Theme park – Noise level – Statutory nuisance – Court making abatement order – Whether court setting maximum noise level too high – Whether court properly taking account of commercial considerations – Whether court erring in failing to provide for claimants’ inspection of works – Whether court properly incorporating code of practice – Appeal dismissed
The claimants served a notice, under section 82 of the Environmental Protection Act 1990, on the defendant on the ground that they were aggrieved by the existence of a statutory nuisance. The nuisance was in the form of noise emanating from a theme park operated by the defendant, which also staged eight or nine concerts a year. Nothing happened under that notice. However, following the service of a second notice, which was accompanied by an expert report, a district judge found that a statutory nuisance was being caused. He therefore made an abatement order and fined the defendant the maximum fine of £5,000.
The defendant’s appeal against this conviction was dismissed by the crown court, but appeals against the sentence and the abatement order were upheld, with a lower fine of £3,500 being imposed and a new abatement order being made. The court found that the noise level of 43dBA at the claimants’ home constituted a statutory nuisance, specified the number of occasions upon which the local inhabitants had to expect some inconvenience owing to noise emanating from the park and set a maximum permitted noise level of 40dBA in respect of daily operations. Conditions were made requiring specific works to be carried out, but these did not provide for the inspection of those works by the claimants. With regard to the concerts, the court purported to incorporate the Code of Practice on Environmental Noise, by which acceptable levels of noise could be calculated.
The claimants appealed against the order by way of case stated, arguing that: (i) the crown court had erred in law in setting the maximum noise level for daily operations at only 3dBA below the level found to be a nuisance; (ii) it had not been entitled to take commercial considerations into account when making the abatement order; (iii) it ought to have provided them with an opportunity to inspect the work carried out; and (iv) the order was not sufficiently certain to be enforced owing to the uncertainty of the applicable limits in the code.
Held: The appeal was dismissed.
(1) The court’s conclusion on the maximum noise level had been informed by the expert’s report. The court had intended to abate the statutory nuisance that had been found to exist on the basis of measured noise at the level of 43dBA and it had deliberately chosen a level that was 3dBA below that, against a background of the expert’s report indicating that such a marginal difference could indicate what was acceptable and what was not.
(2) The court was required to have regard to all relevant circumstances to ensure that the discharge of its obligation to make an abatement order, with its potential penal consequences, was proportionate and no more than was reasonably necessary to achieve the statutory requirement. It had rightly found that the evidence of any adverse commercial effect was exiguous and indirect and that the defendant would have no difficulty in complying with its terms.
(3) The court had not erred in law in failing to make provision for the claimants to inspect the works. The main thrust of the order was the imposition of the maximum noise level at 40dBA. The effective and practical enforceability of the order was not diminished by the absence of any monitoring or inspection regime concerning the performance or maintenance of the works to the point where its absence made the order erroneous.
(4) The court had been entitled to adopt as the standard the Noise Council’s code of practice. Although the code did not identify a specific maximum noise level, it did provide the means by which the maximum noise level might be calculated. That, coupled with the fact that the abatement order would also operate on the same occasions in respect of the daily operations at a maximum of 40dBA, made the order both workable and sensible.
Stephen Hockman QC and William Upton (instructed by Richard Buxton, of Cambridge) appeared for the claimants; Jonathan Caplan QC, James Eadie and Gregory Jones (instructed by Travers Smith) appeared for the defendant.
Eileen O’Grady, barrister
