Environment – Noise nuisance — Abatement notice – Council issuing notices requiring abatement of excessive noise – Claimants seeking judicial review of Crown Court’s decision upholding notices – Claimants appealing by way of case stated against notices – Whether exclusion of claimants’ witness making Crown Court hearing flawed – Whether court erring in definition of nuisance — Whether court assessing effect of nuisance on neighbours – Application refused — Appeal dismissed
The first claimant company owned an airfield on which the second claimant company carried out motor sport events. The airfield was surrounded by private houses and farms and the local authority (the interested party) served notices on the claimants, under section 80 of the Environmental Protection Act 1990, requiring the abatement of excessive emissions of noise from motor vehicle activities, motor sport events and associated activities.
The defendant Crown Court dismissed the claimants’ appeal and upheld the abatement notices. The claimants applied for judicial review to quash that decision, alleging that, at the appeal hearing, a court usher had indicated that the claimants’ company secretary (H) and other witnesses had to stay outside the courtroom until they were called as witnesses whereas three officers of the interested party had been allowed to sit in court. The claimants submitted that H’s exclusion from the courtroom meant that the hearing was flawed.
The claimants also appealed by way of case stated, arguing that the abatement notices were defective because they had failed to identify particular activities that amounted to a nuisance. The court had erred in law in finding that a nuisance was “an unacceptable interference with the personal comfort or amenity of neighbours or the community” (National Coal Board v Thorne [1976] 2 EGLR 104; (1976) 239 EG 121), which had led to an erroneous assessment of the facts. Further, the court had not assessed nor given reasons why the effect of the activities on the airfield constituted a nuisance.
The claimants contended that the court’s definition of nuisance was defective because it did not refer to the concept of reasonable (or unreasonable) user of land, which should have been central to any consideration by a court of the existence of a nuisance.
Held: The application was refused and the appeal dismissed.
(1) The claimants’ application for judicial review would be dismissed. What occurred at the Crown Court had been only a procedural accident that did not amount to an injustice or fundamental error that would justify intervention by the High Court on appeal. The court had not ruled that H should remain outside the courtroom. The usher had indicated that witnesses should stay outside but had not suggested that that exclusion had applied only to the witnesses for one side. The court had not been asked if H could remain in the courtroom. In any event, the claimants had not been placed at any significant disadvantage: Tomlinson v Tomlinson [1980] 1 All ER 593; Jaffray v Society of Lloyds [2007] EWCA Civ 586; [2008] 1 WLR 75 and Mobile Export 365 Ltd v HM Revenue & Customs Commissioners [2007] EWHC 1737 (Ch) considered.
(2) Section 80(1) of the Environmental Protection Act 1990 did not require the identification or specification of the activities that were the subject of an abatement notice. A notice that referred to a nuisance without stating what kind of nuisance it was, for example, noise, smoke or fumes, would be invalid. Beyond that, the courts had set the required threshold of a description at a low level, for example, dog barking, drumming and amplified music. Accordingly, the Crown Court had reached a correct decision in concluding that the interested party did not have to specify in the abatement notices which activities amounted to the statutory nuisance: Budd v Colchester Borough Council [1999] JPL 717 and Godfrey v Conwy County Borough Council [2001] JPL 1162 considered.
(3) The mere omission of any reference to reasonable or unreasonable user could not be regarded as an error that affected the court’s conclusion. The words “unacceptable”, “undue” or “unreasonable” were clearly interchangeable and referred to situations that the law considered should not have to be tolerated by neighbours. Moreover, the court must have had the concept of reasonableness in mind because it had distinguished between days on which the noise was, and those on which it was not, so loud as to amount to a nuisance. In all the circumstances, no error of law had occurred and the court had assessed the effect of nuisance on neighbours: Watson v Croft Promo-sport Ltd [2009] EWCA Civ 15, [2009] 2 EGLR 57; [2009] 18 EG 86 and Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC); [2011] PLSCS 125 considered.
Richard Harwood (instructed by Elvington Park Ltd and Elvington Events Ltd) appeared for the claimants; John Hunter (instructed by the legal department of York City Council) appeared for the interested party; the defendant Crown Court did not appear and was not represented.
Eileen O’Grady, barrister