Successful defence of a rare private prosecution under s82 of the EPA 1990 for creation of a statutory noise nuisance, following a 5 day trial.
This case concerned a major redevelopment site in the centre of Mayfair. A hotel, a multi-storey car park and a petrol filling station were being demolished to allow the construction of luxury townhouses. The works of demolition were policed by a consent granted by Westminster City Council under s61 of the Control of Pollution Act 1974. This imposed noise limits (in the form of trigger levels expressed as 10 hour Leqs), 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. A nearby resident, Christopher Sokol QC, prosecuted the developer and the demolition contractor. He sought a fine and an order which would have severely restricted the demolition works. It is a defence under s82 to show that best practicable means have been used to prevent or counteract the effects of any nuisance. The District Judge held that the noise from the site was a statutory nuisance, 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 demolition contractor provided extensive evidence of the measures it had taken throughout the period of the works to minimise the noise which its activities inevitably caused.
An important feature of the case was that the nuisance existed throughout an 18 month period. A material failure to use best practicable means at any time during this period would have been fatal to the defence.
Richard Langham appeared for the demolition contractor, Cantillon Ltd.