Merren Jones Stephen Covey-Crump David Howe v Chapel-en-le-Frith Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 01 November 2022 |
| Neutral Citation | [2022] EWHC 2709 (KB) |
| Docket Number | Case No: QA/2022/MAN/000002 |
| Court | King's Bench Division |
| Year | 2022 |
[2022] EWHC 2709 (KB)
THE HON. Mr Justice Turner
Case No: QA/2022/MAN/000002
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM MANCHESTER MAGISTRATES' COURT
IN THE MATTER OF PROCEEDINGS UNDER
S. 82 OF THE ENVIRONMENTAL PROTECTION ACT 1990
Nottingham Crown Court
60 Canal Street, Nottingham, NG1 7EL
Piers Riley-Smith (instructed by Richard Buxton Solicitors) for the Appellants
Philip Byrne (instructed by Rradar) for the Respondent
Hearing date: 8 July 2022
Written Representations Received: 5 September 2022
Approved Judgment
This judgment was handed down at 09.30am on 1 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Turner
The appellants all live close to a Multi Use Games Area (“MUGA”) and Skate Park both of which are located in the Chapel-en-le Frith Memorial 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.
They applied for an abatement order but that application was dismissed by Judge (Magistrates' Courts) McGarva on 4 November 2021. He 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 challenged these findings on an appeal to this court by way of case stated on the basis that they were founded upon a misunderstanding of the law. In a judgment dated 25 July 2022, I answered the three questions raised by the District Judge as follows:
“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 the Skate Park which led to sleeplessness?
Yes. Consideration should have been given to the impact upon health of all noise emanating from the MUGA and the Skate Park regardless as to whether it fell to be as a result of intended use or anti-social behaviour.
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?
Yes. This is not a distinction which falls to be made under the statutory regime.
3. 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?
Not in the circumstances of this case. Since it was impermissible to distinguish between intended and anti-social noise, it was also impermissible to treat anti-social noise, in part, as a cause of hypersensitivity such as to negate a finding of nuisance. In any event, the existence of hypersensitivity is not a defence where even a person of normal resilience would have found the noise to be unreasonable.”
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 here.
Having determined the questions arising on the case, I was asked by counsel for the appellants to reserve any decision on the appropriate remedy in order to give the parties the opportunity to consider the implications of my judgment. Bearing in mind that the respondent had chosen not to appear on the appeal or make any written submissions, I concluded that such time could be well spent.
However, the subsequent discussions did not bear fruit and the parties now seek my adjudication upon the issue of the appropriate remedy. To this end, I have the advantage of skeleton arguments from both sides which have enabled me to proceed on the papers without the need for further oral submissions.
REMEDIES
Under s.82 of the Environmental Protection Act 1990, a person aggrieved by a statutory nuisance can apply to the Magistrates' Court for an abatement order (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 or defender, 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.”
The Court's powers on a case stated are set out at section 28A (3) of the Senior Courts Act 1981:
“ The High Court shall hear...
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