Dr Merren Jones v Chapel-en-le-Frith Parish Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 25 July 2022 |
| Neutral Citation | [2022] EWHC 1909 (QB) |
| Docket Number | Case No: QA-2022-MAN-000002 |
| Court | Queen's Bench Division |
| Year | 2022 |
[2022] EWHC 1909 (QB)
THE HON. Mr Justice Turner
Case No: QA-2022-MAN-000002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM MANCHESTER MAGISTRATES' COURT
IN THE MATTER OF PROCEEDINGS UNDER
SECTION 82 OF THE ENVIRONMENTAL PROTECTION ACT 1990
Liverpool Civil and Family Court.
35, Vernon Street, Liverpool L2 2BX
Piers Riley-Smith (instructed by Richard Buxton Solicitors) for the Appellant
No Attendance or Representation for the Respondent
Hearing date: 8 July 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Turner
INTRODUCTION
This is an appeal by way of case stated against the decision of District Judge (Magistrates' Courts) McGarva to dismiss the appellants' application for an abatement order in respect of an alleged statutory noise nuisance.
The appellants all live close to a Multi Use Games Area (“MUGA”) and the skate park both of which are located in the Chapel-en-le Frith Memorial Skate park in Derbyshire and responsibility for which lies with the respondent.
They allege that the noise emanating from the activities carried out on the MUGA and the skate park is such as to amount to a statutory nuisance. It includes:
• ball strikes, kicks and bounces from the MUGA;
• impact noise of skateboards and other equipment on the metal ramps and installations in the skate park;
• noise from shouting from users of the MUGA and the skate park; and
• noise from music played in the MUGA and the skate park.
In finding against the appellants, the District Judge held that there was a sharp legal distinction to be drawn between, on the one hand, noise which was generated as a result of the “intended use” of the MUGA and skate park and, on the other, “anti-social use” (such as the playing of loud music and the continued use of the facilities after they were intended to be closed). He concluded that the latter did not fall to be taken into account in his assessment as to whether the allegation of nuisance had been made out.
He also found that the appellants had been rendered hypersensitive by the anti-social behaviour elements of what had been going on at the MUGA and the skate park but for which they would not have been so adversely affected by the noise arising from their intended use.
The appellants challenge these findings on the basis that they are founded upon a misunderstanding of the law.
THE LAW
Section 79 of the Environmental Protection Act 1990 (“the 1990 Act”) provides insofar as is material:
“(1) … the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—
….
(g) noise emitted from premises so as to be prejudicial to health or a nuisance…”
Under s.82 of the 1990 Act, a person aggrieved by a statutory nuisance can apply to the Magistrates' Court for an ‘abatement order’.
Under s.82(2):
“If the magistrates' court ….. is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises…. the court ….. shall make an order for either or both of the following purposes—
(a) requiring the defendant ….. to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;
(b) prohibiting a recurrence of the nuisance, and requiring the defendant…, within a time specified in the order, to execute any works necessary to prevent the recurrence;
and, in England and Wales, may also impose on the defendant a fine not exceeding level 5 on the standard scale.”
Under s.82(4):
“Proceedings for an order under subsection (2) above shall be brought—
(a) … against the person responsible for the nuisance;…
(c) where the person responsible for the nuisance cannot be found, against the owner or occupier of the premises.”
In R v Carrick DC [1996] Env. L.R. 273 it was held in the context of statutory nuisance:
“In principle “nuisance” has its common law meaning, either a public or a private nuisance.”
The question therefore arises as to whether the noises generated by the anti-social behaviour complained of by the appellants falls within the scope of this regime. This issue is reflected in the first two of the three cases stated by the District Judge:
“1. Was I wrong not to deal with the issue of whether the noise was injurious to health given that I found that it was the antisocial behaviour rather than the intended use of the MUGA and skate park which led to sleeplessness?
2. Was I wrong to distinguish between noise generated by the intended use of the premises and noise emanating from antisocial behaviour associated with the premises?”
With respect to the second main issue, concerning hypersensitivity, the authority of greatest relevance is of some vintage. In Gaunt v. Fynney (1872) 8 Ch App 8 the plaintiffs lived next to a property in which machinery, which included a boiler, was operated. On one occasion, a sudden noise had alarmed members of the plaintiffs' household and, since that time, the plaintiffs were convinced that the boiler was dangerous. As a result, the noises which it made thereafter became a permanent source of irritation and uneasiness to them. Against this background, the court held:
“…a nervous, or anxious, or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and exaggerates into some new significance, originating within himself, sounds which at other times would have been passively heard and not regarded.”
Against this background, the plaintiffs' claim in nuisance failed.
The issue of hypersensitivity arises in the third question raised by way of case stated:
“Can antisocial behaviour which includes noise that derives from the nuisance causing premises prevent a finding of statutory nuisance on the basis that such antisocial behaviour has resulted in the complainants being found to be hypersensitive due to the antisocial behaviour?”
THE CENTRAL DISTINCTION
In paragraph 45 of his judgment the District Judge held:
“There is in my view a distinction between noise amounting to anti-social behaviour which is consequential to the presence of the MUGA alone and noise which comes from the intended use of the MUGA which is playing ball games. I do not think the parish council should be held responsible for anti-social behaviour.”
The District Judge reiterated this approach in paragraph 2 of his case stated:
“Having made those findings of fact I concluded that I should distinguish between noise created by the use of the skate park and MUGA for their intended uses; i.e. skateboarding and playing football and the use of the areas for anti-social behaviour. I concluded that the parish council should not be responsible for noise which emanated from acts of antisocial behaviour including the use of the MUGA and skate park after dark. The skate park as with any public open space can be a magnet for antisocial behaviour; the removal of the skate park or MUGA would not necessarily remove the antisocial behaviour. It is important to bear in mind a finding of nuisance confers criminal liability and can give rise to a fine; the Parish council should not be responsible for acts outside its control. It was contended by the complainants that I should not draw that distinction. Effectively the complainants are contending that section 82 confers absolute liability.”
Although the District Judge thus articulated his reasons for concluding that it would be a generally good thing that “anti-social noise” should be distinguished from “intended use noise”, he did not clearly explain the legal basis upon which this distinction fell be to made. It is therefore necessary to explore whether such a legal foundation can be established.
Furthermore, the respondent to this appeal chose, as they had every right to do, not to appear on this appeal. Although they had earlier indicted that a skeleton argument would be provided, it, unfortunately, never materialised. Accordingly, this Court has been driven to do its best to consider the merits of what may have been contended on behalf of the respondent without the benefit of its input.
It is also to be noted that the “intended noise”/“anti-social noise” distinction drawn by the District Judge was not one which had been relied upon or referred to by either party before him. It was, I am informed, entirely the product of his own creative input.
In this context, I am grateful to Mr Riley-Smith acting on behalf of the appellants for the care with which he has sought, in fulfilment of his duty of candour, to articulate what contentions may have been raised on behalf of the respondents to this appeal had they chosen to make an appearance.
PUBLIC NUISANCE AND ANTI-SOCIAL BEHAVIOUR
The respondent made the point in its skeleton below that some of the matters about which the appellants were complaining did not fall within the scope of section 79(1)(g) of the 1990 Act because they comprised anti-social behaviour which was unrelated to the emission of noise. These included, for example: the throwing of eggs; verbal abuse and acts of trespass. Such conduct fell within the scope of the anti-social behaviour regime provided under the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”).
The appellants have readily conceded the strength of this point and do not seek to argue that anti-social behaviour not involving the emission of noise falls to be considered by the court.
However, the District Judge went further than this holding, as he did, that even anti-social behaviour which...
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Merren Jones, Stephen Covey-Crump, David Howe v Chapel-En-Le-Frith Council
...of normal resilience would have found the noise to be unreasonable.” 6 The reasons upon which my findings were based are to be found at [2022] EWHC 1909 and no purpose would be served by rehearsing them 7 The parties were thereafter unable to agree on the appropriate remedy consequent upon ......
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Merren Jones Stephen Covey-Crump David Howe v Chapel-en-le-Frith Council
...of normal resilience would have found the noise to be unreasonable.” 6 The reasons upon which my findings were based are to be found at [2022] EWHC 1909 and no purpose would be served by rehearsing them 7 Having determined the questions arising on the case, I was asked by counsel for the ap......