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R (Fisher) v Durham CC  [2020] EWHC 1277 (Admin)

Where a local authority are satisfied that a statutory nuisance (as defined in s.79, Environmental Protection Act 1990) exists or is likely to occur or recur, they may serve an abatement notice requiring specified steps to be taken to abate or restrict the nuisance (s.80). Failure to comply with an abatement notice is a crime, subject to a defence of reasonable excuse (s.80(4)). Alternatively, where a person has failed to comply with an abatement notice, the authority may exercise a “self-help” power to abate the nuisance (s.80(4)). As a further alternative, where a person has failed to comply with an abatement notice, the authority may apply to the High Court for injunctive relief (s.81(5)).

The Equality Act 2010 prohibits discrimination arising from a disability (s.15). Such discrimination occurs where one person discriminates against a disabled person because of “something arising in consequence” of the disability and it cannot be shown that the discrimination is a proportionate means of achieving a legitimate aim.

The public sector equality duty in s.149, Equality Act 2010, requires all public authorities and bodies whose functions include public functions to have due regard, in the exercise of those public functions, to the need to eliminate unlawful discrimination, harassment and victimisation and to advance equality of opportunity and foster good relations between persons with protected characteristics (age, disability, gender reassignment, pregnancy or maternity, race, sex, sexual orientation, religion or belief) and other persons (ss.149(1),(2), 2010 Act).

Ms Fisher was a 67-year old retired primary school teacher who lived in privately rented property. In or around 2014, she began to suffer with an unidentified medical condition which caused her to make involuntary vocal outbursts and physical movements. The outbursts were often profane and offensive to her neighbours.

The local authority considered that the outbursts were a statutory nuisance and served notice under the Environmental Protection Act 1990. It required her to stop making the vocalisations. She issued judicial review proceedings, seeking to quash the notice on the grounds that it amounted to unlawful disability discrimination (s.15, Equality Act 2010) and/or there had been a breach of s.149, 2010 Act.

The claim was dismissed. The council had tried numerous ways to ameliorate the impact of her outbursts. It had offered her various support services. It had offered to discuss re-housing her to more suitable accommodation. It had taken advice about possible sound-insulation at her property. There was nothing more that it could do. The service of the notice was a last resort and was a necessary pre-cursor to the authority exercising any of the three powers open to them under the 1990 Act. Any discrimination was therefore justified. Whilst there had not been any assessment under s.149, Equality Act 2010, the authority had been fully aware of the disability and had been attempting to find a way forward which steered a path between the needs of the claimant and the interests of her neighbours.

Justin Bates led Alice Richardson (Trinity Chambers), instructed by Newtons Solicitors (all acting pro bono) for Ms Fisher. The judgment can be found here.

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