Waverley Borough Council Committee System - Committee Document
Meeting of the Executive held on 24/04/2007
Authorisation for Payment of costs in the Case of Dunsfold Park
Waverley Borough Council
SPECIAL EXECUTIVE – 24TH APRIL 2007
COUNCIL - 24TH APRIL 2007
AUTHORISATION FOR PAYMENT OF COSTS IN THE CASE OF DUNSFOLD PARK LIMITED V WAVERLEY BOROUGH COUNCIL, CONCERNING A NOISE ABATEMENT NOTICE SERVED BY THE COUNCIL
[Wards Affected: All]
Summary and purpose:
This report seeks agreement from the Executive to fund payment of £65,000 from the General Fund balances in respect of legal costs awarded by the Court to Dunsfold Park Limited following a successful appeal against the serving of a Noise Abatement Notice by Waverley Borough Council.
There are no direct Environmental implications associated with the proposed payment. However, noise complaints represent one of the most significant environmental issues that cause concern for the Borough’s residents.
Waverley has a legal duty to investigate complaints of noise disturbance affecting the use and enjoyment of Waverley residents’ property and a duty to serve a Noise Abatement Notice following the witnessing of a statutory noise nuisance.
Social / community implications:
The Noise Abatement Notice was served following complaints by local residents of their properties being affected by excessive noise from motor vehicles at Dunsfold Park. The investigation of these complaints is a statutory function, as is the serving of a Noise Abatement Notice.
There are no E-Government implications.
Resource and legal implications:
The costs are required to be paid as a result of a Court judgement following the quashing of a Noise Abatement Notice served by Waverley Borough Council officers carrying out the Council’s statutory duty. The costs are due to be paid in April. There is no provision within existing legal budgets to cover the award of costs or the Council’s own legal expenses in this case.
Normal practice in Waverley, and indeed most of local government, is not to make annual budgetary provision for costs awarded against the Council due to their irregular occurrence and the unpredictability of the amounts involved. Instead, Councils tend to keep sufficient General Fund Balances to cover such costs should they arise. Waverley is no different and holds balances for this purpose.
Paying the £65,000 costs is therefore a legitimate call on balances.
The Council’s General Fund Balance was £2.2m at 1st April 2006. During 2006/07 the General Fund balance has been added to by a significant underspend and after the authorised use of balances, is forecast to stand at £2.4m at 31st March 2007. Over the three year period of the Financial Strategym, the balance is expected to remain above £1m.
1. Following investigations undertaken by the Council’s Environmental Health Section, a Noise Abatement Notice, under the provisions of Environmental Protection Act 1990, was served on Dunsfold Park Limited in January 2006, concerning statutory noise nuisance from motor vehicles, which was witnessed by your officers. Officers considered that a statutory nuisance was established and were thus obliged by law to serve the notice.
2. Dunsfold Park Limited exercised its right to appeal against the Notice. The Court of Appeal against the serving of a Noise Abatement Notice is the local Magistrates’ Court. On this occasion a Judge heard the appeal and both sides were represented by barristers who were Queen’s Counsels. The case, which was heard at Guildford Magistrates’ Court, concluded on Friday 12 January 2007. The Court upheld the appeal in favour of Dunsfold Park, quashed the Noise Abatement Notice and awarded costs against Waverley Borough Council.
The Award of Costs
3. Following the noise abatement notice appeal being upheld in Dunsfold Park Limited’s favour, £145,183 plus VAT, legal costs were proposed by Dunsfold Park Limited. Waverley’s counter-proposal of £65,000 including VAT was accepted by Dunsfold Park Limited and is due for payment in April 2007.
4. This amount is now non-negotiable and due for payment. Your officers had hoped to be able to report both the Waverley incurred costs together with the awarded costs, but the Waverley Counsel’s fees are still unresolved. Under the circumstances that non-payment or delayed payment can result in a punitive rate of interest (the Court’s rate is currently eight percentage points above the base rate) your officers now need to seek the necessary authority to settle the costs awarded against Waverley using the balance on the general fund to accommodate this expenditure, thereby avoiding a return to Court.
5. Your officers will report further in due course once the issue of the cost of in-house Counsel has been taxed. This will result in a request for a further supplementary estimate to be met from the General Fund balance in the new Council year.
It is recommended to the Council that the Director of Finance be authorised, on behalf of Waverley Borough Council, to settle costs awarded against Waverley, in the sum of £65,000 including VAT, in the case described in this report and to accommodate these costs within the General Fund balances and the Council be asked to approve the necessary supplementary estimate.
Costs Schedule from Colin Peck, Davis Arnold Cooper, Solicitors for Dunsfold Park Limited.