Roper v. Tussauds Theme Parks Ltd

Transcript date:

Monday, August 2, 2004

Matter:

Court:

Magistrates' Court

Judgement type:

Substantive

Judge(s):

Gascoigne DJ

Transcript file:

RE ROPER AND ROPER V TUSSAUDS THEME PARKS LIMITED

THIS IS A CASE, WHICH IN ESSENCE IS A NEIGHBOUR DISPUTE,

AS IN ALL CASE OF SUCH DISPUTES IT IS REGRETTABLE THAT WE END UP IN COURT.

I NEED FIRSTLY TO GO BACK TO THE ALLEGATION

THE BASIS OF THE ALLEGATION IS THAT ALTON TOWERS HAVE COMMITTED AN OFFENCE PURSUANT TO SECTION 82(6) OF THE ENVIRONMENTAL POLLUTION ACT 1990.

THE CASE IS STARTED BY COMPLAINT BUT IT IS CLEAR FROM THE CASE OF BOTROSS THAT THIS IS CRIMINAL CASE. THE STANDARD OF PROOF BEING BEYOND REASONABLE DOUBT ON THE PART OF THE PROSECUTION.

THE CASE RELATES IN MY VIEW TO THE ROPERS PROPERTY ONLY THIS BECAUSE THE ACTUAL WORDING OF THE COMPLAINT WHICH RELATES TO THE ENJOYMENT OF THEIR PROPERTY THE ROPERS ARE THE COMPLAINANTS.

I QUOTE FROM THE NOTICE.

THE SPECIFIC ACTIVITIES COMPLAINED OF REMAIN AMPLIFIED MUSIC, AMPLIFIED COMMENTARIES AND FIREWORK DISPLAYS.

'WE DRAW YOUR ATTENTION TO STATUTORY NUISANCES ARISING FROM

A. SCREAMING AND SHOUTING

B. THE SOUNDS CAUSED BY THE OPERATION OF RIDES IN

PARTICULAR OBLIVION AIR NEMESIS AND CORKSCREW

C. SOUNDS GENERATED BY MOTOR VEHICLES ENTERING AND LEAVING

THE PARK'.

WHAT WAS DESCRIBED AS AN INDEPENDENT REPORT WAS ENCLOSED FROM MR STIGWOOD DATED SEPTEMBER 2003.

I NEED TO SAY THAT AS A CRIMINAL CASE I AM TO CONSIDER ONLY A FINDING OF WHETHER I AM SATISFIED BEYOND REASONABLE DOUBT THE OFFENCE HAS OCCURRED. I AM NOT CONDUCTING A PUBLIC ENQUIRY INTO HOW PLANNING APPLICATIONS OR OTHER LIKE MATTERS HAVE BEEN DEALT WITH.

THERE IS NO CHALLENGE TO THE SERVICE OF NOTICES.

THE COMPLAINANT ALLEGES THAT THE DEFENDANT HAS FAILED TO COMPLY WITH A NOTICE SERVED ON 27TH OCTOBER 2003 TO STOP OR AMELIORATE THE NOISE NUISANCE ARISING FROM ALTON TOWERS.

THE DEFENDANT IS TUSSAUD'S THEME PARKS LIMITED.

THE FIRST QUESTION I NEED TO CONSIDER IS WHAT IS A NUISANCE.

THE CASE OF GODFREY HELPFULLY REFERRED TO ME BY MR HOCKMAN STATES A NUISANCE IS SOMETHING WHICH UNREASONABLY INTERFERES WITH THE ENJOYMENT OF THE COMPLAINANTS LAND.

THE ROPERS HAVE OCCUPIED THEIR ADDRESS SINCE 1968 SOME 36 YEARS. I FIND THIS IS SIGNIFICANT. OBVIOUSLY IF ONE MOVES TO A NOISY LOCATION PERHAPS BY A RAILWAY LINE THEN IT WOULD BE DIFFICULT TO COMPLAIN OF THE NOISE FROM THE TRAINS.

THE ORIGINAL BUILDING OF ALTON TOWERS GOES BACK TO MID 19TH CENTURY.

THE AREA SURROUNDING ALTON TOWERS IS A CONSERVATION AREA.

I HAVE BEEN SUPPLIED WITH A DOCUMENT 'CONSERVATION AREA 32 ALTON AND FARLEY'.

THE FIRST PARAGRAPH OF THIS DATED DOCUMENT REFERS TO RAPID CHANGES, WHICH CAN HAVE PRACTICAL BENEFITS ALSO THREATENING DESTRUCTION OR DESPOLIATION.

THE DESCRIPTION OF ALTON TOWERS REFERS TO THE STEEPLY WOODED SLOPES INTO THE CHURNET VALLEY THE DOMINANT IMPRESSION FROM THE SURROUNDING COUNTRY SIDE IS OF MATURE WOODLAND OUT OF WHICH SOARS THE JAGGED IRREGULAR OUTLINE OF THE HOUSE AND THE DETACHED TURRETED AND BATTLEMENTED FLAG TOWER.

IT ALSO RECORDS THE ROLLING PLATEAU TOWARDS THE GRASSY SUMMITS OPEN GRASSY SUMMITS OF THE WEAVER HILLS.

THE DOCUMENT REFERS TO ALTON TOWERS BEING A VAST PLEASURE GROUND BUT ADDS THAT THE WHOLE OF THE PARKLAND IS INCORPORATED INTO THE CONSERVATION AREA IN RECOGNITION OF ITS VERY HIGH LANDSCAPE VALUE.

I THINK IT IS ALSO PERTINENT TO REMIND MYSELF THAT ALTON TOWERS IS A COMMERCIAL VENTURE. IT IS PART OF THE LEISURE

INDUSTRY. WHILST OF COURSE COMMERCIAL ENTERPRISE IS ENTIRELY APPROPRIATE AND INDEED IS ENCOURAGED BECAUSE IT REPLACES OTHER DECLINING INDUSTRIES SIMPLY BECAUSE IT IS LEISURE PARK DOES NOT MEAN THAT IT SHOULD BE TREATED ANY DIFFERENTLY TO SAY A FACTORY UNIT.

I HAVE COVERED THE BACKGROUND IN SOME DETAIL BECAUSE IT SEEMS TO ME THAT THE LOCATION OF THE RELEVANT LAND IS APPROPRIATE. THE LEVEL OF NOISE THAT IS ACCEPTABLE WILL DEPEND PARTLY ON THE LOCATION.

OBVIOUSLY SHOULD THE PARK HAVE BEEN IN THE MIDDLE OF INDUSTRIAL MIDLANDS THEN THE QUESTION OF ACCEPTABLE NOISE WOULD HAVE TO REFLECT THE CHARACTER AND SURROUNDINGS OF THE AREA

THE QUESTION IS FURTHER COMPLICATED BY THE FACT THAT THERE IS NO ABSOLUTE IN RELATION TO NOISE. AS I UNDERSTAND WE ALL HEAR SLIGHTLY DIFFERENTLY AND DIFFERENT SOUNDS IMPACT ON INDIVIDUALS DIFFERENTLY.

PROSECUTION EVIDENCE

THE EXPERTS HAVE BS 4142 TO GUIDE AS WELL THE WORLD HEALTH ORGANISATION GUIDES AS TO ACCEPTABLE NOISE INTRUSION.

MR STIGWOOD.

HE PRODUCED A DETAILED REPORT AS TO THE NOISE.

THE CRUCIAL DOCUMENT IS THE APPENDIX 1 PAGE 80. IT SHOWS THE BACKGROUND NOISE RAISES DRAMATICALLY WHEN THE PARK IS OPEN THE READINGS BEING TAKEN AT FARLEY HOUSE. THE READINGS BEING IN MARCH AND APRIL 2003.

I ACCEPT THAT THE NOISE IS NOT REFLECTED WHEN THE PARK WAS

OPEN ON 5TH APRIL 2003. HOWEVER THROUGHOUT IT IS ACCEPTED THAT THE DIRECTION THE WIND IS BLOWING MAKES AN EFFECT ON THE NOISE LEVEL.

MR STIGWOOD REFERRED ME TO THE BS4142 STANDARD.

THE STANDARD SUGGESTS THE GREATER THE DIFFERENCE IN BACKGROUND NOISE TO 'NEW NOISE' THE GREATER THE LIKELIHOOD OF COMPLAINTS.

A DIFFERENCE OF 10 dB INDICATES THAT COMPLAINTS ARE LIKELY. THIS STANDARD RELATES TO MIXED INDUSTRIAL/RESIDENTIAL USE.

I THEN HAD A CONSIDERABLE AMOUNT OF EVIDENCE WITH REGARD TO OTHER NOISE SOURCES WIND ETC.

THE CROSS-EXAMINATION AND RE-EXAMINATION DOES NOT IN MY VIEW TAKE AWAY FROM THE COMPELLING EVIDENCE OF THE RISE IN THE NOISE LEVEL WHEN ALTON TOWERS IS OPEN.

MR DALLIMORE

HE DETAILS PRINCIPALLY HIS CONCERNS WITH REGARD TO THE NOISE OF THE OBLIVION RIDE, THE SCREAMING FROM THE GUESTS ON THE RIDE AND THE FIREWORKS.

THERE ARE OTHER COMMENTS BUT THESE DO NOT APPLY TO THE COMPLAINT.

MR KEATS

LIVES MOST CLOSE TO OBLIVION. HE DETAILS THE CONSTANT NOISE AND SCREAMING FROM OBLIVION.

MR ROPER.

I ACCEPT HIM AS A RELIABLE AND GENUINE WITNESS. I ACCEPT HIS EVIDENCE OF THE NOISE ARISING FROM ALTON TOWERS.

HE GIVES CLEAR EVIDENCE OF THE GRADUAL RISE IN THE NOISE AT ALTON TOWERS OVER THE YEARS. THIS REFLECTS IN THE CHRONOLOGY OF 'BIGGER AND BETTER' RIDES BEING INTRODUCED.

HE DETAILED THE MISERY OF THE BT CONCERT AND THE FIREWORKS.

HE ALSO COMPLAINS OF TRAFFIC NOISE. I SHALL DEAL WITH THIS LATER.

MRS ROPER.

AGAIN SHE GAVE RELIABLE AND CLEAR EVIDENCE.

MRS RYAN.

SHE DESCRIED THE NOISE FROM THE FIREWORKS AND THE CONCERTS. HER PROPERTY IS TWO MILES AWAY FROM ALTON TOWERS. I ACCEPT THAT SHE COULD HEAR THE BT CONCERT ACTS ALTHOUGH SHE MAY HAVE BEEN MUDDLED AS TO WHICH GROUP WAS PLAYING.

CATHERINE THORLEY

HER EVIDENCE WAS READ SECTION 23 AS SHE WAS TOO UNWELL TO ATTEND COURT. AS THE DEFENCE HAVE NOT BEEN ABLE TO

CHALLENGE IT I TAKE THE VIEW THAT, AS IT IS NOT CENTRAL TO THE CASE, I WILL NOT TAKE IT INTO ACCOUNT.

MRS ALLEN

DESCRIBES NOISE AT HER PROPERTY. I ACCEPT HER EVIDENCE BUT DECIDE THAT IT DOES NOT TAKE THE CASE ANY FURTHER AS IT DOES NOT RELATE TO MR AND MRS ROPERS PROPERTY.

DEFENCE CASE

DOCTOR JACKSON

I ACCEPT COMPLETELY HIS EXPERTISE IN THIS AREA. HOWEVER HE HAD NOT REPLICATED ANY OF MR STIGWOOD'S TESTS BUT RELIED ON HIS OWN MONITORING OVER A NUMBER OF YEARS.

HE DID NOT CHALLENGE MR STIGWOOD'S READINGS AND INSTEAD CHOSE TO TRY TO EXPLAIN THE DIFFERENCES..

HE PRODUCED TWO THEORIES AS TO THE RAISED BACKGROUND NOISE. HOWEVER WITHOUT ANY OTHER MONITORING I DO NOT ACCEPT THAT THEORIES EXPLAIN THE RISE THE BACKGROUND NOISE.

MARCUS BRIAN

HE IS THE HEALTH AND SAFETY ADVISOR AT ALTON TOWERS.

HIS EVIDENCE CAN BE SUMMARISED IN ONE LINE. WE DO NOT THINK WE HAVE A PROBLEM.

NICHOLAS THOMPSON

DEALT WITH PLANNING. HE CLEARLY HAS A THOROUGH AND ADMIRABLE GRASP OF HIS SUBJECT.

HE PRODUCED ALTON TOWERS SUPPLEMENTARY PLANNING GUIDANCE WHICH INCLUDED AT R22 'TO PROTECT THE PERIPHERIES OF THE ESTATE FROM VISUAL AND AURAL INTRUSION'.

HE ALSO PRODUCED THE NOISE ASSESSMENT FROM PROPOSED TRANSIT SYSTEM DATED JUNE 1995.

THE FINAL PARAGRAPH PAGE 169 STATES "THE ABSOLUTE NOISE LEVELS WILL CLEARLY NOT REPRESENT A NOISE NUISANCE AND WILL UNDER MOST ATMOSPHERIC CONDITIONS BE ESSENTIALLY INAUDIBLE IN SURROUNDING AREAS'.

HELEN WOLLASTON.

SHE IS EMPLOYED AS THE NOISE OFFICER BY THE STAFFORDSHIRE MOORLANDS COUNCIL.

THE WAY HER EVIDENCE CAME OUT WAS DEEPLY DISTURBING. ON THE FRIDAY AFTERNOON SHE DENIED SUPPLYING INFORMATION TO THE DEFENCE. AS A LOCAL AUTHORITY OFFICER IT WOULD BE INCUMBENT FOR HER TO ACT IMPARTIALLY.

HOWEVER ON THE TUESDAY SHE WAS RECALLED. SHE CONFIRMED THAT SHE HAD SUPPLIED THE DEFENCE INFORMATION AND HAD HAD AT LEAST TWO MEETINGS WITH THE DEFENCE TEAM

INFORMATION HAD BEEN SUPPLIED INCLUDING FULL DETAILS OF NAMES AND ADDRESSES OF THOSE WHO HAD COMPLAINED ABOUT THE NOISE.

I HAD TO CAUTION HER THAT SHE WAS NOT OBLIGED TO INCRIMINATE HERSELF.

THE DOCUMENTS THAT WERE THEN PRODUCED TO THE PROSECUTION AND THE COURT.

THE DOCUMENTS PROVIDE AN OVERVIEW OF THE ALTON TOWERS FIREWORKS EVENTS.

127 DECIBELS BEING THE MAXIMUM NOISE LEVELS.

SHE STATED ON THE FRIDAY THAT SHE DID NOT CONSIDER THE NOISE FROM THE FIREWORKS TO BE A STATUTORY NUISANCE.

IAN COPE.

IN ESSENCE STATES HE HAS HAD NO PROBLEMS WITH THE NOISE FROM ALTON TOWERS.

I ACCEPT HIS EVIDENCE AS GENUINE. HOWEVER HE IS IN A SOUTHERLY LOCATION FROM ALTON TOWERS AND I DO NOT CONSIDER HE IS RELEVANT TO THE ROPERS PROPERTY.

SITE VISIT,

I WAS INVITED TO HAVE A SITE VISIT. I UNDERTOOK THE: VISIT ON TUESDAY 20TH JULY 2004. IT WAS A WARM SUNNY DAY. THE PURPOSE OF THE VISIT WAS TO FAMILIARISE MYSELF WITH THE VARIOUS LOCATIONS.

I WAS SHOWN VARIOUS MONITORING POINTS OF MR STIGWOOD AND DOCTOR JACKSON.

I VISITED PINK LODGE. THE SOUNDS FROM OBLIVION OF THE MECHANICAL AND SCREAMS WERE CLEARLY AUDIBLE.

I THEN TRAVELLED TO THE ROPERS AND STOOD IN THEIR GARDEN.

I MUST OBSERVE THAT I STOOD THERE I COULD CLEARLY HEAR THE SCREAMS FROM THE RIDERS ON OBLIVION.

FINDINGS

I FIND THAT THE RISE IN BACKGROUND NOISE DURING THE DAYTIME IS A CLEAR STATUTORY NUISANCE. THIS UNREASONABLY INTERFERES WITH MR AND MRS ROPERS ENJOYMENT OF THEIR PROPERTY.

THERE ARE ADDED FACTORS, WHICH EXACERBATE THE SITUATION. THE FIRST IS THAT OF OBLIVION.

THE FUNDAMENTAL PROBLEM WITH OBLIVION SEEMS TO ME IS IT'S DESIGN.

THE RIDE STOPS JUST OVER THE EDGE OF THE DROP. IT THEN PLUMMETS VERTICALLY INTO A HOLE IN THE GROUND BEFORE COMING OUT OF A TUNNEL TO RISE AGAIN TO THE STARTING POINT.

OBVIOUSLY THE 'DON'T LOOK DOWN' MESSAGE PLAYED AS THE CAR HANGS OVER THE EDGE IS DESIGNED TO HEIGHTEN THE WHITE KNUCKLE EFFECT.

THIS INDUCES THE SCREAMING.

THE RIDE IS CLEARLY VISIBLE FROM THE ROPERS AT THE TOP OF THE TREE LEVEL. THIS SEEMS AT ODDS WITH THE PLANNING RULE MENTIONED ABOVE.

I FIND THAT THE SCREAMS AND MECHANICAL NOISE IS INTRUSIVE AND CONSTITUTES A NUISANCE.

I FIND THAT THE FIREWORKS ARE INTRUSIVE. IN CONTEXT ALTON TOWERS IN A CONSERVATION AREA AIMS TO SET OFF THE LOUDEST FIREWORKS IN BRITAIN. LEAFLETS PRODUCED.

THE EXECUTIVE SUMMARY OF THE 2003 FIREWORKS REPORT PRODUCED FOR ALTON TOWERS SUGGESTED THAT THERE WAS NO DIMINUTION IN THE SOUND LEVELS FROM PREVIOUS YEARS.

I FIND THAT THESE DISPLAYS, ESPECIALLY AS THEY ARE OVER FIVE NIGHTS INTERFERES WITH MR AMD MRS ROPERS PREMISES.

I FIND THAT THE BT CONCERT IS A NUISANCE. IT COULD CLEARLY BE HEARD TWO MILES AWAY. THIS AGAIN IN A CONSERVATION AREA OVER A PERIOD OF TWO DAYS.

I FIND THAT TRAFFIC NOISE IS NOT A NUISANCE ATTRIBUTABLE TO ALTON TOWERS.

I FIND THAT THE RISE IN NIGHT NOISE AFTER THE PARK IS CLOSED DOES NOT AFFECT THE ENJOYMENT OF THE ROPER'S PROPERTY.

I REJECT THE DEFENCE ARGUMENT THAT THE PLANNING RULES PROTECT THE ROPERS. THERE IS NO NOISE CONTROL IN THE PLANNING PERMISSION FOR OBLIVION.

I REJECT THE DEFENCE SUGGESTION THAT THE ROPERS WERE PROTECTED BY MS WOLLASTON IN HER ROLE. MS WOLLASTON HAS CONSIDERABLE POWERS. SHE CAN DECIDE IF A NUISANCE EXISTS AND THEN SERVE AN ABATEMENT NOTICE.

THE GENERAL PUBLIC HAVE TO SERVE A NOTICE AND THEN BRING COURT PROCEEDINGS.

IT IS NOT MY PURPOSE TO ENQUIRE AS TO HOW MS WOLLASTON PERCEIVED HER JOB BUT MR HOCKMAN HIT THE NAIL ON THE HEAD WHEN HE SUGGESTED THAT THE IMPRESSION GAINED WAS THAT MS WOLLASTON WOULD HELP ALTON TOWERS WILLINGLY BUT WAS AT BEST UNHELPFUL TO THE ROPERS AND THEIR SOLICITORS/LEGAL TEAM.

ACCORDINGLY I FIND THAT THE ALTON TOWERS HAS FAILED TO ABATE THE NOISE NUISANCE PURSUANT TO THE NOTICE AND IS GUILTY OF THE OFFENCE.