Tewkesbury Borough Council v Deacon

The statutory defence of best practicable means requires practical measures directed to preventing or counteracting the nuisance. Purchasing appropriate equipment, seeking assistance from the enforcing authority, or relying on an authority’s failure to give advice does not, without more, establish the defence. Planning permission and abatement notices may make the permitted noise levels clear and may supersede an earlier informal arrangement. An enforcing authority is not generally required to advise an alleged offender how to comply with noise restrictions. Where unappealed abatement notices have been breached and the magistrates’ reasons do not establish a valid defence, the High Court may discharge the acquittals and remit the case with a direction to convict.

Tewkesbury Borough Council prosecuted Mr Deacon and his company for breaches of abatement notices concerning amplified music and voice transmissions from a tent used for events. The notices were issued under the Environmental Protection Act 1990 after alleged statutory nuisances were detected. They were not appealed.

The magistrates acquitted both defendants, relying principally on the statutory defence of best practicable means. They considered the purchase of a sound compressor, attempts to obtain the authority’s assistance, uncertainty about the correct settings, and an earlier informal agreement permitting voice transmissions. The Council appealed by case stated, seeking discharge of the verdicts and a direction to convict. The central issue was whether the magistrates’ stated reasons disclosed a valid defence.

1. Outcome. The magistrates’ acquittals and consequential costs order were discharged. The matter was remitted to the magistrates with a direction to convict.
2. Under sections 79 and 80 of the Environmental Protection Act 1990, noise prejudicial to health or constituting a nuisance may be a statutory nuisance. A person served with an abatement notice commits an offence if, without reasonable excuse, he contravenes or fails to comply with it. The notices in this case had not been appealed.
3. The defendants relied only on the statutory defence that the best practicable means had been used to prevent or counteract the nuisance. Buying a sound compressor did not establish that defence because the relevant question was whether it had been set at a level sufficient to prevent the nuisance.
4. The defendants’ attempts to secure the Council’s attendance and advice were not a proper basis for the defence. The enforcing authority is not obliged to advise individuals how to comply with noise restrictions. The judge applied the approach in R v Falmouth and Truro Port Health Authority [2001] QB 445, including its caution against treating enforcement authorities as subject to a general consultation obligation.
5. The 2002 planning permission reduced the permitted music levels and repeated the prohibition on voice transmissions. It therefore superseded the earlier informal arrangement concerning five voice-overs, or at least made its continuation untenable. Subsequent warning letters and the abatement notices reinforced that conclusion.
6. The magistrates’ reliance on the alleged informal agreement, uncertainty about the Council’s position, and authorities concerning reasonable excuse could not justify acquittal. Reasonable excuse had not been advanced as a separate defence, and the stated grounds did not establish that the best practicable means defence was made out.

• Magistrates’ court. Mr Deacon and his company were acquitted of eight counts concerning breaches of abatement notices.
• High Court (Administrative Court). The Council’s case-stated appeal succeeded. The acquittals and related costs order were discharged, and the matter was remitted with a direction to convict.