Hammersmith London Borough Council v Magnum Automated Forecourts Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE SHAW |
| Judgment Date | 31 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0531-1 |
| Date | 31 May 1977 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1977 H. No. 1005 |
[1977] EWCA Civ J0531-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Queen's Bench Division
(Mr. Justice Croom-Johnson)
The Master of the Rolls (Lord Denning)
Lord Justice Roskill and
Lord Justice Shaw
MR. R. SEARS, Q. C. and MR. J. SULLIVAN (instructed by Messrs. Sharpe, Pritchard & Co., Solicitors, London) appeared on behalf of the Plaintiffs (Appellants).
MR. A. DAWSON Q. C. and MR. J. FURBER (instructed by Messrs. Brian H. Taub & Co., Solicitors, London) appeared on behalf of the Defendants (Respondents).
This is the first case we have had under the Control of Pollution Act 1974. That Act makes special provision to prevent pollution of various kinds such as pollution by waste disposal, pollution of water, pollution by noise and pollution of the atmosphere. This case is concerned with pollution by noise. Local authorities are given special powers by which they can serve notices on concerns which are making so much noise as to be a nuisance. The persons responsible for the noise are bound to comply with those notices. It may mean the closing of a business, or the reduction of it, without compensation. So it is an important measure.
Until recently Rowan Road in Hammersmith was a quiet street. There had been a small petrol filling station there some years ago, but at that time it was only open in the day-D time. It had been empty for three years from 1973 to 1976. But in June 1976 works were started there. A business concern erected a new building called a "taxi care centre". It operated a 24-hour service. There were automatic pumps which provided diesel oil for taxis. They were operated by means of bank notes and coins which were put into the slots. There was an automatic oil dispensing machine, a car washing hose, and so forth. There were vending machines there from which people could get cigarettes, food and hot drinks on the site. There were no attendants. Everything was automatic. It could be worked for 24 hours every day.
Soon after it started the local residents, who had been living there for years, complained. They were frequently disturbed at night. A census was taken of what happened. Taxis came and went. They kept their engines idling while into the forecourt; or while the drivers were refuelling; or when doing other things - refreshing themselves and the like. Sometimes the taxis had to queue up in the forecourt. Thenoise was particularly bad in the early hours of the morning from one o'clock to four o'clock. Taxis came in every five or six minutes. No other vehicles came at that hour. The people living nearby could not sleep. It was reported to the local authority.
On receiving those complaints, the local authority took steps under the new Control of Pollution Act 1974. Section 58(1) says: "Where a local authority is satisfied that noise amounting to a nuisance exists, or is likely to occur or recur, in the area of the local authority, the local authority shall serve a notice imposing all or any of the following requirements - (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for the purpose of the notice or as may be specified in the notice; and the notice shall specify the time or times within which the requirements of the notice are to be complied with".
It should be noticed that that section imposes a positive duty on the local authority. They "shall serve a notice". The Hammersmith Council did their duty. They served a notice on the persons responsible for the nuisance, that is, on the company which was operating this taxi care centre, Magnum Automated Forecourts Ltd.
It is interesting to observe that the Hammersmith Council have a special noise prevention service. They have experts who can take readings with modern equipment to measure decibels. On getting their report, the local authority were satisfied that there was a nuisance by noise. On the 1st December, 1976 they gave notice in accordance with their statutory duty. They required this company Magnum Automated Forecourts Ltd. within 28 days to "cease all operations and activities on the premisesevery day between the hours of 11. 00 p. m. and 7. 00 a. m. the following day". So there it was. "By the end of December the company had to cease all operations at night of this taxi care centre.
The statute in section 58(3) gave the company a right of appeal to a magistrates court. This company exercised this right. On the 15th December, 1976 they lodged an appeal in accordance with the Begulations contained in the Control of Noise (Appeals) Regulations 1975 (S. I. 1975 No. 2116). Now comes an important point. That appeal did not operate as a stay. There is an express provision in section 70(2)(b) of the statute which says that the Secretary of State can prescribe the cases in which a notice is or is not to be suspended pending an appeal. The Secretary of State made regulation 10 (2)(b) which said: "A notice to which this regulation applies shall not be suspended if, in the opinion of the local authority, the expenditure which would bo incurred in carrying out of works, in compliance with the notice before any appeal has been decided, would not be disproportionate to the public benefit to be expected in that period from such compliance". That is what the authority stated in this very notice. They said: "In the event of an appeal this notice shall not be suspended until the appeal has been abandoned or decided by the court, as, in the opinion of the Council, the expenditure which would be incurred … would not be disproportionate to the public benefit to be expected in that period from such compliance".
The notice also contained a warning that if the company contravened, they could be fined up to £200 for the first offence and, further, the council could take proceedings for securing the abatement, prohibition or restriction of the nuisance. That was all stated in the notice which was servedon the 1st December, 1976.
The company, as I have said, appealed to the West London Magistrates' Court, and lodged their appeal on the 15th December, 1976. It would take about three months before it was heard by the magistrates. Meanwhile the company ought to have obeyed the notice. But they did not do so. They went on with their operations just as before. Their "taxi-care centre" operated all through the night despite the notice. The evidence shows that by March 1977 even more taxis, and so on, were using this service than there had been in December.
Faced with this flagrant disobedience, the council took proceedings in the High Court. The taxi-care centre should have stopped between 11. 00 at night and 7. 00 in the morning and it had...
To continue reading
Request your trial
-
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd
...it to their detriment by depriving them of a customary protection (as to the general value of which see Hammersmith London Borough Council v. Magnum Automated Forecourt Ltd [1978] 1 W.L.R. 50 at p 55A per Lord Denning MR). I see no reason for such a surprising change. It was pressed upon u......
- Kent County Council v Batchelor
-
CH Ltd v F
...Rep. 555. (9) Intercontinental Natural Resources Ltd., In re, Court of Appeal (Bermuda), 1982, unreported. (10) Knapman v. Servain, [1978] 1 W.L.R. 50; [1978] 2 All E.R. 1. (11) Lacoste v. Cedars Rapids Mfg. & Power Co., [1928] 2 D.L.R. 1, considered. (12) McKay v. Essex Area Health Auth., ......
-
The Barns (Ne) Ltd v Newcastle Upon Tyne Cc
...There is a discretion thereafter. 10 Lord Denning, in the case of London Borough of Hammersmith v Magnum Automated Forecourts Limited [1978] 1 All ER 401, said that it should be noticed that "that section imposes a positive duty on the local authority. They 'shall serve a notice'". That was......