[Bell Historians] Livewithit - epetition response

John Camp camp at Vjmqq8muxIYIUhx_dMZJSLCFayBBTZZ6iluG3kIULvGAYgkKN-ESXKJcnDKNnznuId8I1uY8gy-dJqlY.yahoo.invalid
Sun Oct 26 13:50:48 GMT 2008

At 14:47 on 24 October 2008, Dickon Love wrote:

> More powerful has been the following ruling:

> http://www.telegraph.co.uk/news/uknews/3248989/Legal-defeat-for-neighbours-who-complain-of-pub-and-church-bell-noise.html

It may be worth publishing a proper legal report here (as I have done
on other lists already).  The 'Telegraph' report is partial and
misleading.  It needs to be emphasised that what was in issue was an
alleged offence under the Environmental Protection Act 1990.  It is a
defence to show that the best practicable means were used to prevent,
or to counteract the effects of, the nuisance.  The High Court upheld
the magistrates' decision that that the defendant had done this.

It would be wrong to suppose that someone who comes to live within the
sound of bells has no legal grounds for complaint.

Moreover, the civil (as opposed to criminal) law remains as it always
was: it is not a defence to an action for nuisance that the claimant
has 'come to the nuisance'.

The case is ST. ALBANS DISTRICT COUNCIL v PATEL.  Report (from Lawtel):

A magistrates' court had not failed to apply the proper test of best
practicable means under the Environmental Protection Act 1990 s.80(7)
in holding that a pub owner had established the statutory defence
against the contravention of a noise abatement notice.

The appellant local authority appealed by way of case stated against a
decision of a magistrates' court that the respondent (P) had
established the statutory defence against the contravention of a noise
abatement notice.  P owned licensed premises.  Informations were
preferred by the local authority against him, alleging that he had on
three occasions contravened a requirement of an abatement notice under
the Environmental Protection Act 1990 s.80 requiring that noise
nuisance be abated.  It was alleged that noise nuisance from the pub
garden had been heard within the property of a local resident.  The
magistrates held that there had been statutory noise nuisance on the
relevant dates but that P had established, on a balance of
probabilities, the defence of best practicable means under s.80(7) of
the Act.  The magistrates found that P had taken various steps to
reduce the noise including closing one area of the garden and
restricting the number of people allowed there.  They found that the
advice of an environmental health officer, from whom they heard
evidence, indicated that the only way for P to comply with the notice
was to close the garden, but that the implications of doing so, from a
financial perspective, would not be practicable.  The local authority
submitted that the magistrates had failed to apply the proper test of
best practicable means under s.80(7) of the Act.  It argued that the
magistrates had considered only the practicability of one option,
namely to close the garden altogether, but that they had not
considered lesser measures such as further reducing the area of the
garden used by customers or by restricting the hours of use.

HELD: It was clear from the case stated that the magistrates were
fully aware of the contention that there were lesser measures that
could have been taken.  It was clear that the magistrates had those
lesser measures well in mind when they concluded that P had
established that he had used the best practicable means to counteract
the noise nuisance.  When the case stated was read as a whole, it was
plain that the magistrates agreed with P's evidence that financial
effects prevented him from employing those lesser measures, and that
on the balance of probabilities, the lesser measures were not
practicable.  Accordingly, the test of best practicable means was
properly formulated and applied.

Appeal dismissed

John Camp


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