Nuisance: abatement notices

Claimant serving abatement notice pursuant to section 82 of Environment Act 1990 - notice not served on registered office of respondent company - whether notice valid - whether notice on principal office sufficient - magistrates' court dismissing complaint - appeal allowedHewlings v Mclean Homes East Anglia Ltd: Queen's Bench Division: Divisional Court: Rose LJ, Rafferty J: 25 July 2000

In June 1998 the respondent company was carrying out works on a site adjacent to the appellant's home.

The appellant wrote to H, the director and general manager of the respondent at Tartan House, Etan Road, Bury St Edmunds, Suffolk (Tartan House) complaining of nuisance caused by the respondent's work from noise, dust and damage to the appellant's drains and boundary wall foundations.

He also expressed fears that the vibrations from the work were damaging the appellant's grade II-listed house.

H replied by letter advising the appellant of the need for the works.

The letter bore the respondent's name and at the top of the page, the Tartan House address, and at the bottom, the address of its registered office.

The letter was signed by H as the director and general manager of the respondent.

In July 1998 the appellant's solicitors wrote to H at Tartan House, Suffolk, purporting to give notice (pursuant to section 82 of the Environmental Protection Act 1990) that the appellant intended to bring proceedings requiring the respondent to abate the alleged nuisance.

They also warned that if the alleged noise nuisance was not abated within three days, proceedings might be brought without further notice.

The following day H wrote a reply from the Tartan House address that acknowledged receipt of the letter and was signed by H as director and general manager.

The appellant duly issued a summons that was served upon the respondent at its registered address.

Before the justices, the respondent contended that the abatement notice served in July 1998 had not been properly served upon the respondent at its 'proper address', as required by section 160 of the Act to be the company's registered address.

The justices found that the abatement notice had not been properly served and dismissed the complaint against the respondent.

The appellant appealed by way of case stated.Held: The appeal was allowed.1.

The requirements in section 160 of the Act were not mandatory, as was demonstrated by the word 'may' against the word 'must' in other parts of the statute.

Parliament had intended the Act to provide a summary procedure for laymen to gain relief from nuisance, and it contemplated less rigidity than in the legislation relating in the companies' arena.

That was demonstrated by section 160(5) of the Act which contemplated the provision of alternative addresses.

Accordingly, other means of service of a notice could be sufficient and failure to comply with the provisions was in certain circumstances capable of correction.2.

In the case of a limited company registered in England and Wales under the Companies Act 1985, such as the respondent, there could be both a company with a registered office, and a principal office, and service could be affected upon the company or its secretary at its registered office or upon its secretary or clerk at its principal office.

The justices should have found that Tartan House was the respondent's principal office and that the abatement notice had been properly served.Robert McCracken (Richard Buxton, of Cambridge) appeared for the appellant.

Timothy Jones (Gately Wareing, of Birmingham) appeared for the respondent.