CO/4789/2007 
Neutral Citation Number: [2007] EWHC 3188 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 6th November 2007
 
B e f o r e:

LORD JUSTICE MOSES 
MR JUSTICE JACKSON 
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Between: 

ALBERT AND JENNIFER MANLEY 
Appellants

v 

NEW FOREST DISTRICT COUNCIL 
Respondent 
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Viscount Dilhorne (instructed by Messrs Steele and Raymonde LLP, Bournemouth BH2 6LR) appeared on behalf of the Appellants 
Mr Meyric Lewis (instructed by New Forest District Council, Appletree Court, Lyndhurst, Hampshire SO43 7PA) appeared on behalf of the Respondent 
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  There are before the court two matters.  Firstly, an application by which the appellants (effectively Mrs Manley) seek an order from this court requiring the Crown Court to amend the case stated and, secondly, an appeal by way of case stated against the decision of the Crown Court, reflected in an approved judgment of His Honour Judge Milligan dated 19th January 2007.
2.	Within a residential area of Southampton, in Hythe, the Manleys own and operate kennels known as the Howling Dog Kennels in which, certainly at the time of the judgment, there were 24 huskies, dogs in pairs.  Mrs Manley and her husband are highly successful in the breeding, showing and racing of Siberian Huskies.  But, as the name of the kennels reveals, the dogs unfortunately make a noise.  There are certain times of day, when spontaneously, what is described as pack howling reaching a level which, as was found as a fact both by the District Judge and by the Crown Court, amounted to a nuisance.
3.	The local authority, the New Forest District Council, served an abatement notice.  Mrs Manley appealed against that notice.  In order to set both the application and the appeal within the proper statutory framework, I should draw attention, firstly, to the section 79 and section 80 of the Environmental Protection Act 1990 ("the 1990 Act").  Section 79 identifies a number of statutory nuisances which fall within those provisions.  There is no dispute but that the noise of which complaint was made falls within the descriptions set out in section 79(1).
4.	By section 80 the local authority, if satisfied that a statutory nuisance exists, is required to serve a notice requiring abatement within a certain period (see section 80(1)).  Such a notice was served in the instant case.
5.	The recipient of a notice is entitled to appeal against the service of the notice, pursuant to regulations made under paragraph 1(4) of Schedule 3 of the 1990 Act.  Where the nuisance relates to noise and arises on business premises, it is open to the appellant against such a notice to show "that the best practicable means were used to prevent, or to counteract the effects of, the nuisance".
6.	The District Judge found that the service of the abatement notice was justified, despite the disagreement of Mrs Manley, but took the view that the premises in question were not business premises and thus it was not open to Mrs Manley to appeal against the abatement notice on the grounds that the best practicable means were used to prevent or to counteract the effects of the nuisance.
7.	The Crown Court disagreed and accepted that the premises were business premises.  Thus the important aspect of the Crown Court's decision concerned the question whether Mrs Manley had demonstrated the best practicable means were used to prevent or to counteract the noise.
8.	There were two particularly factual remedies suggested by the council to remedy the noise.  Firstly, boxing in or lining the existing kennels and, secondly, the building of a new kennel into which the huskies would be put during nighttime, and from which they would not be released except during the day.
9.	Mrs Manley resisted both those suggestions on the grounds that, firstly, they were not practicable, having regard to the welfare requirements of the dogs, and, secondly, on the grounds of expense.
10.	The Crown Court rejected both those arguments in relation to both those suggestions.  But this appeal is raised, firstly, on the basis that there was procedural unfairness in the local authority relying upon the suggestion that the existing kennels could be boxed in or lined.  It is said that this was only a passing suggestion in experts proffered by the council, and the appellant did not have a fair opportunity to demonstrate why this was not a practicable means of abating the noise.
11.	I start by emphasising that it was not for the local authority to make any suggestion.  If an appellant seeks to resist the service of an abatement notice pursuant to the Statutory Nuisance (Appeals) Regulations 1995, the burden is upon that appellant to demonstrate that at the time of the abatement notice the best practicable means were in use.  I note the past tense adopted in the full‑out words to regulation 2(2).
12.	In those circumstances, it does not avail the appellant to complain that the suggestions advanced by the local authority were impracticable.  The boot was on quite the other foot.  It was for her to demonstrate that she was doing something, and that those were the best practicable means.
13.	Unfortunately for Mrs Manley, although she had entered apparently into discussions with the local authority, she had done precisely nothing, as indeed the Crown Court found.  In a sense, therefore, the whole of the focus of the debate and controversy before the Crown Court was misconceived.  It was for her to show what she had done.  If she had done nothing, the only way she could succeed in having the abatement notice set aside was to show that nothing could be done.  That in the context of dogs and noise would be an almost impossible task, and it was not a task upon which Mrs Manley set about.  On the contrary, she spent the three or three and a half days, which this appeal took, in trying to shoot down the suggestions made by the local authority, no doubt in an effort to solve the problem and to be helpful.
14.	It is in that context I turn to the complaint made that she was deprived of a fair opportunity of dealing with the local authority's suggestion that the kennels should be boxed in or lined.
15.	Viscount Dilhorne, on behalf of this appellant, suggests that the matter was raised so late that he was not given a fair opportunity to deal with it, and any attempt to deal with it by way of evidence was rejected by the judge as coming too late.
16.	It is plain to me, having looked not only at the judgment but also at the evidence, that the appellant was given ample opportunity to deal with the question of boxing in or lining.  Mr Lewis says that it was a question raised before the District Judge, and there is a passing reference to a number of options that were aired.  But that is nothing to the point, since the appeal before the Crown Court judge was a rehearing.  But there are a number of paragraphs in which the question of boxing in is dealt with by the judge, which demonstrate to my satisfaction that it was a matter fully aired before the court.
17.	When it came to the question of an application to deal with it by Viscount Dilhorne, he, with his customary frankness and helpfulness, when the judge put to him that the appellants had had ample opportunity to deal with it in evidence, replied, "That is a very hard question to rebut, your Honour."  In other words, there is ample material to demonstrate that this matter was properly canvassed before the court and that the appellants had a fair opportunity to deal with it.  I would reject any suggestion that the matter should be sent back to the Crown Court for the case stated to be amended.
18.	I then turn to the substance of the appeal.  What is said is that there was an error of law in the Crown Court concluding that there were practicable means for dealing with the noise.  Firstly, it is said that linings would create too small a space for the dogs.  Secondly, it is said that there would be no space on the land for any new building.  Thirdly, it is said that the evidence pointed all one way, namely the business could not have afforded the remedial building required to abate the noise.
19.	The difficulty with all those suggestions is that it was for the Crown Court to find the facts and to state the facts that they had found within the body of the case stated.  This they have done.  The judge in his approved judgment makes it clear that, having considered the veterinary evidence in relation to the new building and in relation to lining, either method was a practicable method for abating the noise, neither of which had been adopted at the time of the decision by Mrs Manley.  In those circumstances, there was no possibility of her demonstrating that the best practicable means had been used.
20.	I turn then to the third suggestion, namely that the evidence was that she could not have afforded any new building.  Viscount Dilhorne, with his fiscal as well as his canine forensic experience, drew attention to a letter from the Inland Revenue, dated 12th January 2004, which appears to show on its face that the business is not sufficiently profitable for there to be any necessity of assessment.  I am, of course, wholly content to accept that.  Indeed, it does no more than reflect the finding by the judge that it is a non‑profitmaking organisation.  But that has to be viewed in the context that the Manleys have chosen to keep 24 dogs in pairs.  Reducing the number of dogs will not reduce the risk of a pack howl causing disturbance to neighbours, but it might make the operation cheaper.  Some of the costs of keeping the dogs are identified within the case stated.  There is no prize money at shows.  Puppies can be sold for £600 to £650 each, but there are veterinary bills coming to something like £3,000 a year.
21.	The judge identified some of the costs of building a new building — there was a dispute about it — something between £25,000 and £40,000.  But there is a specific finding of fact at paragraph 35 on the basis of the evidence as to their means, they have not been able to show that the proposals are impracticable as to cost, to use the words of the judge at paragraph 37 of the judgment.
22.	An appeal by way of case stated is an appeal which requires the appellant, if she is to succeed, to show that there was an error of law.  I fully accept that the question of the money and the funds that the business has available and Mrs Manley has available is a relevant question.  That is expressly provided within section 79(9), which defines what is meant by "practicable" as follows:
"'Practicable' means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications." (see section 79(9)(a))
23.	It is of no avail for the local authority to show us an earlier case, Saddleworth Urban District Council v Aggregate and Sand Ltd (1970) 69 LGR 103, because that was dealing with the Public Health Act 1936 and the Noise Abatement Act 1960, different statutory provisions.  But although the financial implications are relevant, it is a difficult task for the appellant to show that nothing could be done because any remedy would be too expensive, and the Crown Court found as a fact that she had not succeeded in discharging so onerous a burden.
24.	In other words, in this case the findings of fact are plain and these appellants lost on those facts.  I can identify no error of law in reaching the conclusions about either of the two remedies which the local authority helpfully proffered.  In those circumstances, I would dismiss this appeal and refuse the application.
25.	MR JUSTICE JACKSON:  I agree that for the reasons stated by my Lord, both the application to remit the case stated and the appeal by way of case stated must be dismissed.
26.	MR LEWIS:  I am obliged, my Lord.  I would ask the court to make an order in those terms and also I would apply for the council's costs.
27.	My Lord, your Lordship is aware that this matter was listed with both the application for the case stated to be amended and the hearing of the case stated appeal listed consecutively, and the view was taken that would take it over the one‑day limit for summary assessment, so there are no summary assessments before your Lordship. 
28.	LORD JUSTICE MOSES:  That is a shame.
29.	MR LEWIS:  Yes, indeed, my Lord.
30.	LORD JUSTICE MOSES:  So you are asking for your costs to be taxed if not agreed? 
31.	MR LEWIS:  Yes, detailed assessment if not agreed.
32.	LORD JUSTICE MOSES:  Do you want to say anything about that?
33.	VISCOUNT DILHORNE:  I do not think I can add anything to that, my Lord.  It is not appropriate to review the costs below before your Lordship, and they follow the event as one would expect.
34.	LORD JUSTICE MOSES:  The local authority should have their costs, to be assessed if not agreed.  (Pause)
35.	VISCOUNT DILHORNE:  Your Lordship's probably heard ‑‑
36.	LORD JUSTICE MOSES:  The answer is "no".
37.	VISCOUNT DILHORNE:  The answer is "no".  I better make the application ‑‑  
38.	LORD JUSTICE MOSES:  You better make the application. 
39.	VISCOUNT DILHORNE:  ‑‑ just to....  I make an application for leave to appeal ‑‑ 
40.	LORD JUSTICE MOSES:  Yes.
41.	VISCOUNT DILHORNE:  ‑‑ this decision.
42.	LORD JUSTICE MOSES:  No.
43.	Your solicitors and Mrs Manley are going to have to get their heads together about what is to happen in the future, because otherwise summonses are going to start flying and there is going to be a whole lot more legal expense.
44.	VISCOUNT DILHORNE:  My Lord, there is one thing that does come out of this ‑‑
45.	LORD JUSTICE MOSES:  It really needs sorting out.
46.	VISCOUNT DILHORNE:  There is one thing that does come out of this.
47.	LORD JUSTICE MOSES:  Yes.
48.	VISCOUNT DILHORNE:  We have not made an application because the learned judge, His Honour Judge Milligan, postponed for quite some time, not fully up to the date of this hearing, when the fine would be exigible. 
49.	LORD JUSTICE MOSES:  There is been no summons yet, has there? 
50.	VISCOUNT DILHORNE:  There has not been a summons yet. 
51.	LORD JUSTICE MOSES:  So it does not arise yet.
52.	VISCOUNT DILHORNE:  Well.... 
53.	LORD JUSTICE MOSES:  What I am worried about is that, you know, they are going to start getting heavier and something has got to be sorted out.  It is nothing to do with us, but Mrs Manley has been good enough to come today and she gave helpful evidence.  I am just worried about disaster ahead.  I will not say any more.  Attitudes are going to have change, otherwise it will all end in terrible tears.
54.	VISCOUNT DILHORNE:  I think it will, probably.
55.	MR LEWIS:  If I may add to that, my Lord, there is nothing left to address the court on, just by way of point of information, my learned friend applied for permission to appeal.  But in fact by virtue of section 28A of the Supreme Court Act, this being a civil appeal by way of case stated ‑‑ 
56.	LORD JUSTICE MOSES:  There is none. 
57.	MR LEWIS:  There is not an appeal.
58.	VISCOUNT DILHORNE:  It ends here.  I am very obliged.
59.	LORD JUSTICE MOSES:  That is very helpful. 
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