The abatement notice, issued under the Environmental Protection Act 1990, concerned Mallory Park Racing Circuit on the edge of the Leicestershire village of Kirkby Mallory. The notice set limits on the number and frequency of motor racing at the circuit, including that there be a minimum one-hour continuous lunch break on race days.
The variation reduced the lunch break to half an hour on the race circuit’s Boxing Day Plum Pudding event. A person who lived in the village objected on the basis it would be too noisy.
Counsel for the complainant, Piers Riley-Smith, of Kings Chambers, submitted there was no express provision in the 1990 Act for variation, and no implied power under caselaw.
Counsel for the defendants, Gordon Wignall, of Six Pump Court, submitted that an implied power existed under both caselaw and statute.
Ruling in R (Ball) v Hinckley and Bosworth Borough Council & Real Motorsport [2023] EWHC 1922 (Admin), Mr Justice Eyre dismissed the claim and held the council did have the power to make the variation, by reason of necessary implication into the statutory nuisance regime of Part III of the 1990 Act.
Eyre J held the case of Ex p Everett R v Bristol City Council [1999] 1 WLR 92, [1999] 1 WLR 1170 (CA), which established that an abatement notice can be withdrawn, applied. He held there was no reason to distinguish the power to vary a notice from the power of withdrawal, since the power of withdrawal is a greater power.
Delivering his judgment, he said: ‘The variation of an abatement notice is a lesser step than its withdrawal.
‘As a matter of strict logic it does not necessarily follow that the power to take the greater step must carry with it the power to take the lesser. It would be possible to have a regime which allowed withdrawal of an abatement notice but not its variation. That would, however, be highly unusual arrangement and the normal approach is to regard a power to take a greater step as carrying with it a power to take a lesser step.’
Eyre J did not address the position where a variation might be used to increase the restrictions.
Update: 2024
R (on the application of Gary Ball) v Hinckley & Bosworth Council [2024] EWCA Civ 433, [2024] All ER (D) 115 (Apr)
The Court of Appeal Civil Division, allowed an appeal by the appellant from a decision of the High Court which had held that a local authority had the power to vary an abatement notice which it had issued against a statutory nuisance under s 80 of the Environmental Protection Act 1990. The court held in response to the submissions made that as a matter of statutory interpretation, it was not necessary to imply a right to vary an abatement notice on the part of the local authority into EPA 1990. In the current legislative scheme, the power to vary an abatement notice had been given to the Magistrates' Court, not the local authority. There was no implied power on the part of the local authority to vary the abatement notice.
