Ethos Recycling Ltd v Barking & Dagenham Magistrates Court [2009] EWHC 2885 (Admin)

This was an application for judicial review by Ethos Recycling of a District Judge’s decision in the Barking and Dagenham Magistrates’ Court given at Havering Magistrates Court, dismissing Ethos Recycling’s appeal against an abatement order served by LB Barking and Dagenham.

Ethos ran a waste disposal site.  When Ethos acquired the site in 2007, it was assessed as needing concrete paving, storage areas and a dust suppression system. In May 2008, officers of the Environment Agency attended for a compliance assessment and could see that dust was blowing from within the site and it could seen covering the cars in the car park and in the air.

Four days later Environment Agency officers and two environmental services officers from the Council’s Environmental and Enforcement Services Department attended for a further assessment, following complaints from several neighbouring businesses about the amount of dust They noted that

the amount of dust which had accumulated off-site could be seen first hand. Employees had had to stop work the day before due to the amount of dust irritating their eyes. The trommel was activated and the officers noted the amount of dust generated by it and by vehicles moving around the site.

Th Environment Agency told Ethos that various dust suppressing works had to be undertaken by the end of May. Follow up inspections on 14 and 23 May noted works carried out and no further breach of conditions on the dust issue. Follow up visits in October and November 2008 found limited and no further problems respectively.

On 3 June the Council had served an abatement notice on Ethos.

The notice alleged that it was satisfied of the likely occurrence of a statutory nuisance under Section 79(1) of the EPA 1990 at the site arising from dust from vehicle movement and/or wind whipping and/or loading of the trommel and/or stockpiles affecting properties within the vicinity of a nearby property known as 33 River Road, Barking, Essex. It required the claimant to prohibit the occurrence of the alleged nuisance within 21 days from the service of the notice. Specifically the claimant had to:
(1) install a sprinkler system to prevent dust from the loading of the trommel and stockpiles travelling outside the premises boundary;
(2) complete the concreting of the yard so that the browser could travel across it and damp the yard;
(3) erect a yard cover for the stockpile unloading area, stockpiles and trommel loading area to prevent dust travelling outside the premises’ boundary.

These were basically the same requirements that had been set out by the Environment Agency in May.

The Council did not seek the consent of the Secretary of State to the abatement notice. There was no dispute that the dust problem as nuisance to be abated fell within section 79(1) (d) of the EPA 1990. For this reason it fell within a category requiring the consent of the Secretary of State to institute summary proceedings. Section 79(10) of the Environmental Protection Act 1990 provides:

A local authority shall not without the consent of the Secretary of State institute summary proceedings under this Part in respect of a nuisance falling within paragraph (b), (d) or (e) and in relation to Scotland, paragraph (g) or (ga) of subsection (1) above if proceedings in respect thereof might be instituted under Part I or under regulations under section 2 of the Pollution Prevention and Control Act 1999.

Ethos appealed the abatement notice on the ground that the Council had not acquired the consent of the Secretary of State to serve the notice and that the service of the abatement notice constituted the institution of summary proceedings for the purposes of s.79(10). The DJ at the Magistrates rejected this and Ethos sought judicial review of that decision.

The issue was whether the Secretary of State’s consent is required before the service of the abatement notice or whether that consent is only required before the Council takes proceedings in the Magistrates’ Court for failure to comply with the notice.

Ethos argued that s.80 of the EPA prescribes what is to happen once the Local Authority is satisfied a statutory nuisance exists. it set out the service of abatement notice and subsequent steps, but the whole section is under the heading “Summary proceedings for statutory nuisances”.

However, there is no definition of ‘summary proceedings’ given in the EPA.

The District Judge had found that if s.79(10) was meant to include service of a notice, it would have said so.

By using the words “institute summary proceedings” they have in my view prevented double jeopardy in the criminal sense by leaving the final decision of enforcement to the Environment Agency without preventing the local authority from taking the preparatory steps necessary to allow them to institute summary proceedings if necessary.

Held:

31. The Council in the present case had received a number of complaints from the claimant’s neighbours about nuisance arising from dust from its premises. The Council, rather than the Environment Agency, is the natural recipient for such complaints. The Council is obliged subject to some qualifications that are irrelevant for present purposes, to issue an abatement notice the purpose of which is to prevent the continuation or recurrence of the nuisance where they are satisfied that such a nuisance exists, see R v Carrick District Council ex parte Shelley [1996] Env LR 273. It seems to us that it would be wholly artificial in such circumstances to require the Council first to obtain the consent of the Secretary of State. Such a step would inevitably take time and frequently time is of the essence. Neighbours are complaining and expect prompt action from the Council. The company can, as in the present case, appeal against the abatement notice. It seems to us entirely logical, practical and in keeping with the published policy to which we have referred that the consent of the Secretary of State should be required prior to the commencement of proceedings for failure to comply with the abatement notice rather than at an earlier stage.

32. [The defendant] makes the further point that section 82 of the EPA 1990 contains a similar heading to section 80 only on this occasion it is “Summary proceedings by persons aggrieved by statutory nuisance”. There is no question here of having to obtain the Secretary of State’s consent and the expression summary proceedings in this heading is plainly referring to court proceedings. Here, the aggrieved member of the public must first give written notice of the existence of a statutory nuisance and of the intention to bring proceedings if it is not abated. So, the situation is analogous to the service of an abatement notice by the local authority. [The Defendant’s] argument is that if [the Claimant’s] argument is correct the phrase “summary proceedings” has different meanings in two sections in the same Part of the Act and there is no reason why this should be so.

There is no requirement to seek the consent of the Secretary of State before serving an abatement notice where proceedings would fal under s.79(10) EPA. Application for Judicial Review dismissed.