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Earls Court noise nuisance abated

London Underground Limited v Royal Borough of Kensington & Chelsea
(West London Magistrates Court: 17&18 October 2007; 17&18 January and 14&15 April 2008).

Statutory Nuisance – Abatement Notice – Appeal

A. John Williams successfully appeared for the Royal Borough of Kensington & Chelsea against London Underground Limited. In a case of interest to a number of London local authorities, the company failed in its bid to overturn a noise abatement notice requiring the abatement of a noise nuisance at Earls Court underground station.

In August 2004 London Underground Limited installed a new PA system on the District Line platforms at Earls Court station. The system was designed & operated so as to meet LUL’s internal standard that all messages should be broadcast at levels which meet the legal requirements for audibility & intelligibility of fire alarm messages. This standard stipulated that all messages should be broadcast at a level at least 10 dBA above the ambient background noise level.

Almost immediately, complaints of noise nuisance were received from local residents who could hear station announcements in their homes. RBKC intervened but LUL offered only minor concessions whilst at the same time denying there was a nuisance.

Subsequent investigations by independent experts instructed by RBKC concluded (a) that the operation of the PA system was causing a noise nuisance; (b) that the system was not operating within the design parameters of 10dBA above ambient background noise & (c) LUL had not used best practicable means to prevent or counteract the effects of the nuisance.

In April 2007 RBKC served a noise abatement notice on LUL. This notice required LUL to abate the nuisance by operating the PA system at no more than 10dBA above ambient background noise (as measured on the platform) & by operating the PA system so that the noise at the façade of neighbouring dwellings did not exceed 60 dBA. The notice did not apply to emergency announcements (as defined).

LUL appealed the notice on the grounds there was no nuisance; that they had used best practicable means to prevent a nuisance; that the terms of the notice were unreasonable &/or unnecessary & that RBKC had unreasonably refused to accept alternative measures put forward by LUL.

The appeal hearing ran for 6 days – during which the Court heard evidence from affected residents; council officers & the 2 experts instructed on behalf of RBKC. LUL’s witnesses sought to justify its approach on grounds of health & safety but no risk assessments supporting this approach were ever produced. In evidence, LUL admitted that the system did not work properly and that, 4 months before the notice was served, they had disabled the ambient noise sensing mechanism. LUL’s acoustic designer admitted that no noise spill study had been undertaken although she had recommended a study be done. She told the Court that her instructions from LUL were that mitigation measures could be used only if they did not compromise the internal standards set by LUL. During the hearing it emerged that LUL had subsequently revised its internal standard to allow for a more flexible approach at noise sensitive locations.

Shortly before the conclusion of the case, LUL abandoned its appeal and agreed to pay the council’s costs in the agreed sum of £115,000.Some minor amendments were made to the wording of the notice & LUL was given more time to reinstate the ambient noise sensing device. District Judge Clarke observed that he would have found that LUL was so fixated by its internal standard that it had lost sight of the fact that the relevant British Standards applied only to fire alarm messages. He expressed dismay at the use of public money to pursue an appeal against the notice.

This case presented unique challenges in drafting a notice that set appropriate noise limits but which did not unduly interfere with LUL’s duty to run the railway. The enforcement action taken by RBKC in this case has resulted in the publication of a new internal standard & Good Practice Manual which, if followed in the future, will allow for a more flexible & reasonable approach to noise nuisance issues at noise sensitive locations on the tube network.

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