Merren Jones, Stephen Covey-Crump, David Howe v Chapel-En-Le-Frith Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 07 February 2023 |
| Neutral Citation | [2023] EWHC 200 (KB) |
| Docket Number | Case No: QA/2022/MAN/000002 |
| Court | King's Bench Division |
[2023] EWHC 200 (KB)
THE HONOURABLE 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
Royal Courts of Justice
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 and 5 December 2022
Approved Judgment
This judgment was handed down remotely at 10:30am on Tuesday 7 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Turner
INTRODUCTION
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 Skate Park in Derbyshire and responsibility for which lies with the respondent.
They alleged that the noise emanating from the activities carried out on the MUGA and the Skate Park was such as to amount to a statutory nuisance.
The appellants applied for an abatement order but that application was dismissed by District 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 by way of 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.
The parties were thereafter unable to agree on the appropriate remedy consequent upon my order. I concluded that the appropriate remedy lay in a general abatement...
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