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UKNA SCOTLAND The Scottish branch of the UK Noise Association |
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Statutory noise nuisance R(on the application of Hackney LBC) v Rottenberg [2007] Env LR 24 Facts The facts of the case were simple and straightforward. The defendant was a Rabbi(R) who occupied one half of a semi-detached house as a school and synagogue. The other half was occupied solely as a residence. Following complaints by the next door neighbour of chanting, shouting and banging on floors which was taking place in the school and synagogue, the local authority environmental health officers visited the neighbour and formed the view that the noise amounted to a statutory nuisance in terms of s79(1)(g) of the Environmental Protection Act 1990. An abatement notice was duly served on R who was subsequently charged with six counts of failing to comply with an abatement notice without reasonable excuse. R successfully appealed against conviction by the magistrates to the Crown Court which held that the noise in question had not amounted to a statutory nuisance and that a finding that the noise in question amounted to a statutory nuisance would have been a disproportionate interference with his freedom of religion under Art 9 of the European Convention of Human Rights. The local authority, Hackney London Borough Council(HLBC), then appealed to the High Court by way of case stated against the decision of the Crown Court. No technical evidence in the form of noise readings or decibel levels had been presented before the Crown Court. There local authority environmental health officers had simply presented expert evidence to the court to the effect that the noise in question amounted to a statutory nuisance. The Crown Court had held that it was not bound by the opinion of witnesses notwithstanding the fact that they were expert witnesses. It went on to hold that a nuisance did not exist. HLBC then appealed to the High Court. Decision The High Court held that the decision as to what constitutes a nuisance is in effect one for the court to decide. Certainly, the Crown Court was not bound by the opinions of the environmental health officers who heard the noise in question, notwithstanding the fact that they were experts. When considering whether noise amounts to a nuisance it was, as the Crown Court had rightly held, necessary to have regard to a number of factors, including the nature and context of the neighbourhood, the competing and conflicting interests of adjoining owners and occupants and other people affected and whether the activities in question were sanctioned by planning permission. In the last analysis, the noise in question did not rank as a statutory nuisance. The High Court went on to hold that that the threshold for liability in statutory nuisance is the same as that which obtains under s79(1)(g) of the Environmental Protection Act 1990. Comment This case, which received much publicity, really takes the law no further. The main point which Rottenberg simply re-emphasises is that it is up to the court itself to decide whether a statutory nuisance exists. The court must decide whether the adverse state of affairs complained of is plus quam tolerabile (more than reasonably tolerable). Furthermore, the evidence of expert witnesses is not conclusive. Mention should also be made to the High Court being of the view that whether the premises whence the nuisance arises has planning permission is a factor to be taken into account when considering whether a nuisance exists. In the author’s opinion this factor is quite irrelevant in determining if a given state of affairs ranks as a nuisance whether under statute or at common law. Francis McManus Napier University December 2007 |