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Roper v Tussauds Theme Park Ltd. [2007] EWHC 624 (Admin) |
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Statutory Nuisance Roper v Tussauds Theme Park Ltd. [2007] EWHC 624 (Admin) The appellants reside in close proximity to Alton Towers which is a theme park. They were affected by the noise which emanated from the park. They, therefore, served a notice under s82 of the Environmental Protection Act 1990 on the respondent, claiming that the noise amounted to a statutory nuisance in terms of the Act. The magistrates court in turn held that there was a statutory nuisance, made an abatement order and fined the respondents. The respondents appealed to the Crown Court which upheld the appeal. A lower fine was substituted and a new abatement order was made. The new order which was intended to abate the nuisance which was derived from amplified music, amplified commentaries, screaming and shouting and the operation of rides, limited the park’s noise emission to a maximum of 40 dBA when measured from the defendant’s property. The appellants appealed to the Queens Bench Division against the terms of the abatement order. Essentially, the appellants were of the view that the order should have imposed more stringent standards on the respondent. The appellants contended that it was irrational to suppose that the statutory nuisance would be abated by permitting a noise level of up to 40 dBA and that the Crown Court should have been aware of the fact that the BS 4142 standard indicated that a level of 40 dBA would be likely to result in complaints and that a difference between 43 (that is to say the level at which the Crown Court was of the view that a statutory nuisance existed) and 40 decibels was barely perceptible. R further contended that the court had been wrong to take commercial considerations into account when making the order. Decision The appeal was dismissed by the Queen’s Bench Division. Wilkie J was of the view that the Crown Court had not acted irrationally in fixing a decibel level of 40dBA. The Court’s decision had been based on expert evidence which had taken into account the fact that a difference of 3 decibels even though marginal could make a difference to what was acceptable and what was not. Inter alia the Court had taken into account the fact that according to World Health Organisation guidelines one was dealing with noise levels which were well below that at which those guidelines indicated that few people would be moderately annoyed. The Crown Court had also legitimately taken into account the fact that the character of the area was such that local residents must expect some inconvenience from noise from Alton Towers. The Court was also obliged to have regard to commercial considerations. Furthermore, since the abatement order had penal consequences the Court was under a duty to ensure that the terms of the notice were proportionate and was no more than that which was necessary to achieve the statutory requirement. Finally, the Court was entitled to take into account the fact that local inhabitants must expect some inconvenience from Alton Towers. Wilkie J also addressed certain other points in his judgement. One was whether the Crown Court had erred in taking as the measure which was to be used in the abatement order as an hourly average in contradistinction to one taken over a shorter period. His Lordship was of the view that it was quite legitimate for the Crown Court to adopt the former. Another point concerned whether the abatement order was valid by virtue of the fact that the appellants had no means of being able to ascertain whether the remedial works which the respondents were required to carry out under the abatement order had been complied with. His Lordship held that the fact that the order made no provision for monitoring did not invalidate the order. Comment This is one of the growing number of cases where private individuals invoke s82 of the Environmental Protection Act 1990 in order to secure the redress of nuisances. Essentially, the case illustrates how difficult it is for the court to set noise levels in terms of an abatement order which will balance the conflicting interests of the complainant, on the one hand, and the creator of the nuisance on the other. It was beyond dispute that setting a noise level of 40dBA would result in some form of annoyance to the appellants. Indeed, BS4142 indicated that such noise levels would annoy and generate complaints. However, the Queen’s Bench rightly held that a distinction requires to be drawn between noise which is simply capable of annoying an individual and that which ranks as a statutory nuisance in terms of the Environmental Protection Act 1990. As far as the taking into account of commercial considerations was concerned one feels that the judgement could have been clearer. Wilkie J was simply content to say that the Crown Court was correct to decide that one must take commercial considerations into account when framing an abatement order. Probably this meant that one must take into account the inevitable consequences of drafting orders which could have serious financial consequences on the person on which the order is served. In the instant case if a lower noise level was set possibly the maximum number of individuals who were admitted to the site would have had to be reduced and, or, certain amusements would have had to be removed. Another issue which the Crown Court alluded to was the relevance of planning permission to the level of noise which should be tolerated from the amusement park. The Crown Court had held, in effect, that the fact that Alton Towers had been granted planning permission meant that this had changed the character of the land to one where the type of noise, which was the subject matter of the appeal, was typical and therefore less likely to rank as a nuisance in the eye of the law. The Crown Court went on to state, however, that this did not authorise the creation of a nuisance. There remains some lingering doubt in the wake of the Court of Appeal decision of Wheeler v JJ Saunders Ltd [1996] Ch 19 whether planning permission can change the character of land in relation to common law nuisance. However, this point was, unfortunately, not addressed in Roper in terms of statutory nuisances. It is the author’s view that planning permission has no relevance in relation to statutory nuisance. Francis McManus Napier University July 2007 |