Noise abatement order under Control of Pollution Act 1974–First case before the courts concerning such an order–Application to quash decision of Secretary of State who, contrary to recommendation of inspector, confirmed order made by London Borough of Barking–Decision challenged on various grounds including criticisms that the local authority should have made a formal inspection of area before exercising its powers, that it was wrong to proceed on the assumption that there was a tendency for industrial noise to increase, and that the Secretary of State failed to take account of the expense to which owners and occupiers of classified premises were put in employing consultants to measure noise levels–Also submitted that, applying the principle of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, the decision was so unreasonable that no reasonable authority could have come to it–Criticisms rejected and Secretary of State’s decision upheld
This was an
application for an order of certiorari to quash a decision of the Secretary of
State for the Environment confirming a noise abatement order made by the London
Borough of Barking under Part III of the Control of Pollution Act 1974.
A J Anderson
(instructed by Coward Chance) appeared on behalf of the applicants; A Collins
(instructed by the Treasury Solicitor) represented the first respondent, the
Secretary of State. The second respondent, the London Borough of Barking, was
not represented and took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an application for an order of
certiorari to quash the confirmation by the Secretary of State of a noise abatement
order made by the respondent local authority, the London Borough of Barking. It
is the first case concerning a noise abatement order to come before the courts.
The order was made on May 27 1976 and there were a number of objections to it.
On March 15 1977 a public inquiry by an inspector appointed by the Secretary of
State was held. On March 31 1977 the inspector reported and some two years
later the Secretary of State gave his decision. The order relates to a large
area of mixed industrial and commercial and residential development at Chadwell
Heath. The reason for the making of the order was said to be, to put it
shortly, because the environmental health department of the council received
more complaints of noise nuisance including petitions from that area than from
any other part of the borough and they hoped that by making the order, what
they termed ‘environmental erosion’ could be halted. The order was made under
Part III of the Control of Pollution Act 1974.
Section 57 of
the Act so far as material provides:
It shall be
the duty of every local authority to cause its area to be inspected from time
to time . . . to decide how to exercise its powers concerning noise abatement
zones.
Section 63
under the rubric ‘noise abatement zones’ provides:
(1) A local
authority may by order confirmed by the Secretary of State designate all or any
part of its area a noise abatement zone.
(2) An order
under this section shall specify the classes of premises to which it applies
(that is to say, the classes of premises subject to control under the following
provisions of this Part of this Act).
(3) An order
made and confirmed under this section may be revoked or varied by a subsequent
order so made and confirmed. (4) The provisions of Schedule I to this Act shall
apply to the confirmation coming into operation of an order under this section.
(5) In this
section.
The First
Schedule to the Act contained familiar provisions relating to the advertising
of orders, the making of objections, the hearing of objections and the
confirmation by the Secretary of State.
The
inspector’s report is in the customary form. He set out the case for the
council for making the order and the objections to it. He recorded that there
had been complaints but that the order seeks prevention rather than cure. He
stated that ‘in regard to the residents they will be able to enjoy the existing
environment without the noise increasing and would not have to wait until a
statutory nuisance was involved and that the local authority would be able to
control in so far as was reasonable the environmental noise level of that area
with the aim of preventing a worsening of the situation.’ The inspector set out his findings of fact
and in particular that the zone was established as a suitable area in which a
pilot scheme could be run rather than for the purpose of meeting and dealing
with a particular problem and after assessing the benefits of the order
extension of it to other parts of the borough would be considered. He stated
also that no measurements of noise had been taken in the order area in the
immediate or distant past. In his conclusions again he related that no evidence
of noise levels had been put in evidence and his main conclusion was:
However the
council’s case rests basically on the possibility of the creeping increase in
the noise level in the order area and I am not persuaded that their fears are
justified. Unless such a situation has demonstrably arisen, the consequential
costs from the public purse while consistently monitoring the area for the
future cannot be justified either in terms of committing costly equipment or
staff resources.
As I said,
some two years later the Secretary of State, without any explanation for the
delay, published his decision. In it he set out the inspector’s conclusions and
then said that he had decided not to accept the inspector’s recommendation.
Then he stated his reasons for that decision. They are challenged in this court
on four grounds and I will deal with each in turn.
Mr Anderson’s
first submission was that it was a condition precedent to making the order that
the council inspect the area, and they did not do so and that was a flaw and
that the Secretary of State erred in law in confirming an order with that flaw.
However, although section 57 imposes a duty on a local authority to cause its
area to be inspected from time to time to decide how to exercise its powers
concerning noise abatement, I do not find that duty as a condition precedent to
the exercise of its powers under section 63. I think it is a general duty to
encourage local authorities to make noise abatement zones where there is a need
for them. There is nothing in section 63 which leads me to conclude that they
have got to cause an inspection to be carried out before they make an order.
Indeed commonsense demonstrates it to be otherwise; what is the purpose of a
local authority or their appropriate committee causing a formal inspection of
an area to be carried out if already the members of the committee or the
officer concerned are familiar with that area?
Indeed the senior environmental health officer in this case would of
necessity have been familiar with the area concerned. He would have inspected
the area from time to time in the course of his ordinary duties. It is true
that in his decision the Secretary of State said that the council had
sufficiently inspected its area. However, he went on to say what he meant by
that, namely that the council had considered what parts of its area might be
suitable for designation as noise abatement zones. I think that all the
Secretary of State was saying was that the council had considered which of its
areas was suitable for a noise abatement zone and had come to the conclusion
that this was one such area. In any event it is not questioned that the area as
such has been fairly described by the council and by the inspector in his
report.
The next
submission by Mr Anderson is that the Secretary of State wrongly took into
account an assumption that the general tendency is for industrial noise to
increase. That he derived from a statement by the Secretary of State that it
was not necessary for the council to have attempted a rigorous demonstration
that, if a noise abatement zone were not established, levels of noise from the
premises which would be within the scope of the order would increase, and went
on: ‘It is reasonable to assume that the general tendency is for industrial
noise to increase; where, as in the present case, industrial and commercial
premises are located close to housing it is reasonable to expect, sooner or
later, dissatisfaction on the part of local residents will arise or recur if
noise from industrial premises increases.’
Mr Anderson said that the assumption that there is a general tendency
for industrial noise to increase is one that the Secretary of State is not
entitled to make because no evidence directly led to that end. I think here
that one has to distinguish between primary facts and inferences to be drawn
from those facts. The primary facts which were recited in the earlier part of
that paragraph were the description of the area as being mixed industrial and
residential development in which there had been some complaints about noise.
The Secretary of State in my judgment is entitled to draw the inference from
those primary facts that there is a tendency for industrial noise to increase.
That is an inference of fact, or a subjective judgment he is entitled to make
from those primary facts. In that respect I do not think that he can be
faulted. Every day the Secretary of State is making just those sort of
judgments in the field of planning and compulsory purchase. He has to make a
judgment on what would happen or may happen as a result of allowing certain
development; for example, whether there would likely be a noise nuisance to
local residents, or whether a development is likely to impinge on the
landscape. These are judgments, assumptions which he makes primarily from facts
and as such they are unassailable.
I turn to the
third submission, namely the Secretary of State was wrong in that he left out
of account the cost occasioned to the objectors by the making and operation of
the order. It is true that that objection had been in the forefront of the
objectors’ case because in order to protect themselves it would be prudent for
them to employ noise consultants to establish existing noise levels, and if it
was said that they had been exceeded or it was necessary to exceed them to take
further advice. They were matters which would give rise to expense and trouble.
However, there is a heading in the Secretary of State’s reasons dealing
specifically with general cost implications for objectors and in it he said:
‘Any expenditure incurred by owners or occupiers of classified premises on the
services of consultants in connection with the measurement of noise levels for
purposes of the noise level register would, however, be within their own
control and at their own discretion.’ So
what, then, the Secretary of State did was to recognise the very point that the
objectors were making on expense, the very point that Mr Anderson takes in this
court. Having recognised it he says that of course they are not legally bound
to incur that expense, it would be at their own discretion. If they did incur
it, of course it would come out of their own pockets. I, with respect, can find
nothing in that. Of course it is inherent in all cases such as this.
Finally, Mr
Anderson submitted that the Secretary of State was unreasonable in all the
circumstances of the case. He used the word ‘unreasonable’ in the sense that it
is used in the well-known case of Associated Provincial Picture Houses Ltd
v Wednesbury Corporation [1948] 1 KB 223. Again he referred to the
Secretary of State’s reasons and particularly to paragraph 8 in which it is
said: ‘The Secretary of State accordingly takes the view that the material
question for him is whether the establishment of the proposed noise abatement
zone covering the area and the classes of premises defined in the order would
in itself represent an appropriate use by the Council of its powers under
section 63 of the Act.’ Mr Anderson said
that the Secretary of State was bound to evaluate the advantages and
disadvantages of making the
conclusion that the order should not be confirmed. Mr Anderson said that the
Secretary of State must not be a rubber stamp, the order must be justified and
all the Secretary of State relied on was the unjustified assumption to which I
have already referred in the previous submission. He said that the Secretary of
State’s approach rendered the procedure for objection pointless. I bear in
mind, as I have to in all these cases, that it is not for me to substitute my
view for that of the Secretary of State. The test in the Wednesbury
case, which is sometimes called ‘the test of perversity,’ is whether the
decision was so unreasonable that no reasonable man could have made it. It may
be hard on the industrialists in the area that they are put to trouble, expense
and risk, but that is not the question. The question is whether the Secretary
of State was being perverse in coming to the conclusion that there is a general
tendency for industrial noise to increase to the annoyance of local residents
and accordingly that an order should be made in order to prevent any increase
in noise. That is the object of the order. I cannot possibly say that that was
a perverse or unreasonable decision. I do not think that conclusion renders the
objection procedure pointless. For example, you might get an area which is
almost wholly industrial where it is necessary to envisage an increase in noise
for the purpose of industry concerned, and the industrialists would object that
it is necessary for them to carry out their business and if there are no local
residents to be affected or, if they are, that the economic interests must
prevail. So there, in such a case, clearly the procedure would be of
importance. It may be that if another Secretary of State had been called upon
to decide this case he may have taken the same view as the inspector. But the
fact is that this Secretary of State took this particular view of the matter;
in my judgment he was entitled so to do.
So under those
circumstances it seems to me that this court has no power to interfere with the
decision to confirm the order.
The
application was dismissed with costs.
