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

In assessing statutory nuisance from noise, the court must consider all noise emanating from the premises. It cannot distinguish between noise arising from intended use and noise arising from anti-social use. A complainant’s hypersensitivity is not a defence where the noise would have been unreasonable to a person of normal resilience. An abatement order need not require elimination of all noise or removal of the equipment. The responsible party should generally be left to choose the least inconvenient or expensive means of abatement, provided the order adequately addresses the nuisance found.

The appellants lived near a multi-use games area and skate park in a public memorial park for which the respondent council was responsible. They alleged that noise from the facilities constituted a statutory nuisance and applied to the Manchester Magistrates’ Court for an abatement order.

The magistrates’ court dismissed the application, distinguishing intended use from anti-social use and treating the appellants’ sensitivity to anti-social behaviour as relevant hypersensitivity. On an earlier case stated appeal, the High Court held that those distinctions were legally impermissible: [2022] EWHC 1909. This judgment concerned the appropriate remedy.

1. The court made a general abatement order. It rejected the appellants’ proposed order requiring removal of the multi-use games area and skate-park equipment and permanent grassing over the land.

2. Under s.82(2) of the Environmental Protection Act 1990, once the court is satisfied that the alleged statutory nuisance exists, it must order its abatement, and may prohibit its recurrence. The order need not prescribe the precise works or method by which compliance is achieved.

3. The magistrates’ factual findings, considered in light of the earlier answers on the case stated, did not inevitably require removal of the equipment. Not all noise constituted a nuisance, and abatement did not necessarily require elimination. The respondent should have an opportunity to select appropriate measures, subject to the order addressing the nuisance established by the evidence.

4. The order was to reflect the magistrates’ factual findings while taking account of all noise from the facilities, whether arising from intended use or anti-social use. The court recognised that further enforcement issues might arise if the respondent’s measures proved inadequate.

5. The court deferred determination of costs and invited the parties to agree an order reflecting its conclusions.

• Manchester Magistrates’ Court: application for an abatement order dismissed on 4 November 2021.
• High Court (King’s Bench Division): on an earlier case stated appeal, the court answered the legal questions in favour of the appellants in [2022] EWHC 1909. In the present judgment it determined the remedy by making a general abatement order.