R (South Kesteven District Council) v Grantham Maigstrates Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WYN WILLIAMS |
| Judgment Date | 11 May 2010 |
| Neutral Citation | [2010] EWHC 1419 (Admin) |
| Date | 11 May 2010 |
| Docket Number | Case No: CO/10637/2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2010] EWHC 1419 (Admin)
IN THE HIGH COURT OF JUSTICE
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Before: Mr Justice Wyn Williams
Case No: CO/10637/2009
Mr GordonWignall appeared on behalf of the Claimant
The Defendant did not appear and was not represented
The Interested Parties did not appear and were not represented
(As Approved)
MR JUSTICE WYN WILLIAMS:
1. At the material time, the interested parties were the occupiers of the Waggon and Horses public house in the village of Caythorpe. In recent years they have from time to time held events in the garden of the public house. On some occasions at least, a marquee has been erected in the garden and music has been played inside the marquee for the benefit of the persons attending the particular function. From about 2006 the playing of music in the marquee has led at least some of the residents of the village to make complaints about the noise thereby generated.
2. On 13 May 2008 the claimant served abatement notices upon the interested parties. The relevant part of the abatement notices are as follows. First, in bold at the top of the notice, there appears the following:
“Abatement Notice in Respect of Statutory Nuisance”
Immediately above that heading the party served is informed that the notice is issued and served pursuant to section 80 of the Environmental Protection Act 1990. In the body of the first page of the document, he is told what steps are prohibited. In the instant case, the notice required the interested parties, immediately from the service of the notice, to prohibit the recurrence of a statutory nuisance which had arisen from noise from amplified music. There were two abatement notices served, respectively, on each of the interested parties.
3. Following the service of the notices, members of staff of the claimant engaged in discussions with the interested parties about how best to comply with the notices. As I understand it, a few days after service a discussion took place between Mr Bartholomew, one of the two interested parties, and the claimant's representative about the possibility of fitting a noise-limiting device. That conversation took place over the telephone between Mr Bartholomew and the Environmental Health Officer who has become most knowledgeable about the interested parties’ activities. Her name is Ms Coulthard.
4. Within days of the service of the abatement notice, there was a further complaint of noise nuisance. As I understand it, an event took place at the public house on 17 May which involved the playing of music, but when Ms Coulthard investigated the noise at approximately 10.40pm in the evening, she was not satisfied that a statutory nuisance existed at that time. It is convenient at this stage to mention that her investigation on 17 May 2008 related to the area immediately adjacent to the public house, and also related to the home of Mr and Mrs Ruddle; in particular Ms Coulthard investigated the level of noise which was apparent in the bedroom of that home.
5. On 20 September 2008 the interested parties held another event at the public house. Again, as I understand it, the marquee was erected and music was played. The music was produced by a band and a discotheque. Again, there were complaints about the noise, and Ms Coulthard visited the public house. She arrived at the public house at 8.50pm in the evening. In a witness statement which she made subsequently, she said this:
“Loud music from inside the marquee on the premises was clearly audible from inside my car parked on the street outside the adjacent house. At 21:00 I entered 55 High Street [that is, the house in question], Caythorpe. I was advised by the occupiers that the music started at around 20:00. The disco music from the marquee was clearly audible inside the house, with tracks being recognisable, including a song by Shania Twain. The bass beat was particularly intrusive. I went into the bedroom where the monitoring had been undertaken, the music was clearly audible and very intrusive. The same could be said in a further bedroom and also in the lounge. I spent some time in the house and there was no improvement. The television in the lounge was turned up louder than would be considered normal. It was my opinion that the requirements of the abatement notice had been breached on this occasion. I left at 21:35.”
6. Reaching the view, as she had, that there had been a breach of the abatement notices, the next question for the Ms Coultard and the claimant was what to do about it. It suffices that I say for the purposes of this judgment that the claimant decided to prosecute the interested parties for a breach of the abatement notice. The summons which the Magistrates issued specified the alleged offence as follows:
“…on or about the 20 th September 2008 you failed to comply with a required of a noise abatement notice by failing to prohibit noise nuisance at the premises known as the Waggon and Horses, 57 High Street, Caythorpe, NG32 3DR in contravention of s.80(4) of the Environmental Protection Act 1990.”
7. The case came on for hearing on 14 May 2009. The claimant was represented by a solicitor, Mr Rushworth. The interested parties were not represented. The case was heard by a bench of lay Magistrates. The only notes of what occurred are those which were prepared by Mr Rushworth very soon after the hearing had taken place. The decision made by the Magistrates was that the interested parties were not guilty of the offence alleged against them. The reason why the Magistrates reached that conclusion was because they considered that the interested parties had proved a statutory defence, to which I will refer in a moment. It was possible that the Magistrates could have concluded that there had been no statutory nuisance at the material time, and therefore no breach of the abatement notice. But on the basis of the information put before me, emanating both from the claimant and, belatedly, the Magistrates’ Court, it seems clear that the Magistrates concluded as they did because they considered that the statutory defence was made out.
8. I turn next to the notes of the hearing which Mr Rushworth made, and which are in the bundle of documents before me. His notes contain a summary of the hearing, but it is quite a detailed summary. The notes show that Mr Rushworth opened the case to the Magistrates, and then they identify the evidence which was put before the Magistrates on behalf of the prosecution. Dealing first with the evidence, the prosecution adduced written evidence from the occupiers of number 55 High Street – Mr and Mrs Ruddle —which was to the effect that they considered that they were the victims of a statutory nuisance on 20 September 200The prosecution also adduced written evidence from its licensing officer and evidence was adduced orally from Ms Coulthard, who gave evidence along the lines of the witness statement to which I have referred earlier. The notes made by Mr Rushworth record that Ms Coulthard was cross-examined, but they do not contain any detail of what the cross-examination was about.
9. After the close of the prosecution case, both interested parties gave evidence and were cross-examined. It seems clear from the notes that the substance of what the interested parties had to say centred around whether or not a nuisance had existed at the time of Ms Coulthard's visit, it being the case for the interested parties that it had not.
10. During the course of Mr Rushworth's opening, he had quite properly alerted the Magistrates to the statutory defences available to the interested parties. He had done so, to repeat quite properly, since they were unrepresented, and it was obviously appropriate that the Magistrates should be made aware of any material or statutory provision which might cause them to conclude that the interested parties were not guilty of the offence alleged against them. Mr Rushworth drew the Magistrates’ attention in particular to section 80(7) of the 1990 Act. It is probably a convenient moment for me to set out the relevant statutory provision. Section 79 of the 1990 Act provides by subsection (1) that a number of matters constitute statutory nuisances for the purposes of the Act. Included among the list of such matters, at subparagraph (g) of subsection (1), is the following:
“Noise emitted from premises so as to be prejudicial to health or a nuisance.”
Section 80 of the Act is headed “Summary Proceedings for Statutory Nuisances”. Subsection (1) reads:
“Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements—
(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence.”
Subsection (4) of the same section provides:
“If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.”
Subsection (7) reads as follows:
“Subject to subsection (8) below, in any proceedings for an offence under subsection (4) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.”
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