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FRONT LINE FIRST-LAW

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A council fought a campaign in the war against drugs recently and won. Having lost the battle at the county court i...
A council fought a campaign in the war against drugs recently and won. Having lost the battle at the county court in Nottingham City Council v Z, s222 of the Local Government Act 1972 succeeded in the Court of Appeal on 31 July.

Nottingham City Council was concerned about the amount of drug dealing being carried out publicly on one of its housing estates. So, relying on s222, it sought an injunction against the defendant it claimed had been associating with well-known drug dealers and had been in possession of and been arrested on suspicion of dealing in drugs.

Where a council considers it expedient for the promotion or protection of the interests of the inhabitants of their area, s222 - among other things - enables the council to 'prosecute or defend or appear in any legal proceedings' and institute civil proceedings in its own name.

The county court judge held the council had been under no duty to enforce the Misuse of Drugs Act 1971. The judge considered s222 did not empower the proceedings unless the council was under a duty to enforce the relevant enactment or protect the relevant interest of the local inhabitants. The county court held Nottingham was under no such duty and therefore could not sue.

But the Court of Appeal disagreed. Nottingham argued the defendant's behaviour was a public nuisance. Lord Justice Schiemann noted an authoritative definition of public nuisance case-law which defined it as that 'which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects'.

He considered it 'within the proper sphere of a local authority's activities to try and put an end to all public nuisances in its area, provided always it considers it is expedient for the promotion or protection of the interests of the inhabitants'. In such circumstances a council can 'institute proceedings in its own name with a view to putting a stop to a public nuisance'.

The council argued that, as a highway authority, the council had a duty under s130 of the Highways Act 1980 to protect the use and enjoyment of any highway for under their control.

The Court of Appeal rejected a submission for the defendant that it was not open to the council to enforce the criminal law.

On the assumption an authority had a right to sue in its own name for a public nuisance, Lord Justice Schiemann saw no reason to deprive the council of that right simply because the activity in question also involves a crime.

Indeed such an analysis would effectively prevent a council suing in public nuisance since public nuisance is itself a crime. Finally, s130(5) - which, without prejudice to s222 powers, allows authorities to take measures including legal proceedings in performing s130 functions - did not prevent use of s222.

So in the battle for the protection of local people s222 retains its warhead.

Nicholas Dobson

Partner, Head of Local Government Law

Pinsent Curtis Biddle

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