By Penny Schenk
A silent night is sometimes the exception rather than the rule, and aggreived parties will, on occasion, turn to the law.
In a 2012 Jersey case, Fernando v Minister for Health and Social Services, the owner of a property containing nearly 200 parrots won his appeal against a noise abatement order. The case makes interesting reading, addressing as it does the nature of a “statutory nuisance.”
The appellant and parrot-owner, Mr. Fernando, asked the Jersey Royal Court to overturn the noise abatement order that had been served on him by the Health Minister, Anne Pryke. In the course of proceedings, questions were raised about the relevant Jersey statute, and also about the way the matter had been handled.
In our judgment there are other reasons to look urgently at an amendment of this legislation. We cannot help noticing that the property from which the alleged statutory nuisance has been emanating and the property of the complainants are very valuable properties. Article 5 appears to impose a statutory duty on the minister to serve an abatement notice if satisfied that a statutory nuisance exists. We are told that in this case the complainants threatened the minister with judicial review if she did not issue an abatement notice. A review of the evidence put before us, to which we will return later in this judgment, shows that officials from the Environmental Health Department attended on site on numerous occasions over a period of about two years. Considerable public expense has been occurred both in those visits and in these proceedings. All of that could and should have been avoided with a consequence saving for the public purse if the complainants had brought an action in voisinage. We can see no reason why the minister should not have a discretion as to whether or not to issue an abatement notice. We do not see why it should be mandatory that the public bear this cost, and this is another reason why we think the minister might want to review this particular piece of legislation.
At one point, the Court went so far as to pay a visit to the premises in question.
The Court was invited by the appellant to attend on site to examine the premises where the parrots are kept. We did so, noting the objections made by the Solicitor General. We make it plain that the purpose of so doing was not to listen to the noise levels as they were on that particular day, because those levels might have been affected by factors which were not previously present. The purpose of the visit as far as we were concerned was to enable us to be familiar with the premises and its environs, and to enable us to assess what could be done to ameliorate the noise if, when we had examined the other evidence, we were satisfied that that course of action was necessary. Our site visit did reveal that there were certainly a very large number of parrots and other birds on the premises. We are told by Advocate Benest that there are some 196 parrots which the appellant keeps there.
Later, they considered the concept of what constitutes a ‘nuisance’:
The dictionary definition appears to indicate that a person or thing is a nuisance if he, she or it causes inconvenience or annoyance, and that indeed is the general meaning of the word. There is no objectivity about the approach. Using the word entirely properly, a person could describe the noise emitted from neighbouring premises as a nuisance in circumstances where no one else so regarded it. To the person making the statement, the noise emitted was causing annoyance and was therefore a nuisance. Given that Article 5 appears to require the minister to issue a notice if satisfied that a statutory nuisance exists, it does not seem to us that the word “nuisance” in Article 2 can possibly be given its ordinary meaning.
The Court heard evidence of past visits by officials to the complainants’ residence.
We have noted that officials visited either the appellant’s residence or the complainants’ residence approximately 19 times in 2009, 20 times in 2010 and 30 times in 2011. On the overwhelming majority of those visits, officials considered that the noise emanating from the appellant’s property did not amount to a nuisance. There were occasions when the officials noted that the birds made a noise intermittently, or could be heard, sometimes squawking, sometimes only faintly.
In making his case, the appellant cited World Health Organisation guidelines, which list a number of factors that determine whether a noise is likely induce annoyance.
“The capacity of a noise to induce annoyance depends upon its physical characteristics, including the sound pressure level, spectral characteristics and variations of these properties with time. During day time, few people are highly annoyed at LAeq levels below 55dB(A), and few are moderately annoyed at LAeq levels below 50dB(A). Sound levels during the evening and night should be 5 to 10 dB lower than during the day. Noise with low frequency components require lower guideline values. For intermittent noise, it is emphasised that it is necessary to take into account both the maximum sound pressure level and the number of noise events. Guidelines or noise abatement measures should also take into account residential outdoor activities.”
The Court heard about other factors in this case, as well as the issue of indigenous versus non-indigenous noise:
[The Solicitor General] accepted there was room for a social conscience in deciding whether a nuisance took place – this was a reference to the fact that the appellant was seeking to breed parrots of a species which were globally threatened – and he further submitted that one had to look at the whole context including the fact that the noise from crows, horses and other birds might be described as indigenous noise, to be expected in the countryside, but there was nothing indigenous in Jersey about parrots.
In the end, the Court decided for the appellant, deciding that the minister should not have served the abatement notice:
This is a straightforward judgment call for the Court. Taking all this evidence into account, we are satisfied that the minister was not justified in serving an abatement notice pursuant to Article 5. This is one of those occasions where reasonable persons might equally reasonably arrive at different views. We have the duty of making our assessment on the evidence and we do not find that the statutory nuisance is proved. Accordingly the appeal succeeds.
You can see (and hear) Mr. Fernando and his parrots in this news report of the time, before the outcome of the appeal was known.