Date 24 October 2011
The press has recently reported that the future of the internationally renowned Ministry of Sound nightclub in London is under threat from a proposed residential development nearby. I visited the nightspot around 12 years ago and my abiding memory was that inside, at least, it is a very noisy place. It is that noise which threatens the future of the venue in Elephant and Castle.
Intended development provides fertile ground for property disputes and potential noise nuisance is but one of a variety of causes of action that manifest themselves when developments are opposed. However, once those avenues are exhausted and if a development proceeds enforcement in relation to licensed premises is generally undertaken by local authorities. One familiar method of enforcement is noise abatement notices under the Environmental Protection Act 1990 (“the Act”).
Section 79 of the Act sets out matters which may be considered statutory nuisances and provides the local authority with the power and duty to investigate such matters. Noise emitted from a premises so as to be prejudicial to health or a nuisance, is a statutory nuisance. If the authority considers that the nuisance exists, is likely to occur or recur then it may serve an abatement notice on the owner/occupier of the premises. Failure to comply with a noise abatement notice constitutes a criminal offence but there is a defence to such a prosecution if you can show best practicable means were used to prevent, or to counteract the effects of, the nuisance.
It is easy to imagine that a venue like the Ministry of Sound could have difficulties with statutory noise nuisance if there were to be neighbouring residential premises. How could they put in place ‘best practicable means’ to avoid or defend an enforcement action. Well in legal terms, it is useful to break the test down into its constituent parts:
“Practicable” means reasonably practicable having regard to matters such as local conditions and circumstances, the current state of technical knowledge and the financial implications;
“The means” to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures;
Essentially, it is a common sense approach designed not to make it necessary for a business to put in place all possible measures to prevent or to stop the nuisance, although it is for the party accused of making the nuisance to prove that best practicable means were used.
We have experience of these claims ourselves, having acted in the High Court appeal of R (on the application of St Albans City and District Council) v Patel [2008 EWHC 2767] concerning the popular Mokoko bar in St Albans. In that case complaints were received about the use of the garden in the evenings by a neighbouring property. The Defendant was able to show that he had established a best practicable means defence, having paid for additional glazing to neighbouring premises, placed signage in the garden and tightly controlled the use of the garden by closing it earlier than permitted by the licence.
Interestingly, the complainant who sought enforcement action from the Council purchased her property long after the Defendant’s licensed premises had been in operation. This was a material consideration for the Magistrates who also took into account the financial impact on his business of further limiting the extent of the use of the garden.
Some parallels can be drawn with the situation that the Ministry of Sound may face if the nearby development gets the go ahead. I dare say that the task of considering what will constitute “best practicable means” in that case will be considerably more extensive in view of the likely greater noise disruption, later night use and the number of affected premises nearby. However, should the development go ahead the same tests will have to be applied unless the Ministry of Sound finds itself subsumed by the Department for Media Culture and Sport under the next government; a move that I would imagine is quite unlikely!
If you would like more information or advice relating to a specific matter, please do not hesitate to contact Chris Alexander on 01727 798042 or by email at chris.alexander@salaw.com or any member of the Property Litigation team.
© SA LAW 2011
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