A 67-year-old woman with a neurological disorder that causes her to make involuntary sounds and noises has failed in a judicial review challenge over a noise abatement notice. Charles Holland examines the judgment.
In his judgment in R (on the application of Susan Fisher) v. Durham County Council  EWHC  EWHC 1277 (Admin) handed down in the Leeds District Registry on 21 May 2020, Julian Knowles J. has dismissed a challenge brought by Susan Fisher, a woman with a neurological disorder which cases her to make involuntary sounds and noises, including words and phrases, against the decision of my client Durham County Council to serve her with a abatement notice under the Environmental Protection Act 1990 (“EPA 1990”).
The Judge has refused to grant permission to appeal.
I represented the local authority in resisting Ms Fisher's challenge.
The notice related to the statutory nuisance of noise Ms Fisher was causing from the premises in which she lived, a privately tenanted mid-terraced house in a village in the council's area.
Ms Fisher’s four grounds of challenge to the decision were that she asserted:
- it unlawfully discriminated against her contrary to ss.15 and 20 of the Equality Act 2010,
- was undertaken by the local authority in breach of the Public Sector Equality Duty (“PSED”) found in s.149 of the 2010 Act,
- breached her human rights, and
- was irrational.
In dismissing her claim in a lengthy reserved judgement following a hearing conducted over 2 days by video-conferencing platform, Julian Knowles J. found that the service of the notice was a proportionate means of achieving a legitimate aim and was not discriminatory.
The Judge said, in response to Ms Fisher's submissions, that "it must be questioned whether the Claimant, disabled though she is, has a fundamental right to commit a statutory noise nuisance – and it is that which the Notice seeks to curtail. Be that as it may, the legitimate aim of protecting the health and amenity of the Claimant’s neighbours, and the interests of the relevant property owners, all of whom are being seriously harmed in different ways by her behaviour (including, variously, by being kept awake at night and being unable to let proper or keep tenants), justified the modest limitation of the Claimant’s fundamental right as to how she lives in her home."
The Judge considered that there was “room for argument” about whether the principles in the Supreme Court of Akerman-Livingstone v. Aster Communities Ltd  AC 1399 were restricted to the particular context of re-possession cases involving disabled people. However, on the assumption that those principles were of general application in all housing cases involving disabled people, the Judge was “wholly satisfied” that the service of the notice was a proportionate form of discriminatory treatment even giving due weight to the fact that Ms Fisher was disabled.
The Judge held that service of the notice was “a last resort when all else had failed despite the Council’s very considerable efforts over a period of time”. He held that the council had significantly delayed service of an abatement notice in an attempt to find an alternative resolution, and had balanced the rights of Ms Fisher and against the rights of her neighbours, who had suffered a continuous statutory nuisance for over 12 months.
Given a lack of engagement from Ms Fisher in relation to an alternative remedy, the Judge found that the service of a notice was “a necessary first step in solving what had been a long running and serious issue which has caused a lot of distress and upset to a number of people, whose lives have been significantly impacted by the Claimant’s behaviour”.
Under the authority of The Barns (NE) Ltd v. Newcastle City Council  EWCA Civ 1274 the notice was a mandatory initial step for the three subsequent remedies provided for by EPA 1990, which includes an application for a High Court injunction to abate the nuisance.
The recent case of London and Quadrant Housing Trust v. Patrick  HLR 3 contained a useful summary of the factors relevant to PSED.
The Judge found that the council had complied with its PSED. It had “explored every viable option before concluding that service of the Notice was necessary as a precursor not to criminal proceedings but to High Court civil injunctive relief”.
Contrary to the Ms Fisher’s submission the council treated this “just like any other ‘noise nuisance’ case”, the Judge found that the council “was faced with the very difficult situation of a disabled person who could not help her disability, but who had the capacity to, and did, decline to cooperate with those who had a statutory duty to deal with the nuisance which that disability was causing to others”. The Judge considered that the council “got the balance of its duties entirely right”.
The Judge found that the council had acted in “a very careful, step by step fashion”, right from when it first became aware of Ms Fisher and the problems she was causing. It realised from the outset that Ms Fisher health issues and it acted “sensitively and intelligently”. It involved other agencies and involved other agencies as well as various of its own services; it sought to meet and discuss a way forward with the claimant; it sought medical evidence and engaged with her treating medical staff. The officers involved had many discussions and took legal advice where necessary. The Judge found that the council did not rush into enforcement action, and his judgment “the very opposite was the case”
The Judge rejected a submission that there was a failure to adequately record the steps taken to fulfil the PSED. Whilst there was no specific one document (as was often seen) recording a specific PSED assessment, he held there was in evidence “a welter of contemporaneous material showing what the Council did and why it did and when”, and there was “no ambiguity about the evidential picture which causes me to doubt that the relevant officers had their statutory duties in mind at all times and had due regard to relevant matters”.
Human Rights and Irrationality
Ms Fisher’s challenges on human rights and irrationality grounds also failed. The Judge did not consider it necessary to deal with the council’s submission on the human rights challenge that the mandatory nature of the duty of to serve an abatement notice (which was not accepted by Ms Fisher) meant that section 6(2) of the Human Rights Act 1998 was engaged.
Adequate alternative remedy
Jefford J. had granted Ms Fisher permission to bring the claim at an oral hearing on 15 October 2019. She expressly left open the argument the question whether the claim should be refused on grounds that that Ms Fisher has an adequate alternative remedy in the form of her statutory appeal to the magistrates’ court (which appeal was stayed pending the outcome of the judicial review claim).
I was instructed by the council following the grant of permission, and sought at the hearing to argue on behalf of the council that Ms. Fisher had an adequate alternative remedy, in that she could pursue all of her 4 grounds of appeal before the magistrates’ court .
The leading authority on adequate alternative remedy in the statutory nuisance context is R. v. Falmouth and Truro Port Health Authority ex parte South West Water Limited  QB 445, and significant reliance was placed by the Judge on the judgments of Simon Brown and Pill LJJ in that case.
In the event, the Julian Knowles J. decided that even if the council was right that the 4 grounds of challenge could be raised on the statutory appeal, he was clear that it was appropriate for him, in the exercise of his discretion, to rule upon them now, for not to do so “would simply delay the final resolution of this troubling case” .
The Judge agreed with the council that grounds 3 and 4 could be argued as grounds of appeal in the statutory appeal process  under regulation 2(2)(b) of the Statutory Nuisance (Appeals) Regulations “that there has been some informality, defect or error in, or in connection with the abatement notice”.
The Judge considered that there were “arguments either way” in relation to ground 1, and it was “uncertain” in relation to this ground and ground 2. Whilst he acknowledged “the force of Mr Holland’s submission” that regulation 2(2)(b) was broad enough, he was concerned by the provisions of ss.113-114 EA 2010, which Ms Fisher asserted meant disability discrimination and PSED arguments had to be dealt with either by the county court or on judicial review. The Judge found that the “short answer to Mr Holland’s complex arguments as set out in his Skeleton Argument and Detailed Grounds about the Scope of the Appeal Regulations” was to exercise his discretion not to refuse the claim on the grounds of alternative remedy.
For the reasons given by the Judge, his judgment did not grapple in any detail with the council’s submissions on the jurisdiction point.
The main thrust of the council’s case on this issue was as follows.
S.113(1) EA 2010 provides that “Proceedings relating to a contravention of this Act must be brought in accordance with this Part”. S.114(1) provides that “The county court … has jurisdiction to determine a claim relating to (a) a contravention of Part 3 (services and public functions….”. Part 3 of EA 2010 contains ss.15 and 29 (the prohibitions on discrimination relied upon by Ms. Fisher). S.113(3)(a) carves out “a claim for judicial review” from the provisions of s.113(1).
It was accepted by the council that if Ms. Fisher had a claim relating to a contravention of Part 3, she must bring it in the county court or by way of judicial review (meaning a CPR Part 54 claim). This is the clear effect of ss.113(1), 114(1)(a) and s.113(3)(a) (as interpreted in Hamnett v. Essex County Council  1 W.L.R. 115).
However, the council’s position was that if a s.80(3) appeal which includes process challenges founded on alleged breaches of Part 3 of EA 2010 was within “Proceedings relating to a contravention of [EA 2010], then a determination of that appeal would not be a “determination of a claim relating to a contravention of Part 3” within the meaning of s.114(1)(a) EA 2010. On the contrary, it would be the determination of an appeal
The distinction between the wording of s.113(1) and s.114(1) is not one that the courts dealt with either in Hamnett (which was a decision on a point which had become academic by the time of the Court of Appeal’s obiter discussion) and in the case that followed it, Adesotu v. Lewisham LBC  1 W.L.R. 5637.
Further, an assertion that there has been non-compliance with PSED is not bitten by s.114: as was recognised by May J. in Summers v. Richmond upon Thames London Borough Council  1 W.L.R. 782.
It understandable that the Judge exercised his discretion in the way he did; but it is perhaps unfortunate that this important jurisdictional issue therefore fell by the wayside.
It seems absurd that those who wish to take discrimination points within statutory appeals are - on the face of Hamnett and Adestou - debarred from doing so, instead having to pursue those points by judicial review. The answer to this absurdity remains, in my view, that s.114(1) only encompasses the determination of claims and not the determination of appeals. This is an argument that will have to await another case.
Remote hearing lessons
The claim was heard remotely on Skype for Business, having been listed before the COVID-19 pandemic for an in-person hearing.
Counsel for the parties actively co-operated with each other to agree necessary amendments to the directions, compile eBundles and to take all other steps to ensure that the hearing could proceed albeit remotely. All legal representatives joined a Microsoft Teams “Team”, with without prejudice status, in order that these steps could be easily facilitated. The Microsoft Teams platform (hosted by Trinity Chambers, of which I and junior counsel for Ms Fisher, Alice Richardson, are members of) enabled collaborative working on matters such as eBundle indexes.
At the helpful suggestion of Counsel for the Claimant, a technical run through took place the day before the hearing. This was invaluable, because it revealed an incompatibility with Skype for Business (a platform which is in the course of being phased out) and OS Catalina, where the user’s microphone was not recognised, which required significant IT support to resolve.
Although the eBundles prepared by the parties were bookmarked and hyperlinked, these enhancements could not be used by all participants due software limitations. A pre-meeting where all participants attend to consider eBundle as well as video conferencing software would be good future practice.
For use during the course of the hearing, various WhatsApp groups were set up to function as conference “rooms” and a “corridor” for counsel-to-counsel discussion. I received the invaluable assistance of a pupil at Trinity Chambers, Jack Cottrell, who was able to use a “Defendant’s representative” channel on Microsoft Teams to host hearing notes.
This appears to have been the first reported decision of the interface between the statutory nuisance regime in EPA 1990 and the disability discrimination legislation in EA 2020. It is quite plain that EA 2020 is engaged where the originator of a statutory nuisance is disabled, and the careful approach adopted by the council constituted a recognition of this.
It is unfortunate that the jurisdictional issues caused by EA 2020 resulted in a significant delay in the matter coming to Court - the notice was served in November 2018, with ongoing nuisance in the meantime. Hopefully the issue caused by the Hamnett line of authority can be resolved at some future point in favour of keeping all matters before the summary procedure in the magistrates.
Local authorities engaged in the difficult and unenviable task of balancing the competing rights of disabled persons and their neighbours (some of whom in this case were also disabled) would be well advised to adopt the sensitive and intelligent approach to disability that the council did in the instant case, and to carefully record and document all steps taken. However unpalatable the headline decision in this case might have appeared at first glance, it was the careful presentation of the significant chronology of background events that persuaded the Judge that the decision was not unlawful on any public law grounds.