Last month a hotly-fought fight between householders and a motor sports venue came to a head at the High Court. Jack Pease considers the arguments.

It read more like a tabloid exclusive than a High Court judgement. Motorcyclists rampaging in a garden. Intimidation. Arson. Death threats. Use of hay bales to block lights. The Fen Tigers judgement had it all (Noise Bulletin Feb/March p1).

Householders living near a speedway and motocross track had complained against intrusive noise. At the High Court, they won an injunction and damages – but not aggravated damages as there was no proof that the campaign of intimidation was linked to the racetrack operators.

Consultant Mike Stigwood advised the householders in a claim argued by environmental lawyers Richard Buxton, with World Health Organisation 'limits' being at the heart of the trial. While the judge formed his judgement mostly on a series of witnesses who described the noise nuisance, he also made precedent-setting conclusions on expert arguments. He did not like use of WHO limits as a level to which it was okay to pollute, preferring the context-based assessment which Stigwood argues is better. Because the case was heard in the High Court, findings are likely to become an important precedent.

Residents of Fenland, near Mildenhall, moved close to a stadium used for speedway and banger racing (560m distant), and an associated racetrack laid out as a motocross track (864m distant)
Claimants Katherine Lawrence and. Raymond Shields bought Fenland in 2006 and soon after found the nearby stadium caused noise disturbance.

Even before she moved in there had been abatement notices and local authority action, last year they went to the High Court to claim damages against the operators and seek an injunction. This was later to include aggravated damages as a result of intimidation.

The nature of the locality

As with other nuisance cases, the nature of the locality was a key issue, and with the property being under the flightpath to Mildenhall air base, there was an argument that this was already an area with relatively high noise.

But the judge felt that there was relatively infrequent overflying by planes so the area could not be described as already blighted by noise.

As the speedway and motocross circuits had been granted planning permission decades before the claimants arrived, there was also an argument that the granting of planning permission changed the character of the area. The judge appeared to discount this argument on the basis that the limitations on days and hours of use and personal nature of the planning permissions (limited to a named individual). He explained: "Outside the permitted hours of use of the stadium and the track, the area in which they and Fenland is situated is an agricultural area and close to military airfield operations which affects the residents of the locality in the rather limited way.

"Consequently, it cannot be said that the existence of the speedway planning permission, the certificate or the track permission have altered the character of the locality of the stadium, the track and Fenland permanently. All they have really done is to permit, at identified times on identified days, or on a set number of days per year, activities which otherwise are not permitted."

Evidence of nuisance

Evidence as to nuisance, or not, took two forms – a list of complaints from residents, and expert witnesses – Mike Stigwood for the claimants, and Doug Sharps of Sharps Acoustics for the defendants.

More about the expert evidence later, it was the experiences of the complainants that appeared to be the main grounds for the judge deciding that the noise was indeed a nuisance – with experts wheeled in later to confirm that finding.
Householder Lawrence first complained to the council and started to keep a noise diary, and the council installed noise monitoring equipment. At a visit by Keith Mumford of Forest Heath District Council, he described the motocross noise as 'loud' and on another visit "intrusive and unreasonable" and a "statutory nuisance".

Lawrence reported being disturbed on most weekends with no predictable pattern of disturbance.
Attempts were made to mitigate noise – and quite dramatically a massive straw bale wall was built around the claimants' house without warning. The judgement noted that this failed to reduce noise but was seen as an attempt to intimidate, being twice as high as was recommended by acoustic consultants and surrounding the claimants' bungalow.
It even took five days to build with forklifts using reversing alarms which were "permanently activated", the resulting structure was so unusual that the claimants were then disturbed with locals coming to have a look at it.
Not for the first time, abatement notices were served on the operators, these set out mitigation measures to reduce nuisance, including hours of operation and noise barriers closer to the source.
Eventually the abatement notice was complied with, leaving the council suggesting that the works would be likely to avoid the risk of statutory nuisance but that further complaints of private nuisance may well be forthcoming – based on the fact that the works had only cut noise by 1.3dB against very quiet background levels.
And so it proved, the court was read many letters from residents commenting on the loud noise from the motocross and stadium (see boxes, below).

Then it was time for the experts to comment on the noise. Stigwood undertook a context-type assessment based on BS4142 Method for rating industrial noise.

This suggests: "Where people come to noise then it is appropriate to consider the acceptability or otherwise of the noise climate to which they have moved. This means that an assessment using noise threshold criteria is appropriate because these threshold levels indicate the acceptability or otherwise of that noise climate (not the effect of the introduction of a new noise source to an established noise climate).

"Where noise comes to people then it is appropriate to determine the effect of that new noise level by either considering the resultant change in the noise climate that result from the introduction of the new source or the noise level of the new source in the context of the pre-existing background noise level of the area to which people have become accustomed."
Sharps's assessment centred on comparing noise from the tracks against 1999 WHO guidelines. The judge summarised Sharps' arguments: "Mr Sharps essentially interpreted the WHO Report as indicating that any reasonable person would not be affected by a noise which did not exceed LANionours of 55 dB.

"Thus he concentrated upon the 'serious annoyance' indication, in preference to the `moderate annoyance' indication, in relation to the environment of an 'outdoor living area'. He seems to have discounted the comment in the executive summary of the WHO Report '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', when expressing his view that guideline values should be used even if noise was not steady and continuous."
The judgement continued: "He also seems to have discounted the observation in the executive summary about annoyance that sound levels during the evening and night should be 5 – 10 dB lower than during the day', preferring to take from Table 1 that the decibel levels there noted in respect of 'outdoor living area' were indicated as applicable 'daytime and evening'.

"The next stage in Mr. Sharps' consideration was to interpret what he deduced from the WHO Report against the background of National Physical Laboratory (Health effect based noise assessment methods: A review and feasibility study).

Mr. Sharps quoted selectively from the NPL report: 'A `significant' change in noise level is usually taken to be 6 dB when undertaking an environmental impact assessment. On this basis I conclude that significant 'serious annoyance' may not occur until sound levels reach around 55 + 6 = 61 dBLAcqT."

The judge commented that this analysis was not supported either by the WHO report or by the NPL report.
Sharps also discounted the use of a BS4142 assessment as this was not 'new' noise being introduced into a quiet environment, rather that the noise from the stadium and motocross track were part of the background noise level of the area. The judge said: "I am afraid that I do not understand the logic of that objection."
Sharps took measurements of the speedway racing. Noise levels measured did vary, between a low of 42.9 dB for the first race to a high of 52.4 dB for the sixth race.

Sharps concluded: "The average level of LAN 1minute = 50.5 dB over ten races equates to a noise emission over the seventy minutes duration of this event of LAN event = 42.0 dB (50.5 – 10 logarithm 10/70 minutes).

The judge said: "What Mr. Sharps was doing was to include the intervals between races in order to reduce the measured noise levels of the period between the start of racing and the conclusion of racing. Someone simply listening to the noise from afar, such as at Fenland, would probably be struck by the loud increase in noise during the actual races."

Stigwood also took noise measurements using very short time periods measured in seconds, and by comparing with records could explain what individual noises were. Based on these recordings. he noted noise levels of between 53 dB and 62 dB attributable to motor sport. with a maximum of 77 dB.

Faced with further arguments based on these differences of approach, the judge had to choose between them and concluded: "I am afraid that I formed the view that Mr. Sharps' approach was essentially juggling with numbers to seek to produce an apparently soundly-based scientific case that claimants could not have endured the noise nuisance of which they complained because the science showed, it was said, that it was impossible to cause nuisance at the levels which Mr. Sharps noted. The fact is that just about every witness who expressed a view said that the noise from the activities at the stadium and at the track was audible, in one case up to two and a half miles away.

"The noise from the activities at the stadium and at the track was intermittently much louder, typically by 10dB, than the ambient noise level leaving out of account those activities. It is, in my judgment, those dramatic increases in loudness which really constitute the nuisance in the present case, in other words the contrast between the loud levels and the noise levels prevailing when there was nothing going on at the stadium or at the track."

The claimants indicated they would accept an injunction stipulating 40 days a year of noisy racing – and the judge agreed provided the wording was correct: "What I have in mind is to grant an injunction .... restraining the operators from causing or permitting noise to be generated from activities at the stadium or the track, as the case may be, which generate a noise level, measured at the boundary of Fenland, which exceeds, between 08:00 and 20:00 hours, 45 dB LAN 15minutes or, between 20:01 and 7:59 hours, 37 dB LAN 15 minutes.

The judge refused to award aggravated damages as there was no proof who was behind activities which included:

• Motor cycle riders entering the garden of Fenland and kicking the bins and issuing death threats;
• Use of a fork lift truck pushing the claimants' car into an oil tank and rupturing it causing the home to be uninhabitable;
• Arson – burning the roof of the house down;
• Incidents on local roads;
• Threats of a violent and sexual nature on internet bulletin boards;
• Use of noisy and intrusive irrigation pumps placed close to the bungalow with sprays so close as to throw water into the house;
• The intrusive straw bale wall.

However ordinary damages were calculated at over £20,000 split between the motocross track and speedway, with an injunction with the exact wording subject to further discussion.

Mike Stigwood gave Noise Bulletin his thoughts after the verdict: "On the WHO Guidelines Mr Sharps argued that the levels of unacceptable noise were above the 50-55dB threshold value in the WHO Guidelines as effects did not occur until significantly above these values and so added 6dB to give a value he said was the boundary of acceptability at 61dB. He argued the same point at Elvington (unsuccessfully) and added 10dB to give 65dB on that occasion but he did not argue this at Bruntingthorpe and Dunkerswell which were two magistrates-level cases where his views on motor sport noise and the WHO prevailed. However, this case (Mildenhall) is in a higher court where their precedent impacts on the lower courts.

"To apply the WHO guidelines you have to ignore caveats given by the WHO that you cannot assess noise nuisance in this way, that the decibel level accounts for perhaps a third of noise annoyance, that it suggests levels should be 5-10dB lower in the evenings and that there is an expectation of freedom from noise at weekends and that there is no consensus on a decibel level of annoyance.

"The simple point is that the WHO levels of 50dB for moderate annoyance and 55dB for the onset of serious community annoyance effectively are restricted to anonymous, benign types of steady continuous general noise and do not relate to noise from specific sites that have intrusive characteristics. To get this message across to a court requires writing evidence as long as the WHO Guidelines and so when there is dispute it becomes incredibly hard for the courts to accept this point without copious amounts of reading.

"In this case the judge did get into the detail and did read the documents and fully appreciated the points, something the environmental health and acoustic professions owe a lot of gratitude as this has been an area of dispute for over a decade."

Another noise consultant told Noise Bulletin: "My reading of Fen Tigers is that the judge is less impressed by the acoustic evidence on fixed limits i.e. the WHO guidelines and fixed standards of comfort do not determine statutory nuisance (long established e.g. Struges Vs Bridgman from the late 19th Century and more recently Murdoch Vs Glazier Metals circa 1996); and that he preferred the evidence of the persons affected as they were clearly rational, robust, and reasonable.

"WHO limits were blatantly not applicable, because;

• The noise wasn't steady or constant; 0 The noise had readily distinguishable characteristics that aggravate its impacts;
• The noise was significantly above the guidelines for short periods, but by time averaging over much longer periods could get near to the WHO guidelines.

"Noise limits are rarely if ever determining of statutory nuisance. Legislation concerning statutory nuisance does not state noise level thresholds for statutory nuisance; and case law has established that noise measurements are not required to prove statutory nuisance (e.g. London Borough of Lewisham Vs Yvonne Hall 20021). However, the subjective assessment of the acceptability of noise varies markedly between individuals and  can he volatile over time for an individual.

"These factors can make qualitative judgments in regard to statutory nuisance difficult and open to challenge. Additionally magistrates and judges may find reliance solely on qualitative information uncertain and appreciate supplementary quantitative data helpful in fully understanding specific cases and deciding whether statutory nuisance exists and the degree to which it needs to be abated or restricted. Qualitative observations and evidence from complainants are important to carrying out an investigation, but noise measurements can also be useful as part of the investigation of noise complaints."

• Lawrence & Anor v Fen Tigers Ltd & Ors, website www.bailii.org/ew/cases

THE NOISE: ONE VIEW...

"We were inside the house with windows and doors closed when we heard revving and roaring engine noise, air horns (loud noise-making aerosol devices used by spectators), and music and tannoy that sounded as though it was coming from the adjacent field, although the motorsports facilities are in fact 500 metres away.
"The noise was so intrusive the television had to be turned up to uncomfortable levels in order to try to blot out the noise."

... AND ANOTHER VIEW

"The actual racing generates a variety of loud noise including braking, shunting and smashing of vehicles, accelerating at speed and screeching of tyres, as well as incessant roaring which causes vibration and rumbling that is felt and heard in the farthest room from the noise source with all external and internal windows and doors shut.
"At the end of the racing, which almost always operates until 11pm and often until midnight, the clean-up begins and can take hours with horns and klaxons being let off, generators, flood lights, engines revving, fireworks being set off and music and laughter from those camping over."

AND COUNTER VIEWS

Noise Bulletin received more than one comment about our short news story last month, which quoted from the judgement which had been published just as we went to press. There was some incredulity that a householder moving next to a motor sports stadium could then successfully complain about the noise.
One expert who had studied the judgement made a number of points to Noise Bulletin:

• The judge stated that he had principally relied upon the evidence of the lay witnesses and particularly the claimants. He had only looked at the expert evidence in order to inform himself as to the veracity of the lay evidence;
• He found the claimants' evidence compelling and reasonable and therefore, he (almost) had no choice but to "fit" the expert evidence to this conclusion;
• It is always much easier to argue that something is a nuisance than argue a negative and, so, judgments based on lay evidence inevitably conclude nuisance;
• The claimants moved to the area a few years ago and the stadium is a very obvious feature in the locality. It has been operating for many decades and is treasured by the local community. This is a case of people-to-noise (knowingly);
• People-to-noise is not a defence to nuisance but does alter a noise assessment and criteria (noise-to-people being treated more rigorously). PPG 24 addresses people-to-noise via Noise Exposure Categories (but these are not applicable to speedway noise);
• PPG 24 advises that noise from events such a sports and entertainment may be subject to higher noise levels (than NEC limits etc) than from industry. These NECs were based on the 1980 WHO Guidelines – revised 1999 WHO Guidelines specifically include noise from motor sports as a "community" noise source and provides "guideline values". It is unlikely that a publication entitled Guidelines for Community Noise would include motor sports as a community noise source and then guideline values do not apply.

One of the authors of the WHO Guidelines confirmed several years ago that the WHO Guidelines apply to sports (at another case) but that the 16 hour day levels should apply over the duration of the event;

• The National Physical Laboratory provided an interpretation of the WHO guideline values for the government. This said that at levels below the WHO guideline values effects can be assumed to be negligible and that significant effects may not occur until much higher degrees of exposure than the guideline values. Much higher degrees of exposure is not defined by NPL but 6 dB is about right (it must be above 3 dB);
• Speedway noise levels at the claimants' property were not at much higher degrees of exposure than the WHO guideline values. An event compriseround 15 races which last about 54 seconds a race.
• The stadium spent nearly £100k on noise mitigation. The current noise levels cannot be materially reduced because there is substantial mitigation alreadvonstructed;
• The local authority served an abatement notice after pressure from the claimants but concluded no nuisance after the mitigation works;
• The judge has suggested noise limits (to be reviewed and agreed by the two sides). These are set in terms of short term LAeqr levels. There is no technical basis for these limits – the judge concluded that the limits are achievable because, sometimes, noise levels at the claimants' property are lower than others. This is correct but is due to wind direction.

The expert added: "Most lay people who you discuss this case with cannot understand how someone can move next to a long established stadium and then claim noise nuisance, particularly as the stadium has spent so much money on mitigation after they had moved to the locality."
Consultant Mike Fillery has had a long interest in motorsport noise: "The case does bring into sharp focus the lack of any credible guidance or research findings on the noise impact of motorised leisure activities. It is high time that Defra and the motorsports industries got their act together and funded some robust research into this topic.
"Overall I find the judgement lacking in balance in respect of the noise evidence. The judgement takes issue with Sharps' approach in some detail but clearly has little acoustics understanding of standard calculations. He cast doubt on the professionalism of the writers of BS4142 but fails to appreciate the rigour of the BS4142 method that allows an assessment of complaints to be made by reference to the exceedence of rating level over background. Despite his dislike of the criteria used by Sharps he does not apparently use any other established guidance available (PPG24 other than NECs, CRTN, COP for outdoor concerts, etc) in arriving at the levels for the proposed injunction.
"The judge views Sharps as juggling with figures to prove the non existence of nuisance but in the same paragraph states that 'The fact is that just about every witness who expressed a view said that the noise from the activities at the stadium and the track was audible...' Since when does audibility equate to nuisance?"
Fillery continued: "The judge did dismiss Stigwood's approach to a balanced solution which would allow a mix of noisy events and quiet periods in favour of his own idea of fixed limits with no idea of how the limits would be monitored.
"The judge seems to base his finding of nuisance based upon the evidence of the witnesses but then goes on to use a simplistic approach to setting specific noise levels. He dismisses the difficulty of monitoring the noise intrusion at the Fenlands as pointed out by Sharps and the levels he has set at Fenlands would prohibit the occupiers of the property from carrying out any outdoor activities (grass cutting) or even just sitting with a glass of wine anywhere near a noise monitor."