Environmental Law News Update

May 13, 2024

In this latest Environmental Law News Update, James Harrison and Samuel Glanville consider restrictions on the powers of Local Authorities and Natural England.

Court of Appeal holds there is no power for local authorities to vary abatement notices

On 29 April 2024, the judgment of Coulson LJ was handed down in Ball v Hinckley & Bosworth Council [2024] EWCA Civ 433 wherein he held that a local authority had no power to vary an abatement notice that it had issued against a statutory nuisance under s.80 of the Environmental Protection Act 1980. [1]

The case concerned the emission of noise from Mallory Park Circuit, the level of which was restricted pursuant to an abatement notice issued in 2014, which had been varied subsequently in 2015, 2017, 2018, and 2021, purportedly in accordance with the terms of a schedule attached to the notice. On 1 December 2021, the operator of Mallory Park Circuit sought five further variations, three of which were agreed by the local authority Respondent on 31 March 2022. That decision to vary the abatement notice was judicially reviewed by a local resident, Gary Ball. In the High Court ([2023] EWHC 1922 (Admin)), Eyre J determined, principally by reference to R v Bristol City Council ex parte Everett [1990] 1 WLR 1170, that there was an implied power on the part of the local authority to vary an abatement notice.

The Judgment of Coulson LJ, which found in favour of the Appellant on each ground, stands to impact the way in which local authorities police ongoing nuisance issues.

First, the statutory regime was interpreted such that abatement notices should be understood to be a “one-off event” and that if subsequent inspection, which should happen “from time to time”, discovers the character of a nuisance has changed then the correct course would be to withdraw a notice and serve a fresh one. It was confirmed that the interpretation of Everett so far as it allowed for a power of withdrawal of a notice by necessary implication was correct, but that to view variation as a lesser form of withdrawal rather than an entirely different power was wrong. Second, it is not the responsibility of local authorities to assess whether the recipient of an abatement notice has a ‘best practicable means’ defence.

In some ways, the work of a local authority is therefore simplified: identify a nuisance and serve an appropriate notice. However, one of the questions raised by the Respondent was whether this simplification removes flexibility from the system. It certainly means that issues with live abatement notices cannot be addressed by agreed variations between a local authority and subjects of notices. However, Coulson LJ assessed that, in practical terms, the withdrawal of a notice and the issuing of a new one would not be substantially more work than varying that same notice, but would achieve the same end. Moreover, one hopes that parties may still bring a collaborative or practical approach to tackling nuisance issues when it comes to drafting the terms of any notice.

In part, Coulson LJ narrowly interpreted the power to vary an abatement notice because an implied power to vary “would have to be part and parcel of a whole raft of implied provisions dealing with notice, consultation, time for appeal” (at [111]). This was an unattractive proposition when one considers that alongside the powers in s.80 are those that permit individuals to challenge nuisance in their own right. Considering an example, it is unclear what would happen if a member of the public brought a challenge under s.82 only to find that the noise they complained of had been permitted by an earlier variation of a notice made under s.80. The need for protection of the environment and of the public, which Coulson LJ identified as principal purposes of the relevant statutory regime was, in his view, best served by this narrow interpretation.

Can abatement notices be varied in future? This power now resides solely with the Magistrates’ Court pursuant to the Statutory Nuisance (Appeals) Regulations 1995. Under regulation 2(5)(b), within 21 days of an abatement notice being made, the subject of the order may appeal, and the Magistrates’ Court may vary the abatement notice in favour of the appellant “in such manner as it thinks fit”.

Time will tell as to what practical impact this has, i.e., whether it serves to compound a backlog of cases in the criminal justice system should more cases be appealed to the Magistrates’ Court, but for now at least it clarifies a point of law on which there is no other direct authority and it simplifies the work of local authorities.

Gordon Wignall appeared in these proceedings on behalf of the Respondent


Natural England v Andrew Cooper [2024] EWHC 625 (KB)

The Defendant is a tenant farmer of land owned by the National Trust. On this land are numerous flint tool artefact scatters dating from the Mesolithic period and a number of concrete dummy pillboxes built by the US Army in preparation for D-Day.  Natural England sought injunctive relief in order to protect those features.


The Defendant had initially applied for a screening decision under the Environment Impact Assessment (Agriculture) (England) (No. 2) Regulations, SI 2006/2522 (“the 2006 Regulations”) as he wished to cultivate the land. Natural England’s decision was that the Defendant required its permission to undertake the works he envisaged. However, without this permission, the Defendant proceeded to plough the relevant land. The Defendant was subject to a number of notices issued under the 2006 regulations, including a stop notice, before he was convicted (following a guilty plea) of failing to comply with a stop notice. Following conviction, the Defendant continued to plough some of the land to which the stop notice applied. Natural England therefore brought a civil claim seeking injunctive relief as the specific powers so far utilised by Natural England had been ineffective.

Section 13 NERCA

The Claimant, Natural England, argued that it had the incidental power to bring a civil claim under section 13(1) of Natural Environment and Rural Communities Act 2006 (“NERCA”), which provides that “Natural England may do anything that appears to it to be conducive or incidental to the discharge of its functions.” HHJ Russen KC decided that the functions held within s.13(1) refer to the means (exercise of functions) rather than the end (the general purpose of Natural England) (at [258]). The power to bring civil proceedings could not be regarded as a corollary to any of the other functions specified in NERCA (at [246]), for example the power to bring criminal proceedings under s.12. The civil proceedings were properly regarded as consequential and distinct from the failure of the prosecution to achieve its purpose of stopping the Defendant (at [266]).

2006 Regulations

The “more difficult” question for the court was whether the 2006 Regulations supported the claim for injunctive relief (at [268]). The court rejected the Claimant’s submission that a power to sue for injunctive relief must be regarded as incidental to the function of serving stop notices in circumstances where the stop notice had been ineffective in deterring the defendant from carrying on with his activities (at [269]). The court considered that the power sought was not conducive or incidental to functions discharged under the 2006 Regulations when the regulations already contain specific functions to be used by Natural England – making of screening decisions, the giving of consent, the serving of stop and remediation notices – and also an exhaustive range of consequences for those seeking to frustrate the consequences of Natural England exercising those functions (at [271]).

A relator action

HHJ Russen KC observed that a lack of standing would not prevent Natural England from seeking injunctive relief. Instead, Natural England could seek relief by asking the Attorney-General to lend her name to a relator action (as illustrated by AG v Chaudry [1971]] 1 WLR 1614, at 1624D) (at [281]).

This case is a reminder that even when frustrated by the actions of an individual who refuses to abide by its exercise of statutory powers a relevant authority must be careful not to exercise powers which are not within its remit.