Tewkesbury Borough Council v Deacon [2003] EWHC 2544 (Admin)

Case No CO/2755/2003[2003] EWHC 2544 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 20th October 2003
Strand
London WC2
B E F O R E:
MR JUSTICE EVANS- LOMBE
Between
TEWKESBURY BOROUGH COUNCILAppellant- v-
Between
DEACONRespondent
Computer- Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M SINGLETON (instructed by Corporate Services, Tewkesbury Borough Council) appeared for APPELLANT for The Respondent did not attend and was not represented
J U D G M E N TMonday, 20th October 2003
[1]MR JUSTICE EVANS- LOMBE: This case concerns the control of exceptional sound pursuant to section 79 of the Environmental Protection Act 1990. That Act provides at section 79(1):
"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..."
[2]Section 80(1) of the Act places upon local authorities a duty to supervise and control such 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; (b) ... 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."
Subsection (4):
"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.[3]On 22nd May 2001 Tewkesbury Borough Council granted to Mr Deacon a planning permission to erect on his land a tent in which events such as marriages could be celebrated, giving him express permission to play live music in the course of those events.[4]The planning permission of 2001 specified the levels at which the sound resulting from playing the music could be broadcast, and condition 5 of the grant of planning permission provided that no voice amplifications or transmissions by a disk jockey or similar person shall be permitted.[5]That temporary planning consent was repeated for 2002, again to Mr Deacon personally. This planning consent repeated the conditions of the previous consent, but reduced the overall levels of sound which the playing of music were to be permitted to be broadcasted in order for the planning consent to be complied with.[6]Before this 2002 consent had been given, an approach was made to the local authority by Mr Deacon or his company consequent on what is called a sound compressor being purchased for the purpose of controlling the sounds emitted by the various methods of amplification being used. The compressor was bought in consultation with the local authority, and it seems that a local authority representative, associated with the Environmental Protection Office, made an informal agreement with Mr Deacon that, notwithstanding the prohibition contained at clause 5 of the 2001 grant of permission, five voice over transmissions would in fact be permitted.[7]However, when the new permission in 2002 was given on 23rd April 2002, the prohibition on voice overs was again repeated, as a result of which on 21st June Mr Deacon's planning consultant wrote to the planning department of Tewkesbury Borough Council. At the final paragraph on the first page of his letter of 21st June he said this:
"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."
[8]It seems that there was in fact no discussion, or no discussion subsequent to this letter, which led to that informal agreement being continued. Certainly no evidence of that having taken place was before the justices.[9]Thereafter in early 2002, as a consequence of two visits to the site by an Environmental Health Officer employed by Tewkesbury Borough Council, it was discovered that voice transmissions were taking place and also that music was being amplified at levels which exceeded those which were permitted under the Environmental Health Regulations, and constituted a statutory nuisance, in the view of the Borough Council, for the purposes of section 79.[10]As a consequence, on 23rd July a letter was sent by Tewkesbury Borough Council, which was the relevant Environmental Protection Authority, to Mr Deacon and his company.[11]I can pause there and say Mr Deacon conducted his business of providing a place for the celebration of events, and in particular weddings, through his company, the second respondent.[12]Pursuant to the letter of 23rd July, there was served on Mr Deacon and his company abatement notices in respect of the two occasions when officers had detected excessive noise, giving notice that, because of noise associated with amplified voice transmissions and noise from amplified music, they were directed to cease such transmissions within seven days of service of the notice.[13]Those notices were not appealed under the provisions of subsection (3) of section 80, but nonetheless thereafter events took place on the land in question as a result of which there were in fact voice transmissions and also the level at which music was transmitted constituted, in the view of the controlling authority, a continuing statutory nuisance.[14]Accordingly, information was laid and a prosecution before Gloucestershire Magistrates, Petty Sessional Division of North Gloucestershire, sitting at Cheltenham, took place on 25th February of this year. Both defendants, Mr Deacon and his company, were charged with four separate counts, two counts of breaching the required levels of sound in respect of music and two counts in respect of the transmissions of voice messages, making eight counts in all.[15]In the result, the magistrates returned verdicts of not guilty. It is those verdicts which, by way of case stated, are appealed to this court by the Tewkesbury Borough Council. The defendants to the prosecution have not appeared.[16]It is sought by these proceedings that, notwithstanding the findings of fact made by the magistrates in the course of the hearing, their verdict should be discharged and the matter should be returned to them with a direction to convict.[17]The magistrates give their reasons for coming to the verdict which they did by a series of subparagraphs to paragraph 6 of the statement of case. Counsel for Tewkesbury BC has taken me through those reasons step by step, and for the purposes of judgment I will do the same.[18]The first reason was:
"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.[19]The first reason at subparagraph (a) was that they used the best practicable means to prevent or counteract the effects of the nuisance by "(a) purchasing and installing a sound compressor compliant with that recommended by the appellant; this evidence was unchallenged". Indeed, that was correct, but, as counsel pointed out, 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.[20]Then (b):
"Making various attempts to secure the attendance of the appellant to ensure the respondent set the correct level on the compressor, by correspondence and telephone conversations"
. It seems to me that this is not a proper ground for suggesting that a defendant has used all practicable means to counteract the effects of a nuisance by sound. 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 giving them advice on how noise restrictions should be complied with.[21]My attention was drawn to the decision of the Court of Appeal in the case of R v Falmouth and Truro Port Health Authority [2001] QB 445. That case involved a prosecution in respect of pollution under the Water Industry Act against the port authority. My attention was drawn in particular to a passage at page 458, where Simon Brown LJ said this:
"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.[22]Reason (c) was:
"When the seal was broken in 2001 the respondent employed a sound technician to set the compressor with instructions to set it at the level previously directed by the appellant"
. This refers to the fact that after the 2001 grant of planning permission a sound compressor was acquired, as I have said, in consultation with the local authority, and was set at the level prescribed by that planning permission and a local authority seal was put on the compressor, thereby demonstrating, if the seal was not broken, that in fact the sound levels had been kept at levels prescribed by the planning permission.[23]Included under this heading (c) should be the reason set out at heading (d): "The appellant, having carried out a site inspection including the noise level, failed to inform the respondent of the outcome. We feel it was therefore feasible for the respondents not to know that music was at an unacceptable level".[24]Those two reasons can be looked at together, and to both those reasons what Simon Brown LJ said in the Falmouth Port case applies. In particular, the grant of planning consent in 2002 should have demonstrated plainly to the respondents that the level at which music was permitted to be transmitted had been reduced below the level at which, in 2001, the sound compressor had been set. Furthermore, the service of the abatement notices in 2002 in respect of music should also have demonstrated that the levels at which the sound compressor had been set were insufficiently low.[25]I will again deal with the next two grounds together. They read as follows:
"(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."
[26]In my judgment, the findings of fact on which those two grounds are based made by the magistrates in the course of their decision, namely the apparently informal agreement between Mr Hern of the enforcement authority and Mr Deacon, in 2001, that five voice overs would be allowed, cannot justify giving these two reasons as reasons for acquitting the defendants.[27]In the first place, I repeat the fact that the planning permission granted in 2002 must have revoked any agreement between Mr Hern and Mr Deacon in 2001, and it is apparent from the letter to which I have already referred from Mr Deacon's planning consultant that that revocation was appreciated by those advising Mr Deacon at the time.[28]On 27th May 2002, before the service of the abatement notices, a letter was written by the planning department of Tewkesbury to Mr Deacon, drawing his attention to the fact that on two occasions, on 3rd and 4th May, there had been voice transmissions in breach of planning permission. On 24th June a similar letter drawing Mr Deacon's attention to breach of the planning permission in the 2002 planning consent was sent. Furthermore, the abatement notices to which I have already referred, which were sent on 23rd July, also were inconsistent with the continuation of the informal agreement.[29]It seems to me that these grounds, grounds (e) and (f), deployed in the case stated, are not valid grounds on which to support the decision arrived at.[30]Finally ground (g): "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.[31]In summary, therefore, in my judgment the grounds advanced by the magistrates for arriving at the conclusion that they did, based on the facts that they had found as a result of a hearing, do not justify them having arrived at the conclusion that no offence had been committed by either defendant, by failing to comply with subsection (4) of section 79 by failing to comply with the abatement notices served on them, which had not been appealed. It follows, it seems to me, that I should discharge the orders of the magistrates and remit the matter to them with a direction to convict.[32]MR SINGLETON: I am obliged, my Lord. Just for the sake of completeness, and so it appears on the transcript, the magistrates also made a costs order subsequent upon the acquittal. That is also discharged by your Lordship's order today.

MR JUSTICE EVANS- LOMBE: Yes.

[34]MR SINGLETON: I am grateful. My Lord, has the court seen a schedule of the costs of today?

MR JUSTICE EVANS- LOMBE: No, I have not.

[36]MR SINGLETON: I am not dealing with costs below because that will be dealt with when the matter is remitted back. This has been served on the respondent's solicitors.

MR JUSTICE EVANS- LOMBE: Yes.

[38]MR SINGLETON: My Lord, in the circumstances of this case costs are at large, as they would be, although this is criminal, in any civil case. The normal order is of course costs follow the event and summary assessment is encouraged in cases lasting less than a day.[39]MR JUSTICE EVANS- LOMBE: I will make a costs order assessed in the sum of £3,835.76. That includes VAT, does it?[40]MR SINGLETON: My Lord, yes. The only VAT- able element is my fee, the local authority do not charge VAT themselves.

Cited in 1 later judgment