Dr Merren Jones & Ors. v Chapel-en-le-Frith Parish Council

For statutory nuisance, noise is assessed by its actual character and effect. The court must consider noise arising from both the intended use of premises and associated anti-social behaviour. The statutory nuisance and anti-social behaviour regimes are not mutually exclusive.

Responsibility is not confined to the person who directly makes the noise. An owner or occupier may be liable where the statutory conditions are met. The assessment of nuisance is objective. A complainant's hypersensitivity does not defeat the claim where a person of normal resilience would also find the noise unreasonable.

The appellants appealed by way of case stated from the dismissal of their application under section 82 of the Environmental Protection Act 1990 for an abatement order concerning noise from a multi-use games area and skate park operated by the respondent.

The District Judge distinguished noise from intended use from noise arising from anti-social behaviour, excluded the latter from the nuisance assessment, and attributed the appellants' hypersensitivity to anti-social behaviour. The central issues were whether that distinction was legally permissible and whether hypersensitivity prevented a finding of statutory nuisance.

1. Appeal and statutory framework. The District Judge’s approach was erroneous. Under section 79(1)(g) of the Environmental Protection Act 1990, the question was whether the noise emitted from the premises was prejudicial to health or a nuisance. All noise emanating from the premises had to be considered, regardless of whether it resulted from intended use or anti-social behaviour.
2. The regimes under the Environmental Protection Act 1990 and the Anti-social Behaviour, Crime and Policing Act 2014 were not mutually exclusive. Anti-social conduct involving noise could also constitute statutory nuisance. The distinction between intended-use noise and anti-social noise had no legal basis.
3. The first stage was to decide whether a nuisance existed. If it did, and the relevant statutory responsibility requirements were satisfied, section 82(2) required the magistrates’ court to make an order. The order need not require the elimination of all noise. Abatement was flexible and could involve postponing the order to allow the parties to assist in identifying appropriate measures.
4. Responsibility for nuisance was not necessarily limited to the direct perpetrator. Common-law principles recognised liability arising from possession, control, continuation or adoption of a nuisance, including through failure to act. Section 82(4)(c) also permitted proceedings against the owner or occupier where the person responsible could not be found.
5. The hypersensitivity issue had to be assessed objectively. The question was what a normal person would reasonably be expected to tolerate. Hypersensitivity was no defence where a person of normal resilience would also regard the noise as unreasonable. A party responsible for an actionable nuisance was not ordinarily absolved merely because the nuisance foreseeably caused hypersensitivity in previously robust individuals.
6. The answers to the District Judge’s questions were therefore “Yes”, “Yes” and “Not in the circumstances of this case”. The decision was affected by legal error. The choice of remedy was reserved, with the matter to be relisted or determined on the papers.

• High Court (Queen’s Bench Division): appeal by way of case stated from the decision of District Judge McGarva in the Manchester Magistrates’ Court. The High Court answered the stated questions in favour of the appellants and reserved the remedy.