Appellants running licensed kennels in residential area – Abatement notice served on appellants alleging noise nuisance cause by dogs barking – Appellants appealing notice – Whether appellants using best practicable means to prevent or to counteract the effect of the nuisance – Crown Court upholding notice – Regulation 2(2) of the Statutory Nuisance (Appeals) Regulations 1995 – Appeal allowed
The appellants owned a property known as 4 Netley View Villas, Fawley Road, Hythe, Southampton, which was a semi-detached property with a curtilage of 35ft by 160ft situated in a residential area. They were licensed by the respondent council in accordance with the Breeding of Dogs Act 1973 to keep a breeding establishment. In 1973 the appellants set up a kennels at the property and started to keep and breed Siberian Huskies. By June 1997 there were 21 adult dogs and three puppies on the site.
By an abatement notice dated 4 June 1997, the council alleged the existence of noise amounting to a statutory nuisance under section 79(1)(g) of the Environmental Protection Act 1990, the complaint being “the noise and/or howling and/or whining dogs”. The notice required the appellants, as the persons responsible, to abate the nuisance. The appellants appealed relying on regulation 2(2) of the Statutory Nuisance (Appeals) Regulations 1995, which provided a ground on that a person could appeal against an enforcement notice, where an appellant had used “the best practicable means” to prevent or to counteract the effect of the nuisance. The crown court found that if the kennels remained on the current premises there were no further steps which could be taken to reduce the noise from the dogs. However, it concluded that “the best practicable means” in regulation 2(2) of the Regulations included the moving of the kennels to a non-residential location and, accordingly, the appellants had not used the best practicable means to counteract the nuisance. The appellants appealed by way of case stated.
Held: The appeal was allowed.
1. The judge had erred in law in concluding that “best practicable means” in regulation 2(2) of the Regulations included the relocation of a business to different premises. The words could not bear that interpretation. The regulation was to give the recipient of an abatement notice a ground of appeal and the steps he had to take, to show that the best practicable means had been used to prevent or to counteract the effect of the nuisance, were steps in connection to the property to which the abatement notice related.
2. The provisions of the Act were penal and gave rise to criminal proceedings if they were not complied with. Parliament had plainly thought it right to give recipients the benefit of a defence of best practicable means; otherwise great hardship would be caused by the summary procedure. However the concept of best practicable means was not likely to be satisfied if the pre-existing level of adverse consequences increased as a result of expansion of a business without counteracting measures simultaneously being taken.
Viscount Dilhorne (instructed by Steel Raymond, of Bournemouth) appeared for the appellants; Malcolm Gibney (instructed by the solicitor to New Forest District Council) appeared for the respondents.
Thomas Elliott, barrister
