London Borough of Hackney, R (on the application of) v Rottenberg

Whether noise constitutes a statutory nuisance under the Environmental Protection Act 1990 is a matter for the court to determine on the whole evidence. No technical noise readings or prescribed decibel standard are required. The court must assess the nature and context of the neighbourhood, competing interests, and the activities carried on at the premises. Environmental health officers may give evidence based on their experience, but their opinions are not determinative, even where treated as expert evidence. In a Crown Court rehearing, the judge and justices must make their own findings of fact. Religious worship and planning permission are relevant considerations, but do not necessarily provide a reasonable excuse or prevent proportionate criminal proceedings where the court finds a statutory nuisance.

The local authority appealed by case stated against the Crown Court at Southwark’s decision allowing the respondent’s appeal against six convictions for breaching an abatement notice served under section 80 of the Environmental Protection Act 1990. The notice required the respondent to cease shouting, chanting and jumping on internal floors so as not to cause a nuisance to neighbouring occupiers.

The Crown Court accepted that noise had been heard by environmental health officers, but found that the prosecution had not proved beyond reasonable doubt that it amounted to a nuisance rather than irritation. It also considered that article 9 of the European Convention on Human Rights did not bar the proceedings. The questions for the High Court were whether the Crown Court could reject the officers’ opinions and, if not, whether article 9 prevented the proceedings.

1. Appeal dismissed. The Crown Court was entitled to reject the environmental health officers’ opinions and to find that the prosecution had not proved the existence of a statutory nuisance.
2. Whether noise constitutes a nuisance is a matter of fact and judgment for the court. It is not determined by the opinions of environmental health officers, however experienced, independent or impartial they may be. The court must consider the totality of the evidence and is entitled to assess witness evidence critically. The principle in R v Stockwell [1993] 97 Cr App R 260 applies equally to expert evidence in this context.
3. No technical evidence, noise readings or prescribed decibel level is legally required. The assessment is subjective in the sense that it requires judgment, but the relevant judgment is that of the court. Relevant factors include the nature and context of the neighbourhood, competing interests, the activities conducted on the premises, and whether those activities have planning permission or other lawful authorisation.
4. An appeal to the Crown Court is by way of rehearing. The Crown Court must make its own findings of fact and law, uninfluenced by the conclusions of the Magistrates’ Court. The decision in Westminster City Council v McDonald [2003] EWHC 2698 (Admin), concerning whether there was a case to answer, did not govern the different issue arising after a full hearing on the evidence.
5. The court did not need to decide article 9 or reasonable excuse as separate issues. Religious worship in premises registered and authorised for that use would be relevant to whether noise constituted a nuisance and whether there was a reasonable excuse. However, if the court found that a statutory nuisance existed, those circumstances would be unlikely by themselves to establish a defence or make prosecution disproportionate.
6. The first question in the case stated was answered affirmatively. Costs were summarily assessed in favour of the respondent.

• Crown Court at Southwark: Allowed the respondent’s rehearing appeal against six convictions recorded by the Thames Magistrates’ Court, finding that statutory nuisance was not proved beyond reasonable doubt.
• High Court (Administrative Court): Dismissed the local authority’s appeal by case stated and answered the first question in the affirmative.