R (Fisher) v Durham County Council - Noise Abatement Notices & the Equality Act 2010
In R (Fisher) v Durham County Council  EWHC 1277 (Admin) Mr Justice Julian Knowles dismissed a claim for judicial review of the defendant authority’s decision to serve a noise abatement notice on a disabled person with an involuntary tic disorder.
Ms Fisher was a retired primary school teacher. Since around 2014 she had suffered with a disorder which causes her to make involuntary sounds and noises, including words/phrases. She was under the care of a consultant neuropsychiatrist and had been referred for treatment.
Since 2016 the Defendant’s Anti-Social Behaviour Interventions Team had been involved with the Claimant following alleged complaints from neighbours that the Claimant’s vocalisations were causing a noise nuisance.
Having sought information from doctors and investigated the noise nuisance on 30th November 2018 the Defendant authority served the Claimant with a Noise Abatement Notice pursuant to s.80 Environmental Protection Act 1990. The Notice required the Claimant to “cease excessive vocalisation/shouting at a level likely to cause a statutory noise nuisance to the residents of Gladstone Terrace…” within 1 hour of service of the notice.
Failure to comply with the notice without reasonable excuse was an offence which, on summary conviction was liable to an unlimited fine together with a further fine for each day on which the offence continued after any conviction.
Ms Fisher sought to quash the notice. Her case was that the service of the notice arose in consequence of her disability; she could not control the vocalisations and the decision to serve the notice was unlawfully discriminatory, a breach of the Public Sector Equality Duty (s.149, Equality Act 2010) and/or irrational in the traditional public law sense.
The Local Authority accepted that Ms Fisher is disabled but contended that their actions were justified owing to their desire to protect the interests of the neighbours.
The authority also contended that Ms Fisher should not be permitted to raise the discrimination issue by way of judicial review, but should pursue the same arguments by way a statutory appeal to the Magistrates’ Court against the notice.
On the question of alternative remedy there was a dispute between the parties as to whether the Magistrates’ Court had jurisdiction to consider the claimant’s disability discrimination argument in a statutory appeal under the Environmental Protection Act 1990.
The Claimant had issued a statutory appeal in the Magistrates’ Court which had been stayed pending the outcome of these proceedings. The authority argued that the Magistrates’ did have jurisdiction and therefore the Claimant had an alternative remedy and the claim should be dismissed on that basis.
By ss.113 and 114, the general position under the EA 2010 is that alleged contraventions of Part 3 of the EA 2010 should be dealt with in the County Court. By s.119 the County Court can grant any remedy which the High Court could grant. There is, however, an exception for claims for judicial review (s.113(3)(a)). The option of applying for judicial review for a breach of the EA 2010 is therefore not shut out. There was no exception conferring similar power or jurisdiction on the Magistrates’ Court. The authority argued that a statutory appeal to the Magistrates’ Court was not caught by ss.113-114 because they were not “proceedings relating to a contravention” of the relevant provisions, and - if they were - did not not involve the determination of a “claim” for breach of Part 3 of the 2010 Act. However, as the Judge noted there were various decisions of the Court of Appeal which tended against such a conclusion (e.g. Hamnett v Essex County Council  1 WLR 1155).
The judge determined that the extent to which the grounds pursued could be raised in the Magistrates’ Court was uncertain. He had a discretion as to whether to proceed even if there was an alternative remedy available and chose to exercise his discretion to do so.
It was common ground that (a) the Claimant was disabled within the meaning of s.6 the Equality Act 2010 and that her vocalisations arose in consequence of that disability; (b) service of the Notice was unfavourable treatment of the Claimant because of something arising in consequence of her disability; and (c) it would be unlawfully discriminatory treatment by virtue of s.15 unless the Council could show that the treatment was a proportionate means of achieving a legitimate aim.
The judge accepted that service of the notice served a legitimate purpose, namely the abatement of a statutory nuisance. There was substantial evidence that the Claimant’s conduct was causing harm and distress to her neighbours.
The test for proportionality under s.15 was authoritatively set out by the Supreme Court in Akerman-Livingstone v Aster Communities Ltd  AC 1399. There were four questions: (a) Was the legitimate aim sufficiently important to justify limiting a fundamental right? (b) Was the decision to serve the Notice rationally connected to the legitimate aim? (c) Were the means chosen no more than is necessary to accomplish the legitimate aim? (d) Is the adverse impact of the infringement of the Claimant’s rights disproportionate to the likely benefit of serving the Notice?
On the first question the legitimate aim of protecting the health and amenity of the Claimant’s neighbours, and the interests of the relevant property owners, all of whom are being seriously harmed in different ways by her behaviour, justified the modest limitation of the Claimant’s fundamental right as to how she lives in her home.
On the second question the judge acknowledged that all agreed that the Claimant was not able, through no fault of her own, to comply with the notice. The Council had ‘more or less accepted that it would not contemplate prosecuting her for breaching it’. But the Judge accepted the Defendant’s submissions that service of the Notice was a necessary precondition before High Court injunctive relief could be sought under the EPA 1990 and that such an injunction would be capable of abating the nuisance.
As to the third question, the judge concluded that no less drastic measures could be used given that service of an abatement notice was a necessary first step in “the only process of ending the nuisance that is likely to be successful”.
Lastly, was the adverse impact of the infringement of the Claimant’s rights disproportionate to the likely benefit of serving the Notice? The judge held that the Notice itself would not have any – or scarcely any - impact on the Claimant who could take reassurance from the authority’s stance in these proceedings that criminal proceedings are most unlikely.
The Claimant has not been the victim of unlawful disability discrimination contrary to s.15.
The Public Sector Equality Duty
For overlapping reasons, the Judge held that the Council did not fail to comply with s.149, the PSED. Whilst the authority had not carried out a PSED assessment the Judge considered the relevant principles, as discussed in Luton Community Housing Limited v Durdana  EWCA 445 etc, and concluded that the authority had, in substance, complied with the PSED.
This ground failed for similar reasons to those given in relation to Ground 1.
Service of the Notice was not absurd or irrational. Although the Council knew that the Claimant would not be able to comply with the Notice, there were other valid reasons for serving it, not least of which the Council concluded that it was a necessary statutory precondition to taking High Court action which it has concluded is the only likely solution to a hitherto intractable problem.
The claim for judicial review failed. The Claimant’s application for permission to appeal was refused and any further application must be made to the Court of Appeal.
Charles Holland heads up Trinity's Licensing Group and is a member of Chambers' Administrative and Public Law and Housing teams. Charles has given his insight into R (Fisher) v Durham County Council  in his blog that can be found here or by visiting his website www.cholland.com
Alice Richardson is a member of Trinity's Administrative and Public Law and Housing teams. She was appointed to the Attorney General's regional panel of counsel in 2018 and the Equality and Human Rights Commission panel of counsel in 2019.
Charles and Alice accept instructions from both public bodies and claimants and can be contacted on 0191 232 1927 or by emailing the clerking team firstname.lastname@example.org