Hemming v Birmingham City Council [2015] EWHC 1472 (Admin)

In this case the claimant, the Liberal Democrat MP for Birmingham Yardley, challenged a decision by a District Judge to award costs against him in proceedings under s91 of the Environmental Protection Act 1990. This section creates a strange and little-used power to seek a ‘litter abatement order’ against a ‘litter authority’.  The claimant, having identified an area ‘defaced’ by litter, has to give warning of his intention to start proceedings to the authority.  If the litter is not cleared, he can seek a litter abatement order from a Magistrates’ Court.  Any order will merely require the removal of the litter present at the time the proceedings are started – if the authority clears the site before the hearing it will avoid having an order made against it.  But the claimant must be awarded his costs if he had reasonable grounds for bringing the compliant at the outset (s91(12)).  In this case Mr Hemming was aggrieved by numerous accumulations of green waste by the roadside in his constituency: the local authority refused to collect these because a newly-introduced charge for the collection of green waste had not been paid.  Before he made his complaint he declined to attend a meeting at which the authority would have informed him of a planned clear-up of the unlawfully deposited waste.  When the clear-up took place several accumulations were missed: these were only cleared after the start of the proceedings.  At the hearing of his complaint Mr Hemming claimed his costs: these were refused and he was ordered to pay the authority’s costs. On a case stated Mr Hemming argued that he had had reasonable grounds for making a complaint and that it was only because he had made and pursued his complaint that the missed accumulations were cleared. Wilkie J upheld the decision of the District Judge, holding that, for the purposes of applying s91(12), it was appropriate to consider only the circumstances which existed at the time the complaint was started (which included the refusal to attend the meeting).  It could not have been known at that time that the clear-up would not be wholly effective.  Wilkie J made interesting comments on the process for securing the amendment of a statement of case. Richard Langham appeared for the claimant, on a public access basis.