Fox Odour Statutory Nuisance Prosecution

Richard Buxton Solicitors represented wildlife rescuer Juliet Auburn, who was accused of breaching an abatement notice issued by East Hampshire District Council by causing odour from the rehabilitation of foxes for re-homing and rewilding.

Ms Auburn was served with an abatement notice in 2017 after EHDC considered that odour from the rehabilitation activity amounted to a statutory nuisance under the Environmental Protection Act 1990.  Ms Auburn worked with EHDC and took immediate steps to comply with the notice by implementing a comprehensive odour management plan and planting to shield the alleged odour.  EHDC found that the steps had alleviated the odour and that there was no further nuisance following further monitoring in 2017 and 2018.

EHDC’s planning enforcement team also investigated alleged planning breaches in 2018 and found that the ‘hobby’ activity was not a breach of planning control.  Following another investigation in 2020, the planning team considered that Ms Auburn did require planning permission for the activity.  Her application was refused, and a few days later EHDC served her with a planning enforcement notice requiring her to remove all foxes and enclosures.  Ms Auburn appealed that decision.

Before the planning appeal was determined, in 2021 EHDC served Ms Auburn with a Community Protection Notice under the Anti-social Behaviour, Crime and Policing Act 2014, alleging persistent odour having a detrimental effect on neighbours. Ms Auburn successfully appealed that Notice in June 2022.  The Magistrates’ Court in that case found that there was insufficient evidence that there was any persistent odour from the activity.

In August 2023, the appeal against the planning enforcement notice was determined against Ms Auburn, and she was required to remove the foxes and enclosures by December 2023.  The deadline was extended by agreement with EHDC to 18 January 2024.  Ms Auburn took immediate steps to comply with the enforcement notice and kept EHDC informed of those steps.

During that period, EHDC commenced a criminal prosecution against Ms Auburn for a breach of the 2017 Abatement Notice, which they considered was breached between April and July 2023.  Ms Auburn was first informed of the prosecution in October 2023, after EHDC failed to inform her of her first appearance.

After Ms Auburn removed the foxes and enclosures in compliance with the deadline of 18 January 2024, EHDC returned to the site and confirmed that she had complied with the enforcement notice.  However, EHDC decided to continue the prosecution for the alleged breach of the 2017 Abatement Notice.

Richard Buxton Solicitors repeatedly invited EHDC to withdraw the prosecution because of flaws in the investigation, subsequent doubt about the existence of a breach, the existence of a reasonable excuse for any alleged breach, and a lack of public interest in bringing the prosecution once it was confirmed that Ms Auburn had removed the alleged source of the odour.  We also fought for disclosure of documents which should have been provided to Ms Auburn at the time that she was charged with the offence, but were not.

In a 3-day hearing on 21, 23 and 25 October in Basingstoke and Aldershot Magistrates’ Courts, DJ Apted heard evidence from EHDC officers, Ms Auburn, and an odour expert Dr Michael Bull.  The Court found that the abatement notice had been breached on five days during the alleged 3-month charge period.  However, after setting out the history between Ms Auburn and EHDC since 2017, the Court asked the rhetorical question “how could she have possibly known that she was not compliant?”, and found that Ms Auburn had a reasonable excuse, and accordingly she was not guilty of the offence.

Angelica Rokad, Six Pump Court, was instructed