Coventry Magistrates’ Court
This is an appeal against a Noise Abatement Notice given by the Council to the Appellant in writing on the 4 December 2006 under the provisions of section 80 of the Environmental Protection Act 1990.
Section 79 of the Act provides:
the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say
(g) noise emitted from premises so as to be prejudicial to health or a nuisance”
The section requires local authorities to investigate complaints of nuisance.
Section 80 (1) provides for service of abatement notices imposing all or any of the following requirements-
(a) requiring the abatement of the nuisance of prohibiting or restricting its occurrence or recurrence;
(b) requiring the execution of such works and the taking of such other steps, as may he necessary for any of those purposes”
Sub section (2) requires the notice to be served:
“(a) except in a case falling within paragraph (b) or (e) below, on the person responsible for the nuisance;
(b) where the nuisance arises from any defect of a structural character, on the owner of the premises;
(c) where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, on the owner or occupier of the premises”
I shall refer to the Appeilant as “Carcys” and to the Respondent as “CCC” 1 heard evidence from the following witnesses:
Neil Chaplin. CCC Environmental Protection Officer
Jonathan Berry, tenant of 35 Regency I-louse
Manuel Hemandea, tenant of 23, Regency House,
Janette Spence. CCC out of hours monitoring officer.
Lee Millar. CCC Team Leader, out of hours monitoring officer.
Lisa Catherine Baines, out of hours monitoring officer.
Tony Carey, licensee and Designated Premises Supervisor of Careys Nightclub and
Bar.
Nicholas Edwards, an expert witness for Careys. He is a consultant in acoustics who
also has an architectural training and who practises as “Acoustic Dimensions”.
Peter Stephen Michael Hewer. He is the dedicated neighbourhood police officer for
the area of
I have been referred to many other statements, documents and reports and in particular to the reports upon Regency House prepared by Hann Tucker Associates, consultants in acoustics noise and vibration.
The following case iaw has been refcrred to:
Godfrey v Conwy County Borough Council
Miller v
Wheeler v 11 Saunders
Gillingharn Borough Council v Medway (Chatham) Dock Co Ltd.
SF1 Group v Gospoit Borough Council.
Sturges v Bridgman
Southwark London Borough Council v Ince and Williams
Hunter and Others / Canary Wharf Ltd v London Doeklands Development
Corpoi-ation.
Manley v New Forest District Council
The Queen on the application of London Borough of Hackney v Moshe Rottenberg.
THE FACTS.
Careys is a nightclub and bar that has been in business for about twenty years. Mr Tony Carey’s father managed it until twelve years ago when the former took over. The same sound system has been used for the last nineteen years. No complaints have apparently been made by anyone during the time the club has been in business until recently, when Mr
Mr
Dealing with the geography of the area, Careys abuts
The Coventry Development Plan of 2001 designated the area in which Careys is situated as “CC24” as a social community and leisure area. Regency House is not within that area, it is located on the opposite side of a narrow road (
Careys used to open in the evenings on Fridays and Saturdays, Thc only weekend night that it now opens is Saturday. The club used to be open until 330am on Sunday mornings, until 2.30 on Saturday mornings and on mid week student nights I am unclear until what hour they remain open. It is quite clear that music is played extremely loudly. ihis is what the customers want and it would seem that it is what they have been receiving at those premises for the last two decades, without complaint. Presuming for one moment that the character of the area has been similar for that time (until the change of use at Regency House), there would have been no one in the locality during the normal opening hours who could have complained. All the office workers would have left and other pubs and clubs would have been making their own noise. Certainly, since 2001 they were doing so in an area especially designated for that puqose.
Having heard the evidence it is clear that during club opening hours, life is miserable for the occupants of the apartments on the North side of Regency House. Even Mr Edwards, who gave evidence for Careys, accepts that to be so.
Mr
Mr Hernandez gave evidence of a similar natureand referred to sleeping difficulties and the impossibility of preparing work as a lecturer because of the loud music. He said that all activities are interfered with and it isunnecessarily noisy.
Mr Neil Chaplin’s evidence related to the receiving of reports, steps taken by his department, an acceptance that it is for the court to decide, taking account of all the circumstances, whether or not a statutory notice exists. He has not apparently entered the apartments at Regency House, neither has hc visited the club during their operational hours. He conflnned that the area CC2-4 is an area designated for night club use and “this reflects the character and aspirations of the area”.
He agreed that CCC Planning Department had identified potential difficulties for residents should piannincr pemtission be granted. Especially a letter dated 2I February 2003, from the City Development Directorate to Robothams, the Architects employed by the developers: “On the north side of the building are a number of clubs that may he a source of noise nuisance late at night. Can you confinn that flats on that side of the building will have protection from this potential problem and demonstrate what is proposed.”
Mr Chaplin confirmed that planning permission had been granted to Cassidy Developments and that it was despatched on the 2nd April 2003. Condition number 9 reads “No residential unit shall be occupied unless and until the approved works, or any amended scheme of works. for the attenuation of external noise has heen implemented in full and thereafter such works shall remain in place”
He agreed that planning permission was granted only if it allowed for the continuation of late night noise.
The matter of night club noise is dealt with by the architects in a letter dated 3 March 2003, to CCC and especially: “We confirm that all habitable rooms denoted on the plans/elevations will provide increased sound resistance and also have acoustic mechanical ventilation and acoustic trickle ventilation”
This is confirmed of the plans apparently submitted to and approved by the planners at CCC, as follows:
“Facades requiring noise attenuation to have the following measures;
1. Acoustic mechanical ventilation.
2. Acoustic trickle vents to habitable rooms.
3. Double glazed units with increased sound reduction”
Mr Chaplin said that when he saw the planning file it was very confused. I do not know when he saw it. He did not know, however, what kind of sound insulation had actually been provided by the developers as he had not asked about it.
Commenting upon the Hann Tucker reports Mr Chaplin agreed that road noise only had been addressed in the reports and that the 24 hour period when the tests were undertaken was a time when Careys was not open. He conceded that the Environmental Health Department at CCC “…appeared to lose sight of the club issues”
Mr Chaplin stated that irrespective of planning permission being granted and the terms thereof” I say the noisy party must be subject to noise abatement regulations”
He told me of his service of the Notice on the 4th December 2006 and of discussions v4th the club and Mr Edwards.
The out of hours monitoring officers effectively gave evidence of complaints received and visits made to the apartments of Mr
Mr Tony Carey, the Applicant, described to me hismanagement of the Club which had previously been operated by his parents. The club has been in business for about twenty years. The present sound system has been the same for nineteen years. The Club is licensed for 420 people upstairs and 350 downstairs. He described the geography of the area.
Mr Carey told me of the attempts he had made to minimise noise escaping from the club, by reducing the bass of disco music by 30%, This was insufficient to satisfy Environmental l-Jealth to whom complaints continued and had the effect of driving away customers, who come to his club “. . to party, to enjoy themselves. The sound system is the heartbeat of a club. People like to hear and feel the music” He had not expenmented with other percentage reductions in volume, simply the 30% and this was after 4th December 2006. He had not experimented with keeping all doors and windows closed but there were none open on the upper level. He had not considered a sound limiter although it was suggested to him.
I-Ic had been advised that there were only two ways to reduce noise levels, either by a concrete slab or multi layer gypsum ceiling which would lower the height of the dance area considerably.
He told me that he commissioned an engineer’s report, which has shown that the cost of replacing the roof would be in the region of80O,00O. It would not be viable to do so. The sound apparently escapes from the roof and a new roof is the only answer.
I-Ic explained to me why it would not be feasible to have the disco downstairs and move the bands which usually play downstairs, to the upstairs, in order to reduce the noise which may then escape through the roof. Lighting and ceiling height are the main problems but I do not intend to dwell upon them in this judgment.
Mr Nicholas Edwards is an expert witness instructed by Mr Carey. His evidence was most interesting hut to my mind the most instructive parts are these.
Firstly, the Hann ‘tucker report is a complete waste of money as it addressed road noise only. Had it addressed “club” noise in addition, the Noise Exposure Category (NEC), assessed as NEC “B” at night and NEC “borderline B/C” daytime, might have been very different. (I note that Category “C” suggests that planning permission for dwellings should not normally be granted but if it is, commensurate conditions should be imposed. Category “B” also requires that conditions be imposed to ensure an adequate level of protection against noise. Of course, the Regency House planning permission did impose stringent conditions but something happened as a result of which the developers did not comply with them).
Mr Edwards told mc in his evidence that had the conditions been complied with, had acoustic mechanical ventilation and double glazed units with increased sound reduction been installed, this would effectively have solved the noise problem. He told me that had the conditions of the original planning permission been adopted, It would have been unneccssary for tenants to open their windows. He asserted that apart from the noise level being reduced the acoustic mechanical ventilation would have prevented the vibration of which Mr Berry complained.
Secondly, although Mr Edwards provided me with a great deal of technical data and could have done so in even more depth, the point he did concede is that life must be unbearable for the residents at Regency House. He said that there were “unreasonable living conditions inside the residences because of the noise”.
I-Ic maintained that the character of the surrounding area has changed because of the development of Regency I-louse but the specific area CC24 has not changed and neither since 2001. have the noise levels.
PC Peter Hewer told me that so far as he is aware there have been no complaints relating to Careys during his time as Dedicated Neighbourhood Officer to which position he was appointed in April 2006.
Mr Brown submits that there are three questions upon which I must decide:
1 .Did a statutory noise nuisance exist?
2,Was the issue of the Notice justified?
3 .Has the Appellant used best practicable means to prevent or to counteract the effects of the nuisance’?
Was the noise emanating Rom Carcys a statutory nuisance? The ease of Godfrey v Conway CBC confirmed the test to be applied, namely that it should be judged by the standard of the reasonable man and taking into account the nature of the area, was the noise an unreasonable interference with the use and enjoyment of (the) land. Did it materially and unreasonably detract from (the) enjoyment of the property?”
A statutory nuisance may be proved if there is such a nuisance or if there is noise that is prejudicial to health.
The nature and locality of the general area must be taken into account when determining whether or not a statutory nuisance has been committed. In
“…where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously.”
In the present ease, music was played loudly by Careys for many years and there were no complaints, there was no interference with the use and enjoyment of land, therefore no allegations of nuisance. After the development of Regency House, suddenly new neighbours had to be considered and that change of use must be taken into account when I determine whether or not there was a nuisance.
1-lowever. 1 have been referred by Mr Fookes to the case of London Borough of Hackney v Rottenberg, the niost recent of “nuisance” eases to which 1 have been taken. This ease confirmed a number of important matters:
I .lt is for the court to decide whether or not there was a nuisance, upon the evidence
received.
2. (at para. ii of the judgment), “When considering whether noise amounts to a
nuisance, it is necessary to have regard to a number of factors, which include the nature and context of the neighbourhood; the competing and conflicting interests of adjoining owners and occupants and other people affected; and the fact of any activities in the premises and whether those are activities permitted by planning permission and the like”
3. The test to he applied is subjective, not objective
The neighbourhood in the present case has changed by the grant of planning permission for residential purposes. The land adjacent to Regency House remains, as designated in the Coventry City Development plan of 2001, as a “social, community and leisure area”. Mr Chaplin said in evidence, this is an area for night clubs. Whilst the neighbourhood, including CC24, is principally for social, community and leisure activities. there are now “competing and conflieting interests” of other occupants, namely the residents of Regency 1-louse. All other occupants and oters are unlikely to be affected by the noise; either they are cohtributing to it or their premises are closed during night club hours.
The residents of Regency Rouse no doubt engage in many and various activities during night club hours. Mr
Planning permission was granted to both Regency House and Careys, the one for residential use, the other as a night club. I was referred by Mr Brown to Wheeler v Saunders and I accept that the ruling, applied to the present ease, confirms that planning permission thr a night club cannot gram, immunity from causing noise nuisance, Mr l3rown referred me to Sturges v Bridgman and Miller v Jackson regarding the rule that it is no defence to say that a complainant has moved to close proximity to an existing nuisance. Mr Fookes, ofcourse, accepts that.
I find that taking account of the evidence of Mr
It appears to me that Careys effectively ignored the new neighbours and simply went on with the business of providing loud music to customers without any thought or regard for arty inconvenience it might cause residents. Mr Carey was then unaware of the conditions that had been attached to the planning permission, which, if implemented would aimost certainly have prevented noise intrusion. He should have given consideration to the changed neighbourhood.
Local Authorities are empowered by statute to grant planning permission even if it may affect the previous character of a locality. Pill, U said in Hunter v
Having found upon the thcts that there was a statutory nuisance, I must consider the second ground of complaint that the abatement notice was not justified because it should have been served upon another person.
Mr Fookes submits on behalf of Careys that the Notice should have been served upon “those responsible thr converting and letting or selling residential accommodation in Regency House, knowing that accommodation hot to have been fitted with the noise attenuation originally required and promised.”
I note:
I. CCC granted planning permission for the development of Regency House and imposed conditions specifically for the purpose of reducing the level of noise from night clubs and other establishments.
2.CCC granted planning permission to Careys to operate as a nightclub.
3. CCC designated the area known and shown on the 2001 Development Plan as CC24 as a social community and leisure area. Careys is within that area.
4. CCC had apparently involved the Environmental Health Department in the
Regency House planning application ( memo, Douglas Castle Planning Officer to
Andrew Hall, Environmental Health, dated 16th June 2003:
“You commented upon the original planning application
He was referred to the condition granted to protect residents from external noise. Mr Hall was provided with details submitted to the planning department for discharge of the noise condition.
Mr Hall’s reply refers to traffic noise and sounds transmitted between apartments. There is no mention of the noise from night clubs that was identified in the original planning application.
(Mr Hall’s responses to the original application have not been located and no further light may be thrown upon what Mr Hall and his department were aware of and what advice was given to the planning department).
Mr Hall’s response in June 2003 demonstrates ignorance of the potential problem of noise from pubs and clubs. The Planning Department does not draw his attention to the problem. Certainly he cannot have visited the location or even looked at the City Development Plan or he would presumably have identified clubs as being a potential source of noise. I understand that Mr Hall no longer works within the Department.
5. CCC Planning Department received the application for discharge of the condition relating to noise insulation on the North side of Rgcney House. There appears to be confusion whether it is condition 9 or 10 that was to be discharged or amended but it is quite clearly condition 9. relating to noise, that was amended after consideration of the Flann Tucker report.
6. The Haunt Tucker report failed to consider night club noise, other than as environmental noise, as Careys was not open when the tests were conducted.
The absence of references in the Report suggest that whoever instructed Hann Tucker, failed to mention the night club noise and the stringent condition attached to the planning consent.
7. The architects, Robothams, sent the report to CCC. This begs the question whether or not they had properly read the report. Certainly there was a failure to consider it in relation to the known requirements to install acoustic mechanical ventilation etc in the North facing apartments.
8. One may only speculate whether or not anyone at the Planning Department actually read the Hann Tucker report. Matters raised only-a few months previously at the time of the planning application were ignored. The cnndition was amended by using delegated powers.
9. CCC Environmental Services is the departmcnt responsible for investigating the need for and the issue of the Abatement Notice dated 4th December 2006.
The Notice alleges statutory nuisance under s.79(i) (g) of the EPA 1990, namely, noise emitted from premises so as to be prejudicial to health or a nuisance.
The Notice could alternatively have been issued and served upon the owner/developer of Regency House. under s 79(i)(a), namely, “any premises in such a state as to be prejudicial to health or a nuisance.”
The latter point, raised by Mr Fookes, was considered in detail by Woolf U and Saville J in Southwark LBC v Ince and Williams. The facts were similar to the present case save that the owner of the tenanted flats was the local authority, upon which the abatement notice was served. In the present caseCCC knows or may quickly ascertain the identity of the owner of Regency Court.
CCC Environmental Services had been involved in considering the original planning application, some three years bcfbre this case arose, It seems tome that any Environmental Services officer investigating noise in the vicinity of Regency House, should have queried how planning permission could ever have been granted unless stringenu conditions had been imposed upon the developer to protect tenants against pre-existing noise. An investigation would have shown that the developer did not install the sound proofing and attenuating measures promised by the architects and insisted upon by the Planning Department. How simple it would have been to make that enquiry of the CCC planning department.
Mr Chaplin did consult CCC Building Control hut only after service of the Abatement
Notice. An email dated i9 December 2006 refers to the provision of trickle vents.
The reply from Mr Steve Davies, Manager of Building Control, should have put Mr
Chaplin on notice which xnight then have prompted further enquiries of the Planning Department. The reply enquires “As an aside, did planning not put on any condition re double glazing?”
Mr Chaplin did not seem to be aware at that time that acoustic mechanical ventilation, trickle vents and double glazed units with increased sound reduction had been specified when planning permission was granted. Had he known, perhaps he would have visited Regency House to find out why the residents were nevertheless being troubled with noise. Unhappily, the abatement notice was served on the most obvious culprit, the source of the noise.
Careys has been providing entertainment for approximately twenty years. The noise levels, according to the evidence, have probably been similar to those of the present time. The equipmen.t has not changed in nineteen years. Certainly, the levels are unchanged between 2001, the time of the city Development Plan and today. A statutory nuisance might have existed for all those years but nobody complained as there was no one living in the area to complain until Regency House was developed in accordance with new Governmental guidelines.
The potential for noise interference was identified and acknowledged by CCC (Planning and possibly Environmental Health), and the Architects. Provision was made to protect the residents most likely to be affected. However, as a result of inertia, or negligence on the part of the Planning Department, Developer and/or the Architects, the conditions were never enforced. Residents are left exposed to the fill force of Careys late night music and especially the bass of which particular complaint is made.
Mr Edwards toid mc that the provision of acoustic mechanical ventilation, double or secondary glazing, sealed units and trickle vents would negate the problem of noise and apparent vibration. Had the developer complied with the original planning permission, I doubt that Mr Berry and Mr Hernandez would have had cause to complain. They are the only two residents to have done so.
The ease of Southwark LBC v Ince and Williams to which I have previously referred related to a situation similar to the present case. The complaint was of noise penetration. In his judgment, Woolf U (as he then was), said: “If the situation was one where the flats had been properly constructed and adequately insulated to exclude noise but notwithstanding that noise still penetrated into the flat, which interfered with the enjoyment of those flats by the occupants, that would certainly not be a situation which is the same as that which is revealed here. In particular in a situation of that sort it would be difficult to see how the local authoity (the landlord), could be regarded as a person whose act, default or sufferance eaued the nuisance to arise or to continue”
In my judgment, the abatement notice should have been served on the developer (or present owner of Regency I-louse. That should have been the first step.The noise attenuation work should as a result have been carried out in accordance with the original planning permission or at the very least, sufficient to prevent noise penetration from Carey. Only then should Careys be considered for an abatement notice, after proper warnings. 1 therefore allow the appeal by Carey Leisure Limited against the noise abatement notice dated 4a December 2006, For the sake of completeness, I have also considered the third point raised by Mr Brown, namely, did Careys use the best practicable means to prevent or counteract the nuisance?
CCC wrote to Careys on the 23rd November 2006 warning of the consequences of failing to address the complaint of loud music. The abatement notice was dated and served on 4th December. Mr Brown submits that SF1 Group PLC v Gosport Borough Council is authority for two propositions:
I. That (in this case) the 4m December is the relevant date to determine whether or not a nuisance existed or was likely to recur.
2. The same date is that which is relevant to whether or not (Careys in this case) have used best practicable means to prevent or counteract the effect of the nuisance and that steps taken by the club since 4th December 2006 are irrelevant.
Mr Fookes does not take issue upon this. Clearly I am bound by the judgment in the SF1 case.
The evidence I have heard shows that no steps had been taken between the initial warning letter and the 4Ih December to prevent or counteract the noise from Careys. There had been no attempts to reduce music levels or to close doors and windows. I accept that steps were taken later by Careys, especially the reduction of the bass by 30% on Fridays and Saturdays, although this was later abandoned on Saturdays and the club closed and remains closed, on Fridays. Other means of reducing sound levels could not have been employed in the time allowed, such as there roofing of the premises and this would not in n]y )udent have been practicable due to cost and the need to close the club fhr several months. I have also heard from Mr Carey and Mr Edwards both of whom explained why it would have been impractical to move the disco from the upper level to the ground floor. I have previously referred to their evidence on the point, which seems entirely reasonable.
Nevertheless, it appears to me that upon receiving the letter dated 23rdt November, an attempt could have been made to reduce the emission of noise front the club. Closing doors and windows could have been tried and might have made some difference. A modest reduction of noise levels from the discotheque, whether or not it succeeded, would have been attempt to comply with the CCC letters dated 21st and 23td Novemher.A finding, ofbest practicable means” might have been made. Because I have allowed the Appellant’s appeal, my finding is of theoretical importance only. I do find that Careys did not use the best practicable means to prevent or counteract the nuisance between the 23rd November and the 4th December 2006.
