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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 04/09/2007
PAYMENT OF COUNSELS’ FEES - DUNSFOLD PARK LIMITED



Summary & Purpose
This report seeks agreement from the Executive to fund payment of 78,125 from the General Fund balances in respect of legal costs, incurred by the Council following a successful appeal by Dunsfold Park Limited against the serving of a Noise Abatement Notice by Waverley Borough Council.

APPENDIX H
Waverley Borough Council

EXECUTIVE – 4TH SEPTEMBER 2007

Title:
PAYMENT OF COUNSELS’ FEES - DUNSFOLD PARK LIMITED
[Wards Affected: All]

Summary and purpose:

This report seeks agreement from the Executive to fund payment of 78,125 from the General Fund balances in respect of legal costs, incurred by the Council following a successful appeal by Dunsfold Park Limited against the serving of a Noise Abatement Notice by Waverley Borough Council.

Environmental implications:

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’ properties, 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.

E-Government implications:

There are no E-Government implications.

Resource and legal implications:

This money is 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. There is no provision within existing legal budgets to cover the Council’s own legal expenses in this case.

Normal practice in Waverley, and indeed most of local government, is not to make annual budget provision for costs awarded against the Council, where the Council’s own legal fees are also irrecoverable as a result, 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 Counsels’ fees is therefore a legitimate call on balances.

The Council’s General Fund Balance was 2.7m at 1st April 2007. Over the three year period of the Financial Strategy the balance is expected to remain above 1m, even after allowing for supplementary estimates regarding Dunsfold Park legal costs.

Background

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 Counsel, who were in each case assisted by junior counsel. The case, which was heard at Guildford Magistrates’ Court, concluded on Friday 12th 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, Dunsfold Park Limited proposed 145,183 legal costs. Waverley’s counter-proposal of 65,000 was accepted by Dunsfold Park Limited and was paid following authorisation by the Executive meeting held in April 2007.

4. It was then stated that your officers would report further in due course once the issue of the cost of in-house Counsel had been taxed. These fees have been the subject of negotiations between your officers and Counsels’ clerks, and are now proposed at 54,450 for the Council’s QC in the matter and 23,675 for his junior counsel. Both these sums are exclusive of VAT.

Recommendation

The Director of Finance be authorised, on behalf of Waverley Borough Council, to settle Counsels’ fees incurred by Waverley in the case described in this report and to meet these costs from the general fund balances and the Council is recommended to approve the necessary supplementary estimate in the sum of 78,000.

Background Papers (CEx/DoEL)

Counsels’ fee notes of 17th July 2007.


CONTACT OFFICERS:

Name: Peter Maudsley Telephone: 01483 523398
E-mail: pmaudsley@waverley.gov.uk

Name: Paul Wenham Telephone: 01483 523238
E-mail: pwenham@waverley.gov.uk

Name: Victoria Buckroyd Telephone: 01483 523436
E-mail: vbuckroyd@waveley.gov.uk


Comms/exec/2007-08/065