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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Elvington Park Ltd & Anor, R (on the application of) v The Crown Court At York  EWHC 2213 (Admin) (26 August 2011)
Cite as:  ACD 121,  EWHC 2213 (Admin),  JPL 173,  Env LR 10
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
B e f o r e :
| THE QUEEN on the application of
ELVINGTON PARK LIMITED
ELVINGTON EVENTS LIMITED
|THE CROWN COURT AT YORK
|THE CITY OF YORK COUNCIL
|ELVINGTON PARK LIMITED
ELVINGTON EVENTS LIMITED
|THE CITY OF YORK COUNCIL
Mr John Hunter appeared for The City of York Council
The Crown Court at York was not represented
Crown Copyright ©
HIS HONOUR JUDGE LANGAN QC:
The statutory framework
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 –(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes,
and the notice shall specify the time or times within which the requirements of the notice are to be complied with.
(a) that the abatement notice is not justified by section 80 of the [EPA]…
(b) that there has been some informality, defect or error in, or in connection with, the abatement notice…
(c) that the authority have refused unreasonably to accept compliance with alternative requirements, or that the requirements of the abatement notice are otherwise unreasonable in character or extent, or are unnecessary…
(e) where the nuisance to which the notice relates -(i) is a nuisance falling within section 79(1)…(g) of the [EPA] and arises on industrial, trade or business premises… that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.
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.
[The airfield] had been used by Formula 1 motor cars for testing purposes with the engines completely unsilenced and operating at up to 24,000 rpm. There were twenty one Formula 1 test days in 2007. The airfield has also been used for Auto 66 and Straightliner activities by cars and motor cycles.
I have been told that Auto 66 and Straightliner events involve, either exclusively or mainly, motor cycles rather than cars.
The abatement notices and subsequent proceedings
TAKE NOTICE that under the provisions of the Environmental Protection Act 1990 (as amended) the City of York Council ('the Council') is satisfied that a statutory nuisance under section 79(1)(g) of that Act exists within its area and is likely to recur.
Nuisance arises as a result of excessive emissions of noise from Elvington Airfield, Elvington Lane, Elvington, York, affecting occupation of nearby residential properties. The emissions of noise arise from motor vehicle activities, motor sport events and activities associated with them including the use of public address systems.
The City of York Council HEREBY REQUIRE YOU to abate the said nuisance by 22 November 2009 and HEREBY PROHIBIT its recurrence.
For the Council
Timothy Vickery Local resident Susan Vickery Local resident David Race Local resident Jens Termanson Local resident Ian Gray Senior Environmental Protection Officer Helen Howlett Senior Environmental Protection Officer Michael Southcombe Environmental Protection Manage
For the Elvington companies
Steve Roper Airfield Manager Trevor Duckworth Managing director of Straightliners Colin Jebson Owner of Javelin Track Days Chris Hudson Company secretary
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.
The claim for judicial review
 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:
[N]o application was made to the Crown Court for Mr Hudson to be present in the courtroom
during the hearing and the Court did not rule that he could not be present whilst other witnesses were giving evidence. Had the Court been asked about the matter we should have ruled that he was entitled to be present – we were not asked and made no ruling on the matter.
This of course does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. These are never excluded from the court.
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  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."
i. a party is entitled to present his case under conditions which do not place him at a disadvantage vis-à-vis his opponent;
ii. in order to decide whether the trial has been fair or unfair, it is appropriate to take into consideration all the circumstances of the case, including differences between the resources of the parties and the importance of the case for them;
iii. the proper approach is to ask whether, on an objective appraisal, both a reasonable observer and a reasonable litigant in the position of any of the parties would be left with a legitimate fear that the conduct of the trial was such as to place the party at a disadvantage which was more than trivial or illusory…;
iv. once inequality of arms in this sense is established, it is not necessary to identify further, quantifiable unfairness, in order to show that the trial was unfair.
Was the Court correct in law to say that there was no obligation on the Council to specify in the abatement notices 'which activities are said to amount to the statutory nuisance or what noise levels etc are said to be excessive' and to find that 'the notices make it perfectly clear that it is the noise associated with motor sports that it being complained of' (judgment, paragraph 26) when(i) the notices allege that the nuisance arises solely from 'excessive emissions of noise' from 'motor vehicle activities, motor sport events and activities associated with them' rather than from all 'the noise' associated with motor sports or other motor activities;(ii) the Council did not allege that all motor sports activities on Elvington Airfield caused a
statutory nuisance;(iii) the Council did not contend that a statutory nuisance had occurred on every day that motor sports were being carried on?
Did the Court err in law in finding that nuisance 'is "an unacceptable interference with the personal comfort or amenity of neighbours or the community" (National Coal Board v Thorne  1 WLR 543)' (paragraph 5) and did the Court assess, or if it did assess give reasons, why any such effect upon neighbours as a result of activities on the airfield was a nuisance?
Did the Court err in law or conclude irrationally in characterising as 'improper' the appellants' view that mediation on noise nuisance issues should be combined with mediation on planning issues on motor vehicle activities (paragraph 27)?
We are quite satisfied that the Council did attempt to discuss matters with the appellants following the High Court ruling. That was frustrated by the wish of the appellants (in our view improperly) to link these matters to the concurrent planning proceedings. In any event the appellants continued to permit a nuisance to take place and the Council were entitled (obliged) to take action. We have heard no evidence of any further requirements for compliance that have been suggested to the Council by the appellants.
Did the Court have sufficient evidence on which it could reach the conclusions it did on best practicable means (paragraph 28)?
'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.
We do not consider that the appellants have taken the best practicable means to prevent or
counteract the effects of the nuisance. We do not consider that the appellants have taken the best practical means to deal with any nuisance that may have arisen through noise. We have already said that we are not impressed by the reliability of the sound testing measures that have been carried out by Mr Roper or other enterprises. No real thought seems to have been gone in to the question of noise from the PA system and ways to counteract that. No expert opinion has been commissioned to consider ways of reducing the impact of the noise. Little if anything appears to have been done to deal with the problem raised by Auto 66. We were not impressed by the evidence of Mr Hudson concerning these matters – it seems as though his answer to being informed of any problem is to send an email to the individual event organiser - that is totally to abrogate the responsibility that lies first and foremost with the appellants.
Questions 3 and 6
Did the Court err in law:(i) in finding that the Council was entitled to issue abatement notices on 22 October 2009 on the basis: (i) the Court found that a statutory nuisance had occurred on 4 October 2009,(ii) the Court found that this was part of a continuing pattern of behaviour; and (iii) the Court found that the Council was correct in concluding that a nuisance was likely to occur again (paragraphs 19, 20);(ii) in finding that "one such incident would suffice to entitle the Council to issue Abatement Notices" (paragraph 20);(iii) in relying on the 2008 Crown Court judgment.
Did the Court err in law by failing to give adequate reasons relating to the cost of such measures [i.e. to deal with the nuisance] and the historic level of activities?
Conclusion on the appeal