South Kesteven District Council, R (on the application of) v Grantham Magistrates Court & Ors

In proceedings for breach of a noise abatement notice, the statutory defence of best practicable means arises only after a breach of the notice has been established. The defendant must prove, on the balance of probabilities, that the best practicable means were used to prevent or counteract the nuisance. That requires consideration of obvious and apparently practicable alternatives, including their practicability in light of local circumstances, technical knowledge and financial implications. A court cannot establish the defence merely because some steps were taken, or because similar steps avoided nuisance on an earlier occasion. Where the reasons disclose an error of law, the Administrative Court may review the substantive decision rather than require a separate case to be stated.

The claimant local authority prosecuted the interested parties for allegedly breaching noise abatement notices issued under section 80 of the Environmental Protection Act 1990. The Magistrates acquitted them, finding that they had proved the defence of best practicable means under section 80(7). They refused the claimant’s subsequent request to state a case, treating it as frivolous. Permission for judicial review was granted by Silber J.

By the hearing, the Magistrates’ reasons had been provided in a statement from the chair of the bench. The central issues were whether the Magistrates had conflated the existence of a statutory nuisance with the statutory defence, and whether their conclusion that the defence was proved was legally open on the evidence.

1. The court treated the judicial review as a review of the substantive acquittal. Since the Magistrates’ reasons were available, requiring a case to be stated would have caused disproportionate delay and expense. The court therefore considered whether the decision disclosed an error of law.

2. The first issue for the Magistrates was whether a noise nuisance existed on 20 September 2008 and therefore whether the abatement notice had been breached. The evidence supported the conclusion that a nuisance existed. The statutory defence arose only after that breach had been established; the absence of nuisance on an earlier occasion did not establish the defence in relation to the later occasion.

3. Under section 80(7) of the Environmental Protection Act 1990, the interested parties had to prove that they had used the best practicable means to prevent or counteract the effects of the nuisance. Section 79(9) required practicability to be assessed having regard to local conditions and circumstances, current technical knowledge and financial implications, and included the design, installation, maintenance and operation of plant, machinery, buildings and structures.

4. Following St Albans District Council v Patel [2008] EWHC 2767 (Admin), the defendant must establish that the means used were the best practicable means when compared with other means or methods before the court which appeared practicable and capable of preventing or counteracting the nuisance more effectively. The Magistrates had not addressed the obvious alternative of playing the music inside the public house. Their conclusion that the defence was proved was therefore not open to them on the evidence.

5. The application was granted. The acquittal was quashed. The case was remitted to the Magistrates with a direction to reconsider it and reach a decision in accordance with the judgment. No order for costs was made.

The judgment itself arose from judicial review of the Magistrates’ refusal to state a case and, following the provision of reasons, of the substantive acquittal.

• High Court (Administrative Court): permission granted by Silber J on 21 January 2010. The acquittal was quashed and the case remitted to the Magistrates for reconsideration.