QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
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"Subject to subsections (2) to 6 below, the following matters constitute 'statutory nuisances' for the purposes of this Part, that is to say - [materially to this case]
(g) noise emitted from premises so as to be prejudicial to health or a nuisance..."
"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 its occurrence or recurrence;
and the notice shall specify the time or times within which the requirements of the notice are to be complied with."
At subsection (3) of section 80 is an appeal provision:
"The person served with the notice may appeal against the notice to the magistrates' court within the period of twenty- one days beginning with the date on which he was served with the notice."
"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 (6) specifies the penalties that can be imposed. Subsection (7) confers a statutory defence:
"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."
Section 79(9) makes plain that the control provisions of section 79(7) apply in respect of land as well as in respect of buildings.
"With regard to the point made in respect of 'DJ transmissions', I refer you to the meeting held prior to the determination of the application at which Mr Hern [that was the representative of the local authority to whom I referred and who had made this apparently informal agreement] agreed that DJ transmissions could be undertaken, up to a maximum of 5. Unfortunately, for whatever reason, that was not confirmed in the Planning Committee. My client should be grateful for an explanation of this, bearing in mind that this particular point was discussed not only with Officers but also with the Local Ward Member."
"The respondents satisfied the statutory defence as provided by subsections 7 [of section 80] and subsection 9 [of section 79] of the Environmental Protection Act 1990 by proving that the best practicable means were used to prevent, or to counteract the effects of the nuisance."
I should say at this point that the defendants confined themselves to the statutory defence of best practicable means. They did not seek to present any other defence, i.e. a defence of reasonable excuse for what took place, as a separate line of defence before the magistrates.
"It was the Water Undertaker's submission below, and (by its respondent's notice) again on appeal, that the Health Authority are under a general duty to consult the alleged perpetrator of a nuisance, either by reason of the statutory scheme under the 1990 Act (in particular as a "reasonably practicable" step to "investigate the complaint" under s.79(1)), or at common law in order to achieve fairness (in particular to safeguard the alleged perpetrator from having an inappropriate abatement notice served upon him), before serving an abatement notice. Suffice it to say that I, like the judge below, would reject this contention for the reasons he gave (although in my case without "some hesitation"). I would furthermore respectfully question the judge's view that "in the vast majority of cases, consultation with the alleged perpetrator by the enforcing authority would form both a sensible and appropriate part of the investigative process" in the exercise of the enforcing authority's discretion. That seems to me to go altogether too far. Often, certainly, it will be appropriate to consult the alleged perpetrator, at least on some aspect of the matter, before serving an abatement notice, but the enforcing authority should be wary of being drawn too deeply and lengthily into scientific or technical debate, and warier still of unintentionally finding itself fixed with all the obligations of a formal consultation process."
It seems to me, therefore, that reason (b) is not an appropriate reason.
"(e) That although one of the conditions stipulated no voice- overs, there was clearly an informal/verbal arrangement that a minimum of 5 voice- overs would be permitted or tolerated. If this arrangement had ceased then the appellant should have made specific reference to it. There was no correspondence to this effect and we were not satisfied that the respondents were aware it had been retracted, even if this was the situation.
(f) The letter from the respondent dated 21.06.02 specifically referred to the verbal agreement about the number of voice- overs. There is no evidence to show a response to this letter and we feel that it is feasible that the microphone would not be removed from the disc jockey in order to prevent voice- overs."
"The case law presented to the court predated the 1990 Act and although it was considered, we felt it did not assist in the interpretation of 'best practicable means'. Those cases were helpful to decide what amounts to 'reasonable excuse'.
This seems to me to be an immaterial ground, the defence of reasonable excuse not having been advanced by the defendant at the hearing.