Council serving abatement notice requiring cessation of noise from bar – Magistrates’ court dismissing against notice – Crown Court allowing appeal – Whether abatement notice nullity for failing to specify works or steps required for compliance – Whether Crown Court right in taking relevant date to examine factual position as date of Crown Court hearing – High Court setting aside Crown Court’s decision
The appellant was the owner of Oliver’s Bar (the bar), 18 Stoke Road, Gosport, Hampshire, a licensed premises with an entertainment licence. Live entertainers playing “popular” or “jazz-style” music were engaged to play at the bar. On August 25 1995 an abatement notice was served by the council on the appellant pursuant to section 80(1) of the Environmental Protection Act 1990, which stated that the council were satisfied of the existence of noise arising from the playing of amplified music at the bar amounting to a statutory nuisance under section 79(1) of the 1990 Act. The notice required the appellant ” . . . within 24 hours to abate the [noise]” and prohibited “the recurrence of the [noise]” and required the cessation of “the playing of amplified music at levels which cause a nuisance at neighbouring premises”. The magistrates dismissed the appellant’s appeal against the notice.
The appellant appealed to the Crown Court. The Crown Court found that the nuisance had occurred on a hot summer’s evening and that on the facts, practical means to prevent or counteract the nuisance had not been taken by the date of the magistrates’ hearing. However, the Crown Court held that the notice fell to be quashed on the appeal under section 80(11) and Schedule (3) para 1(3) to the 1990 Act, because at the date of the Crown Court hearing no statutory nuisance existed or was likely to occur or recur. The case stated raised for the opinion of the High Court the issues of whether the abatement notice was a nullity in failing to specify works or steps required for compliance, and whether the Crown Court was right in taking the date of the Crown Court hearing as the relevant date to examine the factual position.
Held: The Crown Court’s decision was set aside and the matter remitted.
1. If the only way in which a nuisance which was the subject of a notice could be abated was by works or steps, then the notice must specify the works or steps to be taken. However, where the nuisance could be abated without works or steps, the local authority were entitled to serve a notice simply requiring the recipient to abate the nuisance. Therefore, since the appellant could abate the nuisance in a number of ways, not all of which involved any works or other positive steps within section 80(1)(b) of the 1990 Act, the notice was valid: see Kirklees Metropolitan Borough Council v Field [1997] PLCS 287; [1997] EGCS 151 and Budd v Colchester Borough Council (1997) Env LR 128.
2. However, whether there existed or was likely to occur or recur a statutory nuisance should, in the context of an appeal to the Crown Court from an appeal to the magistrates’ court seeking the quashing of an abatement notice served under section 80 of the 1990 Act, be answered by reference to the position as at the date of service of the abatement notice: Johnson News of London v Ealing London Borough Council (1990) 154 JP 33, not followed.
John Bates (instructed by Fynn & Partners, of Bournemouth) appeared for the appellant; Hugh Merry (instructed by the solicitor to Gosport Borough Council) appeared for the respondents.
