Statutory nuisance: no distinction between intended use and antisocial use

When considering statutory nuisance under the Environmental Protection Act 1990 there is no legal basis to distinguish between noise generated by the intended use of premises and noise emanating from antisocial behaviour associated with the premises, the High Court has ruled on an appeal from the Magistrates Court by way of case stated in Jones and others v Chapel-en-le-Frith Council [2022] EWHC 2709 (KB). The appellants lived close to a multi-use games area and skate park in Chapel-en-le-Frith in Derbyshire, which was the responsibility of the respondent council. They alleged that the noise emanating from the activities at the MUGA and skate park amounted to a statutory nuisance under the 1990 Act and sought an order requiring the council to abate the nuisance. The noise included ball strikes, kicks and bounces from the MUGA; impact noise from skateboards and other equipment on metal ramps and installations in the skate park; shouting from users of the facilities; and from music played there. The application failed. The judge decided that there was a sharp legal distinction to be drawn between noise generated from the “intended use” of the MUGA and skate park and from “antisocial use”, which included playing loud music and continued use of the facilities after they were intended to be closed. The latter were not to be taken into account in assessing whether nuisance was made out. The judge also found that the appellants were rendered hypersensitive by the antisocial behaviour elements but for which they would not have been so adversely affected by the noise arising from the intended use. The High Court found that there is no legal basis for drawing a distinction between noise emitted as a result of antisocial behaviour and “intended use” noise. The judge had erred by excluding from his consideration all “antisocial noise”. Neither the statutory regime nor the common law of nuisance proceeds on the basis that liability is circumscribed by the use to which premises were intended to be put rather than those to which they are actually put. The judge had concluded that the “intended use” did not amount to a nuisance but made no finding as to whether the noise as a whole amounted to a nuisance. As to the hypersensitivity, the question to be addressed was what, objectively, a normal person would find it reasonable to put up with. The hypersensitivity of a particular claimant is not a defence if it would be unreasonable to expect a person of normal resilience to tolerate it. Since the district judge excluded from the scope of his consideration all antisocial noise, his attribution of hypersensitivity to antisocial behaviour, including noise, was not, of itself, an answer to the appellants’ complaints. The appellants sought an abatement order requiring the respondent to remove the MUGA and skate park. However, since the judge had found that not all noise emanating from the premises amounted to a nuisance the High Court made a general abatement order based on the judge’s findings of fact concerning the noise, leaving the decision as to what steps to take to abate the nuisance to the respondent. Louise Clark is a property law consultant and mediator