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 Env LR 622 :  EHLR 359, Administrative Court - John Bates
A smoke nuisance under s.79(b) Environmental Protection Act 1990, could include the smell of smoke.
Appeal by way of case stated from a decision of a recorder and magistrates, sitting in the Crown Court at Cardiff, dismissing the applicant's appeal from a decision of the magistrates. The magistrates fined the applicant for failure to comply with the prohibition imposed by an abatement notice under s.80 Environmental Protection Act 1990, requiring the applicant to abate a statutory nuisance. The statutory nuisance was identified in the notice as the periodic burning of animal carcass remains within the applicant's property, giving rise to a smoke nuisance. It required the applicant to either cease the burning unless reasonable and adequate steps could be taken to have due regard to wind direction and direct supervision at all times of the fire, so as to prevent a nuisance being caused to occupants of the immediate neighbouring property, or to make suitable alternative arrangements for the final disposal of the carcasses. The main issues raised by the appeal were as follows. (1) Whether the abatement notice was invalid due to ambiguity. The applicant submitted that the prohibition was not absolute but permitted burning as outlined above and that the wording begged the question as to what were reasonable and adequate steps and what was due regard. (2) Whether the court applied the wrong definition of "smoke", as the applicant claimed that any smoke which passed over the neighbouring property was at too high a level to cause a nuisance. There might have been a smell but the nuisance identified in the notice was a "smoke nuisance" and not a nuisance arising from smell. (3) What level of costs was to be paid by the unsuccessful appellant to the Crown Court.
HELD: (1) Abatement notices which merely required the recipient to abate the identified nuisance did not have to be specific as to the works required (Millard v Wastall (1898) 1 QB 342; McGillivray v Stephenson (1951) All ER 942; Budd v Colchester Borough Council (1999) Env LR 739). The notice was not invalid for ambiguity. (2) For the purposes of s.79(b) of the Act (smoke emitted from premises so as to be prejudicial to health or a nuisance constituted a statutory nuisance), smoke could include a smell. The Crown Court heard evidence that it was possible to detect the smell when nothing could be seen with the naked eye. The court was entitled to accept that evidence. (3) The legal aid scale fees payable to solicitors and counsel were a useful marker as to the fees that it would be reasonable to expect an unsuccessful appellant to pay. It had not been necessary for the respondent to instruct specialist counsel and the excess amount should not be reimbursed. A balance had to be drawn between the fact that an unsuccessful appellant had put the prosecutor to avoidable expense and not penalising such an appellant for exercising his statutory right to appeal. The court altered the costs awarded in the Crown Court accordingly.
Appeal on issues (1) and (2) dismissed. Appeal on issue (3) allowed.