Statutory noise nuisances and BPM

A High Court decision concerning statutory noise nuisances has given guidance on the application of the defence of best practicable means, and underlines the dangers of a defendant relying on informal arrangements with local authority officers or assuming that it is their responsibility to provide technical guidance on abatement measures.

In Tewkesbury Borough Council v Deacon (High Court, 20 October 2003, EWHC 2544 (Admin)), the defendant conducted events such as marriages in a tent erected on his land.

In 2001, he was given temporary planning permission to hold such events, including the playing of live music up to specified maximum sound levels, but with the condition that no voice amplifications from a disc jockey or similar person should be permitted.

The defendant subsequently consulted the local authority about the purchase of a sound compressor to control amplified sounds, and the compressor was sealed after being set at the level prescribed in the 2001 planning permission.

At this stage, it appeared that an officer associated with the council's environmental protection department agreed with the defendant informally that, notwithstanding the condition in the planning permission, five voiceover transmissions would be permitted.

The planning consent was renewed in 2002, and repeated the 2001 conditions about voiceovers but with a reduction in the permitted sound levels of music. The defendant's planning consultant contacted the local authority to seek clarification why the planning committee had not confirmed the informal agreement concerning voice transmissions, but there appeared to have been no further discussion on the point, nor was the informal agreement expressly continued.

Subsequently, the planning department informed the defendant that there had been two occasions when the planning conditions concerning voiceovers had been breached.

Environmental officers later visited the site and served statutory nuisance notices under section 80 of the Environmental Protection Act 1990 on the defendant in respect of both music levels and the voiceover transmissions, and requiring such transmissions to cease with seven days. Anyone served with such a notice has a right to appeal to magistrates on a wide number of grounds, but the defendant did not exercise these rights.

The defendant continued to hold events in the tent, and the local authority then brought criminal proceedings against Mr Deacon and his company for failure to comply with the notice.

The statutory provisions provide a general defence of a "reasonable excuse", but this has generally been interpreted fairly narrowly to encompass situations such as failing to receive the notice. In any event, the defendant did not raise this defence but pleaded the second, available in cases of trade and business, that he was using the "best practicable means" to prevent or counteract the effects of the nuisance.

The magistrates returned a verdict of not guilty on the grounds that the BPM defence had been proved, and gave various reasons for so doing. The local authority appealed against the verdict by way of case stated, and the High Court reviewed the appropriateness of the reasons given by the magistrates.

The first ground given was that the defendant had purchased and installed a sound compressor, but this in itself was hardly convincing and, as Mr Justice Evans-Lombe noted, "it is one thing to buy a sound compressor, it is another thing to set it at a level to prevent there being a statutory nuisance."

The magistrates then noted that various attempts had been made by the defendant to secure the local authority's attendance to set the correct level on the compressor. But the court held that this was not a good ground for suggesting that BPM had been used: "It is not the duty of the local authority, as the guardian of the Environmental Protection Act within its area, to advise individuals or to assist them in reducing noise or give them advice on how noise restrictions should be complied with."

In doing so the court drew on the decision of the Court of Appeal in the Falmouth case in 2001, which advised against enforcing authorities becoming too involved in scientific or technical debate or extensive consultations with those alleged to be committing a nuisance (ENDS Report 303, pp 54-56 ).

The High Court was equally unimpressed with the next grounds given by the magistrates, which referred to the defendant fixing the compressor sound levels at those prescribed in the 2001 planning permission. The grant of the 2002 permission should have demonstrated plainly that the 2001 levels had been reduced, as should have the service of abatement notices in 2002.

The magistrates then referred to the informal agreement in 2001 concerning permitted voiceovers, but the High Court again considered that this was not relevant to the defence. In its view, the 2002 planning permission must have revoked any previous informal agreement, and it was clear from the correspondence with the local authority that the defendant's professional advisers appreciated this.

The High Court therefore concluded that on the facts which the magistrates had found at the hearing there were no grounds to justify them concluding that the BPM defence had been successfully invoked. The magistrates' decision was discharged, and the case remitted back with a direction to convict.

The decision in the Deacon case underlines the extent to which those served with statutory nuisance notices have the prime responsibility to sort out the situation themselves rather than hoping to rely on technical advice from the local authority.

The way in which the magistrates handled the case may also reinforce one of the arguments in a recent report for the Government which proposed the establishment of an environmental tribunal (ENDS Report 341, pp 3-4 ).

The report suggested that, in the case of statutory nuisances involving trade and business, appeals against statutory notices, including those raising grounds of BPM, are best handled by a specialist tribunal rather than lay magistrates. It accepted that any subsequent prosecution for failure to comply with a notice should remain within the normal criminal courts, but proposed that the BPM defence should be confined to appeals against notices, and no longer be duplicated as a criminal defence.

Richard Macrory, Professor of Environmental Law, University College, London

Richard Macrory is a board member of the Agency but the views expressed here are personal

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