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Home > News > Noise Abatement – Successful deployment of ‘best practicable means’

Noise Abatement – Successful deployment of ‘best practicable means’

15 June 2015 |

With the ever increasing value of inner-city residential property development, more and more developers are converting business premises into des-res apartment buildings. This situation is compounded by the Government’s drive to increase inner-city housing stocks through relaxation of the planning restrictions on change of use. [1]

Let’s begin with a worked example. Mr X is the landlord of a pub with a late licence. The pub does very good business in the evenings when music is played through the pub’s sound system and customers like to dance. The pub is sited adjacent to an office building and attached to that building along one side. Recently the pub’s owner has become aware of a property developer’s desire to convert the office into a number of residential flats. The pub is well-run and has been operating successfully for many years now.

What concerns should the pubs landlord have?

At the forefront of the landlord’s mind should be the fact that the level of noise the pub has been producing for many years without causing any disturbance to anyone may well be in excess of the level of noise required to disturb a neighbouring resident sleeping in a newly developed bedroom adjoining said pub.

The question we need to ask here is not “does the pub cause a nuisance?” but rather “does the pub cause no more nuisance than is necessary for the carrying on if its lawful business?” That is because the law recognises that the operation of a ‘use’ should be decided by the planning regime. It is not the case that a well run established business should have to cease to operate due to its activities causing an inevitable nuisance.

Barkin’ Dogs

Lets take the case of Mr and Mrs Manley [2], owners of the Howling Dog Kennels in Hampshire. The Manleys kept 24 Siberian huskies for the purposes of breeding and competing in shows. Unfortunately for the Manley’s neighbours, the dogs were not held in some remote kennel facility in the middle of the countryside but in the rear garden of the Manley’s Victorian semi. The use of the land as a kennel was established through long use and so could not be challenged directly. The breeding of dogs at the property was also licenced by the Council.

Responding to complaints from the neighbours, the Council sent Environmental Health Officers to the premises and, perhaps unsurprisingly, those officers witnessed a nuisance under the Environmental Protection Act 1990 (the ‘EPA’). Section 79 (Statutory nuisances and inspections therefor) states that:

“Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say –

….

(g) noise emitted from premises so as to be prejudicial to health or a nuisance;”

Having witnessed the (obvious) nuisance, the Council issued an Abatement Notice under Section 80 of the EPA. The Manleys appealed the Notice under Section 80(3) of the EPA:

“A person served with an abatement notice may appeal against the notice to a magistrates court or in Scotland, the sheriff within the period of twenty-one days beginning with the date on which he was served with the notice.”

The grounds for such an appeal are found within the Statutory Nuisance (Appeals) Regulations 1995 and it is here that we are introduced to the phrase ‘Best practicable means’:

“2) The grounds on which a person served with such a notice may appeal under section 80(3) are any one or more of the following grounds that are appropriate in the circumstances of the particular case –

(e) where the nuisance to which the notice relates –

is a nuisance falling within section 79(1)(a), (d), (e), (f) or (g) of the 1990 Act and arises on industrial, trade, or business premises, …

that the best practicable means were used to prevent, or to counteract the effects of, the nuisance;”

This phrase is a foundation of both a successful appeal against the service of an Abatement Notice and a prosecution for breach of such a Notice [3].

The Court found that the Manleys were indeed implementing best practicable means in the operation of the kennels. The court took into account the natural behaviour of the dogs (howling in a pack) and the turnover of the business. Note that the Manleys claimed the business didnt make much of a profit, if any, from the selling of pedigree pups.

The steps taken by the Manleys included keeping the kennels at the far end of the garden and facing the entrance away from their neighbours. This may not seem like much, but for a business that doesnt have a high turnover and suffers from low profitability, they were the most effective steps that the Manleys could take. The Court made it clear that moving the business to another location was not a ‘practicable step’ as it equated to the cessation of the lawful operation at the subject premises. Reducing the number of dogs kept at the premises was considered to be of limited benefit as any number of them would howl when in a pack.

Some six years later and the Council tried again. This time the Court found that best practicable means were not being employed and so the Manley’s appeal failed. What had changed? It seems that the Notice was on similar terms to the previous one save that it only sought to restrict noise at night-time; requesting that the Manleys abate the nuisance caused by their dogs barking/howling. The defence put forward by the Manleys was for the most part the same; they could not afford to do more than they had done previously (not much) and any restriction of the dogs’ freedom would impact on their welfare.

The difference seems to come in the reasoning employed by Moses J in giving the decision of the Court:

“I start by emphasising that it was not for the local authority to make any suggestion. If an appellant seeks to resist the service of an abatement notice pursuant to the Statutory Nuisance (Appeals) Regulations 1995, the burden is upon that appellant to demonstrate that at the time of the abatement notice the best practicable means were in use. I note the past tense adopted in the fullout words to regulation 2(2).” [4]

It was the Manley’s appeal and so it was for them to show what they had done, not that the suggested ‘means’ put forward by the Council were practicable.

The Court found that the building of a new kennel and the lining of existing kennels were both ‘practicable means’. As to the expense of these measures, the Court found that reducing the number of dogs kept at the premises, although not capable of reducing the noise levels, would potentially reduce the cost of keeping them. This it would seem does not amount to a prohibition on the carrying on of a lawful business but rather a check on the intensity of that business.

Importantly, the Court of Appeal noted that it was not the practicability of the steps put forward by the Council but rather the Manley’s failure to show that they had taken steps amounting to best practicable means. To quote Moses J: “she had done precisely nothing.”

So where does that leave our pub owner?

With the thought of a change in local circumstances in our minds, we cant fall back on his long history of not causing a nuisance. Rather, we have to show that, at the moment we become neighbours with a residential property, we are implementing best practicable means to keep noise generated by the business from causing a nuisance.

These steps fall into two categories: construction and management.

Construction

The developer on the other side of the wall will need to comply with the requirements of Approved Document E (ADE) of the Building Regulations. ADE defines the minimum standards for sound insulation for residential properties. However the minimum performance is not particularly high (it is designed for sound insulation between two residential properties) and although there is flexibility in the regulations for a Building Control Officer to require a higher standard between residential and commercial use, this is not always implemented effectively. Rather than being a hostage to fortune, our landlord should consider the layout of his premises and any cost-effective improvements to the construction of the building. If sound-attenuation measures could be installed for a reasonable sum then such steps begin to feel like practicable means.

Management

If the premises is large enough to hold entertainment in an area not directly adjoining the proposed residential property, keeping any such use in that area also sounds to be practicable unless it can be shown that a reduction in the area used would have a fatal effect on the business of the pub; somewhat unlikely and difficult to prove.

In a similar vein, consideration must be given to the hours necessary for provision of the entertainment. Does the business of the pub really depend on the customers enjoying loud music and dancing beyond 9pm? If it does, the landlord needs to prove it.

A ‘noise management policy’ for the site should be produced. This usually takes the form of a list of common sense procedures that demonstrate the control of noise is an important consideration in the day to day operation of the premises. Procedures for keeping doors and windows closed, not tipping glass into recycling bins later in the evening and ensuring noise from smoking areas is controlled are points found on most noise management policies.

Due to the very nature of the ground for appeal provided under the Regulations, it is impossible to provide a one size fits all answer to the question “have I done enough?” but from the Manley case we can see that doing nothing is not an option.

[1] Introduction of Class J to the Town and Country Planning (General Permitted Development) Order 1995 by the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013

[2] Manley v. New Forest District Council [2000] EHLR 113

[3] Sections 80(4) and 80(7) EPA

[4] Manley v New Forest District Council [2007] EWHC 3188 (Admin) at 11.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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