Judicial clarity on determination of whether a statutory nuisance exists

Commenting, Graeme Cushion, Partner at Poppleston Allen said: ‘The London Borough of Newham recently appealed by way of case stated against a decision by Magistrates during a prosecution for breach of a noise abatement notice. The magistrates had acquitted the Defendant having balanced their own views of whether a statutory nuisance existed against the view of the enforcement officer in question.

In this case a noise abatement notice had been served in respect of the issue of noise nuisance related to shouting and amplified music said to have caused noise and vibrations.

The enforcement officer in question had listened to the noise for 35 minutes and decided that it constituted a statutory nuisance.

The Magistrates acquitted the Defendant and the Authority appealed by way of case stated.

The Court clarified that whereas the Magistrates had applied a subjective test, that was in fact wrong and they should have applied the Common Law standard of the average person and that such test could be affected by the type of neighbourhood in which the premises were located.

The issue therefore remains a difficult one for operators when faced with a prosecution. The key to dealing with issues of noise is therefore to act quickly and preferably by agreement rather than ending up faced with a prosecution in the first place.