Environment – Noise nuisance – Abatement notice – Appellants applying for noise abatement notice concerning alleged statutory noise nuisance emanating from activities on multi-use games area and skate park – District judge dismissing application – Appellants appealing by way of case stated – Whether district judge’s findings based on misunderstanding of law – Questions answered accordingly
The appellants all lived close to a multi-use games area (MUGA) and the skate park, located in the Chapel-en-le-Frith Memorial Park in Derbyshire, responsibility for which lay with the respondent local authority.
They alleged that the noise emanating from the activities carried out on the MUGA and the skate park amounted to a statutory nuisance. It included: ball strikes, kicks and bounces from the MUGA; impact noise of skateboards and other equipment on the metal ramps and installations in the park; noise from shouting by park users; and noise from music being played there.
The appellants applied to the Magistrates’ Court for an abatement order under section 82 of the Environmental Protection Act 1990 in respect of the alleged statutory noise nuisance. The district judge dismissed the application. He held that there was a sharp legal distinction to be drawn between noise which was generated as a result of the “intended use” of the MUGA and skate park and “anti-social use” (such as the playing of loud music and the continued use of the facilities after they were closed). He concluded that the latter did not fall to be taken into account in assessing whether the allegation of nuisance had been made out.
He also found that the appellants had been rendered hypersensitive by the anti-social behaviour elements of the activities, but for which they would not have been so adversely affected by the noise arising from their intended use.
The appellants appealed by way of case stated. They challenged the district judge’s findings on the basis that they were founded upon a misunderstanding of the law.
Held: The questions were answered accordingly.
(1) The district judge sought to define the limits of the respondent’s duties and responsibilities to the noise emitted as a result of the intended use of the MUGA and skate park. Under the common law, responsibility for a nuisance was not necessarily limited to the direct perpetrator of any activity giving rise to the undue interference. A failure to act might sometimes give rise to liability in nuisance at common law.
In the context of statutory nuisance, in principle “nuisance” had its common law meaning, either a public or a private nuisance. The question therefore arose whether the noises generated by the anti-social behaviour complained of by the appellants fell within the scope of the statutory regime.
The district judge was wrong not to deal with the issue of whether the noise was injurious to health given that it was the anti-social behaviour rather than the intended use of the MUGA and the skate park which led to sleeplessness. Consideration should have been given to the impact upon health of all noise emanating from the MUGA and the skate park regardless of whether it fell to be as a result of intended use or anti-social behaviour.
(2) The first stage of the statutory process required the magistrates’ court to determine whether the nuisance existed. If there was a nuisance then only those parties falling within the scope of section 82(3) of the 1990 Act were liable to be required to abate the nuisance. Once the magistrates’ court was satisfied that a nuisance existed the wording of section 82(2) required the court to make an order. There was no discretion to decline to make an order.
However, the court could postpone making an abatement order to give the parties an opportunity to assist the court in determining what steps were needed to achieve the objectives of section 82(2) because abatement in the case of noise nuisance did not automatically involve a requirement to cease all noise at all times.
In the present case, the district judge erred by excluding from his consideration all anti-social noise from the outset. Neither the statutory regime nor the common law of nuisance proceeded on the basis that liability in nuisance was circumscribed by the use to which premises were intended to be put. The district judge was wrong to distinguish between noise generated by the intended use of the premises and noise emanating from anti-social behaviour associated with the premises: That was not a distinction which fell to be made under the statutory regime.
(3) The appellants contended that the respondent did not dispute that it was responsible for the nuisance before the district judge. But in any event, the respondent was clearly the owner and occupier of the MUGA and the skate park. If it were a necessary pre-condition to establish responsibility on the part of the defendant for the nuisance then section 82(4)(c) of the 1990 Act would be meaningless because it was premised on the assumption that proceedings might be brought against the owner or occupier of the premises only when the person responsible could not be found, ie, the owner or occupier was not, himself, responsible.
The district judge concluded that the “intended use” noise did not amount to a nuisance but he made no finding whether the noise as a whole amounted to a nuisance. It followed that he fell into error and left unanswered a question which ought to have been answered before he proceeded to reach his conclusions.
(4) As to the issue of hypersensitivity, the question was what, objectively, a normal person would find it reasonable to put up with. It would normally be wrong to hold that where an actionable nuisance was, in itself, foreseeably causative of hypersensitivity in previously robust individuals, the party liable in respect of the nuisance was thereafter absolved from its consequences.
In the circumstances of the present case, anti-social behaviour which included noise that derived from the nuisance causing premises did not prevent a finding of statutory nuisance on the basis that such anti-social behaviour had resulted in the complainants being found to be hypersensitive due to the antisocial behaviour. Since it was impermissible to distinguish between intended and anti-social noise, it was also impermissible to treat anti-social noise, in part, as a cause of hypersensitivity such as to negate a finding of nuisance. In any event, the existence of hypersensitivity was not a defence where even a person of normal resilience would have found the noise to be unreasonable.
Piers Riley-Smith (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the appellants; The respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to see a transcript of Jones and others v Chapel-en-le-Frith Parish Council
