Jersey Unreported Judgments

Nuisance - appeal against an abatement notice issued on 1st December, 2011.

[2012]JRC102

Royal Court

(Samedi)

16 May 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton and Olsen.

 

Advocate F. J. Benest for the Appellant.

H. Sharp, Esq., H M Solicitor General for the Respondent.

judgment

the deputy bailiff:

1.        On 1^st December, 2011, the respondent issued an abatement notice to the appellant under Article 5 of the Statutory Nuisances (Jersey) Law 1999 ("the Law").  The notice indicated that the minister was satisfied that a statutory nuisance existed at the appellant's home arising from large numbers of parrots and other exotic birds on the premises, which were a nuisance by virtue of the noise emitted from the premises so as to be prejudicial to health or a nuisance under Article 2(1)(h) of the Law.  The appellant was required to abate the nuisance within 91 days by taking suitable means so as to prevent noise nuisance at neighbouring residences.  The minister did not give any indication to the appellant as to how he was to abate the noise nuisance - the notice merely required him to do so.  The appellant appeals to the Royal Court under Article 9 and the Schedule to the Law. 

Legal test on appeal

2.        As far as the Court is aware this is the first occasion on which an appeal to the Royal Court has been brought against an abatement notice served pursuant to the Law.  By virtue of paragraph 2 of the Schedule, an appellant may appeal on any one or more of the grounds set out in paragraph 3.  Relevant to this case are the following three grounds:-

"(3)     The grounds referred to in paragraph (2) are -

That the abatement notice is not justified by Article 5;

...

(c) That the Minister has refused unreasonably to accept compliance with alternative requirements, or that the requirements of the abatement notice are otherwise unreasonable in character or extent, or are unnecessary;

(d) That the time, or where more than one time is specified, any of the times, within which the requirements of the abatement notice are to be complied with is not reasonably sufficient for the purpose."

3.        The right of appeal conferred by Article 9 of and the Schedule to the Law is not cast in the same way as many other rights of appeal conferred by statutes in Jersey.  Taking as an obvious example, it is not the same as the right of appeal conferred by the Planning and Building (Jersey) Law 2002, which is an appeal on the grounds that the Minister's decision is unreasonable in all the circumstances of the case.  Here, the ground set out in paragraph 3(a) of the Schedule simply is that the abatement notice is not justified.  The Solicitor General conceded that the test which had to be applied was not a Wednesbury nor a Token test.  The Court merely had to be satisfied objectively as to whether the Minister's decision was right. 

4.        We think the Solicitor General was right to make that concession.  There is nothing in the language of the statute which suggests that any margin of appreciation has to be given by the Court to the minister for the decision which she took.  It is a question for the Court as to whether or not the abatement notice was justified. 

5.        There was dispute between the parties as to where the burden of proof lay, and what the standard of proof was.  Advocate Benest contended that the burden of proof lies on the minister to justify the decision to issue an abatement notice, and that the notice had to be justified to the criminal standard.  The basis for that submission was that the notice threatened the appellant with criminal sanctions and it followed that the minister must establish the position to the criminal standard.  He framed the question in this way - can the minister show to the criminal standard that the evidence of noise emitted was such that the noise exceeded the limit which any normal ordinary person could be expected to have to bear?  We will return to the substance of the question shortly but insofar as the burden and standard of proof is concerned, we do not adopt Advocate Benest's formulation.  It seems to us that the burden lies on the appellant as it does in any civil case on the party proposing that the Court intervene.  We do not think that the standard of proof is the criminal standard.  As in any civil case, it appears to us that the appellant must satisfy the Court on the balance of probabilities that the issue of the abatement notice was not justified, if paragraph 3(a) is the ground of appeal relied upon. 

6.        In his submissions on this point, Mr Benest contended that the case of Tussauds Theme Parks Limited-v-Roper [2006] EWHC 2201 (Admin) supported his contention.  In that case the Deputy District Judge had found that there existed a statutory nuisance perpetrated by the appellants under Section 82 of the Environmental Protection Act 1990, the respondents being the complainants.  At page 3 of the ruling on appeal, his Honour Judge Everard said this:-

"We bear in mind, throughout these proceedings, that they are, in effect, criminal proceedings.  That is to say it is for the respondents to prove their case and we must be satisfied so that we are sure that a statutory nuisance existed in 2003 and 2004 in considering this appeal.  That is, the burden of proof is on the respondents to the criminal standard." 

7.        However it is clear that that case concerned an appeal against a decision of the Magistrate's Court, which found that a statutory nuisance existed and which thereafter passed sentence and made an abatement order.  In other words, it appears to us that this was the second stage of the proceedings, if we were to adopt a similar approach under the Law.  The minister has issued an abatement notice.  No criminal process flows from that issue unless the recipient does not do what he or she is required to do on receipt of the notice.  If there is non-compliance, then there may be criminal process which follows and in any such process the burden of proof lies on the Crown, which must prove its case to the criminal standard, the proceedings being brought pursuant to Article 5(4) of the Law. 

8.        We have approached the instant case therefore on the basis that the burden lies on the appellant to satisfy us to the civil standard that the minister's decision was not justified. 

The statutory framework

9.        By Article 1 of the Law "Statutory Nuisance" has the meaning assigned to it by Article 2.  The relevant provision for the purposes of this appeal is as follows:-

"Subject to paragraphs (2) and (3), the following matters constitute "statutory nuisances" for the purposes of this Law -

...

(h)       Noise emitted from premises so as to be prejudicial to health or a nuisance." 

10.      Paragraphs (2) and (3) are not relevant for the purposes of this appeal. 

11.      It was conceded by Advocate Benest that noise, for the purposes of Article 2(1)(h) included noise from birds.  He contended that in the comparable legislation in England, the reference to "nuisance" was a reference to the common law tort of nuisance.  On being pressed by the Court, he said that in Jersey that meant the claim in voisinage.  He relied on Reg's Skips Limited-v-Yates [2008] JLR 191 in the Court of Appeal where that Court had agreed that a claim in voisinage could be brought where there was unreasonable noise emanating from particular premises and it was accordingly that rationale which led him to formulate the question for us as described in paragraph 5 above. 

12.      The Solicitor General took a slightly different approach.  He said that the Law had been adopted in Jersey by substantially copying the relevant provision of the Environmental Protection Act 1990.  It was clear from English case law under that Act that "nuisance" meant the English tort of nuisance.  Therefore it followed that the Court in Jersey should look at the definition of nuisance as a matter of English law for the purposes of assessing whether a statutory nuisance had been committed in Jersey.  He went on to point out - and this was not opposed - that in Article 2(1)(h) there were alternative bases on which the statutory nuisance might arise.  The noise emitted from the premises in question might either have been prejudicial to health or might constitute a nuisance.  Addressing the latter issue of nuisance, the test as formulated by the Solicitor General was whether there had been unreasonable interference with the enjoyment of the land of nearby owners by reason of the noise emitted from the appellant's property. 

13.      Recognising that the Law might well have been adopted from an English statute, it nonetheless would seem to be a bold conclusion that the States intended to adopt English law as the relevant component part of the definition of a statutory nuisance in Jersey.  It would not be impossible for the States so to have resolved, although it would seem to be on the face of it surprising if decisions of the Courts of a foreign jurisdiction were to establish the basis against which the facts would be considered for the issue of abatement notices in Jersey.  After the case had been argued, the Solicitor General supplemented his submissions by sending to the Court a copy of the projet, P40 of 1998, by which the draft Statutory Nuisances (Jersey) Law 1999 was lodged.  The report which accompanies the draft legislation says this:-

"(1)     Introduction

The Law of nuisance in Jersey presently is based on customary law principles which impose certain rights and duties on the owners of adjoining properties.  Each is under an obligation not to cause damage to the property of the other and, in particular, a land owner is not entitled to do anything on his land which interferes to an unreasonable degree with his neighbour's reasonable enjoyment of his property. 

Jersey Law, however, contains nothing equivalent to the English concept of a "statutory nuisance".  There is presently no duty on the States, or any committee of the States, to take action to abate a nuisance except certain statutory duties relating to public health and similar matters.  The individual citizen may presently only pursue an action in the Royal Court in respect of a nuisance caused by his neighbour. 

The Health and Social Services Committee, against this background, has considered it necessary to promote legislation in the Island that would -

Establish the concept of a statutory nuisance;

Confer powers on the committee to require statutory nuisances to be abated;

Make it an offence for a person causing the nuisance to contravene or fail to comply with an abatement notice. 

The proposed Law would not supplant the customary law right of action in nuisance, but would provide an alternative means by which the committee could act and perhaps spare those affected by some nuisance a potentially prolonged and costly process of civil litigation. 

...

(8)       Conclusion

The proposed legislation is intended to regulate occurrences that are prejudicial to health or a nuisance.  It does not, however, seek to deal with matters in which there is already a more appropriate customary law remedy.  The proposed Statutory Nuisances Law will provide, in relevant circumstances, the public with an alternative to litigation in the Royal Court and is intended to enable the Health and Social Services Committee to deal effectively with a large majority of complaints that are received by the Environmental Health Department." 

14.      The draft bill was not amended, and the draft law therefore adopted and subsequently given Royal assent. 

15.      In his written submissions, which the Court has agreed to receive, the Solicitor General contended that the better view is that the States of Jersey adopted a definition of nuisance based on Jersey customary law which, at the time the law was adopted, was defined by reference to English authorities.  He relied on the fact that as at 1999, the Royal Court had been prepared to have regard to English authorities when considering the Jersey Law of Nuisance - see for example Mitchell-v-Dido Investments Limited [1987-8] JLR 293 at page 304 where the Court said this:-

"The Court is satisfied that, in respect of nuisance, the Law of Jersey follows the Law of England and, therefore, we can have regard to the English authorities (see Dale-v-Dunnells Limited)." 

16.       This approach was criticised by Bailhache, Bailiff in Gale and Clarke-v-Rockhampton Apartments Limited and Another [2007] JLR 27, where, having referred to the decision of the Royal Court in Searley-v-Dawson [1971] JJ 1687, a case that had stood unchallenged for over 30 years, he said:-

"In my judgment, Searley-v-Dawson was not "plainly contrary to early authority" nor indeed wrong.  It seems to me that the judgment of Le Masurier, Bailiff was plainly right and that it set in the proper jurisprudential context a number of other provisions of the law relating to immovable property with which practitioners would be familiar... none of these obligations is founded in contract.  All of them could perhaps be characterised as natural servitudes but can equally well be analysed as obligations, arising in quasi contract, to be a good neighbour and not to use one's land in such a manner as to injure that of the adjoining owner - obligations arising from the law of voisinage.  I accordingly reject the submission of the defendants that Searley-v-Dawson was wrongly decided and that the doctrine of voisinage is not part of the Law of Jersey." 

17.      When commenting on Mitchell-v-Dido Investments Limited, Bailhache B continued:-

"30.    Extraordinarily, bearing in mind that one of the counsel in Mitchell-v-Dido Investments Limited had appeared seven years before as counsel in Searley-v-Dawson, the latter case was not cited and it was left to the Court itself to research the principles set out in Pothier.  Happily, the professionalism and competence of the bar are now such that the Court can generally rely upon the relevant materials being placed before it and upon submissions as to where the Law of Jersey is to be found.  I would respectfully differ from Tomes, Deputy Bailiff in thinking it appropriate to apply principles relating to English tort of nuisance when the cause of action actually lies is voisinage.  For my part, even if the principles are similar, I would hold that the Court should insist that the correct nomenclature is applied and the Court should apply those common principles in developing and explaining the law of voisinage." 

18.      This was the subject of a lengthy judgment in the Court of Appeal in the same case reported at [2007] JLR 332.  A review of paragraphs 141, 144 to 145 and 154 shows that the Court of Appeal found the Royal Court had been correct in concluding that there was no persuasive evidence that the English tort of nuisance had been assimilated into Jersey law and that the adoption of voisinage had therefore been unnecessary.  It was only in respect of the tort of negligence that the Jersey law of tort specifically followed English law. 

19.      There may have been an assumption by the writer of the report accompanying the projet in 1999 that the Jersey law of nuisance was the same as the English law of nuisance, but the Rockhampton case shows that that assumption was incorrect.  In those circumstances, it appears to us to be impossible to construe the Statutory Nuisances (Jersey) Law 1999, where the word "nuisance" is used, as meaning that this was a reference to the Jersey law of nuisance which was the same as the English law of nuisance.  The Rockhampton decision may have been articulated later, but it is firmly based upon the law as it was perceived to have been for a very considerable period.  We therefore do not accept the contentions of the Solicitor General that were received in writing after the hearing. 

20.      We also reject the contention that the word "nuisance" has a technical definition which is the same as the English law of nuisance.  Although we think the States could have theoretically have adopted that approach, it would require the plainest language for the Royal Court to conclude that to be so, and in the absence of any such language, we decline to construe the statute in that way. 

21.      We are then left with the question as to whether the word "nuisance" has an ordinary meaning or a technical meaning.  The first point to make in that respect is that it seems to us that if the word carried only its ordinary meaning, there would be no reason to include in the name of the statute the word "statutory".  The law could simply be described as the Nuisances (Jersey) Law 1999 - and indeed it might not even be necessary to proceed to any form of definition of what a nuisance was. 

22.      We note from the Concise Oxford English Dictionary that nuisance is defined in this way:-

"A person or thing causing inconvenience or annoyance. 

*Law an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy." 

23.      The dictionary definition appears to indicate that a person or thing is a nuisance if he, she or it causes inconvenience or annoyance, and that indeed is the general meaning of the word.  There is no objectivity about the approach.  Using the word entirely properly, a person could describe the noise emitted from neighbouring premises as a nuisance in circumstances where no one else so regarded it.  To the person making the statement, the noise emitted was causing annoyance and was therefore a nuisance.  Given that Article 5 appears to require the minister to issue a notice if satisfied that a statutory nuisance exists, it does not seem to us that the word "nuisance" in Article 2 can possibly be given its ordinary meaning. 

24.      The words "or a nuisance" appear in many sub paragraphs of Article 2(1), and it follows that if the word "nuisance" is to be given any technical meaning, that technical meaning must apply to every example which appears in Article 2(1). 

25.      The problem in finding that the word "nuisance" must carry a technical meaning lies in its definition.  It may be that the right answer is to describe the word as meaning the same as "voisinage" as Advocate Benest contended.  Certainly the need to find some meaning for it is acute because otherwise the statutory definition in Article 2 is entirely circular - a "statutory nuisance" for the purposes of the law in this case means noise emitted from premises so as to be a nuisance.  For the purposes of this appeal, because this is not a case in voisinage directly and we think it better to leave over this issue until such time as there is such a case, we determine that for the purposes of Article 2 of the 1990 Law, the word "nuisance" means an act which a reasonable person would find harmful or offensive and for which there is a legal remedy.  That definition means that if the act complained of would justify an action in voisinage, then it also amounts to a nuisance for the purposes of Article 2 - but the definition is wider than that, because it may be that there are other acts which are harmful or offensive to a reasonable person and which also afford a legal remedy, and which thus also are capable of amounting to a statutory nuisance. 

26.      The difficulty surrounding the definitions alone suggest to us that it is urgent that the minister gives consideration to whether some amendment of this legislation should be proposed to the States.  It is quite unsatisfactory to have, of all things, confusion as to how language in a statute which might give rise to a criminal offence is to be construed or interpreted. 

27.      In our judgment there are other reasons to look urgently at an amendment of this legislation.  We cannot help noticing that the property from which the alleged statutory nuisance has been emanating and the property of the complainants are very valuable properties.  Article 5 appears to impose a statutory duty on the minister to serve an abatement notice if satisfied that a statutory nuisance exists.  We are told that in this case the complainants threatened the minister with judicial review if she did not issue an abatement notice.  A review of the evidence put before us, to which we will return later in this judgment, shows that officials from the Environmental Health Department attended on site on numerous occasions over a period of about two years.  Considerable public expense has been occurred both in those visits and in these proceedings.  All of that could and should have been avoided with a consequence saving for the public purse if the complainants had brought an action in voisinage.  We can see no reason why the minister should not have a discretion as to whether or not to issue an abatement notice.  We do not see why it should be mandatory that the public bear this cost, and this is another reason why we think the minister might want to review this particular piece of legislation. 

28.      In Reg's Skips-v-Yates [2008] JLR 191, the Court of Appeal had to consider whether the creation of excessive noise was actionable under the law of voisinage.  This was effectively conceded in that Court, but it is of note that the Court of Appeal referred to a number of cases such as Key-v-Regal [1962] JJ 189 where the test was whether the noise to which the plaintiff has been exposed "exceeded the limit which any normal ordinary person could be expected to have to bear". 

29.      Accordingly, the test which we have considered in relation to the appeal under paragraph 3(a) of the Schedule is this:-

"Has the Appellant shown on the balance of probabilities that the noise emitted from the premises Century House, St John, arising from the parrots and other exotic birds on the premises was not so excessive that no reasonable land owner in the neighbourhood should be expected to have to bear it?."

30.      If the appellant discharges that burden, then the minister's decision would not be justified.  It is to be noted that the operative time is the date when the decision was made. 

The evidence

31.      The Court was invited by the appellant to attend on site to examine the premises where the parrots are kept.  We did so, noting the objections made by the Solicitor General.  We make it plain that the purpose of so doing was not to listen to the noise levels as they were on that particular day, because those levels might have been affected by factors which were not previously present.  The purpose of the visit as far as we were concerned was to enable us to be familiar with the premises and its environs, and to enable us to assess what could be done to ameliorate the noise if, when we had examined the other evidence, we were satisfied that that course of action was necessary.  Our site visit did reveal that there were certainly a very large number of parrots and other birds on the premises.  We are told by Advocate Benest that there are some 196 parrots which the appellant keeps there. 

32.      Although the burden lies on the appellant to show that the minister's decision was not justified, it is relevant to look first at the evidence which the minister had available to her.  That evidence really falls into these categories:-

(i)        The evidence from Health Department officials who have attended at the appellant's property over the last three years;

(ii)       The technical evidence available as a result of the measurement of sound on the patio of the complainants' property in October 2011;

(iii)      The views of the complainants and other neighbours. 

33.      This factual evidence could then be assessed having regard to all material circumstances including but not limited to World Health Organisation guidelines, to which we return at paragraph 46 below. 

34.      A review of the chronology of events and supporting documentation shows that the complainants contacted the Health Department with their complaint for the first time on 5^th February, 2009.  The complaint concerned the noise of dogs rather than the noise from parrots.  Some five days later the complainants wrote to indicate that the parrots made a noise but the dogs were the worse problem.  We have noted that officials visited either the appellant's residence or the complainants' residence approximately 19 times in 2009, 20 times in 2010 and 30 times in 2011.  On the overwhelming majority of those visits, officials considered that the noise emanating from the appellant's property did not amount to a nuisance.  There were occasions when the officials noted that the birds made a noise intermittently, or could be heard, sometimes squawking, sometimes only faintly.  It was noted that whether the parrots could be heard frequently depended on the wind direction.  We will come onto the noise recordings in or about October 2011 shortly, but we note these extracts from 2^nd June, 2011, noise slightly audible; on 8^th June, parrots were audible but not a nuisance; on 22^nd June, parrots faint, not a nuisance; on 28^th June, none of the normal parrot noise - the official "heard nothing except one very quiet parrot for approximately 10 seconds, otherwise parrots inaudible"; on 6^th July the wind was from the south west and noise was louder than it had been for some time; on 14^th July, a couple of the loudest parrots could be heard; on 15^th July, parrots audible but not loud; on 27^th July, parrots were audible, but not a nuisance; on 10^th August, parrots barely audible; on 17^th August, parrots barely audible; on 16^th September, parrots audible but not a disturbance.  The Court has examined all the notes taken by officials for these various meetings, and it is striking that although the parrot noise was often audible, it was very rare that it was considered to be a nuisance. 

35.      By contrast, the noise diaries maintained by the complainants in 2009 largely concentrated on noise from dogs rather than parrots although both were mentioned, and in 2010, by which time the complaint was about the parrots only, the diaries did show that the disturbance from parrot noise was significant.  The noise levels were not recorded.  In fairness to the complainants, there are occasions recorded where they indicate that the noise was "not too bad today", perhaps because an easterly wind was blowing. 

36.      In May 2010, the minister received a letter from other neighbours of the appellants confirming that on occasion they heard the appellant's parrots, as they considered he had probably heard their dogs or another neighbour's strimmer on a Sunday afternoon.  They had no difficulty with the noise levels from the parrots at the appellant's property. 

37.      We noted a letter dated 30th September, 2010, from an Environmental Health Officer to the complainants recording the noise from the parrots.  This was measured at four different places on the complainant's property.  The most significant measures were outside the complainant's dining room and in the front garden near the apple crusher, where the parrot noise was measured at 45dBA against a background noise of 32dBA, and at 44dBA against 31dBA respectively.  By contrast, outside the living room, with the door open, the parrot noise was measured at 32dBA against background noise of 27dBA, and inside the kitchen with the door open, the parrot noise was similarly measured at 32dBA against background noise of 29dBA.  The Environmental Health Officer concluded that these results showed that the noise from the parrots was "loud enough to interfere with your enjoyment of your garden and will be audible in parts of the interior of your property when the doors are open".  These measurements had been taken on 8^th September.  They compare with comments of officials visiting on 2^nd September where the parrots were "audible" and 3^rd September where the parrots were measured at causing a noise of 43 to 44dBA against a background noise of 35.4dBA; and the measurements need to be compared with the comments of officials visiting on 14^th October - "could hear occasional squawk, wasn't bad" and 21^st October "they were audible from the boundary of [the complainants] but not loud". 

38.      The Court has also noted that the appellant, when challenged with this various information, sought to take steps to ameliorate the noise being emitted by the parrots from his property, whether by selling some of the parrots or keeping them inside or sound proofing the cages where they were kept. 

39.      We noted that the complainants wrote to the Interim Head of Health Protection on 6^th February, 2011, to assert that they were victims of persistent noise nuisance and to invite comments on what was claimed to be a failure on the part of the Department to act on previous complaints.  Somewhat surprisingly, in the light of the very variable evidence that was then available to the Department, the response sent on 14^th February confirmed that the minister intended to take statutory action against the appellant if his then current proposals did not resolve the matter.  That is perhaps particularly surprising given that the writer sent a further letter only a few weeks later to the complainants to indicate that she had visited the aviaries of the appellant, and she considered that she could not establish that a statutory nuisance then existed. 

40.      The remaining piece of evidence available to the minister was the noise measurement and sound recording made on the patio outside the dining room of the complainants' property in two hour intervals on 10 days in a two week period from Monday 3^rd October to Friday 14^th October, 2011.  The measurement times were chosen to ensure that the majority of daylight hours were covered by a recording, with additional recordings being made in the early morning and in the late afternoon.  While these recordings were being made, a record was also kept of the wind direction and speed in order that this information would assist in determining the effect of the wind on the level of noise.  The recordings were made regardless of weather conditions, but weather conditions were noted. 

41.      The analysis of the evidence focused not only upon the level of parrot noise but also upon the perceived noise loudness of the parrot noise, that is to say the difference between the maximum level of the parrot noise and the background noise at the time the measurement was taken.  At levels of less than 5dBA above the background, the analysis concluded that the parrots would not be noticed unless actively listened for.  With parrot noise between 5dBA and 10dBA above the background noise, the parrots were distinctly noticeable and recognisable as coming from a parrot.  Where the noise was more than 10dBA above the background noise, that was classed as very recognisable and as a loud parrot noise.  The average person would perceive such a noise to be twice the level of the background. 

42.      The analysis of the recordings showed that 90% of the time there was discernable parrot noise.  61.6% of the time, there was distinct parrot noise, i.e. noise at more than 5dBA and less than 10dBA above the background.  14% of the time there was loud parrot noise. 

43.      While the recordings confirmed that the parrot noise was loud enough to interfere with the complainants' enjoyment of their garden, it is obvious that the garden is not used from dawn to dusk everyday or during the winter, and it was difficult for the complainants therefore to say that the noise interfered with their enjoyment of the garden for a significant part of the time.  Furthermore, the measurements taken previously and confirmed by the more recent investigation indicated that the parrot noise was not loud enough to interfere with the complainants' enjoyment of their property while they were inside the building.  The comment was made that the parrot noise was much quieter than the dawn chorus of birds or other noises in the area and would not, as has been alleged, cause the complainants to wake up. 

44.      The other interesting feature to come out of the report made on these recordings was this:-

"Generally even the loudest noise from the parrots would not normally be classed as a loud noise.  Other sources of noise in the area were louder.  The birds in the trees at Century House often produced 55dBA and would be perceived to be twice as loud as the parrots.  It is the recognisable nature of the parrot noise that makes it stand out in the environment."

45.      We have had regard to the report from the Medical Officer of Health to the Minister dated 30^th November, 2011.  That was based upon the Environmental Health Officer's report and indicated that the conclusion had been reached that the noise from the parrots was a statutory nuisance because of the intensity, frequency and unnatural character of the exotic bird noise in a countryside environment and the unpredictability of relatively frequent loud screeches. 

46.      The appellant complained that the report of the Environmental Health Officer did not appear to give any credence to the World Health Organisation guidelines, which were produced for us.  In particular, reliance was placed on a passage appearing at page xii which is set out here:-

"Annoyance.

The capacity of a noise to induce annoyance depends upon its physical characteristics, including the sound pressure level, spectral characteristics and variations of these properties with time.  During day time, few people are highly annoyed at LAeq levels below 55dB(A), and few are moderately annoyed at LAeq levels below 50dB(A).  Sound levels during the evening and night should be 5 to 10 dB lower than during the day.  Noise with low frequency components require lower guideline values.  For intermittent noise, it is emphasised that it is necessary to take into account both the maximum sound pressure level and the number of noise events.  Guidelines or noise abatement measures should also take into account residential outdoor activities."

47.      The report later continues at page xiii:-

"To protect the majority of people from being seriously annoyed during the daytime, the outdoor sound level from steady, continuous noise should not exceed 55dB LAeq on balconies, terraces and in outdoor living areas.  To protect the majority of people from being moderately annoyed during the daytime, the outdoor sound level should not exceed 50dB LAeq.  Where it is practical and feasible, the lower outdoor sound level should be considered the maximum desirable sound level for new development."

48.      It may be thought that the WHO guidelines are measuring noise levels which are "prejudicial to health" as opposed to noise levels which are "a nuisance".  We do not think that is so.  The document indicates at page 19 that the objective of the WHO is the attainment by all peoples of the highest possible level of health.  As the first principle of the WHO constitution, the definition of health is given as:-

"A state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity."

49.      That is rightly described as a broad definition of health which embraces the concept of wellbeing and renders noise impacts, such as population annoyance, as a health issue. 

50.      In our view it is not inappropriate to have regard to the WHO guidelines when considering issues of noise pursuant to the Law. 

51.      This is relevant because the noise recordings show that of the 10 days of recordings, there were three days when the parrots did not make a noise of as much as 45dBA, one day when a recording of over 55dBA was made, and three days when the parrot noise reached only 45-50dBA.  The remainder were at 50-55dBA. 

52.      It is important, however, also to note that this was not consistent parrot noise even within this classification.  On many of the days in question, the parrot noise which reached the levels which are just described only reached it for one or two five minute periods during the two hour recorded session.  To this we have to add that the garden birds on occasions registered at 50-60dBA; that there was on occasion shooting from Crabbe which seemed to have some correlation to a period of significant parrot noise; that the noise from crows measured on one day at 55dBA, and on another day from a horse at 53dBA.  On 13^th October, the note was that crows, pheasants, garden birds and Ronez Quarry all made noise louder than the parrots. 

53.      The Solicitor General submitted to us that in the evaluation of the evidence we should take into account that officials' visits do not measure noise in the same way as the carefully structured data gathering which the minister organised in October 2011.  He submitted that it was the combination of the regular slightly annoying noise from the parrots coupled with occasional loud squawking which amounted to the nuisance.  He accepted there was room for a social conscience in deciding whether a nuisance took place - this was a reference to the fact that the appellant was seeking to breed parrots of a species which were globally threatened - and he further submitted that one had to look at the whole context including the fact that the noise from crows, horses and other birds might be described as indigenous noise, to be expected in the countryside, but there was nothing indigenous in Jersey about parrots. 

54.      In the context of what we have to decide, it seems to us that we must ask ourselves whether a reasonable person would find that the noise emitted from these parrots would be harmful or offensive such as would justify a judgment in his favour in an action in voisinage, there being no other identified relevant available legal remedy.  On the evidence we have seen and received, we think that the minister was not justified in issuing the abatement notice in this case.  We recognise that from time to time there was noise emitted from the appellant's property which would be found by a reasonable person to be offensive; but the reasonable person would accept that occasionally such noises did occur, and it really is a question of whether they occurred so frequently that the reasonable person would be annoyed or seriously annoyed by them.  It is in that context that the reference to the WHO guidelines is helpful.  But that is not the only test - we have also applied the measure which the Environmental Health Department themselves have used, namely the number of times the noise from the parrots exceeded the background noise during the formal tests which were carried out.  Finally we have used the technical information from the recordings and balanced that against the evidence from the officials' visits - 69 over a three year period - where the overwhelming majority resulted in a view from the officials that while the parrots could be heard, the noise did not amount to a nuisance. 

55.      This is a straightforward judgment call for the Court.  Taking all this evidence into account, we are satisfied that the minister was not justified in serving an abatement notice pursuant to Article 5.  This is one of those occasions where reasonable persons might equally reasonably arrive at different views.  We have the duty of making our assessment on the evidence and we do not find that the statutory nuisance is proved.  Accordingly the appeal succeeds. 

Authorities

Statutory Nuisances (Jersey) Law 1999.

Planning and Building (Jersey) Law 2002.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223.

Token Ltd v Planning and Environment Committee [2001] JLR 698.

Tussauds Theme Parks Limited-v-Roper [2006] EWHC 2201 (Admin).

Environmental Protection Act 1990.

Reg's Skips Limited-v-Yates [2008] JLR 191.

Mitchell-v-Dido Investments Limited [1987-8] JLR 293.

Gale and Clarke-v-Rockhampton Apartments Limited and Another [2007] JLR 27.

Searley-v-Dawson [1971] JJ 1687.

Rockhampton Apartments Ltd and Another v Gale and Clarke [2007] JLR 332.