Abatement notice variation: a landmark ruling's impact on local authorities
Gordon Wignall looks at a recent judgment about the power to vary an abatement notice with some remarks of wider interest as to statutory interpretation.
This article focuses on the recent ruling by Mr. Justice Eyre, who resolved an issue of long standing uncertainty as to whether or not a local authority can vary an abatement notice. It will delve into Mr. Justice Eyre's reasoning behind the verdict and its consequences for local governing bodies and professionals. The judgment also examines some of the judge's remarks on the rules relating to the interpretation of statutes.
What was the case about?
In the case R (Ball) v Hinckley and Bosworth Borough Council & Real Motorsport  EWHC 1922 (Admin), Mr Justice Eyre, 1 August 2023, Mr Ball made a claim concerning the control of noise from the nationally significant Mallory Park Racing Circuit, where racing has been held since the 1950s.
The period 2011-3 was not a good period for regulation of activities at the track and after a complaint, the Local Government Ombudsman recommended that the Council draft a new abatement notice in place of the 1985 version. The new abatement notice was served in 2014 restricting of the recurrence of noise from the track.
A lengthy schedule to the notice provided for amounts of ‘noisy’ racing which could take place by reference to different categories of ‘noisy’ events. A fixed number of maximum days were permitted to be allocated over the year by the operator. One of the provisions of the notice (clause 4) stated that “In no circumstances shall there be three consecutive noisy days.”
Clause 21 of the Schedule stated: “The operator may request any variation of this Schedule in writing and if a variation is agreed by the Council it shall take effect only on receipt by the Operator of written confirmation of the variation.”
In various previous years the operator had invoked clause 21, and after consultation with those interested, the Council had agreed to proposed variations. In March 2022 the Council made a decision in response to the process which had the effect of making certain variations permanent (albeit it subject to annual review). The decision included a variation to clause 4 so that three consecutive nosy days were permitted. It was the March 2022 decision which was the target for Mr Ball’s judicial review challenge.
The issue: why is the power to vary an abatement notice controversial?
There is no express power to vary an abatement notice in Part III, Environmental Protection Act 1990, the Act which governs statutory nuisances. A Council has a duty under s.80(1) to serve a statutory nuisance when it is satisfied that a nuisance exists, and a person on whom a notice is served can appeal to magistrates to secure a variation.
Where a variation process can only be initiated by the recipient of the notice, the inevitable appearance is that the protections originally designed to control the nuisance will have been reduced (or ‘watered down’, as it was put by Mr Ball). Indeed, in this case, the Council varied the nuisance so that three consecutive days of noisy racing were allowed, contrary to clause 4. What is more, it can be said that the recipient of a notice with a variation clause has in effect won for itself a permanent right of appeal.
The added problem for residents is that it is very difficult to mount a legal challenge to the consequences of a variation. They would have to initiate their own statutory nuisance proceedings under 82, or start a private prosecution on the strength of a breach of the abatement notice with all the expense and uncertainty that would involve.
Principles of statutory interpretation
First, it is important to note that, understandably, this case did not involve any challenge to the individual merits of the variations which were permitted by the decision dated March 2022. This necessarily meant that the claimant had to persuade the judge that as a matter of law there was no basis for a power to vary. A consequence, however, was that there was no mileage in the attempts by the defendant to argue that the challenge was really to clause 21 and therefore about eight years out of time: if there is no power at all to vary an abatement notice then every and any variation decision would be illegal.
In the absence of an express power to vary, the judge went on to consider whether it was necessary to imply such a power. The judge noted that key authorities treated interpretation and necessary implication to be but one single process (see the Chancellor in Darwell v Dartmoor National Park Authority  Ch 141 at - and Lady Hale in R(Black) Secretary of State for Justice  AC 215 at [36(3) and (4)].
The purpose of the statutory nuisance regime
Since there was no express provision justifying the power to vary, the judge embarked on a consideration of the purpose of Part III of the 1990 Act. This is the contemporary pre-condition required when examining whether a power must necessarily be implied into a statute (see R(Black) as cited above).
For the claimant it was argued that s.80 works in absolutes: once a council has decided that there is a statutory nuisance, it has no option other than to make sure that the nuisance is brought to an end. The defendant argued that in the context of an abatement notice intended to ‘restrict’ the recurrence of a nuisance, then a council is permitted to strike a balance, even if the effect is to cause some degree of nuisance to exist. After all, in this case many residents lived within different distances from the track – who was to be the benchmark.
The judge rejected the defendant’s literal reading of ‘restrict.’ However, he did decide that whilst the purpose of the Act is to provide for the removal of statutory nuisances, “that [is] to be done in a way which takes account of the existence of other factors including the fact that the total removal of a nuisance might not be practicable and that in such circumstances the taking of the best practicable means to counteract its effects might be the most that can be achieved.”
A key debate in the case was case of R., Ex p Everett v. Bristol City Council  1 WLR 92,  1 WLR 1170 (CA), which had previously established that an abatement notice can be withdrawn.
The judge decided that the principle of necessary implication had been followed by the judges in Ex p. Everett and that the power to withdraw was a ‘greater’ power than the power to vary. The consequence was that the one encompassed the latter and that there was nothing requiring the common law to develop specifically in order to accommodate this new issue. The judge’s obiter comments as to precedent are worth scrutiny (paras.58 and 65).
Accordingly, the judge decided that, given the purposes of the statutory regime, s.80 would be unduly inflexible if there were no power to vary an abatement notice.
The immediate practical implication is that a local authority can safely include a power of variation within an abatement notice, even though the effect is to reduce the restrictions of the notice.
A further point worth noting, however, is the benefit of annexing a Schedule to an abatement notice allowing an operator various options as to how to run its business, an option now sanctioned by this judgment.
The judge’s analysis of the purpose of the statutory nuisance regime may also have wider consequences, even as to the question whether there may be limitations on the duty to serve a notice if a council considers that best practicable means are in use.
Gordon Wignall represented the Council Wiglaw.co.uk