Magistrates upholding noise abatement notice relating to poultry farm – Whether notice bad for not specifying whether nuisance injuriously affected health and/or enjoyment of neighbouring property – Whether magistrates displaying procedural unfairness – Appeal dismissed
The appellants, a husband and wife, ran Windyridge Waterfowl & Traditional Poultry Farm, a poultry farming business in Somerton, Somerset, where in addition to chickens they reared a number of ducks, geese, cockerels and peacocks. Following its investigation into complaints by neighbours, also engaged in rearing livestock, of loss of sleep through noise, the council issued a notice under section 80 of the Environmental Protection Act requiring the appellants to abate the nuisance caused by “the crowing of cockerels and the chorus of waterfowl” and to do so by keeping the offending birds in darkened housing between 10 pm and 6 am, or by taking measures to like effect. A further paragraph, a printed explanation as to why the notice would not be suspended if appealed against, recorded the council’s opinion that the nuisance was injurious to health. At an appeal brought by the appellants in Yeovil Magistrates’ Court the council made no allegation of injury to health but led copious evidence to show that the noise amounted to a nuisance notwithstanding the greater tolerance reasonably to be expected in a farming neighbourhood. The magistrates upheld the notice.
Appealing to the High Court by way of case stated, the appellants claimed that both the magistrates and the council had lost sight of the distinction drawn in section 79 of the Act (as judicially interpreted) between a nuisance prejudicial to health (type A) and one which unduly interfered with the enjoyment of occupation or ownership of land ( type B, common law nuisance). On that basis it was alleged: (i) that the notice was bad for failing to specify the type or types of nuisance complained of; (ii) that given the prior indication in the explanatory note, the magistrates had acted unfairly in allowing the council to advance a case solely in terms of a type B nuisance.
Held The appeal was dismissed.
1. While the distinction between the two types of nuisance had been judicially affirmed (see Salford City Council v McNally [1975] 2 EGLR 28) those authorities concerned the way that magistrates should direct themselves when a prosecution was brought, and not to the contents of the notice the purpose of which was to tell the recipient what he had to do in order to avoid prosecution. Those contents, which did not include a categorisation of the nuisance, were specified in mandatory terms by the Act and the relevant regulations; there was accordingly no basis for implying the additional requirement contended for by the appellants.
2. The appellants could not complain of procedural unfairness since in preparing for a case on apprehended injury to health they had necessarily equipped themselves to take the less serious issues involved in a case of type B.
Pushpinder Saini (instructed by Battens, of Yeovil) appeared for the appellant; Leslie Blohm (instructed by the solicitor for the South Somerset District Council) appeared for the respondents.
