STATUTORY NUISANCE: LAW AND PRACTICE

CAMBRIDGE CITY COUNCIL-v-CHARLES DOUGLAS

(CO/3529/2000) (Thursday, 21st December 2000)

WALLER LJ AND JOWITT J

Facts: The following facts were found:

1. That on 3^rd October 1999 when the Environmental Health Officers visited No 2 Devonshire Road, the level of noise emanating from the Devonshire Arms constituted a noise nuisance.

2. The 4 1/2 inch party wall that separated the premises provided little insulation against noise.

3. The respondent has a Public Entertainment Licence granted by the appellant, which allows him to host two events per week and play music up to 92 decibels.

4. On 3rd October 1999 the respondent was not holding an event under the Public Entertainment Licence.

5. By referring to works in the notice the appellant did give the respondent the impression that he was required to undertake works to ensure that the noise nuisance did not recur.

6. The notice did not specify the works that the respondent should undertake in order to comply with the notice.

7. The notice did not specify from where within the Devonshire Arms the noise nuisance came from.

8. The respondent should be supplied with sound levels acceptable to the appellant in order to take the necessary steps to comply with the notice. The respondent was unable to assess the level of noise himself because he was not able to gain access to No 2 Devonshire Road.

The correctness of the fifth finding depends upon a reading of the abatement notice by the Divisional Court.

The Divisional Court held that the assertion in the eighth finding that the respondent should have been supplied with sound levels to enable him to take the necessary steps to comply with the abatement notice raises a question of law, rather than a question of fact as to the duty in law of a local authority when it drafts an abatement notice.

The magistrates were of the opinion that:

The abatement notice was justified in that the noise from the Devonshire Arms on 3rd October 1999 did constitute a noise nuisance.

The notice was defective in that it did not specify exactly where the noise emanated from. The notice simply stated "at the Devonshire Arms." Further the reference to works in the notice created ambiguity in that the appellant did not envisage that the respondent need carry out any works.

The requirements of the notice were unreasonable in that there was no certainty as to what measures the respondent had to take so as not to cause a nuisance, unless the music was turned off completely which would be unreasonable. The respondent had to be made aware of the permitted level of sound because of the party wall and because he held a Public Entertainment Licence and had done so for the previous seven years. I observe that the party wall referred to is between the public house and the house at No 2.

4. The time permitted was reasonable.

They posed the following questions for the Court:

Does the inclusion of the references to"works" in the abatement notice when none were anticipated by the appellant render it invalid because of ambiguity?

Should the abatement notice be specific in identifying the source of the noise so that the respondent is clear about what he must do to comply with the abatement notice?

Were the magistrates acting unreasonably in deciding that the appellant should provide noise data to the respondent so that he can comply with the abatement notice given the party wall dividing the properties?

HELD

JOWITT J

Types of Nuisance

It is clear that some nuisances can be abated by discontinuing the activity which causes them. There are other nuisances which can only be abated by the carrying out of works. In some such cases there may be more than one way in which the nuisance can be satisfactorily tackled.

It is also clear now from the decision of the Court of Appeal in R v Falmouth and Truro PHA ex parte South West Water [2000] 3 AER 306 that in every case in which a local authority serves an abatement notice it has an unfettered freedom to choose whether to proceed under paragraph (a) or paragraph (b) of section 80(1). It may proceed under paragraph (a) and leave it to the person on whom the notice is served to choose his own way of abating the nuisance, or it may proceed under paragraph (b) and tell him what steps are required of him. If a local authority adopts the latter course it is required to spell out with sufficient particularity what works he must carry out so that he will know what is required of him and what he must do in order to avoid the consequences of a failure to comply with the notice.

Suspension of Notices

Regulation 3 of the Statutory Nuisance (Appeal) Regulations 1995 sets out those cases in which an abatement notice is to be suspended in the event of an appeal. So far as is relevant for present purposes regulation 3 provides:

"(1) Where-

an appeal is brought against an abatement notice served under section 80... of the 1990 Act, and

either

(i), compliance with the abatement notice would involve any person in expenditure on the carrying out of works before the hearing of the appeal... and

(c)...paragraph (2) does not apply... the abatement notice shall be suspended until the appeal has been abandoned or decided by the court.

(2) This paragraph applies where

the expenditure which would be incurred by any person in the carrying out of works in compliance with the abatement notice before any appeal has been decided would not be disproportionate to the public benefit to be expected in that period from such compliance.

(3) Where paragraph (2) applies the abatement notice

shall include a statement that paragraph (2) applies, and that as a consequence it shall have effect notwithstanding any appeal to a magistrates’ court which has not been decided by the court, and

shall include a statement as to which of the grounds set out in paragraph (2) apply."

The effect of these provisions is this. There can be no suspension in a case in which compliance would not involve the cost of carrying out any works. Nor can there be any suspension in the case in which, though works will have to be carried out, the cost of them would not be disproportionate to the benefit accruing to the public from the abatement during the period of suspension. In all other cases suspension is automatic.

Whether or not compliance would involve the cost of any works is a question of fact whose resolution has to be approached with common sense and fairness. One may have a case in which the local authority has proceeded under section 80(1)(a) and in which, for example, a nuisance could be abated by shutting down a whole manufacturing process but in which to expect this would be contrary to common sense and fairness and would be unreal. Those who have the duty of complying with the notice would properly take the view that it would involve cost in carrying out works, in which event regulation 3(1)(b)(i) would be satisfied. The present is clearly such a case in that in their opinion the magistrates say it would have been unreasonable to turn off the music completely.

There will be other cases in which it would not conflict with common sense or fairness to expect the nuisance to be abated without incurring cost in carrying out any works pending determination of an appeal. This could be the case even if the person on whom the notice has been served has longer term plans for a solution which would involve expenditure on carrying out works. It was submitted that on the proper construction of these provisions there can never be any suspension when the local authority proceeds under section 80(1)(a). The court did find anything in the words of the provisions to require this restricted construction. It is easy to envisage cases in which, on any view, costly works would have to be carried out to abate the nuisance but in which, there being more than one remedy, the local authority has left it to the person on whom the notice has been served to decide for himself how to proceed. Such a case would clearly fall within regulation 3(1)(b)(i) and the requirements of paragraph (2)(b) which have to be met for there to be no suspension.

Bearing in mind that there will be many cases in which, although the local authority is proceeding under section 80(1)(a), the person to whom the abatement notice is addressed will have to carry out works in order to comply with its requirement, The court could see no reason why paragraph (2)(b) or regulation 3 should apply only to those cases in which the local authority has proceeded under section 80(1)(b). The words in subparagraph (b) are "in compliance with the abatement notice" and not "in compliance with the requirements of works in the abatement notice."

Drafting of the Abatement Notice

Turning to the abatement notice. It begins by informing the respondent that the appellant is satisfied of the likely recurrence of noise amounting to a statutory nuisance under section 79(1)(g) of the Act at the Devonshire Arms arising from amplified music. (This provision refers to noise emitted from premises so as to cause a nuisance). Next, it tells him what is required of him in consequence. The words used are these:

"HEREBY PROHIBIT the recurrence of the same and for that purpose require you to exercise such control as is necessary over the level of amplified music so as not to cause a nuisance."

The court read these words simply as a requirement that the respondent should abate the nuisance. In so far as they suggest any method it is simply that the volume of the music must be kept down, but that is not a requirement that works be carried out. The point is underlined by the footnote to the words "require you to" which reads "State the specific works to be done or action to be taken."

The answers to the magistrates’ questions.

Does the inclusion of the references to "works" in the abatement notice when none were anticipated by the appellant render it invalid because of ambiguity? My answer to this is no.

Should the abatement notice be specific in identifying the source of the noise so that the respondent is clear about what he must do to comply with the abatement notice? Again my answer is no. If there was more than one source of noise from music within the premises it was not for the appellant to say which was the offending source. It could have been one or another, or there could have been a cumulative effect for all the appellant knew.

Were the magistrates acting unreasonably in deciding that the appellant should provide noise data to the respondent so that he can comply with the abatement notice given the party wall dividing the premises? My answer to the question is yes and that it also discloses an error of law. There was no requirement in law upon the appellant to specify a permissible noise level to be measured in decibels at some particular position or positions. The effect of noise may depend upon more factors than volume, such as pitch and the nature of the noise. There was no obligation on the appellant to say more than that there was a statutory nuisance which must be abated and this it did. To require more of the appellant would be to require it to proceed under paragraph (b) of section 80(1) rather than, as it was free to choose, under paragraph (a).

Whether noise which did not breach the condition of the Public Entertainment Licence would or would not amount to a statutory or common law nuisance I do not know. I merely say that a local authority cannot, by the grant of such a licence, licence a nuisance.

Magistrates’ decision quashed and remitted with a direction to dismiss the appeal.

WALLER LJ

Looking at the abatement notice served on the respondent, the ordinary reader would understand the following.

Noise from amplified music at the Devonshire Arms amounts to a statutory nuisance;

That noise must be controlled so as not to cause a nuisance, but the method of control is up to the recipient of the notice;

The notice does not require any specific works to be done; the amplified music could just be turned down or stopped, but if the recipient can control the noise by "carrying out works" (the words in the bracketed section confirming non-suspension), he is free to do so, but since if works are chosen, the likely cost of those works would not be disproportionate to the public benefit, the abatement notice will not be suspended pending appeal;

Since the notice does not specify "the works" there are no works that the council can execute and for which they can recover the necessary expenditure. Thus the final sentence is surplusage.

The above common-sense approach seems to me consistent with authority, and renders the notice valid for the reasons given by Sir Edwin Jowitt.

I would just add this. If the recipient was entitled to have any anxiety about the terms of this notice (which in my view he was not) that anxiety could only relate to the inclusion of the last sentence. I say that because on any view the notice did not require any works to be done immediately and thus prior to any appeal. The choice of control was clearly the recipient’s. There was no requirement to spend money immediately which is what the suspension provision is concerned with.

Accordingly on the appeal it would have been open to the magistrates to vary the notice so as to exclude the last sentence under Regulation 2(5) if there was any doubt about it and confirm the notice as valid. That would indeed have been an obvious solution in this case for the avoidance of any doubt, and would not have lead to the abatement

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