STATUTORY NUISANCE ABATEMENT NOTICES MUST BE CLEAR ON THEIR FACE

Basingstoke and Dean Borough Council v ThyssenKrupp Palmers Ltd (31 January 2011, Basingstoke Magistrates Court).

Statutory abatement notices whose contravention is a criminal offence must be sufficiently clear on their face to found a criminal prosecution.  They cannot be construed with the aid of extrinsic evidence in order to resolve ambiguities. 

Gregory Jones successfully represented the defendants, ThyssenKrupp Palmers Ltd, in a prosecution under section 80(4) of the Environmental Protection Act 1990 for failure to comply with a statutory nuisance abatement notice which required them to stop causing noise nuisance "at nearby premises".  The prosecution alleged that it was clear from the Council's previous correspondence with the defendants which premises were alluded to in the notice.  District Judge Gillibrand held that he was bound to follow the High Court decision in Sterling Homes(Midlands) Ltd v Birmingham City Council [1996] Env. L.R. 121, QBD, in which it had been held that nuisance abatement notices must be sufficiently clear to found a criminal prosecution.  Sterling Homes was decided by reference to Upjohn LJ's judgment in Miller-Mead v Minister for Housing and Local Government [1962] 2 QB 196, in which His Lordship had stated with reference to a planning enforcement notice that "I must protest in strong terms against looking at any document except the enforcement notice... the subject ...is entitled to say that he must find out from within the four corners of the document exactly what he is required to do or abstain from doing. For this is the prelude to a possible penal procedure."  Applying this principle, District Judge Gillibrand ruled that "‘Nearby premises' by itself is meaningless and quite unspecific, and certainly an insufficient basis on which to found a criminal conviction".