The local authority served a noise abatement notice under section 80 of the Environmental Protection Act 1990 on a company which was operating a car and motor cycle racing circuit in a village, being satisfied that the noise from the racing activities at the circuit had given rise to a statutory nuisance which would recur. The abatement notice required the company to restrict the recurrence of nuisance in accordance with a schedule which laid down a regime for the operation of the circuit, including a limit on the noise level for vehicles using the circuit and a provision for variation. The local authority subsequently agreed to three variations which became permanent subject to annual review. The claimant, a village resident, sought judicial review, contending that the variation of the abatement notice, which he claimed reduced the former noise restrictions, was unlawful as it was beyond the local authority’s powers.
On the claim and on the question whether a power to vary an abatement notice arose by necessary implication from the 1990 Act—
Held, claim dismissed. The primary purpose of the Environmental Protection Act 1990 was the prevention and removal of statutory nuisances. That purpose, however, was not unqualified as the removal could be done in a way which took 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 could be achieved. Case law established that there was an implied power to withdraw an abatement notice, the absence of such a power being inconsistent with the existence of the discretion of a local authority whether to prosecute for non-compliance. There was no material difference between the variation of an abatement notice and its withdrawal and substantially the same considerations applied to the question whether the power to take either of those steps arose by way of necessary implication from the 1990 Act. Contrary to the claimant’s submissions, a power for a local authority to vary an abatement notice would promote the purposes of the Act in the same way as a power to withdraw would and essentially for the same reasons, namely the avoidance of undue rigidity and the avoidance of artificiality flowing from the existence of the discretion not to prosecute. Thus, the approach taken to a power to withdraw a notice applied equally to a power to vary and the court was bound to conclude that it was lawful for a local authority to vary an abatement notice so as to reduce the restrictions imposed thereby. Since the claimant made no public law challenge to the exercise of the power, it followed that the local authority had lawfully exercised its power to vary the abatement notice (paras 43, 60–61, 63–64, 68–69).
Per curiam. (i) Different considerations may well apply to a variation which increased the restrictions imposed by an abatement notice (para 69).
(ii) Even if the case law regarding the power to withdraw an abatement notice is distinguishable, a power to vary nevertheless arises by way of necessary implication (para 70).
(ii) The provisions of the Local Government Act 1972 expressly define the ways in which a local authority’s particular statutory powers are to be exercised and section 111 does not operate to enable the exercise of those powers in some different way. The section cannot be used as an “escape route” from statutory controls or to allow a local authority to act in a way which is inconsistent with other statutory provisions. It does not therefore operate to empower the local authority to vary an abatement notice if no such power to vary is to be implied from the 1990 Act (paras 71, 73–74).
Piers Riley-Smith (instructed by Richard Buxton Solicitors, Cambridge) for the claimant.
Gordon Wignall (instructed by Treasury Solicitor) for the local authority.