Noise abatement notice – Nightclub – Notice served on appellant following complaints by residents in new flats nearby – Original planning permission for flats imposing stringent conditions regarding noise attenuation measures – Promised measures not implemented – Whether noise amounting to statutory nuisance – Whether notice service of notice unjustified in circumstances – Appeal allowed
The respondent council served a noise abatement notice on the appellant nightclub operator, under section 80 of the Environmental Protection Act 1990, after residents of nearby flats complained about the noise emanating from the club. The club was in an area designated by the council in their 2001 development plan as a social community and leisure area and was surrounded by other leisure uses, including bars, restaurants and another club. The appellant’s club had operated for 20 years, with the same sound system, without complaint. The complaints began only after the flats in question were converted out of old offices pursuant to a 2003 planning permission. That permission, as originally granted, had included stringent conditions relating to noise attenuation measures. In the event, these were not fully complied with and were amended on an application by the developer. That amendment was permitted without considering the effects of noise from the club, and was based upon a noise report compiled on the basis of tests conducted when the club was closed.
The appellant appealed against the notice, contending that it should have been served upon those who were responsible for converting and letting the flats in the knowledge that they had not been fitted with the noise attenuation measures originally required and promised.
Held: The appeal was allowed.
The noise emanating from the appellant’s nightclub amounted to a statutory nuisance within section 79(1)(g). To maintain the pre-existing levels of music once the flats became occupied as residential accommodation was bound to materially detract from the enjoyment of property: Godfrey v Conwy County Borough Council [2001] JPL 1162 applied. Although the area in which the club was situated was designated for such uses, there were now competing and conflicting interests, such that the appellant now had to avoid causing noise nuisance that was likely to intrude into the flats and thus prevent sleep and other activities: Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992] 1 PLR 113 applied.
However, the noise abatement notice was not justified in the circumstances. Any environmental services officer of the council who was investigating noise in the vicinity of the flats should have queried how planning permission could ever have been granted unless stringent conditions had been imposed to protect tenants from pre-existing noise. An investigation would have shown that the developer had not installed the attenuation measures originally promised by its architect and insisted upon by the council. An abatement notice should then have been served on the developer or owner of the flats, pursuant to section 79(1)(a), on the basis that the premises were in such a state as to be prejudicial to health or a nuisance: Southwark London Borough Council v Ince (1989) 21 HLR 504 applied. As a result, work should have been carried out in accordance with the original planning permission, or at least sufficient work as to prevent noise penetration from the club. Only then should the appellant have been considered for an abatement notice, and only after proper warnings.
Robert Fookes (instructed by Radcliffes LeBrasseur) appeared for the appellant; Marc Brown (instructed by the legal department of Coventry City Council) appeared for the respondents.
Sally Dobson, barrister
