Manley & Anor v New Forest District Council

On an appeal against an abatement notice for statutory noise nuisance, the appellant bears the burden of showing that, at the date of the notice, the best practicable means were being used to prevent or counteract the nuisance. The burden is not met merely by demonstrating that proposals advanced by the local authority are impracticable.

Financial implications are relevant to whether means are reasonably practicable under the Environmental Protection Act 1990, but an appellant must establish that the available means cannot reasonably be adopted. An appeal by way of case stated is concerned with errors of law. Clear findings of fact by the Crown Court cannot be reopened unless they disclose such an error.

The appellants operated kennels containing 24 Siberian huskies in a residential area. The respondent local authority served an abatement notice concerning pack howling, which had been found to amount to a statutory nuisance.

The District Judge upheld the notice but considered that the premises were not business premises. On rehearing, the Crown Court accepted that they were business premises and considered whether the appellants had shown that the best practicable means had been used. It rejected arguments concerning the practicability, animal welfare implications and expense of lining or boxing in the kennels, or constructing a new kennel.

The appellants alleged procedural unfairness and errors of law in those conclusions. The central issues were whether they had a fair opportunity to address the proposed remedial measures and whether the Crown Court had correctly applied the statutory test.

1. Disposition. The application to require amendment of the case stated and the appeal by way of case stated were dismissed. The respondent local authority was awarded its costs, to be assessed if not agreed.
2. Under the Statutory Nuisance (Appeals) Regulations 1995, where an appellant seeks to resist an abatement notice for noise arising on business premises, the burden lies on the appellant to show that, at the time of the notice, the best practicable means were being used to prevent or counteract the nuisance. The statutory wording is in the past tense. It was therefore immaterial that the local authority’s suggested remedies might themselves be impracticable.
3. The appellants had done nothing to abate the noise. They could succeed only by showing that nothing could be done. The Crown Court had found that lining or boxing in the kennels, or constructing a new kennel, were practicable means and that neither had been adopted.
4. Under section 79(9)(a) of the Environmental Protection Act 1990, financial implications are relevant to practicability. However, the appellants bore the difficult burden of showing that no reasonable remedy could be adopted because of cost. The Crown Court had found that burden was not discharged. Its factual findings could not be challenged on a case-stated appeal absent an error of law.
5. The complaint of procedural unfairness failed. The proposal to line or box in the kennels had been fully canvassed, and the appellants had ample opportunity to address it in evidence.

• Crown Court: On 19 January 2007, His Honour Judge Milligan upheld the relevant conclusions on the abatement notice, finding that the premises were business premises and that the appellants had not established use of the best practicable means.
• High Court (Administrative Court): The application to amend the case stated and the appeal by way of case stated were dismissed.