that I can usefully begin by clearing two matters out of the way quite shortly.

[28] First of all, it is in the alleged exclusion of Mr Hudson, and not of any other witnesses, that any strength which the Elvington companies’ case may have lies. Mr Hudson’s absence left Mr Dewhirst without a person in court from whom he could take instructions as the hearing proceeded, in contrast to Mr Hunter, who had several Council officers sitting behind him. It has not been suggested that any real disadvantage was occasioned by the absence of other persons. In fact, it seems that none of the companies’ other witnesses were at court on the first day of the hearing: if they had been, they would have been treated in the same way as the local residents, who had to wait outside before giving evidence.

[29] Secondly, there is no material on the basis of which one can say with any confidence that the usher in fact referred the matter to the judge before the commencement of the hearing. What one can say is that, if the matter was raised with the judge, it will have been raised in terms of Mr Hudson’s enquiry, which can only be understood (as there is no evidence to the contrary) as an enquiry about witnesses, not one about parties.

[30] Turning next to the law, Mr Harwood, counsel for the Elvington companies, submits that the exclusion of Mr Hudson meant that the hearing was flawed, both as a matter of domestic law and under the European Convention on Human Rights.

[31] As regards domestic law, reliance is placed on the principle stated by Sir John Arnold P in Tomlinson v Tomlinson [1980] 1 All ER 593 at 596. Having dealt with the exclusion of witnesses in family proceedings from the courtroom, which might be directed in the discretion of the court, the President said:

A recent application of the principle to a corporate litigant can be seen in the ruling of the First Tier Tribunal (Tax Chamber) in Mobile Export 365 Ltd v Commissioners for HMRC [2010] UKFTT 367, paragraphs 52 and 53. The Tribunal rejected an application by the Commissioners to have certain of the appellant companies’ ‘key witnesses’ kept out of court while other witnesses were giving evidence. Reliance was placed on the decision in Tomlinson v Tomlinson, and the Tribunal “took the view that it was open to question whether it had the power to exclude any officer of a company from a hearing involving the company.”

[32] Article 6 of the Convention provides parties to civil litigation with the right “to a fair and public hearing.” Part and parcel of this right is the principle of ‘equality of arms’, which was described in this way in the judgment of the Court of Appealin Jaffray v Society of Lloyds [2002] EWCA Civ 1101 at paragraph 495:

[33] I have considered the elaborate written and oral submissions placed before the court on behalf of the Elvington companies. I am satisfied that there was in relation to the hearing below what I would characterise as a procedural accident. It was, however, nothing more. What occurred was, in my judgment, light years away from the kinds of injustice or fundamental error which would justify intervention by this court. I can state my reasons quite shortly.

[34] First, the court never ruled that Mr Hudson should remain outside. The indication or direction given by the usher cannot sensibly be elevated into a reviewable decision.

[35] Second, even if one were to treat what the usher said as a communication to the parties of something which the judge had decided, the decision would be difficult to attack, given that it was even-handed and not directed either at the witnesses for one side or at a party. The usher said that witnesses should stay out and he did not indicate that this exclusion applied only to the witnesses for one side. No one has suggested that the usher was asked, or said, anything about whether parties (which would include officers of a corporate litigant) could come in. No one has suggested that Mr Hudson’s position as company secretary was drawn to the usher’s attention.

[36] Third, the question of Mr Hudson’s absence could and should have been raised with the court by Mr Dewhirst. He had his opportunity and for some reason he did not take it. I have to say that I find this incomprehensible, given that Mr Hunter expressly canvassed with the court the propriety of the Council officers staying in court and given that, as is apparent from the transcript, Mr Dewhirst is an experienced litigator. The suggestion that Mr Dewhirst abstained from raising the question because Ms Recorder Sherwin had somehow already ruled upon it is unimpressive. If there had been a ruling, it applied to all witnesses; Mr Hunter asked the court to revisit the ruling in so far as it applied to officers of the Council; Ms Recorder Sherwin had no hesitation in saying that the officers could stay in court; and, far from inhibiting Mr Dewhirst, all this should have encouraged him to make an application similar to that made by Mr Hunter. This is one of those cases in which failure to take an obvious point is properly to be regarded as an election not to take it: see Millar v Dickson [2002] 3 All ER 1041, paragraphs 32-35. It is adventurous, and wrong, to treat any error that was made as something so fundamental to the fairness of the proceedings as to be incapable of waiver by the parties affected or their advocate on their behalf. The passages from the judgments in Al Rawi v The Security Service [2011] UKSC 34 (Lord Dyson SCJ at paragraphs 11-13, 19-22; Lord Hope DPSC at paragraph 72) cited by Mr Harwood have to be read in their context, which was that of the attempted imposition on a party of the ‘closed material procedure.’ I do not read the case as having anything to do with waiver.

[37] Fourth, if one places oneself in the situation of the hypothetical reasonable observer and litigant, and goes through the transcript of the evidence and submissions, one is not, on my reading of that material, left with any legitimate apprehension that the conduct of the trial placed the Elvington companies at any significant disadvantage. It is, to my mind, noteworthy that Mr Harwood has not pointed to any evidential issue on which the outcome would (or even might) have been different if Mr Hudson had been in court.

[38] The claim for judicial review must accordingly be dismissed.

The appeal

Preliminary

[39] Six questions are raised in the case stated. In the course of his oral submissions, Mr Harwood treated two of those questions, 3 and 6, as of a supplementary kind, in the sense that he did not contend that the answers which he sought would by themselves be sufficient to overturn the decision. I will therefore begin by looking in some detail at the four major questions; and, after that, I will say rather less about the subsidiary matters.

Question 1

[40] The question is:

[41] This first question is raised under regulation 2(2)(b) of the 1995 regulations. The Elvington companies assert that the abatement notices are defective in that they refer only in general terms to excessive emissions of noise and fail to convey to the Elvington companies what it is that the Council is complaining about. The companies accordingly cannot know what they should do (short of closing down their enterprise) to avoid committing an offence by continuing the alleged nuisance. In order to be valid the notices should, as a minimum, have done one or both of the following: identified the particular activities which are said to constitute the nuisance; specified the noise level above which any activities would amount to a nuisance.

[42] In my judgment, this objection to the notice is not well-founded and the Crown Court was right to reject it.

[43] Section 80(1) of the EPA says nothing about the identification or specification of the activities which are the subject of an abatement notice. One can accept without hesitation that a notice which referred to a nuisance simpliciter, without stating in general terms what kind of nuisance it was (noise, smoke, fumes etc.), would be invalid. But, beyond that, the courts have set the required threshold of description at a low level. I refer to two authorities which were cited by Mr Hunter. Budd v Colchester Borough Council [1997] Env LR 128 concerned an abatement notice which alleged nuisance by ‘dog barking.’ Schiemann LJ and Smedley J held that the Crown Court had been correct in holding that there was no necessity for the notice to set out the levels or times of barking which were alleged to constitute the nuisance. In Godfrey v Conwy Borough Council [2001] Env LR 38 Rose LJ and Moses J upheld a notice which referred to nuisance arising from ‘drumming and amplified music.’ The challenge to the notice, which was rejected by the court, was in essence the same as the challenge which is made in this case: that the notice did not specify objective criteria by which compliancecould be determined.On the basis of these authorities, which on the point of sufficiency of description I find to be indistinguishable in principle from the present case, the Crown Court plainly came to a correct decision.

[44] Question 1 will therefore be answered in the affirmative.

Question 2

[45] The second question is:

[46] This question is raised under regulation 2(2)(a) of the 1995 regulations. The Crown Court was wrong, it is said, to find that the notices were justified because, in determining whether there was a nuisance, the court applied the wrong test. This led the court to examine the facts of the case in too narrow a fashion, rather than holistically. There is accordingly a two-stage criticism: an error of law is said to have led to an erroneous assessment of the facts.

[47] The error in law is said to lie in the court’s definition of nuisance, with the accompanying citation, which is accurately reproduced at the beginning of question 2. The words in quotation marks were adopted by Ms Recorder Sherwin from an attempt by Mr Hunter, made in his written submissions to the Crown Court, to provide a useful ‘in a nutshell’ definition of nuisance. The reference to Thorne was a mistake, and Mr Hunter accepts he had unwittingly laid a trap into which the judge fell.

[48] As to the definition, Mr Harwood says that it is defective in that it omits any reference to the concept of reasonable (or unreasonable) user of land, which should be central to any consideration by a court of the existence of a nuisance. Reference was made to Coulson J’s review of the law in Barr v Biffa Waste Services Limited [2011] EWHC 1003 (TCC), paragraphs 188-191 (see also paragraphs 199 and 206 on ‘give and take’); and to the judgment of the Court of Appeal in Watson v Croft Promosport Ltd [2009] EWCA Civ 15, paragraphs 23, 27, 28.

[49] In my judgment, there is no merit in this criticism. There have, as a review of the case law and relevant textbooks illustrates, been a variety of definitions of nuisance. Those which are found in cases are frequently framed so as to illuminate the particular question arising for decision. None of those in the textbooks can be presented as being in the nature of a code which must be rigidly applied to all cases. The mere omission by Ms Recorder Sherwin of any reference to reasonable or unreasonable user, or to give and take, cannot be regarded as an error, much less as an error which infects the conclusion to which the court came. The word ‘unacceptable’ on which Mr Harwood fastened as having been wrongly used is no different in essence from other words, such as ‘undue’ or ‘unreasonable’, which are more frequently employed. All these expressions are interchangeable and refer to situations which the law regards are ones which should not have to be tolerated by neighbours. There is here nothing more than a semantic attack on one sentence in the judgment, and even that limited attack is not justified. If one passes from the semantic to the substantive, one finds that the court must have had had the concept of reasonableness in mind, because it distinguished between days on which the noise was, and those on which it was not, so loud as to amount to a nuisance: see paragraphs 18 and 19 of the judgment. There was no question of the court’s saying that all noise-generating motor activities gave rise to a nuisance.

[50] All that need be said about the mention of Thorne is that it is a counsel of perfection for judges to check references contained in written submissions.

[51] The suggestion that the case was not considered ‘holistically’ is not justified. As a matter of law, it was sufficient for the Council to establish that a nuisance had existed on one occasion. There is in paragraphs 18 to 21 of the judgment a careful and balanced assessment of the evidence, in which the court did not shy away from saying that there were several occasions on which the noise level from motor activities were not such as to amount to a nuisance. This makes it all the more difficult to challenge the finding that there was a nuisance on 4 October 2009. The effect upon neighbours on that day was expressly assessed, contrary to what I take to be suggested in the question. In paragraph 18 of the judgment, there is reference to the evidence of (among others) Mr Vickery. This should be cross-referenced to pages 13 and 14 of the transcript of the proceedings on 22 November 2010, where the witness said that the noise heard indoors on 4 October 2009 was so bad that he got out his car and left home for some hours.

[52] Accordingly, the answers to the two questions which are contained within the single Question 2 are: there was no error in law, and the court did assess the effect of the nuisance on neighbours.

Question 4

[53] Question 4 is in these terms:

[54] This question came before the Crown Court under regulation 2(2)(c) of the 1995 regulations, which allows for an appeal on the ground that a local authority has unreasonably refused to comply with alternative requirements. The alternative raised here is that of mediation. The relevant passage from the judgment is as follows:

[55] The Elvington companies did not take the initiative in proposing mediation: the proposal was made by the Council and, as has been seen, ran on to the rocks because the Council refused to withdraw the enforcement notice. The court was entitled to describe the attitude of the companies to mediation as ‘improper’ (which in this context cannot mean anything more reprehensible than ‘misguided’), but the description was nihil ad rem. The question was not whether the companies were unreasonable, but whether the Council was unreasonable. I see no basis on which the court could have been correct in holding that the refusal to withdraw an enforcement notice, particularly when a lengthy enquiry was due to open in a few weeks’ time, was unreasonable. The matter is as simple as that.

[56] Question 4 is therefore answered in the negative.

Question 5

[57] Question 5 is:

[58] Under regulation 2(2)(e) of the 1995 regulations, it is a ground of appeal in a noise case, where the nuisance arises on business premises, that the best practicable means were used to prevent, or counteract the effects, of the nuisance. By section 79(9) of the EPA:

‘best practicable means’ is to be interpreted by reference to the following provisions –

(a) ‘practicable’ means reasonably practicable having regard among other things
to local conditions and circumstances, to the current state of technical knowledge
and to the financial implications,
(b) the means to be employed include the design, installation, maintenance and manner and
periods of operation of plant and machinery, and the design, construction and
maintenance of buildings and structures.

[59] The relevant passage in the judgment is:

[60] This passage was subjected to a line by line (almost a word by word) analysis by Mr Harwood. Every sentence was criticised, and two sentences were said to contain plain errors.

[61] The first error was said to lie in the finding that no expert opinion had been commissioned by the appellants. If one goes to the evidence of Mr Hudson himself, one finds that there was no error at all. What Ms Recorder Sherwin recounted came directly from Mr Hudson’s evidence. Although the Elvington companies had employed experts “in the early days” (transcript for 23 November 2010, page 62), they had “not taken any further advice about the current activities from any further noise professional” since the dismissal of the first Crown Court appeal in 2008 (page 68).

[62] The second error was said to lie in the final sentence. This was not so much a finding of fact, as the recording of the impression made by Mr Hudson on the court. A reading of the transcript demonstrates that the view was one which the court was entitled to take on the evidence. A good illustration of the vague approach of Mr Hudson to the problems at the airfield is to be found in his evidence relating to noise from the PA system. “We keep talking to [event organisers] to see what difference we can make”; something “very specific” was to be proposed for next year, but he did not know what it was; “we are open to any suggestions as to how to improve these things… but we’ve not come up with anything so far” (transcript for 23 November 2010, page 80). In the light of evidence like that, the conclusion of the court is hardly surprising.

[63] I do not propose to trawl through the other criticisms. Quite apart from the fact that they were satisfactorily disposed of by Mr Hunter, they sidestep the true issue. It was for the Elvington companies to identify the means which they had taken to deal with the nuisance and to persuade the court that these were the best practicable means. There was ample material on the basis of which the court could conclude that the burden had not been discharged. There is no material on the basis of which the finding adverse to the companies could be set aside as irrational.

[64] The answer to Question 5 is therefore in the affirmative.

Questions 3 and 6

[65] Given the way in which the appeal was presented, and in the light of my findings so far, I can take these questions briefly.

[66] Question 3 is:

[67] The answer is in the negative. As to parts (i) and (ii) of the question, it is plain on a reading of section 80(1) of the EPA that a single event which is likely to recur can be the foundation for an abatement notice. Both the occurrence of the event (on 4 October) and the likely recurrence were matters on which there was ample evidence to support the conclusion of the court. The suggestion, if it is still seriously pursued, that an abatement notice must be served on the day on which the event occurs makes no practical sense whatever. The assertion in part (iii) of the question was withdrawn at the hearing of the appeal: the 2008 judgment was recounted by Ms Recorder Sherwin as part of the background, but was in no sense relied upon.

[68] Question 6 is:

[69] The answer is in the negative. The point was presented simply as a back-up to Question 5 and falls with that question.

Conclusion on the appeal

[70] It follows that the appeal must be dismissed. It would, however, be wrong to leave this case without commending the court below for having produced, on the final day of the hearing, a judgment which dealt so comprehensively with the issues raised and was at the same time marked by clarity and economy of expression. Having such a judgment to hand made it far easier for me to get to grips with the appeal than might otherwise have been the case.