Environmental briefing - January 2010
WHEN IS A “STEP” NOT A “STEP?”
When drafting abatement notices, it is vital that regulators make the right choice of words so as to avoid serving notices which are held to be invalid because they fail to comply with the current case law.
In a recent case in Wrexham Magistrates’ Court, Freeth Cartwright LLP defeated an abatement notice served by Wrexham County Borough Council on a defendant under s. 80 (1) of the Environmental Protection Act 1990, on the ground that the Council apprehended that a statutory nuisance was likely to occur as a result of smoke originating from the defendant’s premises.
Freeth’s relied on the case of Elvington Park Ltd. v City of York Council [2009] EWHC 1805, in support of their argument that the abatement notice was deficient in failing to specify the steps which the defendant had to take in order to avoid being in breach of the abatement notice and thereby incurring criminal sanctions.
The facts were that the defendant was a trained forester, who was trying to establish a woodland enterprise and forestry management scheme in woodland adjoining the banks of the River Dee between Wrexham and Chirk, in North Wales.
As part of that enterprise, he undertook during the spring and summer of 2009, charcoal burning activities using a large open traditional charcoal kiln. This involved the wood within the kiln being ignited while being exposed to the open air, after which the kiln is covered and left to burn without air for 24-36 hours. In the initial stages of the open air burn, the burning wood can produce copious amounts of smoke and water vapour, depending on the moisture content of the wood being used. The defendant generally operated this kiln at night, in order to minimise any likelihood of complaints from his neighbours.
In addition, the defendant operated a gasification kiln, which burned wood in an enclosed container, with gases being redirected to the fire, so that very little smoke was emitted.
The site adjoined a main road, at the edge of a village, and the location of the charcoal kiln was some distance below the level of the road. There was therefore always the possibility that if all the conditions were right, smoke (including the smell of smoke) could affect the road and the houses nearby.
The defendant’s activities had been the subject of complaints from certain local residents who objected to his activities on site, particularly charcoal burning, and allegations of nuisance were made to the Council.
As a result of those complaints, two officers from the Council attended the site, at the invitation of the defendant, to witness burns carried out in firstly, the gasification kiln, and later, the traditional kiln.
The gasification kiln gave the officers no cause for concern.
However, when the officers witnessed a burn in the traditional kiln, it was alleged by them that they saw a large plume of smoke affecting the road above the site, which, given the proximity of residences, they perceived as likely to give rise to a statutory nuisance.
As a result, they served an abatement notice on the ground that the Council were satisfied that a statutory nuisance was likely to occur.
At a hearing in front of a District Judge at Mold Magistrates’ Court on January 24th, on the preliminary point of validity of the abatement notice, the Council argued that the facts of the Elvington case were distinguishable on their facts, but the judge disagreed, and the abatement notice was struck down as failing to specify the “steps” which were required of the defendant in order for him to know with sufficient clarity what he would have to do to avoid criminal sanctions. In particular, the District Judge commented that the defendant would not know what type or density of smoke was sufficient to constitute a nuisance, and that, consequently, the requirements of the Elvington case had not been met.
There are lessons here for both Councils and defendants - for the former, as to how important it is that abatement notices are framed correctly, and for the latter, not to take notices at their face value as being valid.
Contact : Brian Wake, Manchester Office (0845 634 2604)
