Noise abatement order may impose a decibel level, but must require a suitable standpoint from which the meter reading is to be taken, or it will be void for uncertainty
This was a
motion by Watney Mann (Midlands) Ltd, of Northampton, for an order of
certiorari to bring up and quash that part of an abatement order made by
justices sitting at Fenny Stratford, Buckinghamshire, on May 15 1975 which
required that the noise level generated within premises known as the Fingals
public house, Bletchley, Buckinghamshire, should not exceed 70 decibels. The
respondents were a number of local residents aggrieved by noise emanating from
the public house.
Mr A F B
Scrivener QC and Mr R J Rundell (instructed by Bower, Cotton & Bower,
agents for Becke, Phipps & Co, of Northampton) appeared for the applicants,
and Mr A B Hidden (instructed by Sharpe, Pritchard & Co, agents for S A J
Levene, of Milton Keynes) represented the respondents.
Giving the
first judgment, WATKINS J said that the background of the case lay in the fact
that the premises in question had adjoining flats and dwelling-houses. At one
time the owners of the public house had employed a live band to entertain
customers, but following complaints from nearby residents the services of the
band were dispensed with and a juke box installed. On May 15 1975 justices
sitting at Fenny Stratford made an order under section 99 of the Public Health
Act 1936 on an application by the respondents, three aggrieved persons. The
order required the applicants to cease causing a nuisance by generating noise
in the public house which exceeded 70 decibels. The applicants, who did not
challenge the finding by the justices that there had been a nuisance by noise,
now contended that the justices acted in excess of jurisdiction in requiring
that the noise should not exceed 70 decibels. They also claimed that that part
of the order was void for uncertainty. They contended that justices making an
abatement order had three alternatives. They could make an order simpliciter,
an order in general terms, or an order indicating works to be undertaken.
It was plain
from the authorities that there was a complete answer to these contentions. In
the case of Millard v Wastall [1898] 1 QB 342 it was held that a
notice dealing with black smoke from a chimney was good and that the justices
had been fully entitled to add words relating to the extent of the smoke level
which would be permitted. That decision had not been overruled, and in Nottingham
City District Council v Newton [1974] 1 WLR 923 Lord Widgery CJ had
said that justices were fully entitled, when making a nuisance order, to use
their discretion when requiring a respondent to do certain work. That had been
approved in Salford City Council v McNally [1975] 2 All ER 860.
He (his Lordship) thought, indeed, that it was often very helpful for justices
to attempt to provide not only applicants, but also the aggrieved with some
guidance upon a question such as noise and how the problem could be solved.
Justices making an abatement order were fully entitled to add to their simple
‘Thou shalt not,’ provided that the additional terms or conditions were
practical and easily understood.
That being
said, it was clear that that part of the order made by the justices in the
present case which related to the 70 decibels permitted noise level was void
for uncertainty. According to the terms of the order a reading of the noise
level could be taken at any place in the public house itself. The true test for
ascertaining whether a nuisance existed, however, was not by standing inside
the premises from which the nuisance was said to be emanating. It was to be
ascertained by standing outside the premises or inside adjoining premises.
Before making such an order, he (his Lordship) would have visited the premises
and then stated from where the sound reading should be taken. In his opinion
the application should be allowed.
Agreeing, LORD
WIDGERY said that the case threw up for the first time the interesting question
whether justices, making a noise abatement order could introduce into their
order the concept of decibels. He thought that they could and should hear
evidence relating to decibel readings, and that if they took the trouble to do
so they could go on to refer to decibels when indicating in their order what
would be an acceptable level of noise. Justices should take advantage of the
advances of science, and he (his Lordship) thought that for the reasons given
by Watkins J the application should be allowed.
KILNER BROWN J
also agreed, and an order was made quashing that part of the order in question
which related to decibels. The applicants were awarded costs.
