St Albans District Council v Patel
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FORBES |
| Judgment Date | 23 October 2008 |
| Neutral Citation | [2008] EWHC 2767 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11396/2007 |
| Date | 23 October 2008 |
[2008] EWHC 2767 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Forbes
CO/11396/2007
Mr Matthew Reed (instructed by the Solicitor to St Albans District Council) appeared on behalf of the Claimant
Mr Asitha Ranatunga (instructed by Messrs SA Law) appeared on behalf of the Defendant
This appeal by case stated concerns a prosecution brought before the Central Hertfordshire Magistrates' Court by the appellant (“the Council)” in respect of alleged contraventions of an abatement notice served under section 80(1) of the Environmental Protection Act 1990 (“the 1990 Act”). The abatement notice in question concerned a noise nuisance caused by licensed premises in St Albans called “Mokoko”, formerly known as the Harrow public house, which premises were and are owned by the respondent (“Mr Patel”). It was alleged by the Council that on three separate occasions (namely 30th June 2006 and 14th and 15th July 2006) Mr Patel had contravened the abatement notice as the result of the “noise nuisance” that “was heard within a complainant's property” (see the terms of the relevant informations). The complainant in question was Ms Jane Lockley (“Ms Lockley”), who lives at 18 Upper Dagnal Street, St Albans, a property that adjoins the “Makoko”.
Following a trial which took place over three days (on 8th June, 11th June and 6th July 2007), the Magistrates gave their decision on 16th July 2007 and gave their reasons in writing. They found that a noise nuisance had been caused to the garden of Ms Lockley's property on the dates in question but that on each of those dates Mr Patel had used the best practicable means to prevent or counteract the nuisance and thus was entitled to the benefit of the statutory defence available to him (as to which see below). The Magistrates were requested to state a case on 31st July 2007. Following responses to the case by the Council and Mr Patel, the case stated was sent to the Council on 11th December 2007 and lodged with this court on 19th December 2007. The case was subsequently amended in June 2008 pursuant to the terms of an order made by Silber J on 3rd June 2008. All references in this judgment therefore are to the amended case stated.
The legal framework
By section 111(1) of the Magistrates Court Act 1980, a determination may be questioned on the grounds that it is “wrong in law or is in excess of jurisdiction”.
If no reasonable Bench could have reached the finding of fact in question, that will amount to an error of law: see Oladimeji v DPP [2006] EWHC Admin 1199 at paragraph 5.
The court, when reaching its decision, is required to apply its mind only to proper or material considerations: see Bracegirdle v Oxley [1947] KB 349 at page 353.
Section 80(4) of the 1990 Act provides as follows:
“(4) 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.”
Section 80(7) of the 1990 Act is in the following terms:
“… 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.”
Section 79(9) of the 1990 Act provides as follows:
“(9) In this Part 'best practicable means' is to be interpreted by reference to the following provisions—
(a) 'practicable' means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;
(b) the means to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures;
(c) the test is to apply only so far as compatible with any duty imposed by law;
(d) the test is to apply only so far as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances;
and, in circumstances where a code of practice under section 71 of the Control of Pollution Act 1974 (noise minimisation) is applicable, regard shall also be had to guidance given in it.”
As will become apparent in the later stages of this judgment, the provisions of section 79(9)(a) quoted above are of particular importance in this case.
The Grounds.
On behalf of the Council, Mr Reed summarised the grounds of appeal in the following terms. Ground (1): the Magistrates failed to apply the proper test applicable to a best practicable means defence under section 80(7) of the 1990 Act. Ground (2): the Magistrates took into account immaterial considerations when reaching their decisions. Ground (3): the Magistrates failed to take into account material considerations when reaching their decisions. Ground (4): in consequence, the decision that Mr Patel had used the best practicable means to prevent or counteract the nuisance in question on the days in question was perverse or irrational.
Before turning to consider those grounds, it is necessary to quote from the case stated in order to understand how the Magistrates reached the decision that they did. I therefore turn to the case stated at paragraph 2 where the Magistrates set out the following findings of fact:
“A: The respondent is the licensee and responsible for the Mokoko bar.
B: There have been licensed premises at that location for some time and certainly since 1986. The garden has always been included within the terms of the licence; but until the respondent took over the premises it had not been used to any great extent.
C: The appellant authority became responsible for the issue of licences for the sale of intoxicating liquor as a result of the Licensing Act 2003.
D: The appellant authority issued the licence for the premises on 10th March 2006.
E: The terms of the licence, inter alia, allow the patio (garden) area to be used until 2300 hrs for the consumption of intoxicating liquor on a daily basis; with provision for a maximum of ten live music events in the garden until 1900hrs, per 12 month period. It was a condition of the licence that, under the heading 'prevention of public nuisance', 'The licence holder or anyone in the organisation of entertainment (including those controlling the volume of music) shall ensure that any noise emanating from the premises is such as not to cause annoyance or disturbance to residents in the locality'.
F: The garden (patio area) is divided into three areas described in the evidence as A, B and C.
G: The licence allowed a maximum of 100 people to be within the licensed area.
H: The last complaint relating to noise prior to the respondent's use of the premises was in 1997.
I: On 9th June 2006, as a result of complaints, an abatement notice was served on the respondent by the appellant. This notice related to 'speech or vocals from customers in the pub garden'; and required the respondent to 'abate the nuisance within one hour and prevent the recurrence of the same'.
J: The Respondent lodged an appeal against the notice but did not pursue it.
K: As a result of complaints by neighbouring residents, Environmental Health Officers visited the area on three relevant dates, assessing the noise from three separate locations.
L: For the purposes of these proceedings, only the complaints made by Jane Lockley of 18 Upper Dagnal Street, St Albans were deemed to amount to a statutory nuisance on the relevant dates, from the appellant's point of view.
M: Part of her garden adjoins area C of the garden of the public house.
N: Some of the noise was transmitted via a cooker hood, located within her kitchen with the end of the duct being located within the wall bounding the Mokoko garden.
O: The noise was purely as a result of conversation, with occasional laughter. There is no allegation of rowdy or inappropriate behaviour by the patrons occupying the garden area.
P: Ms Lockley moved to the address approximately four and a half years prior to this hearing.
Q: The respondent, via the appellant, tried to arrange meetings with local residents to discuss any issues arising from the use of his premises.
R: Ms Lockley did not respond to those enquiries.
S: The respondent paid for secondary glazing to be installed at 28 Verulam Road.
T: The respondent made enquiries regarding planning permission to construct a conservatory.
U: The respondent did reduce the numbers of patrons allowed in the garden area, by closing off area C. He also closed the garden area at various earlier times, and monitored its use.”
There then follows a summary of the evidence that was heard by the Magistrates. This included the evidence of Mr Steven Hide (a Principal Environmental Health Officer) who gave evidence of his visit to 18 Upper Dagnal Street on the evening of 30th June 2006. He described the noise that he heard on that occasion and expressed the view that the noise amounted to a statutory nuisance. In cross-examination, Mr Hide accepted inter alia that one impact of reducing the areas further might be louder noise since people would be more densely packed together. He also accepted that moving people on to Area A would potentially lead to a greater impact on different neighbouring property. He said that he felt that more than four or five people in the garden would not be suitable and that the best...
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R (South Kesteven District Council) v Grantham Maigstrates Court
...the public house. That simply does not feature in the reasoning process which is set out in Mrs Gulson's statement. 3222. In St Albans District Council v Patel [2008] EWHC 2767 (Admin), Forbes J had this to say about section 80(7) and section (79)(9) of the 1990 Act: “14. Mr Reed submitted......