Noise Pollution: Best Practicable Means

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Background

ACME Valley Entertainments Ltd approached our Environmental consultancy for getting ideas on BPM (Best Practicable Means) to defend a case of Statutory Nuisance. The theme park is situated near to residential area which has given them the current legal challenge. The noise from the park has created noise pollution in the premises and appellants filed a case against them in local authorities under s82 Environmental Protection Law. There are chances of a noise nuisance abatement order against ACME Valley Entertainments Ltd and they wish to face the situation using BPM defence. The paper includes aide memoir for the presentation prepared for ACME to explain on BPM and use of it as a defence against s82 Environmental Protection Act in their Board Meeting. BPM is defined and analysed as a defence as applicable to our case. A similar case that happened in UK during 2007 is sought out for analysing the situational hope of ACME Valley Entertainments Ltd.

Introduction

Main objective is to analyse the current situation and dig out possibilities of favour for our part to defend the statutory nuisance case filed in local authorities. First thing to be accomplished for best approach to the case is to find out other similar cases in West Law involving theme parks, neighbours and noise pollution and study on it for seeking out possible defences available. Best Practicable Means which is the current requirement of ACME Valley can be identified easily in that case. The identified BPM can be absorbed into our defence against the statutory nuisance case under s82 Environmental Protection Act.

Define BPM

BPM stands as an abbreviation for Best Practicable Means. Best Practicable Means is widely considered as a “non-technical explanation of a widely used defence against statutory nuisance actions.” (Best Practicable means 2008, para.1). BPM has nothing to do with technical aspects but just to identify some practicable ideas to defend ourselves. BPM is “used to prevent or counteract the nuisance.” (Wolf & Stanley 2003, p.394). The local conditions and circumstances should be taken into account while identifying and formulating Best Practicable Means for our situation. Noise Pollution affects the health as identified by medical reports but on those grounds it is unpractical to stop games and music in theme park.

Use of BPM Defence

A case under s82 Environmental Protection Act can be encountered using Best Practicable Means alone or else there should be a complete elimination of identified nuisance. But it is never possible to eliminate sound from premises of a theme park, so only approach available is to defend with BPM. If any statutory nuisance is identified by Court of Law, an abatement order will be sent to the respondents. In order to face that order, Best Practicable Means is sought out. Defence using Best Practicable Means is used “when appealing against an abatement notice or as a defence in a prosecution for non-compliance.” (Scottish executive environment group: Draft noise management guide: Guidance on the creation and maintenance of effective noise management policies and practice for local authorities and their officers in Scotland 2005, para.38).

Alton Theme Park Ltd

Alton Theme Park Ltd is of much significance in our discussion. It is “UK’s Largest Theme Park & Family Fun Resort” (Family fun weekends at the Alton Towers Resort, n.d.) which had to face a similar case of statutory nuisance in 2007 under West Law. The case was filed against Alton Theme Park by inhabitants of that area owing to increased intensity of noise from the park. The area where theme park was situated had many residential plots to its proximity. “Statutory Nuisance – Noise Roper V Tussauds Theme Park Ltd. [2007] EWHC 624 (Admin)” (Case law report 2007) was filed and respondents were on trial under s82 Environmental Protection Act as nuisance was identified.

S82 Environmental Protection Act

“Noise nuisance is covered by Part III of the Environmental Protection Act 1990 (EPA).” (Noise pollution n.d, para.2). The law was introduced against environment polluting activities which can cause threat to health and wellbeing of human beings. Environmental Protection Act “empowers local authorities to deal with noise from fixed premises (including land) if they consider that the noise amounts to a statutory nuisance.” (Noise pollution n.d, para.2). Under this act, authorities are given the responsibility of investigating and identifying statutory nuisance and take relevant steps to eliminate those effectively. “Statutory nuisance is a branch of law dealing with problems like pollution.” (Statutory nuisance 2008). The environmental pollutions including noise pollution come under statutory nuisance.

Magistrates’ Court

Statutory Nuisance – Noise Roper V Tussauds Theme Park Ltd. [2007] EWHC 624 (Admin) was filed in Magistrates’ court. Appellants “served a notice under s82 of the Environmental Protection Act 1990 on the respondent” (Scottish executive environment group: Draft noise management guide: Guidance on the creation and maintenance of effective noise management policies and practice for local authorities and their officers in Scotland 2005) demanding halt to noise pollution produced by Alton Theme Ltd. Magistrates’ Court identified Statutory Nuisance in the case and forwarded an abatement order against respondents along with a huge fine for their misconduct that led to noise pollution. The respondent was asked to eliminate noise pollution which produced irritation to inhabitants of that area. Alton Theme Park was thus in problem because noise cannot be eliminated from an entertainment park rather it should be closed and also an amount as fine has to be spent.

Crown Court

Respondents could not accept the judgement of Magistrates’ court, so filed an appeal at Crown Court. Crown court “upheld the appeal” (Scottish executive environment group: Draft noise management guide: Guidance on the creation and maintenance of effective noise management policies and practice for local authorities and their officers in Scotland 2005) and fine was reduced along with amending of abatement order. Crown Court identified that noise cannot be eliminated completely but can be kept at a limit. Crown Court “limited the park’s noise emission to a maximum of 40 dBA when measured from the defendant’s property.” (Scottish executive environment group: Draft noise management guide: Guidance on the creation and maintenance of effective noise management policies and practice for local authorities and their officers in Scotland 2005). Noise can reach to a maximum of 40 dBA as explained by the amended abatement order, which illuminates the situation of Alton Towers Ltd where noise is an inevitable part of theme parks.

Queen’s Bench Division

The appellants were not ready to accept amended abatement order and reduced fine. “The appellants were of the view that the order should have imposed more stringent standards on the respondent.” (Case law report 2007, para.1).

Appellants thus filed an appeal over Crown Court’s judgement in Queen’s Division Bench. But Queen’s Division Bench identified it as an honest judgement. Queen’s Division Bench identified “World Health Organisation guidelines one was dealing with noise levels” and obligations with “regard to commercial considerations” in abatement order forwarded by Crown Court. (Case law report 2007, para.2). A 3 dBA difference was introduced by abatement order, which was likely to bring about perceptible variation in the opinion of Queen’s Division Bench.

BPM Recognized

The study of the case against Alton Towers on statutory nuisance illuminates ideas on Best Practicable Means as defence. The higher courts of justice recognized the situation of theme parks and noise coexistence. This gives hope on the matter of BPM. Judgement is not purely based on Pollution and Health problems in favour of the appellants but was made by including practical aspects and commercial considerations effectively. The investigation on case makes clear about the fact that courts opt for Best Practicable Means. Rather than ordering to completely eliminate noise, they were asked to keep a maximum limit of 40 dBA.

Relevance of the Case

The case on Alton Towers and judgements are relevant to the current situation of ACME Valley Entertainments Ltd. Judgement on Alton case identified that a 3 dBA difference is perceptual for appellants as they were prone to noise which is BPM for such a situation. Similar approach of BPM can be expected in our case as well. Court of Justice will never favour health aspects alone, but will support commercial Best Practicable Means also. Never a judgement can be made to stop well functioning of a firm like ACME Valley Entertainments Ltd which is a theme park with successful business.

Conclusion

The paper demands explanation of presentation on case study of ‘Statutory Nuisance – Noise Roper V Tussauds Theme Park Ltd. [2007] EWHC 624 (Admin)’. The relevance of this investigation is pointed out with a highlight on Best Practicable Means as applicable to case filed in local authorities by inhabitants nearby ACME Valley Entertainments Ltd. against statutory nuisance due to the activities of theme park. Judgement forwarded in the case of Alton Towers Ltd gives hope for ACME Valley Entertainments Ltd. Higher authorities of UK’s court of justice had supported the commercial and situational aspects of Alton Towers Ltd. So, it becomes obvious to respondent of this case that no authorities will stop their activities but will only put a limitation which is practicable in all senses. That is, only Best Practicable Means will be imposed which is identified through investigation on previous case under West Law.

Reference List

Best Practicable means, 2008. NoiseNet.org Ltd.

Case law report, 2007. Health Protection Scotland. Web.

Family fun weekends at the Alton Towers Resort, n.d. Alton Towers. Web.

Noise pollution, n.d. Environmental Protection UK. Web.

Scottish executive environment group: Draft noise management guide: Guidance on the creation and maintenance of effective noise management policies and practice for local authorities and their officers in Scotland, 2005. The Scottish Government. Web.

Statutory nuisance, 2008. Friends of the Earth. Web.

Wolf, S., & Stanley, N., 2003. Wolf and Stanley on environmental law. Routledge Cavendish. P.394.

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