STATUTORY NUISANCE: LAW AND PRACTICE

GRIFFITHS - V-PEMBROKESHIRE COUNTY COUNCIL

Divisional Court, (31 March 2000)

REPORTED AT [2000] Env LR 622

KENNEDY LJ AND BUTTERFIELD J

Facts:

The appellant kept hounds.
He fed them with animal carcasses.
He burnt the residual bones from the carcasses in his back yard.
The council served an abatement notice on the appellant under s.80 EPA 1990. The notice identified the nuisance as the periodic burning of animal carcasses which gave rise to a smoke nuisance.
The notice required him to cease the burning unless "reasonable and adequate steps" were taken to prevent the nuisance, having "due regard" to the wind direction and the supervision of the fire.
The appellant was prosecuted for three separate breaches of the notice.
He was convicted by the justices and his appeal to the crown court was dismissed.

Held

KENNEDY LJ AND BUTTERFIELD J

Allowing the appeal on one ground but dismissing the other two grounds:

An abatement notice did not have to specify the works in circumstances where the notice merely required the recipient to abate the nuisance (Budd v Colchester BC [1999] Env LR 739 applied).

The smell of smoke was included within the statutory definition of smoke in section 79(7)(1)(b) of the EPA 1990. A smoke nuisance was clearly possible where the smell of the smoke was detected although the smoke itself was not visible to the naked eye. The court however accepted that the level of costs paid on appeal to the crown court had been excessive and in that respect only the appeal succeeded.

Authors' Comment: This decision is of note not simply as another example on the correct framing of an abatement notice but also because of the approach adopted to the award of costs. The court regarded "the legal aid scale fees payable to solicitors and counsel as a useful marker as to the fees that it would be reasonable to expect an unsuccessful appellant to pay." (@630)

Return to home page