Environment – Noise nuisance – Abatement notice – Appellant local authority serving abatement notice on respondent in respect of production of noisy music – District judge quashing notice – Appellant appealing by way of case stated – Whether judge wrong in determining that notice specified steps to be taken to abate noise but did not specify requirements with sufficient clarity – Whether judge wrongly finding notice invalid – Appeal allowed
The respondent owned a property at 13 Rochester Close, Enfield, an end-of-terrace property sharing a party wall with neighbours. He moved there in around 2010 and the present neighbours arrived in 2017. Following complaints from the neighbours, after a visit to the property, an environmental noise officer employed by the appellant corresponded with the respondent about the level of noise emanating from his premises.
The officer sought informal resolution, but complaints from the neighbours continued and a final warning email was sent to the respondent. The officer subsequently returned and assessed that the noise level constituted a nuisance and issued an abatement notice to the respondent in respect of the production of noisy music, pursuant to section 80(1) of the Environmental Protection Act 1990.
On the respondent’s application, the magistrates court quashed the abatement notice. The judge was satisfied, on the officer’s evidence, that a statutory nuisance had occurred and that the issuing of the notice was justified pursuant to section 80 of the 1990 Act. However, as a result of an omission in the notice to specify the steps to be taken, as might be necessary for the purpose of abating the nuisance and prohibiting the recurrence of the same, the notice was invalid. If that was incorrect, the requirements of the notice were unreasonable in character or extent. The wording was unfair and unreasonable and the notice should be quashed. The appellant appealed by way of case stated.
Held: The appeal was allowed.
(1) It was plain from section 80 of the 1990 Act that a notice was not necessarily invalid when the essence of the notice was a requirement to abate and no steps were specified: Section 80(1)(a) simply required abatement, restriction or prohibition. An abatement notice had to inform the person on whom it was served the nature of the nuisance complained of, but it need not specify the works or other steps to be taken to abate the nuisance. The local authority had a discretion to leave the choice of means of abatement to the perpetrator of the nuisance. If, however, the means of abatement were required by the authority, it had to be specified in the notice: see Falmouth and Truro PHA v South West Water Ltd [2000] PLSCS 71; [2000] 3 All ER 306 and Stone’s Justices’ Manual (7.10518).
The situation was different if the local authority went further and pursuant to section 80(1)(b) required “the execution of such works, and the taking of such steps, as may be necessary for any of those [abatement, restricting, prohibiting] purposes”. In that case, as a matter of fairness and subsequent enforceability, the steps required had to be spelled out clearly. It was important to read the statutory provision in context: R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 EGLR 129; [2001] 2 AC 349 considered.
(2) The meaning of “steps” made sense in the context of its neighbouring term “execution of such works”. That latter term lent colour to the kind of thing envisaged by the legislation as steps. Whether a notice required any steps to be taken had to be gleaned from an objective reading of the notice. The proper approach was for the court to construe the notice objectively and fairly in a “common sense” way. One had to look at substance, not form. The notice in this case required the respondent to abate the “noisy music” causing the “nuisance” found by the officer. Once that finding was made, the appellant had no discretion but had a statutory duty to issue the notice.
The local authority and its issued notice left it up to the respondent to decide how to achieve that abatement. That said, in the instant case it was obvious what should be done: This case began with a dispute between neighbours about loud music. The appellant investigated and found that the respondent was playing his music at a level that caused a nuisance to his neighbours. The solution was for the respondent not to play his music so excessively loudly. That was not a “step” as understood by the statutory regime and regulations. For the purposes of the law, the means were not relevant, not having been specified in the notice. It was the end that was critical, tested by a straightforward question: whether the subsequent level of noise was causing a nuisance: Cambridge City Council v Douglas [2001] PLSCS 3; [2001] Env LR 41 considered.
(3) As this was not a “steps” case, and the respondent could choose how to abate and avoid future noise nuisance, the second part of the notice achieved nothing further of substance. The phrase “exercise proper control of volume of sound” was simply another way of saying “abate” the nuisance and did not impose any unreasonable requirement.
However, the ending of the paragraph with the words “not likely to cause a nuisance” might be confusing. The requirement to abate was to stop causing a noise nuisance. The introduction of likelihoods did not assist. It achieved nothing of value and should be removed. Thus, the second part of the notice including and coming after the words “and for that purpose require you to” should be deleted.
That was the course that the judge should have taken. If, as here, there was unhelpful or unnecessary surplusage in the notice, it was entirely within the power of the court at first instance to vary the notice to ensure its clarity to avoid confusion and promote understanding, which assisted all parties and the public interest in avoiding needless further administrative steps and/or litigation. As the judge had not taken that precautionary step, it was open to the appeal court to do so.
(4) The notice overall, as modified, clearly struck a fair balance between neighbours in conflict. It ensured that the respondent did not cause a nuisance by listening to music at an excessively intrusive volume, while protecting his right to enjoy music within his home so long as the noise levels were kept within reasonable bounds. The modest refinement of the notice did not affect the core validity of the notice.
Andrew Price (instructed by Enfield Council) appeared for the appellant; Jonathan Powell (instructed by Stokoe Partnership) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Enfield London Borough Council v Beckford
