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Noise Abatement and the Successful Deployment of “Best Practicable Means”

With the ever increasing value of inner-city residential property development, more and more developers are converting business premises into des-res apartment buildings neighbouring established business uses.  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]

Barkin’ Dogs

As an example of ‘cheek by jowl’ residential and business use, let’s 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 Manleys’ neighbours, the dogs were not held in some remote kennel facility in the middle of the countryside but in the rear garden of the Manleys’ 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”).

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.  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—

… 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.

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 doesn’t have a high turnover and suffers from low profitability, they were the most effective steps that the Manleys could take.

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 Manleys’ 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 noisy 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 full‑out words to regulation 2(2).” [4]

It was the Manleys’ 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.

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.”

 

[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.  Now consolidated in Class O to the Country Planning (General Permitted Development) Order 2015, as amended.

[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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