London Borough of Waltham Forest v Mitoo

For the purposes of an abatement notice under the Environmental Protection Act 1990, the existence of another person’s noise cannot constitute a reasonable excuse for creating further excessive noise. The statutory scheme is intended to curb statutory nuisances, and allowing one nuisance to justify another would defeat that purpose. Once the notice has been served, and the period for challenging it has passed, the recipient must comply with its requirements. If the proposed excuse is incapable in law of amounting to a reasonable excuse, factual questions about the underlying circumstances, including proportionality, do not arise.

The London Borough of Waltham Forest appealed by case stated against the dismissal by magistrates of an information alleging that Roger Mitoo had failed, without reasonable excuse, to comply with an abatement notice served under section 80 of the Environmental Protection Act 1990. The notice required steps to prevent excessive music causing a nuisance.

Mr Mitoo maintained that the noise was intended to drown out nearby building works. The magistrates accepted that account and considered that the council had not disproved reasonable excuse. The Divisional Court was asked whether that justification was capable in law of constituting a reasonable excuse and whether the magistrates’ associated findings were legally sustainable.

1. Appeal allowed. The case was remitted to a different bench of magistrates.
2. Section 80(1) of the Environmental Protection Act 1990 permits a local authority to serve an abatement notice where a statutory nuisance exists. Excessive noise may constitute such a nuisance.
3. The opportunity to appeal against the notice under section 80(3) had expired. The respondent was therefore required to comply with the notice.
4. The asserted justification was legally incapable of amounting to a reasonable excuse. Another person’s noise could not justify making additional excessive noise. Otherwise, a statutory scheme intended to prevent nuisance would multiply it.
5. Because the proposed excuse failed as a matter of law, it was irrelevant whether building works were taking place, whether medical evidence supported the respondent’s account, or whether the noise was proportionate for the purpose of drowning out those works.
6. The court agreed with Polychronakis v Richards and Jerrom Ltd (16 October 1997) that, once reasonable excuse is raised, the burden of disproving it lies on the prosecution. That issue did not affect the result because the asserted excuse was not legally capable of succeeding.
7. The formal answers were: no reasonable excuse could arise from playing music to drown out building works; the second question was answered by the first; and proportionality did not arise.

• Magistrates’ court: On 14 October 2015, the magistrates dismissed the information and found the respondent not guilty.
• High Court (Administrative Court): The Divisional Court allowed the appeal by case stated and remitted the case to a different bench of magistrates.