Sporting and other community facilities are obviously desirable but, as a guideline High Court ruling showed, there are effective legal steps you can take if they become a magnet for anti-social behaviour that amounts to a statutory nuisance. David Watson looks at a recent case.
Three householders who said that they were plagued by noise emanating from a nearby multi-games area and skate park sought an abatement order against the facility’s owner and occupier, the local parish council. Their application under the Environmental Protection Act 1990 was, however, rejected by a judge.
In doing so, he drew a sharp distinction between noise generated as a result of the intended recreational use of the facility and noise arising from anti-social activities, including the playing of loud music, abusive shouting and the use of the facility at night, after its official closing time.
Noting that a statutory nuisance can give rise to criminal liability and a fine, he ruled that the parish council should not be held responsible for anti-social behaviour over which it had no control and which was properly a matter to be addressed under the Anti-social Behaviour, Crime and Policing Act 2014.
He went on to find that the householders had been rendered hypersensitive by the anti-social elements of what was going on at the facility and that noise arising from its intended use did not amount to a statutory nuisance.
Upholding the householders’ appeal against the judge’s ruling, the Court found that there was no statutory foundation for the distinction he made. He should have considered the impact on the householders’ health of all noise emanating from the facility regardless of whether it resulted from intended use or anti-social behaviour.
Having drawn a wrong distinction, the judge also fell into error when considering the issue of hypersensitivity. The correct question that he should have asked himself was whether a normal, reasonably resilient person could be expected to put up with all the noise coming from the facility.
The Court noted that, where a statutory nuisance is found to exist, judges are under a statutory obligation to issue an abatement order. The making of such orders may, however, be postponed to enable consideration of what steps need to be taken to abate a nuisance. The Court heard further argument as to what remedy should be granted to the householders.
Litigation Executive David Watson had this this to say on the matter…
“As Dispute Resolution specialists, we always must consider which procedure and law shall best serve our client’s aim and objectives. This case demonstrates an example where an aggrieved party (the neighbours) have two separate potential causes of action. The first is the anti-social behaviour caused by persons unknown under the Crime and Policing Act 2014 and a second separate course of action against the owner, occupier, and local authority under the Environmental Protection Act 1990. This case demonstrates the importance of taking early legal advice from a solicitor with knowledge and experience in a wide range of law to consider which of these potential causes of action should be pursued”.
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