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Turn it down ...just a little!
When local residents Steven and Susan Roper won a legal case against Alton Towers in 2005 following complaints about noise, the park’s owners were fined and asked to turn it down. However, a recent UK High Court decision to reject their appeal for a harsher penalty strikes a welcome balance between the rights of the public and the commercial needs of attractions operators. Peter Forshaw of law firm Weightmans analyses how and why the court reached its decision.
In October 2005, Tussauds Theme Parks Ltd, operator of Alton Towers, was fined £3,500 and imposed an abatement order, requiring a reduction in noise levels of around 3db. This followed complaints from married couple Steven and Susan Roper, who in 2002 served a Section 82 Notice under the Environmental Protection Act 1990.
The couple lived in a cottage roughly 100 metres from Alton Towers, where they had been residents before it became a fully functioning amusement park. Their complaint centred on the perceived interference they experienced due to noise emanating from the rides, the large number of visitors and other activities such as concerts and firework displays. The appeal, heard before Mr Justice Willkie on March 19 and 20 this year, related to the order of the Crown Court I.
The Roper’s objections to the previous order were three-fold. Firstly, that the 3db reduction ordered would be “barely perceptible.” Further, they argued that the court had made an error in taking into account the commercial restrictions of the park operators. In response, the Respondents argued that a reduction of 3db would in fact make a material difference. The British Standards predicted complaints of moderate annoyance only in nature at this level, and the Respondents further submitted that the commercial realities in which the park had to operate were clearly relevant factors to be considered.
In dismissing the substantive elements of the Appellants’ submissions, it is clear that Mr Justice Willkie was heavily influenced by the findings made by the Crown Court. He quoted directly from the Crown Court judgment, neatly highlighting the difficult balance to be reached in such circumstances, where the park had been trading for nearly 30 years: “It is unrealistic to expect that there will never be any noise emanating from the site. The local inhabitants must expect some inconvenience ...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.”
The operative word here is “unreasonable”. Such popular attractions will undoubtedly interfere with the enjoyment of a person’s property but once such interference gets to a level as to be unreasonable, then the court must take action. Again, a later passage highlighted this necessary balance: “The order which we pass must be one which will abate the nuisance but equally it must not be ...that its effect would be to close Alton Towers or seriously affect its ability to function as a commercial concern”.
The courts were clearly guided by the expert evidence obtained which commented on a range of noise level standards including the British Standard 4142 1997 entitled “Method for Rating Industrial Noise affecting Mixed Residential and Industrial Areas”, the World Health Organisation Guidelines, and British Standard 7445 1991 entitled “Description and Measurement of Environmental Noise”. Both experts agreed that a change in noise level of around 3db (ie. from the existing level of 43dbA to 40dbA) was just about perceptible whereas a change of approximately 10db from 43dbA to 33dbA would halve the loudness of the noise produced.
In considering the evidence on appeal, Mr Justice Willkie did not find the Crown Court’s decision to be irreconcilable with their findings of fact or erroneous in law. Despite the greater benefits that a bigger noise reduction would have bestowed on the Ropers, the balance of competing considerations which the Court had to undertake in such circumstances meant that the decision was a sensible one. The only changes made to the order were to impose Noise Council’s Code levels to outdoor concerts hosted at the park.
If the limited abatement imposed seems like a hollow victory for the Ropers, two notes of caution must be recorded. Firstly, the court was clearly influenced by the fact that the actual noise levels, whilst constituting a statutory nuisance, were not significantly higher than the average summer background noise levels of 35dbA. Existing levels were certainly well below the level of 50dbA set by the WHO Guidelines under which a few people would be moderately annoyed, but no widespread complaint was predicted.
Had the existing noise levels been higher it is likely that the abatement would have been greater. Further, it must be remembered that this was an appeal from the original Crown Court decision, which was not so irrational as to require overturning. However, passages of Mr Justice Willkie’s judgment indicate that a harsher reduction could reasonably have been imposed on the evidence available.
Whilst park owners can take some comfort from the High Court’s decision, operators should continue to strive for noise levels which are unlikely to result in litigation. The key to such avoidance is regular monitoring of noise levels by way of expert evaluation, combined with appropriate consultation with interested parties.
In the Roper case, the litigation was instigated by local residents following a perceived failure by Tussauds to act on their previous complaint. Park operators are urged to work closely with residents associations to ensure a harmonious relationship. Steps taken to monitor and drive down noise levels should be well publicised and an effective frontline customer care service should help highlight and dispel any concerns from neighbours before any litigation is contemplated. Park operators should also work closely with local authority and environmental health departments to ensure that they are happy with the noise levels produced.
Provided operators take reasonable abatement steps and regularly monitor noise, this particular decision proves that the courts are unlikely to impose more onerous restrictions on leisure operators, which could have a stifling effect on such popular recreational activities.
Peter Forshaw is a partner and head of Weightmans’ leisure unit. www.weightmans.com
‘We’ve always been honest and upfront’
An Alton Towers spokesperson explains the park’s policy on liaison with local residents
As quickly as Alton Towers has developed, so has the local area. Acting as a catalyst, we support hundreds of firms and businesses directly, and many thousands of local people rely upon us for employment. We believe we’ve always been open, honest and upfront with our local community, and we’ve now put our promises to them in a Community Charter, which details our social and environmental responsibilities.
However, we also recognise that the key is to involve them, and get involved in what matters to them as well. We have a designated local resident liaison manager, who responds to calls from locals day or night about any issues or concerns, which has worked very well, and we hold regular meetings with our district and parish councillors. Our aim now is to ensure that we identify issues and deal with them before they escalate.
