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 Env LR 40 :  EHLR 17, Administrative Court - John Bates
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An appeal from an amended noise abatement order by way of case stated was dismissed because the magistrates had been entitled to disregard the standard approach to measuring industrial noise output, contained in BS4142, if they saw fit.
An appeal by way of case stated, against a noise abatement order, by the appellant company ('C'). The respondent local authority issued a noise abatement notice in respect of C's transonic wind tunnel, which was situated near to a residential area. By the time of the appeal to the magistrates' court, C had admitted that it had created the nuisance alleged. The parties disputed the scope of the works required to abate the nuisance. Access doors were required for the proposed enclosure of the tunnel, which would have to be opened from time to time, increasing the noise levels experienced by residents. It was agreed that noise levels should not exceed 48dB(A), but the parties disagreed on the time period over which average readings to measure noise levels should be taken. It would be more difficult for the defendant to satisfy the agreed maximum levels of noise if the levels were measured over short periods of time. The magistrates amended the order decreasing the length of the noise test that would produce an average noise level. In May 2000 C applied for the case to be stated and subsequently sought to amend the magistrates' draft but this was refused. C then applied under s.28(A)(2) Supreme Court Act 1981 challenging the magistrates' decision not to amend the draft case stated to include the claimant's proposed alterations. C submitted in its appeal: (i) that the magistrates had considered irrelevant material, namely C's pre-hearing proposals and the fact that Leq 5 minutes would benefit nearby residents more than the company; (ii) that they failed to consider para.6.2 of BS4142, the standard for determining industrial noise; and (iii) that there was no evidence to support certain factual findings made by the magistrates.
HELD: (1) The discretion to order the amendment sought to the draft statement of the case was not exercised because the application under the 1981 Act had been made too late. Time began to run on 21 July 2000 but the requirements of s.28A(2) of the 1981 Act had not been complied with until 30 November. (2) Whether or not C's earlier proposals had been made without prejudice, they had been put in evidence. Therefore, the magistrates were entitled to consider them. The magistrates adopted Leq 5 minutes because they considered that necessary to abate the nuisance. Therefore they had not taken into account an irrelevant consideration. (3) The magistrates were entitled if they thought it fit not to follow para.6.2 of BS4142: see reg.2(5) Statutory Nuisance (Appeals) Regulations 1995 SI 1985/2644. (4) Since C's application to state a case did not specify evidence relied on, that restricted the scope of C's third submission. Consequently, the impugned factual findings were not undermined successfully. (5) For the reasons given in (3) to (5) above, the appeal was dismissed.