Senior Solicitor
Demolition nuisance private prosecution
S v CC & anr
The case involved noise from a major redevelopment site in the centre of Mayfair, involving the demolition of a multi-storey carpark to allow the construction of luxury townhouses. Richard Buxton Solicitors were instructed by a local resident to take statutory nuisance proceedings against the developer and demolition contractor.
The demolition works were regulated by an order granted by Westminster City Council under s.61 of the Control of Pollution Act 1974. This imposed noise limits, an obligation to use best practicable means at all times and hours of working. It was accepted that the demolition contractors had complied with the terms of the consent; this prevented the service of an abatement notice by the local authority but not a private prosecution under s82 for creation of a statutory nuisance.
Despite the Council’s order, the works were causing a huge amount of noise over a period of over 18 months, impacting the community. Our client therefore commenced statutory nuisance prosecution under s.82 of the Environmental Protection Act 1990, seeking an order that would restrict the demolition works to prevent or restrict the nuisance, and a fine.
It is a defence under s.82 to show that best practicable means have been used to prevent or counteract the effects of any nuisance. Following a six-day hearing, although finding the noise from the site was a statutory nuisance, the District Judge held that the onus was on the prosecution to show that best practicable means had not been used, and that the prosecution had not shown this. The judgment however did highlight that had there been a material failure to use best practicable means at any time during the 18-month period, this defence would have failed.
As this was a private prosecution, and despite being unsuccessful, no award of costs was made against the private prosecutor. Difficulty in obtaining costs protection on appeal meant that no appeal by way of case stated was progressed
Jeremy Hyam KC was counsel for the prosecutor.
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Commentary
The case demonstrates how difficult it can be to obtain relief from construction noise nuisance, in the light of 1930s authority (when construction methods and timing were very different) but that by the same token those doing the works must do their best to avoid noise nuisance – which may have been the case here, but often is not.