Roper & Anor v Tussauds Theme Parks Ltd.

An appellate court reviewing an abatement order by case stated applies a high threshold to challenges based on irrationality. An order is not unlawful merely because the permitted level is close to the level at which nuisance was found, provided the tribunal rationally considered the evidence and all relevant circumstances.

Commercial consequences may be considered when framing an abatement order, since the order must be proportionate and no more onerous than reasonably necessary to abate the nuisance. An order may regulate individual and cumulative noise sources and may use an hourly average. Where an incorporated code creates uncertainty, the order must clarify its operative standard.

Mr and Mrs Roper appealed by way of case stated against an abatement order made by Stoke-on-Trent Crown Court following a finding that noise from Alton Towers constituted a statutory nuisance. The order imposed a maximum level for daily operations, required specified works, and incorporated the Noise Council’s Code of Practice for concerts.

The appeal challenged the permitted noise level, the treatment of commercial considerations, the structure and enforceability of the order, the concert provisions, and the refusal to admit further expert evidence. The central issues were whether the Crown Court had erred in law or acted irrationally, and whether the concert provisions were sufficiently clear and enforceable.

1. The appeal was upheld only to the extent necessary to clarify the concert provisions. The order was to operate on the assumption that there would be at least four concert events per calendar year, so that the applicable music-noise standard was the standard for venues with four to twelve events. The daily-operation provisions also continued to apply when concerts or fireworks displays took place. Subject to those clarifications, the appeal was dismissed.

2. The Crown Court was not irrational in fixing the daily-operation limit at 40dbA. It had considered the measured nuisance level, the small but potentially significant difference between 43dbA and 40dbA, the available technical guidance, the character of the noise, and the expectation that local inhabitants would experience some inconvenience from the theme park.

3. The court was obliged to have regard to all relevant circumstances when making an abatement order. That included commercial considerations, provided the statutory duty to abate the nuisance was fulfilled and the order was proportionate and no more onerous than reasonably necessary. The commercial evidence was limited and indirect, but the Crown Court was entitled to consider it.

4. There was no error of law in applying the 40dbA limit to noise sources individually or cumulatively, using an hourly average, or requiring specified works without creating a separate inspection regime. The principal noise limit was capable of monitoring and enforcement, and the absence of direct access for inspection did not make the order unlawful.

5. The concert provisions contained an inherent uncertainty because the Code of Practice applied different standards according to the number of events and type of venue. Given the finding that the site was historically used for more than three such events annually, the Crown Court should have removed that uncertainty by specifying the applicable four-to-twelve-event standard regardless of the number actually held in a particular year.

6. The refusal to admit a further report from the expert was a case-management decision within the Crown Court’s discretion. It was entitled to bring repeated rounds of expert evidence to an end in the interests of finality and fairness.

1. High Court (Administrative Court): [2007] EWHC 624 (Admin) allowed the appeal only to clarify the concert provisions and otherwise upheld the Crown Court’s order.
2. Stoke-on-Trent Crown Court: made the abatement order on 14 October 2005 following the dismissal of the appeal against conviction.
3. High Court: Mr Justice Collins refused an application on 4 July 2006 to remit the case stated for further consideration and amendment.