London Borough of Waltham Forest v Mitoo [2016] EWHC 2159 (Admin)

[2016] EWHC 2159 (Admin)Case No CO/734/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 26 May 2016
Strand
London WC2A 2LL
Before
LORD JUSTICE GROSSMR JUSTICE NICOL
Between
LONDON BOROUGH OF WALTHAM FORESTAppellantMITOORespondent
Computer aided transcript of the stenograph notes ofWordWave International Ltd trading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr L Lapite (instructed by London Borough of Waltham Forest) appeared for Appellant for The Respondent did not attend and was not represented
J U D G M E N T (Approved)
[1]This the appeal by case stated brought by the London Borough of Waltham Forest against the decision of magistrates sitting at Waltham Forest, who, on14 October 2015, dismissed an information which the appellant had laid against the respondent, Roger Mitoo. The information alleged that Mr Mitoo:
"On 11 May 2015, did, without reasonable excuse, fail to comply with the requirement of an abatement notice under section 80 of the Environmental Protection Act 1990, as amended, in respect of 94 St David's Court, 60 Parkstone Road E17 3HS, requiring that you take all necessary steps to prevent the playing of music at excessive levels so that it does not cause nuisance in the nearest or any other occupied premises contrary to Section 80(4) and (5) of the Environmental Protection Act 1990."
[2]The Environmental Protection Act 1990 Section 80(1) provides that:
"Where a Local Authority is satisfied that a statutory nuisance exists it may serve an abatement notice requiring the abatement of the nuisance or prohibiting its recurrence."
[3]It was not disputed that the appellant had served an abatement notice on Mr Mitoo at his address on 2 November 2012 for playing music at an excessive level.[4]Section 80(4) then provides:
"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."
[5]Mr Mitoo had pleaded not guilty to the charge. One of the issues raised in advance of the trial was whether he had a reasonable excuse. His case seemed to be that the music or other noise coming from his flat was to drown out the noise of building works which were taking place nearby.[6]The magistrates found the following facts: "5. We found the following relevant facts. Ashraful Haque, environmental health officer for the appellant, stood outside the respondent's flat on 11 May 2015 around 8.00pm for 16 minutes and could hear loud music, intrusive bass, but no building or construction noise including building or banging. He did not enter the flat. B. The respondent had an accident in 2000, which had enduring consequences, including Post Traumatic Stress Disorder. This was not supported by medical evidence but was confirmed by his carer. He stated that he did turn up the sound on his television but only to drown out noise of building works in his kitchen. The abatement notice was for loud music and he subsequently got rid of his speakers, although he could not say for certain that this was prior to the date of alleged breach. He had no recollection of 11 May 2015. C. Donna Sorhindo, his carer/friend, corroborated the respondent's account. She has no recollection of the date but was present during the whole period of the building works. She witnessed the respondent turning the television up slightly more loudly than normal during the building works, though not to excessive levels.[7]We did not allow Mr Haque to give hearsay evidence about information he received from Aschan Homes, the appellant's arm's length management organisation, concerning the building works, including its times. In our reasons, we suggested that the appellant should have obtained this information and provided it to the court in an admissible form by way of a section 9 statement. "The magistrates were advised by their clerk that once its issue of reasonable excuse had been raised by Mr Mitoo, the burden of disproving it was on the council.”[8]I agree that Polychronakis v Richards and Jerrom Ltd, 16 October 1997 Divisional Court supports that proposition.[9]The magistrates concluded that the council had not proved beyond reasonable doubt that Mr Mitoo had no reasonable excuse.[10]They reasoned as follows: A) "We found that the appellant had not proved beyond reasonable doubt that that reasonable excuse was disproved and accordingly found the respondent not guilty. B) The appellant's only evidence is the environmental health officer's account from standing outside the flat for approximately 16 minutes, hearing loud music and no construction noise. C) The respondent identified the issue in dispute and the preparation for effective trial form. D) The appellant could have easily produced admissible evidence by way of Section 9 statement from Aschan Homes setting out the times of the building works during the period. E) The failure to provide any admissible evidence to rebut the times of the building works asserted by the respondent meant that much of his case could not be effectively challenged. F) The respondent's account that he turned up the television to drown out the noise of the building works was corroborated by his carer/friend. G) We accepted the respondent's account and accepted the respondent's account that the sound was from a television rather than music playing. We also found that the noise emanating from the flat was not disproportionate."[11]On behalf of the appellant, Mr Lapite argues that the magistrates erred in law in finding that the playing of loud music to drown out drilling noise constitutes a reasonable excuse for failing to comply with an abatement notice and consequently the burden of proof was on the prosecution to disprove that.[12]As is apparent from the remainder of the council's skeleton, what is really being said is that the playing of loud music to drown out building noise was not capable in law of being a reasonable excuse. With that proposition I agree. The purpose of the statute is to curb statutory nuisances. There is no dispute that excessive noise can constitute a statutory nuisance.[13]When a Local Authority issues an abatement notice there is an opportunity for the person served with the notice to appeal against it, see Section 80(3). However, the opportunity for such a challenge had long since passed by the time of the events with which the magistrates were concerned. By then, Mr Mitoo's duty was to comply with the notice.[14]If there was a reasonable excuse for his non-compliance there would be no offence. However, the existence of someone else's noise could not possibly be a good reason for Mr Mitoo to make yet more noise. Were his contention correct, it would mean that his neighbours would have to suffer not one, but two, types of noise. A statutory scheme intended to stem nuisance would then have perversely led to its multiplication. That cannot have been Parliament's intention.[15]Since in my view the justification advanced by Mr Mitoo was not capable of constituting a reasonable excuse, the issue of whether the council had discharged the burden of proving that no building works were taking place at the time fell away. Whether or not there were also building works at the time, Mr Mitoo did not have a reasonable excuse for the playing of excessive music or noise.[16]Because of my conclusion on the first question which the magistrates have posed for our opinion, I consider that the second and third questions become redundant. So far as the second question is concerned, namely, in accepting the playing of music in these circumstances without medical evidence but with supporting evidence of the carer, did we err in the determination of reasonable excuse? I would answer that by saying there could not have been a reasonable excuse with or without medical evidence.[17]The third question posed by the magistrates is: Were we entitled to find that the appellant had not proved that the noise emanating from the flat was disproportionate? It is not entirely clear what the magistrates meant by saying in paragraph 9(F) that the noise from Mr Mitoo's television was not disproportionate. It seems likely that they meant that it was not disproportionate for the purpose of drowning out the noise from the building works.[18]However, if as I would hold, drowning out such noise was not capable of being a reasonable excuse, its proportionality for such a purpose becomes irrelevant. I would allow the appeal. I would remit the case to be heard by a different bench of magistrates.

LORD JUSTICE GROSS: I agree. I will just ask my Lord to read into the transcript the formal answers to the questions posed in the case.

[20]MR JUSTICE NICOL: Question A: "Were we entitled to accept the playing of music to drown out building works constituted a reasonable excuse for breaching an abatement notice? Answer: no.[21]Question B:
"In accepting the playing of music in these circumstances without medical evidence but with the supporting evidence of the carer, did we err in the determination of reasonable excuse?"
Answer: see the answer to the previous question.[22]Question C: Were we entitled to find that the appellant had not proved that the noise emanating from the flat was disproportionate? Answer: the excuse put forward by Mr Mitoo was not capable of being a reasonable excuse and therefore the question of proportionality or disproportionality did not arise.

LORD JUSTICE GROSS: Thank you. Thank you, Mr Lapite.