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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Godfrey v Conwy County Borough Council [2000] EWHC Admin 443 (13 November 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/443.html Cite as: [2000] EWHC Admin 443

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		Monday 13 November 2000

1. LORD JUSTICE ROSE: This is an appeal by way of case stated against a decision of the Chester Crown Court who dismissed an appeal from the County of Conwy Justices sitting at Abergele on 21st December 1998. The Crown Court decision was on 15th September 1999.
2. The case concerns an alleged nuisance by noise identified in an abatement notice served on 18th August 1998 by the Conwy County Borough Council on the appellant. The notice is in the following terms:

"TAKE NOTICE that under the provisions of the Environmental Protection Act 1990 that CONWY COUNTY BOROUGH COUNCIL being satisfied of the likely recurrence of a statutory nuisance under S 79(1)(G) CIL-Y-BRYN, MOELFRE, ABERGELE within the district of the said Council arising from

DRUMMING AND AMPLIFIED MUSIC

HEREBY REQUIRE YOU as the person responsible for said nuisance immediately from the date of service of this notice to abate the same and also HEREBY PROHIBIT the recurrence of same."

3. Two grounds are advanced by Mr Hale on behalf of the appellant: first, as to the circumstances in which a statutory nuisance by noise is capable of being committed and, secondly, as to the validity of the abatement notice. Before turning in a little detail to those submissions it is necessary to set out the circumstances of the matter as they appear from the case stated.
4. A number of facts were found by the Crown Court. First, the area in which the relevant events occurred is an extremely quiet rural location in the hills above Abegele, the only sources of noise in the area being agriculture, wildlife, a river and the weather. Secondly, the appellant lives at Cil-Y-Bryn, a house with outbuildings, one of which, a wooden outbuilding, has been converted for use as a music studio where rock bands practise: that involves the playing of drums and amplified music using high powered amplification. Thirdly, complaints about the resulting noise were made by a Mr Farey and Miss Coates who live with their children 180 metres away at Ty Newydd. Fourthly, Mr Farey described the noise of the music as being "loud...music 4-5 hours a day" which had "ruined his life for a number of years". If he shut all his windows he could still hear the bass. The Crown Court found that Mr Farey's evidence was somewhat exaggerated, but they found that he was fundamentally truthful. Miss Coates they found to be a truthful and reliable witness in describing the noise as "very intrusive for over three years now". She also described the bass as being "clearly audible" in their house.
5. By reason of the complaints from those two persons, the matter was investigated by Miss Harding, an officer in the Public Protection Department and a graduate in environment health. She visited the area on 7th January, 28th January and 16th July 1998, and it was what she heard on the third of those occasions which led to the service of the abatement notice. The case stated describes her as "an excellent witness, dispassionate and careful", whose evidence was accepted in full. She said that she had tried to take readings using a noise meter but was not able to do so because she could measure no increase in the noise level over that caused by haymaking in an adjacent field. But she described what she had heard. That description, in relation to what could be heard in the garden of the house of Mr Farey and Miss Coates, was that the drums and bass could be heard "strongly despite the tractor noise going on nearby", that it was noise which would "affect the enjoyment of persons outside in the garden", who would "want to get away from it" and the decision to serve the notice was based on what she had heard, rather than on any readings taken on 16th July. She said that she would have felt it necessary to retreat indoors if she had heard that noise in the garden. She said:

"It was annoying because it was not what you expected. It was repetitive and went on for a long time. I hardly noticed the haymaking. The haymaking didn't bother me. The noise did."

6. There was evidence from another neighbour, a Mr Davis, who described the noise, audible in his garden, as being "lovely to the ear for me".
7. Evidence was called on behalf of the defence from Mr Kenyon, a sound expert, who, like Miss Harding, was unable to detect by scientific instrument measurement any increase in noise emanating from the appellant's premises. He described the noise, the music, as "while audible, quieter than the background". He did not himself find it disturbing.
8. The appellant gave evidence. He had tried, as best he could, to soundproof the outbuilding and Mr Kenyon, the expert, confirmed that little more could be done by way of soundproofing. One of the problems was that a wooden structure was not particularly amenable to soundproofing.
9. The case stated then goes on to identify the two issues in the case: first, whether the noise amounted to a statutory nuisance and, secondly, whether the abatement notice was valid. It is to be noted that before the Crown Court, as appears from paragraph 3.2.1.,

"...the parties were agreed that the test to be applied is the same as that for Private Nuisance at Common Law i.e. judged by the standard of the reasonable man and taking into account the nature of the area, was the noise an unreasonable interference with the use and enjoyment by Mr Farey and Miss Coats of their land? Did it materially and unreasonably detract from their enjoyment of the property?"

10. Such a test was identified in Murdoch v Glacier Metal Company Ltd [1998] EnvLR 732 to which the Crown Court were refered.
11. The case went on to say,

"...that the music...measured objectively, [made] no significant addition to the measured background levels...by virtue of its nature it had obtrusive, annoying [qualities], out of character with the nature of the area...it was an unreasonable interference,"

12. and constituted a statutory nuisance.
13. So far as the validity of the notice was concerned the Crown Court, like this court, was referred to a number of authorities and concluded that,

"...while a notice which requires the person to whom it is addressed to do positive work must specify with clarity what has to be done in order to comply...",

14. a notice can require simply the cessation of a particular activity. That conclusion was, anticipatorily, in accordance with the recent decision of the Court of Appeal in R v Falmouth and Truro Port Health Authority ex parte South West Water Ltd [2000] 3 All ER 306.
15. The case stated poses two questions to which, a little later, I shall return.
16. On behalf of the appellant Mr Hale, rightly, first drew the court's attention to the provisions of the Environment Protection Act 1990, section 79 of which, so far as is presently material, is in these terms:

"(1)...the following matters constitute "statutory nuisances" for the purposes of this Part, that is to say-...

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

17. Mr Hale's submission to this court is that there must be something more than a bare Common Law nuisance for a statutory nuisance to occur, and that is to be found, he submits, in the need for the noise to give rise to a hazard to health. He accepts that the level, nature and location of a noise are all factors to be considered in relation to whether a nuisance is created or not. But, he further submitted, noise which, as in the present case, amounted to a level no higher than the ambient noise cannot give rise to a statutory nuisance. Indeed, he submitted that there can only be a statutory nuisance if a particular level of decibels is reached because, absent a decibel level capable of causing injury to health, there cannot be a statutory nuisance. In order to seek to make good that submission Mr Hale took the court to R v Bristol City Council, ex parte Everett [1999] 2 All ER 193. He took us, in particular, to the judgment of Mummery LJ which reviewed the legislative history leading to the Environmental Protection Act 1990 and to a passage at 201 of the judgment of Mummery LJ which refers to Great Western Railway Co v Bishop. Mr Hale submits that the passage in Mummery LJ's judgment at 203a supports his, Mr Hale's, submission. Starting at the bottom of 202 the following refers:

"That expression [which is injury to health] had been interpreted and applied by the courts for over a century in the sense demonstrated in the two authorities cited above. In those circumstances it is probable that Parliament intended: (a) to produce the same result in similar cases under Pt III of the 1990 Act."

18. Mr Hale sought to suggest that, in that passage, Mummery LJ was, in effect, identifying nuisance by noise as being a form of nuisance which must give rise to injury to health.
19. Mr Hale accepted that whether or not there is a nuisance in a particular case as a result of noise is a matter of fact for determination in the particular case. But he stressed that in Murdoch v Glacier Metal Company, to which I have already referred, it was held that the Crown Court were entitled to conclude that there had been no statutory nuisance even though there was a level of noise emitted in excess of that identified, for example by the World Health Organisation, as being capable of injuring health.
20. Mr Hale also took us to National Coal Board v Thorne [1976] 1 WLR 543 and to a passage of the judgment of Watkins J in that case at page 548, where Watkins J, at letter B, refers to an interesting argument in that case to the effect that:

"Not only must a statutory nuisance be either of a private or public kind at common law, but the act of nuisance itself must be such as comes within the spirit of the Public Health Act 1936, by which I assume Mr Roch to be saying that whatever is complained about must in some way be directed to the health of the person who claims to be or who has been affected by the nuisance. I find that proposition to be an attractive one although I foresee difficulties, assuming it to be right, in the application of it in certain circumstances."

21. But Watkins J went on to indicate that that was not a matter for the court's decision on that occasion.
22. Mr Hale also took us to a decision of the Divisional Court in Myatt v Teignbridge District Council [1994] Env. L.R. 78 and, in particular, to a passage in the judgment of Butler-Sloss LJ at page 81 where she said:

"What, in my view, is the most important matter is whether or not it is clear to the recipient what is wrong, because under section 80 failure to comply with an abatement notice for a statutory nuisance is an offence under subsection (4)."

23. Mr Hale submitted that, unless a level of decibels is identified and unless there is injury to health from the level of noise, there cannot be a statutory nuisance.
24. On behalf of the respondent, Mr Thomas drew attention to the repeated appearance in section 79 of the 1990 Act of references to, "prejudicial to health or a nuisance". Such words occur in subsection (1)(a) which was the provision which the Court of Appeal were considering in ex parte Everett. They also appear in each of the subsequent paragraphs of subsection (1) including, as is apparent from the passage which I earlier cited, 1(g) which is pertinent for present purposes.
25. Mr Thomas submits that it cannot have been parliament's intention to equate nuisance with prejudice to health. If it had been, the word nuisance would have been otiose. Furthermore, Mr Thomas submits that, although the legislative history reviewed in ex parte Everett included within it a variety of activities capable of giving rise to a statutory nuisance, noise was not one of those activities. Indeed, as is apparent from a further passage in the judgment of Mummery LJ at page 202, the 19th Century authorities did not all support the submission made by Mr Hale. On the contrary, at 202 H, Mummery LJ referred to Bishop Auckland Local Board v Bishop Auckland Iron and Steel Co Ltd (1882) 10 QBD 138 where Stephen J held:

"That an accumulation or deposit of cinders and ashes was a nuisance if it emitted offensive smells which interfered which the personal comfort of persons living in the neighbourhood, but did not cause injury to health."

26. So, submits Mr Thomas, the requirement of injury to health was not a necessary requirement of nuisance, even in the 19th Century authorities, and noise was not a matter which those authorities or, indeed, the Court of Appeal in ex parte Everett addressed. Mr Thomas submits that there is plain authority to be found in National Coal Board v Thorne for the proposition that the test for a statutory nuisance is the same as the Common Law test, and it is unnecessary, in that respect, to go beyond the holding in the headnote for that proposition to be made good. The problem, submits Mr Thomas, faced by the appellant on this aspect of the case is the findings of fact which appears in the case stated, which are, he submits, unimpeachable before this court. He points out that the notice, in the terms which I earlier rehearsed, is not directed at rock music: it is directed at music without such a limited characterisation.
27. For my part I accept the submissions made by Mr Thomas. It is not a very happy stance for the appellant to adopt in this court that the approach to statutory nuisance which was common ground before the Crown Court is no longer to be regarded as common ground. That, in my judgment, is not of itself fatal to this appeal on this aspect of the case. What is, in my judgment, fatal is that it is, on the statutory provisions to which I have referred, impossible to contend either that a particular decibel level, or noise above the naturally occurring ambient level, must be demonstrated before a statutory nuisance can be shown. The test for a statutory nuisance is the Common Law test, a test which is identified sufficiently, as I have said, in Murdoch v Glacier. For my part, I am unable to accept that the Crown Court erred in any way in reaching the conclusion which they did. Therefore, in response to the first question which they pose:

"Whether a noise which, measured by a noise meter, does not add measurably to the background level of noise but which, by virtue of its nature is obtrusive, annoying and out of character with the area in which it occurs is capable of amounting to a Statutory Nuisance,"

28. I would answer "yes".
29. The second question can be dealt with more shortly. Mr Hale, as I have indicated, challenges the validity of the abatement notice, a challenge which he accepts is made the more difficult by the terms of the Court of Appeal's judgment in ex parte South West Water Ltd. But what he advances by way of submission is this: a mere requirement to abate the nuisance, without saying what should be done to achieve that result is inadequate and renders the notice invalid. The defendant could not know whether the level at which the music was being played in his premises would be such as to be heard, and if so to what extent, in the premises of his neighbour. Furthermore, Mr Hale submits that there is a want of precision in the abatement notice which causes it to fall foul of the provisions of article 7 of the European Convention On Human Rights. As to that alleged want of precision, Mr Hale took us to Kokkinakis v Greece (1994) 17 EHHR 397 and, in particular, to paragraphs 51 and 52 of the judgment of the court. Paragraph 52 refers to the principle that only the law can define a crime and an offence must be clearly defined in law.

"This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court' interpretation of it, what acts and omissions will make him liable."

30. Mr Hale submits that the present abatement notice does not provide any indication of the act or omission which will expose the defendant to criminal sanction. Mr Hale also took us through SW v The United Kingdom, 21 EHHR 363 and, in particular, to paragraphs 34 and 35 of the judgment which again emphasise that an individual is entitled to know what acts and omissions will make him criminally liable.
31. Mr Thomas on the other hand, submits that Budd v Cochester Borough Council [1999] JPL 717 is indistinguishable from the present case. In that case an abatement notice was served in relation to a statutory nuisance identified as "dog barking" and requiring abatement within 21 days. Mr Thomas submits that by reference to the English authorities and the decisions of the European Court of Human Rights what is required in identifying a criminal offence is reasonable certainty and that is to be considered in the light of judicial interpretation of the statute. In the present case such interpretation is provided, he submits, in the Court of Appeal's decision in Murdoch v Glacier.
32. Furthermore, Mr Thomas took us to Steel v United Kingdom (1999) 28 EHHR 603 a case involving a breach of the peace. In paragraph 5 of the court's judgment it was held that, by virtue of the decisions of the English courts, it is now sufficiently established that a breach of the peace is committed only when an individual causes harm or appears likely to cause harm to persons or property or acts in a manner the natural consequences of which would be to provoke others to violence. In paragraphs 75 and 76 of the judgment the court concluded that the national law was formulated with sufficient precision reasonably to allow the applicants in that case to foresee the consequences of their actions and it was sufficiently clear that the applicants were being requested to agree to refrain from causing further similar breaches of the peace.
33. Mr Thomas submits that the present circumstances are indistinguishable from those in Steel. This defendant was required to abate the nuisance by noise identified in the abatement notice, that nuisance being further identified by Murdoch v Glacier.
34. In my judgment, again, the submissions of Mr Thomas are to be preferred. It seems to me that there is nothing in the decisions at Strasbourg, to which our attention has been drawn, which is in any way inconsistent with the approach of the Court of Appeal in ex parte South West Water Ltd. For my part, accordingly, I would answer the second of the questions posed in the case stated which is,

"Whether an Abatement Notice served under section 80 of the Environmental Protection Act 1990 which requires a nuisance by noise to be abated and which could be complied with either by ceasing the activity causing the noise or by taking steps to eliminate the nuisance caused by the noise is a valid notice if it does not specify objective criteria by which compliance can be determined.", in the affirmative. For these reasons, for my part, I would dismiss this appeal.

35. MR JUSTICE MOSES: So would I.
36. MR THOMAS: My Lord, the appellant has the benefit of legal aid to pursue this appeal, I do invite the court to make an order for cost against the appellant.
37. LORD JUSTICE ROSE: What, a Pools order?
38. MR THOMAS: Well, my Lord, it is for a very specific reason. Mr Godfrey has obtained permission to pursue an application for judicial review against the same authority in respect of a wholly unconnected matter, in relation to a housing grant. Circumstances could arise in respect of which a set off might become appropriate and, my Lord, it is for that reason at that I invite the court to make an order.
39. LORD JUSTICE ROSE: Well, it would not, at this stage, be appropriate to make an order, save not to be enforced without leave of the court, would it?
40. MR THOMAS: Well, my Lord, no.
41. LORD JUSTICE ROSE: Mr Hale?
42. MR HALE: No, my Lord. He is legally aided. He does not have an income. Notwithstanding what happens in the judicial review process, in my submission it would not be appropriate to make an order other than without leave of the court, my Lord.
43. LORD JUSTICE ROSE: I am sorry. Are you saying that it would be appropriate to make an order or it would not be appropriate to make an order, even unenforceable without leave of the court?
44. MR HALE: My Lord, yes.
45. LORD JUSTICE ROSE: I am not sure either of us is quite sure what the up-to-date terminology is in relation to orders not to be enforced without leave of the court. Mr Thomas, can you help on that?
46. MR THOMAS: I think the term--
47. LORD JUSTICE ROSE: I know it is different, but I am not sure what it is.
48. MR THOMAS: I cannot recall whether it is that the assessment or the determination be postponed.
49. MR HALE: Subject to section 17 of the Legal Aid Act, my Lord, which has changed.
50. LORD JUSTICE ROSE: Thank you very much. We shall make an order that the appellant pay the respondent's costs but assessment of those costs will be postponed until further order of the court.
51. MR THOMAS: I am grateful.
52. MR HALE: I think I need an order for detailed legal aid assessment of my client's costs.
53. LORD JUSTICE ROSE: You may have it.
54. MR HALE: I am very grateful.