Law Report: Effectiveness of noise notice continues despite repeal of Act: Aitken v South Hams District Council - House of Lords (Lord Keith of Kinkel, Lord Ackner, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Woolf), 7 July 1994

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The Independent Culture
Notices dealing with noise nuisance under section 58 of the Control of Pollution Act 1974 have to be complied with even though section 58 has been repealed.

The House of Lords unanimously allowed an appeal by the council from the Queen's Bench Divisional Court's decision that the defendant's appeal against his conviction of an offence under section 58(4) of the Control of Pollution Act 1974 should succeed.

The appellant was convicted by the South Hams justices of contravening a notice served on 25 November 1983 under section 58 of the 1974 Act in that he had allowed noise nuisance from barking dogs to reoccur between August and October 1991.

The Divisional Court, following R v Folkestone Magistrates' Court, Ex p Kibble, unreported, 17 February 1993, allowed his appeal on the basis that the effectiveness of notices served under section 58, which was repealed on 1 January 1991 by the Environmental Protection Act 1990, was not continued by section 16(1) of the Interpretation Act 1978.

John Howell QC (Sharpe Pritchard for council solicitor) for the council; Rex Tedd QC and Guy Spollen (Roger Richards, Brixham) for the defendant.

LORD WOOLF said that the Environmental Protection Act 1990 substituted for the procedure which applied to statutory nuisances the simpler procedure which applied to noise nuisance under section 58 of the Control of Pollution Act 1974.

Central to the procedure under section 58 was the service of a notice, contravention of which, without reasonable excuse, constituted an offence. The terms of the 1990 Act closely mirrored the 1974 Act, but the penalties were greater.

The issue on the appeal was whether a person who contravened without reasonable excuse a notice served prior to 1 January 1991 was guilty of an offence. The issue was of some practical importance to our environmental protection. If an offence was not committed when a notice was contravened after 1 January 1991 the effect of the repeal of section 58 had been to also repeal, as from 1 January 1991, all the notices which were served under that legislation. The result would be that the persons served would no longer be required to comply with such notices.

Furthermore it might not be possible to invoke the new procedure under the 1990 Act, since that procedure could only be initiated if the local authority was satisfied that a statutory nuisance existed or was likely to occur.

The argument revolved around the language of section 16(1) of the Interpretation Act 1978 which provides: '. . . where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, . . . (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c)affect an right, privilege, obligation or liability . . . under that enactment.'

The first stage was to establish whether, subject to 'the contary intention' not appearing, the obligation to comply with a notice served prior to the repeal of section 58 would continue after 1 January 1991 because of the language of section 16(1) of the Interpretation Act. The second stage involved deciding whether the 'contrary intention' did appear in the 1990 Act.

The language of section 16(1)(b) was clearly appropriate to continue the effectiveness of a notice which was 'duly' served prior to the date of repeal. The words 'obligation or liability' in section 16(1)(c) remained appropriate to cover an obligation or liability enforceable under the criminal law.

The words 'right' and 'privilege' in Section 16(1)(c) had a civil flavour but that was not equally true of 'obligation' and 'liability'. Section 16(1) therefore preserved, not only the effectiveness of the notice which was served under the earlier legislation, but also the ability to enforce the obligation created by that notice.

It was the repealing Act not the 1974 Act which was required to manifest the contrary intention so as to exclude the operation of section 16. Were the position otherwise, the object of section 16, which was to make it unnecessary to include in the subsequent legislation the provisions contained in section 16, would be frustrated. The silence of subsequent legislation was consistent and not inconsistent with section 16 applying.

The Folkestone Magistrates' Court case was wrongly decided. The appeal be allowed.