Roper v. Tussauds Theme Parks Ltd

Transcript date:

Thursday, July 21, 2005

Matter:

Court:

Crown Court

Judgement type:

Appeal to Crown Court

Judge(s):

Everard HHJ, Justices

Transcript file:

IN THE CROWN COURT AT STOKE-ON-TRENT Ref. A20040143

Bethesda Street

Hanley

Stoke-on-Trent

21st July 2005

 

Before

HIS HONOUR JUDGE EVERARD

(Sitting with Justices)

 

BETWEEN:

TUSSAUDS THEME PARKS LIMITED (Appellants)

AND

STEPHEN ROPER AND SUZANNE ROPER (Respondents)

 

MR CAPLAN QC appeared on behalf of the Appellants

 

MR HOCKMAN QC appeared on behalf of the Respondents

 

JUDGE'S RULING UPON APPEAL

 

Transcript by MARGARET WORT & CO

(Official Court Reporters)

Edial Farm, Edial, Burntwood, Staffordshire, WS7 OHZ

Thursday, 21st July 2005

 

RULING

JUDGE EVERARD: This is an appeal from the decision of Deputy District Judge Gascoigne who, on the 2nd August 2004, found that there existed a statutory nuisance perpetrated by Alton Towers under Section 82 of the Environmental Protection Act 1990 on the complaint of the now respondents to this appeal, Mr and Mrs Roper. The period of time which he was considering, and which we are now considering, covers the seasons of 2003 and 2004 up to the commencement of that hearing which started on 8th July last year.

The complainants, as I have said, are Mr and Mrs Roper, now the respondents to this appeal. The appellants are Tussauds Theme Parks Limited, the owners of Alton Towers, and I will refer to them from now on as Alton Towers.

The form of statutory nuisance relied on by the respondents is noise emitted from premises under Section 79(l)(g) of that Act. I refer now to that section:

"Subject to subsections l(a) and to 6(a) below…" which do not concern us in this case "…the following matters constitute statutory nuisances for the purposes of this part of the Act. That is to say…" - and then under the sub-subparagraph (g) - "…noise emitted from premises so as to be prejudicial to health or a nuisance…" and it is agreed that the word "or" is disjunctive.

The test for a statutory nuisance is the common law test for nuisance. That is agreed by both parties following two particular decisions, Murdoch v. Glacier Metal Company Limited [1998] ELR732, a Court of Appeal decision, and Godfrey v. Conwy County Borough Council [2001] ELR38, a decision of the Divisional Court.

A common law nuisance is an unreasonable interference with the use of and/or enjoyment of land, and I refer also, in considering and setting out the law as it is agreed to be, to a case which Mr Caplan has helpfully referred to in his closing submissions, and it’s important, I think, that I refer to it at this stage, the case of Wyvernhoe Port v. Colchester Borough Council [l985] decision, where it is said:

"To be within the spirit of this Act a nuisance, to be a statutory nuisance, has to be one interfering materially with the personal comfort of the residents, in the sense that it materially affected their wellbeing although it might not be prejudicial to health."

Of course we accept - and later refer to two much older cases but the law is still the same - that the test is objective. I should perhaps add to that, helpfully set out in the written part of the closing submissions of Mr Caplan, a passage from "Statutory Nuisance Law and Practice, Oxford University Press" written, I assume, by Messrs Malcolm and Pointing:  "Whereas to the lay person anything that annoys him is a nuisance, the legal test for noise/nuisance is objective. The noise must be both excessive and unreasonable."

As to the chronology of this particular case it is set out at the end of the case summary prepared at the beginning of the case on behalf of the respondents.

On the 28th October 2002 there was a notice, which we have in fact a copy of, served under Section 82. On the 23rd October 2003 a second notice was served, on which these proceedings were later commenced. That was accompanied by the expert report of Mr Stigwood. On the 8th July 2004 the Magistrates’ Court proceedings started on that second notice, and we accept that it was on that second notice. On the 2nd August, having heard evidence, Deputy District Judge Gascoigne found that a statutory nuisance existed. The sentence and Abatement Order which followed are of no relevance at this stage in our determination as to whether a nuisance existed.

We bear in mind, throughout these proceedings, that they are, in effect, criminal proceedings. That is to say it is for the respondents to prove their case and we must be satisfied so that we are sure that a statutory nuisance existed in 2003 and 2004 in considering this appeal. That is, the burden of proof is on the respondents to the criminal standard.

I deal next with the character of the area. Alton Towers, since 1979, has been a theme park. It is one of the largest if not the largest in the country. Prior to

1979 it has a long history of being open for the public as a place of recreation enjoyed by many thousands of people and we have heard evidence about the history, interesting as it was. In the circumstances, in our judgment, it is unrealistic to expect that there will never be any noise emanating from the site. The local inhabitants must expect some inconvenience from noise from the site.

Next we make some general observations, namely these. Many rural areas are noisier in the summer than in the winter; the noise, for example, from agriculture, haymaking, harvesting and so on; the noise from private gardens, lawnmowers, strimmers, hedge trimmers, and so on; the noise from public events such as steam rallies, moto-cross and fairs are generally, if not exclusively, summer activities, and in our judgment the respondents cannot expect the same tranquillity which they enjoy in the winter months, either generally or specifically relating to Alton Towers. However, if a noise nuisance exists, and we are sure that it did exist in 2003 and 2004, it is no defence for Alton Towers to say 'We are a very large theme park giving enjoyment to millions of people and, therefore, we can make as much noise as we like' and it is of course right to say that Alton Towers do not put that forward as an argument.

The relevance of the history of Alton Towers, recently as a theme park, goes, in our judgment, to the assessment of whether any noise or noises emanating from Alton Towers amounts to an "unreasonable" - and I stress the word "unreasonable" - "…interference with the use and/or enjoyment of land."

We turn now to the planning development of Alton Towers. Similar considerations apply, with the exception of Corkscrew, which started in 1979 and where planning permission was granted retrospectively in 1981 and possibly two other rides where planning permission was retrospective, all the other rides have been opened with planning permission from the Local Authority. The fact that planning permission has been granted is relevant to what Mr Caplan has referred to - and we have adopted his phrase - as the "character of the area". However, the fact that planning permission has been granted does not, of course, give Alton Towers licence to make such noise as amounts to an unreasonable interference with the use and/or enjoyment of land, and I would add at this stage that the planning evidence, as is plain from the evidence and is agreed, relates in fact only to the rides; it has no bearing on firework events or concerts.

Whether a statutory nuisance existed in 2003 and 2004 is a question of fact; that is, applying the law to the facts as we find them to be and bearing in mind, as we do in this case, the burden and standard of proof.

Dealing with fact brings us to the evidence of the acoustics experts, Mr Stigwood on behalf of the respondents and Mr Sharps on behalf of the appellants. Before we deal in general terms with their evidence we make this point. We are aware that another expert called, I believe, Dr Jackson gave evidence on behalf of the appellants in the magistrates’ hearing. He has not given evidence in this appeal and I mention that simply to explain that we completely ignore that. I have said that before but I stress it again in this judgment. This is a rehearing. We pay no attention whatsoever to the fact that we have not heard from him. We decide the case on the evidence which we have heard and on no other evidence.

We’re entitled, in our judgment, when assessing the evidence of Mr Stigmore (sic) and Mr. Sharps, to bear in mind that, because Mr Sharps came into the case later, he took no acoustic measurements before the hearing in the Magistrates’ Court and, indeed, no acoustic measurements in the period of time which we are considering, namely the summer seasons of 2003 and 2004.

In reality the evidence of Mr Sharps is of relatively limited assistance in assessing the evidence of the lay witnesses. We do not, of course, discount it and I will deal with it in general terms.

A great deal of court time has been spent in hearing the evidence of Mr Stigwood and Mr Sharps. This is not a criticism at all of that and, of course, we give that evidence such weight as we think is appropriate. In our judgment Mr Stigwood has adopted what we believe to be a more balanced approach in this particular case than Mr Sharps. That is to say, given that there are no statutory or other specific guidelines for the assessment of noise from theme parks, he has compared and contrasted a number of guidelines and, we stress, he has long experience as an environmental health officer, 19 years in total, from 1975 to 1994, which we consider to be important in this case.

In relation to machinery noise, Tannoys and screams, Mr Stigwood has not simply restricted himself to the British Standard 4142, he has also considered the World Health Organisation guidelines, and he refers to that in his December 2003 report at page 35 and he has also considered the British Standard 7445 and he refers to that in h s December report at page 38.

By contrast, in our judgment, Mr Sharps has assessed the noise levels almost exclusively from the World Health Authority guideline values. He says in his report at paragraph 6-40: "I have considered all other matters, including the character of the noise source and the nature of the area but have found nothing to dissuade me from my conclusion; this being that noise from activity associated with Alton Towers does not exceed WHO guideline values and so does not constitute a statutory nuisance in law."

In our judgment that approach is too restrictive. The actual decibel levels are, of course, not unimportant, but Mr Stigwood has concentrated not just on decibel levels but on what he has called "the character of the noise" - for example, the daily clattering of machinery accompanied by Tannoy noise and screams, and that is referred to by a number of lay witnesses. In any event, Mr Sharps concedes that a statutory nuisance may exist where the levels - that is the measured levels - are less than the WHO guideline levels with his caveat about the character of the noise.

On any basis, the extent of measurements actually taken in this case is very limited. Concerning levels of noise from rides, machinery and screaming, Mr Stigwood took measurements in April 2003 and September 2003. He had earlier taken measurements on the 30' March 2003 before Alton Towers opened and we do not think it is helpful to compare noise levels from when the park is closed to noise levels when it is open. We have already said that given the character of the area and the existence of Alton Towers as a recreational site for many many years, that it is unrealistic that there will never be any noise emanating from the theme park and we have already said, and I repeat, that the local inhabitants must expect some inconvenience from this type of noise from the site.

As to the noise from fireworks, in October 2002 and November 2003 measurements were taken by Mr Stigwood. The measurements taken in October 2004 by him are, we consider, of little if any relevance. Those firework displays were more than two months after the finding that there was a nuisance on the 2nd August 2004 and it would not, in our judgment, be right to look at the levels of fireworks which took place after that time. On the 22nd October 2002 he took measurements of the level of firework noise from Peakstone Farm and we have recently been told exactly where that is. That farm is 2,100 metres from Alton Towers. It was raining and there was some wind and the weather would have suppressed, to an extent, the volume of noise from fireworks. Despite that, the maximum level recorded was 91 decibels. He refers to that as being forty times louder than the background noise level. I stress, and should stress, that the fact that he says it is forty times louder may well include what he has considered to be the background noise level, that is when Alton Towers is closed. I've already said that, we don’t think, is a proper way of doing it, but we can say that it was very much louder, on any basis, than his background noise level.

On the 3rd November 2003 he took measurements from the side garden of Farley House and he records his findings in his December 2003 report at paragraphs 5.42 to 5.49 and he refers not just to the fireworks but also to music noise and the DJ’s Tannoyed voice.

In summary, the noise from the fireworks, or some of them I should perhaps more accurately say, was extremely loud and the music noise accompanying that firework display was well in excess of the levels recommended in the Code of Practice on Environmental Noise Control at Concerts 1995.

Finally on the topic of expert acoustic evidence, we think that Mr Stigwood was entirely correct to refer to and take on board what he referred to as the cumulative impact of noise emanating from Alton Towers; that is to say, from all sources of noise.

In his report of January 2005 at paragraph 1.43 he says:

"My report clarified that nuisance arose as a state of affairs where the cumulative impact of noise from all sources caused the nuisance."

He goes on to say:

"Further impact only ceases when the noise is inaudible. As I explain below, Mr Sharps does not address cumulative impact/the state of affairs at Alton Towers."

In our judgment the proper way to approach and to use the scientific evidence when assessing the lay evidence is the one adopted by Mr Stigwood. It is unrealistic to put the various noise sources into separate compartments in assessing whether a noise nuisance existed, and I should add that which juries are told by Recorders and Judges on a regular basis when they hear expert evidence; they, the experts, do not decide the case. If it were as simple as that we would not need to have heard from anyone other than the two experts in this case.

We turn now to what we consider to be the most important evidence in the case, coupled of course with the help we have been given by the experts, namely the lay witnesses; that is the evidence of a number of individuals living in the area at the time of 2003 and 2004 and before in certain cases. We stress that the area on which we must concentrate, and have concentrated, is Farley House where the respondents live and have lived since 1968. It is important that we concentrate on evidence from that immediate area and, in our judgment, to the area well north of that, in the case of Mrs Ryan. I'll refer later to her evidence.

We bear in mind also that the prevailing wind blows from the south-east; that is towards Farley House from the general direction of Alton Towers. When the wind is in that direction, or there is little or no wind, the evidence is that the noise is - and this is my phrase - more intrusive. When the wind blows away from Farley House there is little if any noise from Alton Towers.

We also bear in mind that the topography of the area is extremely important; that is including the contours of the land and tree coverage and, although it came at a late stage and I will refer back to this, the aerial photograph, which we understand to be taken in the year 2000, is of some significance in relation particularly to one witness.

Finally, we make this general point about the lay witnesses. Each and every one of them is a decent and honest individual who has done his or her best to give a truthful, accurate and unbiased account of the noise or noises he or she has heard during the relevant period. Mainly because of the topography and because of the precise area in which each of those witnesses lived, it is plain that some were very disturbed by noise, whereas others were not. We bear in mind throughout, as I have said, that the important location in this case is Farley House.

In our assessment of the evidence of the lay witnesses we find that although in the main, as I have said, each witness has tried to give an unbiased and balanced account, not every witness has done so, and it perhaps goes without saying, the evidence of some witnesses was more impressive than the evidence of others.

We turn now to what we consider to be the important features of the evidence given by those lay witnesses and I deal with them, so far as is necessary, in the order in which they gave their evidence.

As far as Susan Allen is concerned, her address is on a road which in fact we visited, although we didn’t go to her house, Wootton Lane. We must have walked past it to get to the monitoring site from the 5" June. It's much closer to Alton Towers. There is no need for me to go into any further description but we do not consider her specific complaints to be of great assistance in deciding this case because of where she lives, but we accept that she has lived there for a considerable period of time and we are sure that her evidence, in particular about the fireworks event, was truthful and accurate evidence.

I'm not going to refer obviously to every word of her evidence or indeed of anybody else’s, but she refers to the noise level being "not acceptable, very very loud, terrible noise, during fireworks you can’t hear anything else. Our windows literally shake. You just sit there and think at any moment the windows will shatter with the explosions." We do not think, we are sure, that that evidence was not exaggerated.

As far as Philip Mackey is concerned, his evidence is of particular important in our judgment, in that he lives next door to the Ropers on the area marked on the plan.In his evidence he said that as to the noise from rides "It is continual throughout the day from opening to closing. I would describe it as being unacceptable." He referred to it being similar to a foundry or blacksmiths. He referred to "clank, clank, clank" and then screams. "You tend always to be aware it is there and, when it stops, can sit and enjoy the views."

He referred to screams. "Every time the ride goes up you hear screams; simultaneous, multiple screams." He said that it was akin to twenty odd children playing football on the field behind. "Visitors comment on it. It’s a constant repeated mechanical intrusion into what would otherwise be a rural idyllic setting."

I make this comment here about the last part of that sentence. We have already said, for the reasons we’ve explained, that some noise must be expected. So we put to one side, as it were, what he said about "rural idyllic setting".

He referred also to Tannoy noise and to amplified music. He said "You could sing along to Robbie Williams with the windows shut, despite the double glazing" which he told us about in his relatively new house. "The Tannoy noise", he said, "sounded like someone making an announcement and then there was music" and, maybe significantly, he said that had not continued this season. He said: "The music is still audible with the windows closed." As to the BT concert, he said: "It started on a Friday. The first year we went away. We took a deliberate decision to go away and we heard music and voices being amplified at 8.30 am."

He was a completely unbiased witness, in our judgment. In cross-examination he said: "The fireworks don’t bother me. My children love the fireworks." We have no reason whatsoever to doubt his evidence about the ride noise, Tannoy noise and music noise.

Mr Stephen Roper, the first complainant - or now I should more accurately say respondent - gave evidence. Again we found him to be an impressive and honest witness. I refer only to certain passages of his evidence.

He referred to the start of Corkscrew, which was a considerable time ago now in 1979. He then went on to say: "From then on we've experienced a growing amount of noise as every year has gone by until this year. As to 2003 and 2004, it has gone through a big transition in that period. The noise over 2003 and 2004 was worse than at any time  previously."

He said as to Mr Stigwood’s observations: "They are very typical", he said, "of the noises we hear." And he added this, which may be significant and we consider, indeed, it is significant in the limited amount of measurements, acoustic measurements: "I don’t think Mr Stigwood has been there on the worst days."

As to rides, he said: "Outstanding would be 'Oblivion'. I find it hard to believe that Alton Towers went beyond the feasibility study for that machine. The noise levels have been absolutely disgraceful. Metal clanging and clattering like living next door to a breaker’s yard at times. The level of screaming seems to have grown out of all proportion in the last six to seven years; continuous screaming from 9.00 until sometimes 7.00 pm and, if it goes on after fireworks, beyond 9.00 pm."

As to Tannoy noise, he said: "The Tannoy PA system has been going on for about 15 years. It’s one of the most annoying things." And then he referred to the fact that it would have cost very little for Alton Towers to have limited that noise. He said: "Very often on Sunday afternoons, I presume when senior managers are not there, the people operating the Tannoy were out of control."

He complains of the music built up over the years, the same repetitive songs, very often in the early mornings. "Tannoy noise", he says, "has now gone completely." He also went on to say that the amplified music has gone.

As to special events, in respect of concerts, he gave further evidence, particularly in relation to the BT concert, saying it pretty well broke the world record for loud music. He pointed out that he could hear the whole of the chairman of British Telecom’s speech which he made at the concert, which must have been in fact the year before last.

As to fireworks, he said that originally there was one night’s fireworks, that was ratcheted up to three. As we now know, there are two firework displays one weekend, on consecutive nights, followed by firework displays the weekend later, three consecutive nights. He said: "They start playing with music simulation and fireworks. You can feel the noise they create. The music is one and a half hours before the fireworks show with a DJ. It is extraordinarily noisy", he said. "Then again after fireworks there is a Tannoy with the PA system and then the rides going on. Then the staff are at the party on the last night and goes on…" – I’m sorry, I’ll start again. "Then the staff party, on the last night, and on goes the Karaoke and shouting until after midnight. I just don't think it is civilised behaviour. The windows shake with firework explosions."

In cross-examination he was cross-examined about a letter; the letter of the 28th October 2002, to which I have already referred. That is the first letter, as it were, formal letter of complaint drafted on his behalf or on behalf, I should say, of both respondents, by the solicitor acting for them. Just give me one moment. But it is plain that that letter - without laying my hands on it at the moment - does not refer to screaming and shouting sounds or the noise of machinery which is later referred to in the letter of the 23rd October 2003. That letter, as I’ve said, does not contain reference to machinery noise or screams.

We have carefully considered that and the argument put forward on behalf of the appellants this morning by Mr Caplan. In our judgment that does not detract from his sworn evidence about machinery and screams and we are quite sure that he has not exaggerated his evidence about that and we are quite sure that Mr and Mrs Roper have been disturbed by machinery noise and screaming noise for a considerable time.

Peter Keats lives in Pink Lodge. His evidence, in several respects, is not of assistance because of where he lives. It’s referred to on the plan. It is a different area. It is much closer to Alton Towers and it’s to the west of Alton Towers, but his evidence about the fireworks, in general terms, gives some assistance to us as to the volume of noise from the explosions.

In his evidence he said that as far as the fireworks were concerned, with the loud explosions, he referred to extremely loud explosions which shake the windows.

David Dalymore lives at Park House Farm. We bear in mind where he lives, and it’s important that we do, and his evidence again, because of where he lives, is of limited or no value as specific evidence, but it confirmed the evidence of Mr Roper and, indeed, Mrs Roper as to the nature and character and type of noise; namely, as he put it: "The mechanical clatter and screams. I notice it all day, every day. If the wind is in the right direction there is no noise. In summer 2003 and 2004 there was noise from ‘Oblivion’ every day. The mechanical clatter and the screams seem to come together. There is no difference from month to month."

He said: "The Tannoy noise was less this summer than last summer and the summer before." He said the Tannoy noise he had not heard since the 2nd April of this year.

Mrs Catherine Morley lives again in a different -- I beg her pardon, Thorley, again lives in a different area to the respondents in this case. Her address is marked on the plan. It’s, in general terms, the south-west of Alton Towers and again, because of where she lives, her evidence is not of great importance specifically as to the noise she heard at her house, but it goes to support the evidence of Mr and Mrs Roper as to machine noise and screaming.

She talks of the noise of machines, or gave evidence of the noise of the machinery which she can hear inside and outside her house; the noise of machinery and the noise of people enjoying the rides and lots of screaming. She said: "The noise is intrusive. There’s a difference between going into the garden and hearing birdsong and going into the garden and hearing Alton Towers."

Again she refers to the Tannoy being turned down quite a bit. She said: "You can't avoid hearing the fireworks, not those fireworks, they are very loud. It shakes cups in the cupboards and the double glazing." She referred to cracks in the cottage which she puts down, rightly or wrongly is not really necessary for us to decide, made, she believes at any rate, by the loud explosive fireworks. We do bear in mind - and I add this - that she was very much giving evidence relating to a period of about four or five years ago.

Richard Goodall lives almost directly opposite Farley House. Again his evidence we found convincing. As to noises of machinery, he said: "On a daily basis there was rumbling like a rail track and quite a lot of screeching, fairground screeching, people screeching. It was a basic daily noise." He explained that it would normally start at 9.30 to 10 o’clock or so in the morning and go on until 5.00 to 5.30 and there have been times it has gone on longer than that. He accepted whether he heard the noise was dependent, to an extent, on the weather and he explained the prevailing winds, that we’ve already referred to, is from Alton Towers towards Farley.

As to particular events, he gave evidence about the BT Open Day in 2003 for two consecutive days. He said in 2004 it was for one day. He said: "The sound I can describe as being absolutely horrendous." 

As to fireworks, he said that in 2003 and 2004, when he was giving evidence about the firework displays - and I've already said that the 2004 firework display was actually after this hearing so I concentrate on the 2003 hearing - "It was very loud. The big bangs were very loud. They rattle our windows, set off car alarms two to three times a night." He said that the noise - that is the noise from the machinery and screaming - which he was talking about "…was intrusive, discomforting, and a little bit embarrassing if you have visitors. I can find a stronger word than ‘intrusive’; ‘horrendous’ springs to mind."

On a lighter note, when he was cross-examined by Mr Jones, on behalf of the appellants, he conceded he hadn’t written to complain about the rides or screeches, "not yet" he added.

Mr Percy Shaw lives, as we were told, in the area which is not of great assistance. His evidence is of some assistance as to the firework displays, but I simply say, as far as his evidence is concerned, although the stampeding cattle incident - which I'll refer to - when it was quite plain that his cattle stampeded because of fireworks, was, as he honestly conceded I think in a question that I asked him so I could make sure he knew what he was talking about, was, as he put it, "a dozen to twelve years ago." I'm sorry, "a dozen to 15 years ago." So his evidence, specific evidence about that, is of no real assistance, but he did say – and he was a gentleman who had been on the Parish Council for 40 years, he did say that after a letter from the Parish the size - that is the diameter of the mortars – was reduced and he gave general evidence that the seals of his double glazing was broken and you could see the glass moving when the bangs went off. He went on to say in the last two years that had somewhat reduced. He said: "In general we enjoy the fireworks. I don't think anyone would complain about the fireworks." It's plain that he meant by that the firework display as opposed to what he referred to as the excessive noise of the fireworks.

Beverley Ryan lives well to the north and slightly east of Farley House. Her address is right at the top of the plan and, bearing in mind where she lives, we place particular importance on her evidence as to the noise that she could hear.

As to firework displays, she explained the fireworks escalated in stages; she having moved into the cottage where she lives in 1986. "The fireworks escalated in stages, leading to two weekends before the 5th November. The sound levels have increased, the commentary is louder, there is music before and after and special sound effects during the displays. From my property, as the evening wears on, you can hear the increase in volume and there’s a definite increase 30 minutes before the show. As to the scale of the fireworks…" - and we bear in mind again and repeat where she lives and the volume of the noise from the fireworks - "…it is louder than any thunderstorm. It makes it sound like a war zone. It is horrendous." She owns animals, namely horses. "I have to take special precautions because of my horses which are frightened by the noises. Last year I moved the horses out of the village and found alternative stabling. It means moving them out one week before the fireworks and moving them back one week after."

Referring to music from Alton Towers in 2003 and 2004, she said: "They have special events from afternoon to early evening and it usually becomes louder during the evening."

She said as to rides, even where she lives you can hear the pre-season testing of rides. She said: "I can most definitely hear the noise of 'Oblivion' from my house, clanking and ratcheting and like free-wheeling", was the way she put it.

Mrs Roper gave evidence. Again we found her a compelling and convincing witness. We refer only to a part of her evidence, but she referred also and gave similar evidence to others about how the noise has grown, the amplified noise, ignoring 2005, as she was asked to, and before that she referred to years of incredible noise.

The BT concerts she referred to as "unbelievable noise, just blew us away."

As to the noise from rides she said: "They start at 9 o'clock in the morning. They test them out…" - that is the machinery - "…and as they become busier the screaming starts. The one we hear most is ‘Oblivion’; the clattering of trucks and then screams and other mechanical sounds. I can also hear screaming from other rides screaming constantly. For me screaming is the worst noise of all."

As to other sounds, she referred to the music and Tannoy noises, the fireworks, about which she said: "I agree wholeheartedly with the other evidence about fireworks. I think when your house shakes you get pretty worked up. One night we could deal with, five nights is ridiculous. As to Tannoy noises, they are pretty dreadful, especially when you get it day after day, seven days a week."

As to the pop concerts, she said: "In 2003, during one of those concerts, we went to bed. 'Thank goodness that’s finished', and then we heard a party start up." She thought that was for the end of the season, October/November 2003.

She also said this - and it’s evidence again which we are satisfied is truthful and honest and accurate: "We do care about jobs. We have never been on the tack of preventing jobs."

She again was cross-examined on the basis that there was nothing in the letter of October 2002 which referred specifically to machine noise and screaming noise. We are quite satisfied that the screaming, as she and others told us, had gone on for a number of years and was of great concern to her and the fact that, apart from one letter, March 2003, which we were shown this morning, witch hints a ride noise, we are quite sure that her evidence about the screaming she heard was truthful and it had been of considerable -- more than considerable nuisance to her over a number of years and the noise of machinery and screaming, we add, is confirmed by other evidence. We do not accept for one moment the suggestion that Mr Stigwood was, as it were, the person who put it in the minds of the Ropers after he’d carried out his initial acoustic assessments.

As to the evidence called on behalf of the appellants, we stress again that it is for the respondents to prove their case to the criminal standard and I now refer to what I call - not disrespectfully in the slightest - the lay evidence; that is the evidence of individuals in the area.

Mr Graham Blackbum lives fairly close to Farley House. His residence he marked on the plan for us.

As to noise from the park, he said: "Of course you hear noise from the park." He referred to traffic noise, "…which we ignore…", but he said: "Screaming and the noise of people who are in there. General everyday noise. We know there’s a theme park there. Noise is there all the time. It’s noisier at times than others." He said: "I don't notice the noise now. It doesn’t affect my life", he said. He went on to say: "You can hear people enjoying themselves", and he said he had no hesitation about sitting in the garden with his visitors. He said the firework displays were excellent and he watched them from home. He said: "I haven’t got a problem with five firework displays. It's only 7.00 pm and finished by twenty-five past." That isn’t accurate on the other evidence we’ve found. The firework displays may only last 25 minutes, but it’s quite plain, on the evidence we’ve found, there is considerable Tannoy and music noise both before and after the fireworks and the fact remains that although he was not, as he put it, "personally not bothered about the screams" - and that is of some relevance – the fact is that he could hear screams from people using the ride, as he accepted, day in, day out, and he could definitely understand, he said, why other people might find that intrusive.

As far as Anna O’Brien is concerned, she lives in Cedar Head in Alton and, due to the position of her house which is, she showed us on the plan, towards the bottom of the plan and to the west of Alton, we are satisfied that her evidence, honest though it undoubtedly was, is of no assistance in deciding whether there was a noise nuisance existing at Farley House.

As far as Joyce Plant is concerned, she lives in an area very similar to Mrs Allen's, slightly, on the plan, to the north-west of Mrs Allen's. As far as she was concerned, in our judgment, although she did her best to give an unbiased account, we are of the view that it was not in fact unbiased. She and her sons had worked for Alton Towers and we observe that, in contrast to other witnesses, she said she was unaware of the BT concert recently, as she put it. We should add, perhaps in fairness to her, that first of all two things; she conceded that her cat was terrified by the bangs of the firework display, but that was back in 1992, and it may be that the topography of the area meant that the noise from Alton Towers was somewhat dampened.

Mrs Gina Dickerson gave evidence. Her evidence in fact took a considerable part of Tuesday morning, the 19th July. She used to live at the Old Barn at Farley Lane. That, it was established, was about 5 metres in height below Farley House. She herself conceded that she had reason to complain twice about the noise. The tenor of her evidence was that the screaming that she heard was very much background noise and was "happy screaming", as she put it.

It transpired that she became involved in organising a meeting in Alton Village Hall after the finding of the Deputy District Judge on the 2nd August because, it seems, she had formed the impression that the firework displays were to be stopped altogether. She was cross-examined about that meeting and arranging that meeting and insisted, when asked perfectly direct and straightforward questions, that she had had no communication with Alton Towers before that meeting. The questions are set out helpfully and rather more accurately in the closing submissions made by Mr Hockman. I won't recite them. If they need to be referred to, for any reason, they are set out at page 10. I'd better in fact, having said I won't repeat them, I should do:

"Apart from that visit, made to you by the general manager, have you or any of your family had any other direct contact with the management of Alton Towers?" 'No. In what capacity?", she replied. "Have you had any other direct contact with the management of Alton Towers?" "No", she said. "Is it true that you were involved in the organisation of the meeting?" and she agreed she was. "Did you receive any assistance from Alton Towers?" "No, it's nothing to do with Alton Towers."

It transpired that that was not an accurate account of what had taken place.

In fact what had happened, as she conceded, is that she had indeed been in touch with Alton Towers, before that meeting, and she had obtained a statement from someone at Alton Towers. At one stage my note reads - and this may not be exactly what she meant - she said that she had spoken to Alton Towers, they said they could not get involved in the meeting because of the legalities but she actually said Mr Barnes provided a statement. When she went on to expand on that she said: "I can't remember who signed the statement or who made it", but she accepted that a statement was prepared to be read out -- a statement from Alton Towers was to be read out at that meeting.

In our view, regrettably, we have come to the conclusion that she was less than frank and that her evidence was very much influenced by her firm belief that there was a real risk that the firework displays at Alton Towers might be permanently ended and, because of a dreadful childhood experience concerning a close friend at a private fireworks party, she was very cross about that possibility.

In short, her evidence does not cast any reasonable doubt on our view of the respondent's case.

Finally we turn to Mrs Liz Bradley. She lives behind Pink Lodge, about 200 metres behind. The aerial photograph produced tells a story and the position of her house. One only needs to look at the aerial photograph which, as I've said, was taken it seems in 2000. We don't have a date on this plan but at least one witness said - the map we've got is rather out-of-date - actually shows the position the her house is very protected from Alton Towers by surrounding trees and that leads us to the view that her evidence is of no help in deciding this case.

Having carefully considered, as we have, all the evidence in this case, we are satisfied beyond a reasonable doubt that a statutory noise nuisance existed in 2003 and 2004. We are satisfied that the noises complained of in the letter of the 23rd October 2003, namely amplified music, amplified commentaries, firework displays, screaming and shouting sounds, and the operation of rides, in particular "Oblivion", amount in their cumulation to a statutory nuisance and, in the circumstances, the appealing against the finding of that by Deputy District Judge Gascoigne, made on the 2nd [August]2004, is dismissed