The defence of Best Practicable Means is available with respect to noise emitted from industrial, trade or business premises. It is available as a ground for appeal and as a defence to prosecution when it is alleged that a notice, served under section 80 of the Environmental Protection Act 1990, has been breached.
A short audio update was given some time ago on some interesting cases relating to BPM and statutory nuisance (recorded some time ago now but still informative).
In a defence against prosecution the defendant may raise the defence of ‘reasonable’ excuse or ‘best practicable means’ (BPM).
Where a statutory nuisance is proven and shown to have existed in a prosecution the defence of best practicable means is available but, in the main, in relation to nuisance arising on industrial, trade and business premises. It, effectively, provides businesses some flexibility in the way in which they operate.
Provisions providing some interpretation of the term BPM are given in section 79(9).
When considering the defence of BPM it is up to the courts to decide whether the best practicable means has been used; and up to the defendant to justify why the particular means employed by them are better than others (to the civil standard). In doing so the courts may consider the financial implications of abating a nuisance; such was the case in St Albans District Council v Patel. The means involved provide a useful practical reference (rather than precedent) to the approach that may be taken to BPM.
Patel had mounted a successful defence at the magistrates in relation to noise emanating from his pub garden using the BPM defence. The Council appealed that decision. At the High Court it was heard that the licensee had taken several measures to reduce noise experienced by neighbours, including:
- restricting the numbers of customers permitted to use the garden;
- closing part of the garden; and
- reducing the times at which the remainder of the garden could be used.
In addition, he had even paid for double glazing to be installed at one property.
Mr Patel was able to show that the profit generated in the summer months balanced the loss experienced during winter; and that this was largely dependent upon the use of the garden. The Council’s appeal was therefore dismissed.
Costs will not always be a factor though (when considering BPM) and the courts will also take into account other factors such as the locality and severity of the offence.
You can earn CPD and learn about abatement notices.