Nuisance — Construction site noise — Noise suffered by neighbours — Notice served by local authority under section 60 of the Control of Pollution Act 1974 — Notice ignored and informations served — Criminal proceedings adjourned for later hearing — Local authority seeking injunctive relief — Whether injunction to restrain breach should be ordered — Whether evidence that breach likely to continue
The defendants are the main contractors responsible for the “administering and managing” of a construction site in Middlesex Street, London, near Aldgate Station. The local authority served a notice under section 60 of the Control of Pollution Act 1974 to restrain the level of noise. It was alleged that the notice had been contravened; contravention “without reasonable excuse” is a criminal offence and a number of informations were laid against the defendants. Criminal proceedings are not likely to take place until July 1988. Acting under section 222 of the Local Government Act 1972, the local authority sought injunctions to restrain the continued breach of the notice, and an injunction was granted in the High Court on terms (see [1988] EGCS 23).
On appeal, the defendants contended that the remedies of the civil law should rarely be used to assist the enforcement of the criminal law, especially before there had been a successful prosecution; that as construction managers, they were not the proper defendants, the subcontractors making the noise were; and that in any event the injunction was too wide in its terms.
Held 1 The court’s discretion to grant an injunction in support of the criminal law, and to prevent a breach of the law, was to be exercised in exceptional cases. Where criminal proceedings under section 60 of the 1974 Act were a wholly inadequate remedy for securing compliance with a notice under that section, a local authority would be justified, as in this case, in seeking an injunction. It was not necessary to show that the defendants were deliberately and flagrantly breaching the law; repeated contravention of a section 60 notice would suffice. However, the court must be satisfied that there was evidence that the breach would continue. In this case the adjoining residents needed the court’s assistance.
2 Although the defendants were contract managers rather than main contractors in the conventional sense, they were proper defendants within the scope of the 1974 Act, as they were in control, the subcontractors had to obey them and they were “actively participating” in the construction.
3 The injunction had been properly granted, but it was varied to include the words “without reasonable excuse”.
Gouriet v Union of Post Office Workers
[1978] AC 435 followed;
Wychavon District Council v Midland Events Ltd
(1987) 86 LGR 83 adopted.
John Uff QC and Stephen Bickford-Smith (instructed by the Comptroller and City Solicitor, Corporation of London) appeared for the plaintiffs; and Anthony Machin QC and David Lamming (instructed by Masons) appeared for the defendants.
