A lifelong wildlife campaigner has had a community protection notice (CPN) against her quashed, meaning that she can continue to care for sick and injured foxes at her property in East Hampshire. Jeremy Frost of chambers, instructed by Advocates for Animals, represented Ms Juliet Auburn in her appeal against the notice, imposed by East Hampshire District Council (the Respondent) in October 2021.
Background:
Ms Auburn has cared for sick and injured animals for many years, and has particular expertise in foxes. Since she moved to her current property in 2016, she has had an average of 16 foxes at any given time. Most are released back into the wild, and some require permanent care or rehoming at other sanctuaries.
In 2017, the Respondent had issued Ms Auburn with an abatement notice under the Environmental Protection Act 1990, requiring her to control the odour that was allegedly emanating from the foxes’ pens. By the Spring of 2018, having developed a more sophisticated system for neutralising odour, she was deemed to be compliant with that notice, and no further action was taken.
During the first Covid-19 lockdown in 2020, the number of foxes increased, due to difficulties in moving them on to other carers around the country. Neighbours began to complain, and eventually the Respondent issued the CPN, under section 43 of the Anti-social Behaviour, Crime and Policing Act 2014 (the Act), requiring her to remove all foxes from her property within two weeks.
Ms Auburn appealed on five grounds, under section 46 of the Act: (i) the conduct specified in the CPN had not had a detrimental effect on the quality of life of those in the locality; (ii) the conduct had not been of a persistent and continuing nature; (iii) the conduct was not unreasonable; (iv) the requirements of the CPN are unreasonable/disproportionate; and (v) the time by which the requirements of the CPN are to be complied with is unreasonable. In short, it was argued that the CPN should be quashed, or in the alternative it should be modified, given that number of foxes was reducing back to pre-pandemic levels, and it was evident that at a lower number Ms Auburn had been found not to be in breach of the abatement notice.
The Law:
CPNs are intended to deal with unreasonable, ongoing problems which negatively affect the community’s quality of life. Unlike laws on nuisance, CPNs target the person who is responsible for the problem, rather than addressing the use of land.
Section 43(1) of the 2014 Act provides that “[a]n authorised person [including an officer on behalf of local government] may issue a community protection notice to an individual aged 16 or over, or a body, if satisfied on reasonable grounds that (a) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and (b) the conduct is unreasonable.” Subsection 4 stipulates that “[t]he only requirements that may be imposed are ones that are reasonable to impose in order (a) to prevent the detrimental effect referred to in subsection (1) from continuing or recurring, or (b) to reduce that detrimental effect or to reduce the risk of its continuance or recurrence.”
A person subject to a CPN may appeal against it on various grounds. For instance, under section 46(1) an appeal may be brought if the appellant believes that “the conduct specified in the community protection notice (a) did not take place, (b) has not had a detrimental effect on the quality of life of those in the locality, (c) has not been of a persistent or continuing nature, (d) is not unreasonable, or (e) is conduct that the person cannot reasonably be expected to control or affect.” Alternatively, a CPN may be varied under section 46(2) where it can be shown that “any of the requirements in the notice, or any of the periods within which or times by which they are to be complied with, are unreasonable.” In line with wider principles of civil law, the appellant bears the burden of proof, on the balance of probabilities.
The Decision:
Over the course of a two-day appeal, the District Judge heard evidence from Ms Auburn herself, supported by a veterinary surgeon who had visited the property, and various friends and volunteers with knowledge of Ms Auburn’s activities. All spoke of minimal odour, and an efficient and effective system of cleaning and caring for the foxes. Ms Auburn also had the benefit of another witness, a planning consultant, who supported her general case, and also pointed out that Ms Auburn is subject to a planning enforcement notice, and that the upcoming planning appeal was the best arena for determining the legitimate use of the land, given the rigour of the court’s investigation in those proceedings.
The respondent called their own Environmental Health Officer, and two neighbours who described a “gut-wrenching” and “persistent” smell.
In closing submissions, it was argued for Ms Auburn that she and her witnesses were reliable, and that if (which was denied) there had been detriment to the locality, it was not persistent or continuing. Contrary to the respondent’s submissions, the respondent should never have issued a CPN in the first place. In Mr Frost’s words, it was “a sledgehammer to crack a nut”, especially given the greater flexibility of the extant abatement notice, and the upcoming planning appeal which would be dealing with substantially the same issues. That the respondent had seen fit to bring this third set of proceedings was evidence of heavy-handed bullying, in tandem with neighbours who had a vendetta against Ms Auburn. The neighbours had “over-played their hand” by using such extreme language to describe the odour, and by making baseless allegations of dishonesty against Ms Auburn. If the smell was really so bad, why hadn’t more neighbours in the vicinity come forward to complain? Similarly, the respondent’s Environmental Health Officer had never visited, or even spoken to, Ms Auburn, and yet was on first-name terms with the neighbours who had complained.
In handing down judgment, the District Judge found Ms Auburn’s evidence, and that of the vet and the planning consultant, compelling. By contrast, there was a lack of objectivity in the neighbours’ evidence, brought to light by disputes not only over the foxes but also on other unrelated matters. The appeal was allowed, and the CPN quashed, with an order for the respondent to pay Ms Auburn’s costs.
Related barristers: Jeremy Frost
Related practice areas: Animal Rights
