Licensed premises – Environmental protection – Abatement notice – Appellant authority serving notice on respondent requiring cessation of noise nuisance – Appellants prosecuting respondent for failing to comply with notice – Respondent claiming defence of “best practicable means” – Justices finding “best practicable means” test satisfied – Whether justices erring in law – Appeal dismissed
The respondent was the licensee of a public house. The garden had always been included within the terms of the licence but had not been used to any great extent until the respondent took over the premises. In 2006, the appellant authority issued a licence allowing the garden to be used until 11pm each day for the consumption of intoxicating liquor. Under the licence, the level of noise emanating from the premises was not to annoy or disturb local residents.
Following complaints from neighbours, the appellants served an abatement notice on the respondent, pursuant to section 80(1) of the Environmental Protection Act 1990, on the basis that the noise from the premises constituted a statutory nuisance. The notice required the cessation of the noise nuisance. In December 2006, the appellants preferred an information against the respondent alleging that he had contravened or failed to comply with the terms of the abatement notice in that the complainant had suffered noise nuisance on three separate occasions so that the respondent was guilty of an offence within section 80(4).
The respondent argued that he had used the “best practicable means” (BPM) to abate the alleged noise nuisance in the light of section 79(9) of the 1990 Act. The section provided that the word “practicable” meant reasonably practicable having regard to local conditions and circumstances, the current state of technical knowledge and the financial implications.
Following a three-day trial, the justices found that the respondent had used the best practicable means to prevent, or counteract the effects of, the nuisance in accordance with section 80(7) of the 1990 Act. The appellants appealed by way of case stated, arguing that the justices had erred in law in failing properly to consider alternative means of abating or reducing the nuisance (lesser measures) and focusing on the steps taken rather than the practicality of other possible steps.
Held: The appeal was dismissed.
The court was satisfied that none of the matters raised by the appellant called into question the decision by the justices in the instant case.
In deciding whether they had erred in law in their finding that the BPM defence had been established, it was necessary to read the case stated as a whole together with any elaborations made by the justices with regard to practicability. It should be given a fair reading and not scrutinised as a statute.
In the present case, the BPM case had been properly formulated and applied by the justices. It was clear from a fair reading of the case stated that they had been fully aware of the appellants’ submissions as to the possible use of lesser measures to abate the nuisance and had them well in mind when considering that test.
Furthermore, they were entitled to take into account the circumstances surrounding the grant of the licence to the respondent and the financial implications of any lesser measures.
Matthew Reed (instructed by the legal department of St Alban’s District Council) appeared for the appellants; Asitha Ranatunga (instructed by SA Law, of St Albans) appeared for the respondent.
Eileen O’Grady, barrister
