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RICHARD GRIFFITHS v. PEMBROKESHIRE COUNTY COUNCIL [2000] EWHC Admin 319 (31st March, 2000)
Case No: CO/4941/1999
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 31st March 2000
B e f o r e :
LORD JUSTICE KENNEDY
and
MR JUSTICE BUTTERFIELD
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|
RICHARD
GRIFFITHS
|
Applicant
|
|
-
and -
|
|
|
PEMBROKESHIRE
COUNTY COUNCIL
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Richard Griffiths appeared in person
John Bates (instructed by Pembrokeshire Legal Dept. appeared for the
respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
1. This is an appeal by way of Case Stated from a decision of a Recorder and
Justices, sitting in the Crown Court at Cardiff on appeal from a decision of
Justices for the County of Pembrokeshire.
2 Facts
At all material times the appellant occupied a property known as "Banc-Saeson"
at Llandewi Velfrey in Pembrokeshire. A neighbouring property called
"Trelawney" was occupied by Mr and Mrs Williams. Although not set out in the
Case Stated, it appears from the respondent's skeleton argument that the
appellant kept a pack of hounds which were fed with animal carcasses. Bones
and other residue which were left over were then from time to time burnt,
together with bedding used by the hounds, in the rear yard of the appellant's
premises. As a result Mr and Mrs Williams complained to the County Council
who, being satisfied of the likely recurrence of a statutory nuisance under
Section 79(1)(b) of The Environmental Protection Act 1990, on 6th
February 1997 served an Abatement Notice pursuant to Section 80 of that Act.
The relevant parts of those statutory provisions read as follows:-
Section 79(1). "The following matters constitute "statutory nuisances"
... that is to say-
(b) smoke emitted from premises so as to be prejudicial to health or a
nuisance;
(c) fumes or gases emitted from premises so as to be prejudicial to health or a
nuisance;
(d) Any dust, steam, smell or other effluvia arising on industrial, trade or
business premises and being prejudicial to health or a nuisance;
(7).......
"fumes" means any airborne solid matter smaller than dust;
"gas" includes vapour and moisture precipitated from vapour;
"smoke" includes soot, ash, grit and gritty particles emitted in smoke.
Section 80(1) Where a local authority is satisfied that a statutory
nuisance exists, or is likely to occur or recur, in the area of the authority,
the Local Authority shall serve a notice ("an Abatement Notice") imposing all
or any of the following requirements -
(a) requiring the abatement of the nuisance or prohibiting or restricting its
occurrence or recurrence;
(b) requiring the execution of such works, and the taking of such other steps,
as may be necessary for any of those purposes,
and the Notice shall specify the time or times within which the requirements of
the notice are to be complied with.
(4) If a person on whom an Abatement Notice is served, without reasonable
excuse, contravenes or fails to comply with any requirement or prohibition
imposed by the notice, he shall be guilty of an offence.
The Abatement Notice which was served in this case identified the statutory
nuisance as arising from:-
"The periodic burning of animal carcase remains within the rear yard of
`Bancsaeson', giving rise to a smoke nuisance, to the occupants of the
neighbouring property."
It required the appellant, as the person responsible for the nuisance and the
occupier of the premises, to abate the nuisance and to prohibit the recurrence,
and for that purpose it required the appellant to have regard to the schedule
of the notice which reads as follows:-
"Schedule of Works: 6th February 1997.
1. Cease the burning of animal carcases within the curtilage of the said
property, unless reasonable and adequate steps can be taken to have due regard
to wind direction and direct supervision at all times of the fire whilst lit,
so as to prevent a nuisance being caused to occupants of the immediate
neighbouring property.
OR
2. Make suitable alternative arrangements for the final disposal of the
carcases by means of -
(a) collection by an approved renderer
(b) proper burial
(c) incineration within a purpose designed plant".
There is a footnote to paragraph 2 which for present purposes is of no
relevance.
It was the respondent's case that on three occasions, namely on 10th August
1997, 20th and 21st August 1997, and on 9th September 1997, the appellants did,
without reasonable excuse, contravene or fail to comply with the prohibition
imposed by the Abatement Notice. In October and November 1997, three summonses
were issued, and on 30th March 1998 in the Magistrates Court at
Tenby, the appellant was convicted of all three offences. He was fined
£300 for each offence, and ordered to pay the respondent's costs in the
sum of £675. His appeal to the Crown Court was heard in June and July
1999 and was dismissed. He was ordered to pay £6,000 towards the cost of
the prosecution. Six questions are now posed for our consideration.
3. Question 1:
Was the Enforcement (sic) Notice invalid due to ambiguity?
Mr Griffiths, who appeared before us on his own behalf, and who conducted his
case with care and moderation, submitted that the Abatement Notice was invalid
because it was imprecise. If it had simply forbidden the burning of animal
carcasses, that would have been clear, but the prohibition was not absolute.
It permitted burning if "reasonable and adequate steps can be taken to have due
regard to wind direction and direct supervision at all times of the fire whilst
lit, so as to prevent a nuisance being caused to occupants of the immediate
neighbouring property". The wording, as Mr Griffiths submits, does rather beg
the question as to what are reasonable and adequate steps, and what is due
regard. However, a distinction does have to be drawn between Abatement Notices
which require works to be done and those which merely require the recipient to
abate the identified nuisance. Notices which require works to be done must be
specific as to the works required (see Stirling Homes v Birmingham City
Council [1995] ENV.LR.121 and Kirklees MBC v Field, Times 26th
November 1997). Those in the latter category need not be similarly specific
(see Millard v Wastall (1898) 1 QB 342). In McGillivray v Stephenson
(1951) All E.R. 942, a local authority alleged that a landowner was keeping
pigs in such a way as to create a nuisance, and served on him a notice
requiring him to abate the nuisance, and "for that purpose to remove the whole
of the pigs from the premises, clean up the effect of their past presence and
cease for the future to allow the premises to be used for pig keeping at all".
When the landowner failed to comply with the notice, the Justices dismissed the
summons on the ground that the Abatement Notice wrongly required the landowner
to abate the nuisance in a specific manner, but this court allowed the appeal,
saying that the operative part of the notice was the request to abate the
nuisance, and the steps indicating how the nuisance might be abated were merely
surplusage. As Lord Goddard C.J. pointed out at 944G, the Justices once they
found a nuisance did not have to follow the Abatement Notice. They could "lay
down any particular steps which in their opinion were required for the
abatement of the nuisance, and to prohibit its recurrence, and if to comply
with the order abating the nuisance, the respondent has to cease keeping pigs,
that is a matter for him." That decision was followed by this court, and by
the Court of Appeal in Budd v Colchester B.C [1999] EHLR 347, a barking
dog case, and that line of authority does seem to me to be fatal to the
appellant's submissions in relation to this part of the case.
The appellant also invited our attention to the word "periodic" which appears
in that part of the Abatement Notice which identifies the nuisance. I confess
I found it a little difficult to understand what his complaint was in relation
to that word. If burning took place as alleged it was plainly, as it seems to
me, periodic.
As Mr Bates, for the respondent, concedes, the Abatement Notice could have
been better worded, but it was not in my judgment invalid due to ambiguity,
and, more important, it formed an adequate basis for a criminal prosecution. I
would therefore answer the first question posed in the negative.
4. Question 2:
Did the court apply the wrong definition of "smoke"?
The appellant's submission, as reflected in the Case Stated, was that any
smoke which passed over the neighbouring property was at too high a level to
cause a nuisance. There may have been a smell, but the nuisance identified in
the Abatement Notice was a "smoke nuisance", and not a nuisance arising from
smell.
"Smoke" is defined in Section 79(7) of the 1990 Act as including soot, ash,
grit and gritty particles emitted in smoke. Smoke itself has a primary
dictionary meaning of "the visible volatile product given off by burning or
smouldering substance", but in common parlance it can also be applied to the
smell of smoke, and the Crown Court heard evidence that it was possible to
detect the smell when nothing can be seen with the naked eye. The court
accepted that evidence and in my judgment it was entitled to do so.
I accept, as the appellant pointed out, that the Abatement Notice, and thus
the summons, was framed by reference to Section 79(b) rather than Section 79(c)
or (d), but if I am right as to what can amount to smoke for the purposes of
Section 79(1)(b), then there can be no complaint about that.
In my judgment the court did not apply the wrong definition of smoke, and so
the second question posed should be answered in the negative.
5. Question 3:
Where the court's certain findings on the evidence such that no reasonable
court could have so found?
On reflection, and in my judgment rightly, the appellant did not pursue his
submissions in relation to this aspect of the case. The fact is that there was
evidence to support the findings of the court. It was evidence which, in the
submission of the appellant, should not have been accepted, but as he
recognised we in this court cannot enter into that arena. It is for the court
which hears the evidence and sees the witnesses to decide what evidence it will
accept. Accordingly the third question posed, must be answered in the
negative.
6. Question 4:
Was the court wrong to curtail cross-examination of prosecution witnesses
with respect to bias?
The appellant contended that, having been enlisted by Mr and Mrs Williams,
the staff of the Environmental Health Department of the respondent Authority
was biased against him. He cross examined Mr Watts, the Senior Officer of that
department who gave evidence, about previous abortive attempts to prosecute
him, and the action taken in relation to a pig. It is, we understand, this
line of cross examination which is said to have been improperly curtailed.
But, as was pointed out during the course of argument before us, the Crown
Court was only concerned with the validity of the Abatement Notice and whether
on three specified occasions the conduct of the appellant amounted to a breach.
As to those matters, Mr Watts could give no relevant evidence. His evidence
dealt only with the service of documents. Before us, the appellant submitted
that if Mr Watts could be shown to have been biased against him, the court
would then have been able to infer that his bias infected his junior officers,
Mr Brown and Mr Closman. In my judgment that cannot amount to a satisfactory
justification for cross-examination of Mr Watts as to bias, and the Recorder
was plainly right to curtail such cross-examination, as apparently he did.
According to the Case Stated, the appellant's own evidence was not curtailed,
and he was permitted to cross examine "at reasonable length". No one in his
position could reasonably ask for more. It is, however, worth noting that the
Crown Court found that Mr Brown was not biased, and the court accepted the
evidence of Mr Closman. Question 4 must therefore be answered in the
negative.
7. Question 5:
Was the court wrong to allow the case to proceed when the prosecution have
failed to comply with the orders of their Honours Judges Masterman and Crowther
for disclosure of a press release issued after the hearing in the lower court
on 30th March 1998?
The background to this question is that at about the time of the hearing in
the Magistrates Court there was apparently a press release. The appellant was
concerned about it and on 16th April 1999 obtained an order from
Judge Masterman. That order was understood by the respondent to be an order
for the disclosure of any press release issued by the respondent prior to the
hearing in the Magistrates Court. Enquiries were made of the Public Relations
Officer who was the sole vehicle for all press releases, and those enquiries
revealed no evidence of any such release. On 19th April 1999 Judge Crowther
ordered disclosure of any press report issued after the trial in the
Magistrates Court. Again enquiries revealed no evidence of any press release,
but information had been provided to the press by telephone. The appellant
contended that Mr Marks, the solicitor for the respondent who made the
enquiries ordered by the two judges, was disingenuous as to the contents of the
first order, and should have searched more widely, but the Crown Court
apparently found, as it was entitled to find, having heard evidence from Mr
Marks, that the judicial orders had been complied with. In those
circumstances, Question 5 is difficult to understand, but, in any event, all
that the appellant was seeking from the press releases, as he admitted to us,
was further evidence of bias which, as I have indicated, was at best peripheral
to the issues before the court. Even if there had been non-compliance with the
judicial orders, that could not possibly have amounted to a satisfactory reason
for refusing to allow the case to proceed.
8. Question 6:
Was the order as to costs erroneous?
This question refers only to the order made by the Crown Court. On 10th June
1999, the eve of the first day of the hearing, the respondent served on the
appellant a schedule of costs. That schedule was updated on 30th June and
again on 1st July. The total claimed is said in the Case Stated to have been
£8,606.90. I believe it to have been £8,546.90, made up as
follows:
(1) Counsel £4,946.50
(2) Solicitor £2,839.50
(3) Investigating Officers £450.00
(4) Witness and other expenses £310.90
8,546.90
The Crown Court disallowed counsel fees up to and including 19th April 1999
(£446.50) and reduced the brief fee from £2,000 to £1250. The
refreshers were also reduced from £1250 per day to £625 per day. The
result was to reduce counsel's fees overall to £2,500. The solicitors
costs were also reduced by £140, so the total was reduced by £2586.50
to £5,960.40. No doubt because of the difference in its starting point,
the court found that figure to be slightly in excess of £6,000 and ordered
the appellant to pay that sum towards the respondent's costs of the appeal.
As Mr Bates rightly points out, Section 18(1)(b) of the Prosecution of
Offences Act 1985 enables the Crown Court, when it dismisses an appeal against
conviction, to make such order as to the costs to be paid by the accused to the
prosecution as it considers just and reasonable, but how is the court to decide
what is just and reasonable? In the Crown Court the appellant complained of
costs incurred by the respondent instructing counsel who had to withdraw (hence
the Crown Court's deletion of £446.50), inflated counsel's fees, charges
for what he described as witness coaching, and costs incurred by withholding
information. He does not seem to have drawn the attention of the court to the
scale fees payable to solicitors and counsel whose clients are legally aided,
or to the decision of this court in R v Northallerton Magistrates Court, ex
parte Dove, Times 17th June 1999. A solicitor acting for a legally aided
client in the Crown Court would be entitled to £45 per hour for
preparation, £34 per hour for attendance at court, and £24.75 per
hour for travelling and waiting time. In this case, all preparation time,
hours at court and travelling time (a total of 34 hours and 5 minutes as scaled
down by the Crown Court), was claimed at £70 per hour. The distinctions
made are not such as to make detailed recalculation possible, but if the hourly
rate were halved, that would reduce the bill by £1190. Similarly with
counsel's fees. Acting for a legally aided client, junior counsel on an appeal
to the Crown Court could expect to receive £210 as the basic fee, plus a
maximum of £178.75 for each full day as a refresher fee, a total for a
three day case of £567.50, as opposed to the £2,500 allowed by the
Crown Court after adjustment. The respondents chose to instruct specialist
counsel. That was their privilege, but the case did not demand it, and there
is in my judgment no reason why the unsuccessful appellant should have to
reimburse the respondents for the fees that the respondents choose to agree. I
regard 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. Applying that approach to this case, the immediate result is
to reduce the total claimable costs to £2,837.90 without any analysis of
the claims in respect of the investigating officers, and witness and other
expenses.
I turn now to the case of Dove. In that case, which concerned an order
for costs made in the Magistrates Court, the Lord Chief Justice reviewed a
number of earlier cases concerned with costs and set out certain conclusions.
One of the conclusions to which our attention was drawn by the appellant
contains these words:-
"The costs ordered to be paid should not in the ordinary way be grossly
disproportionate to the fine."
But the immediately preceding conclusion contains this sentence;-
"Where the defendant has by his conduct put the prosecutor to avoidable
expense, he may, subject to his means, be ordered to pay some or all of that
sum to the prosecutor."
It can, in my judgment, be cogently argued that when a defendant appeals
against conviction and his appeal fails, he has put the prosecutor (and thus in
a case such as this, council taxpayers) to avoidable expense, and, subject to
his means, he should bear the whole of the prosecutor's reasonable costs of
resisting the appeal. I see no reason for making any link between the penalty
imposed in the lower court and the costs ordered to be paid on appeal. That
said, if the costs claimed on appeal are far in excess of those awarded in the
lower court an independent bystander might well conclude that the unsuccessful
applicant was being punished for having chosen to exercise his statutory right
to appeal, so a balance has to be struck. In my judgment a proper result in
this case would have been an order for the appellant to pay £2,000 towards
the respondent's costs in the Crown Court. It follows that, in my judgment,
the sixth question should be answered in the affirmative and the order made in
the Crown Court in respect of costs should be altered in the way that I have
indicated. To that extent, this appeal succeeds.
9. Costs in this Court
The appeal having succeeded only to the extent indicated, there will be no
order for costs in this court. If the appellant had been entirely successful
he would, as agreed, have been entitled to recover his costs from central
funds.
Mr Justice Butterfield: I agree.
© 2000 Crown Copyright
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