Elvington Park Ltd & Anor, R (on the application of) v The Crown Court At York

An abatement notice for noise need identify the general kind of statutory nuisance, but need not specify every activity said to cause it or prescribe noise levels or other objective compliance criteria. A single occurrence may justify a notice where the nuisance is likely to recur. On an appeal under the Statutory Nuisance (Appeals) Regulations 1995, the person relying on the best practicable means defence bears the evidential burden of identifying the measures taken and showing that they meet the statutory standard. A procedural irregularity will not justify judicial review where it caused no significant disadvantage and the affected party had a fair opportunity to raise the point.

The Council served identical abatement notices on Elvington Park Limited and Elvington Events Limited under section 80 of the Environmental Protection Act 1990, alleging recurring noise nuisance from motor vehicle activities, motor sport events and associated activities at Elvington Airfield.

The Crown Court at York dismissed the companies’ appeals on 24 November 2010. The companies then brought a judicial review claim challenging the fairness of the hearing and appealed by case stated on questions concerning the notices, nuisance, mediation, best practicable means, recurrence and reasons. The central issues were whether the notices were legally sufficient, whether the Crown Court applied the correct approach, and whether its conclusions were sustainable.

1. Judicial review. The claim was dismissed. The usher’s instruction that witnesses remain outside was not a ruling of the Crown Court. Even if it communicated a judicial decision, it was even-handed and did not establish that a company officer, as distinct from a witness, was excluded. The companies’ advocate could and should have raised the issue. His failure to do so amounted to an election not to take the point: see Millar v Dickson [2002] 3 All ER 1041. On an objective assessment of the hearing, there was no legitimate apprehension of significant disadvantage. The principle of equality of arms did not assist: see Jaffray v Society of Lloyds [2002] EWCA Civ 1101, at para 495.
2. Sufficiency of the notices. The notices adequately identified excessive noise from motor vehicle activities, motor sport events and associated activities. Section 80(1) of the Environmental Protection Act 1990 did not require identification of every activity or specification of noise levels. Budd v Colchester Borough Council [1997] Env LR 128 and Godfrey v Conwy Borough Council [2001] Env LR 38 supported that conclusion.
3. Nuisance and recurrence. The Crown Court was not required to use a rigid definition of nuisance or to refer expressly to reasonable user or give and take. Its reference to an unacceptable interference was substantively consistent with reasonableness. It had assessed the effect of the noise on neighbours and was entitled to find a nuisance on 4 October 2009. Under section 80(1), one incident can found an abatement notice if recurrence is likely.
4. Alternative requirements and best practicable means. The issue under regulation 2(2)(c) was whether the Council had acted unreasonably, not whether the companies’ approach to mediation was improper. There was no basis for finding the Council’s refusal to withdraw a planning enforcement notice unreasonable. Under regulation 2(2)(e), read with section 79(9), the companies had to identify the measures taken and persuade the court that they were the best practicable means. The Crown Court had ample evidence to conclude that this burden was not discharged and its conclusion was not irrational.
5. Disposition. The case-stated appeal was dismissed. The answers were affirmative to questions 1 and 5 and negative to questions 2, 3, 4 and 6.

• Crown Court at York: on 24 November 2010 dismissed the companies’ appeals against the abatement notices.
• High Court (Administrative Court): dismissed the judicial review claim and the case-stated appeal.