Practice and Procedure


PUBLISHED October 27, 2003

A Magistrates' Court had erred in holding that there was no case for the respondent to answer in respect of an alleged statutory nuisance and breach of an abatement notice in circumstances where there was clear evidence from environmental health officers that the nuisance had been committed.Appeal by way of case stated from a decision of Horseferry Road Magistrates' Court ('C') on 29 August 2002, to dismiss an information laid against the respondent ('M'), on the basis that, at the close of the prosecution case, there was insufficient evidence that noise caused by M's busking amounted to a statutory nuisance contrary to s.80 Environmental Protection Act 1990. An abatement notice had previously been served on M, which three environmental health officers ('the officers') for the appellant ('W') considered to have been breached. The officers had assessed the impact of the noise made by M in a nearby building. On appeal W argued that: (i) the only issue for C had been whether there had been a breach of the abatement notice which in turn depended on whether the noise caused by M amounted to a statutory nuisance under s.79(1)(g) of the Act; (ii) in that regard, it was not necessary for W to establish that a particular occupier of any property had in fact suffered interference with the reasonable enjoyment of that property; (iii) it had been open to W to rely on the expert evidence of the officers that the noise made by M did amount to a statutory nuisance and there was no reason not to accept the evidence of the officers, despite the absence of any scientific measurements and the fact that their conclusion had been reached in a short period of time; (iv) it was not open to M to rely on Art.7 of the European Convention on Human Rights on the basis that there was a lack of certainty over whether elements of an offence had been disclosed as he could not do so until the full facts had been determined by the court; and (v) in all those circumstances a prima facie case had been established and the matter should be retried.HELD: (1) It was clear that there was no requirement for evidence from occupiers of any particular building. No particular type of evidence was required. It was a matter of fact for the court whether the evidence that was called was sufficient. (2) It was open to the court to rely on the evidence of the officers as experts even when there was no scientific evidence. Moreover, the fact that the officers had only assessed the noise for a short period of time was no basis for discounting their evidence. (3) The evidence of the officers in this case had been perfectly clear and there was no evidence to suggest that they had failed to take into account the area in which M was busking. (4) Further, it was not open to M to rely on Art.7 of the Convention on the facts as they appeared in the case stated. (5) In all those circumstances it was clear that there was a prima facie case on the evidence of the environmental protection officers and since their expertise was not challenged the case should be remitted for re-hearing.Appeal allowed.

[2003] EWHC 2698 (Admin)