STEP IN LTD v. NOISE CONTROL APPEAL BOARD AND ANOTHER

HCAL160/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 160 OF 2002

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J U D G M E N T

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1. In this application for judicial review, the applicant applies for an order of certiorari quashing the decision of the Noise Control Appeal Board, the 1st respondent ("the Board"), made on 29 July 2002, which dismissed the applicant's appeal against the Noise Abatement Notice ("NAN") dated 2 April 2002 issued by the Noise Control Authority, the 2nd respondent ("the Authority").

Factual Background

2. The applicant is the operator of a bar known as Chasers, which is located at Ground Floor, Unit 2, Carlton Building, Nos.2-3 Knutsford Terrace, Tsimshatsui, Kowloon ("the premises"). Apart from Chasers, there are also a number of pubs and restaurants in Knutsford Terrace.

3. As a result of complaints lodged by residents in Carlton Building and the consequential investigations carried out by the Environmental Protection Department, the Authority issued the NAN dated 2 April 2002. The NAN requires the applicant to "ensure that at anytime within 6 months commencing on 2 June 2002 the noise emanating from activities, including voices, playing or operating any musical or other instrument and playing amplified music, in [the premises] comply with the noise limits when assessed at the assessment points during the time periods specified in Table 1 of the attached Annex under section 13(2)(a)" of the Noise Control Ordinance, Cap.400 ("the Ordinance").

4. Table 1 of the Annex attached to the NAN in question reads as follows :

Time Period	Noise Limits
	Indoor	Exterior of Building Façade
Day & Evening (0700 - 2300 hours)	Not exceeding 55 dB(A)	Not exceeding 65 dB(A)
Night (2300 - 0700 hours)	Not audible	Not Applicable

The point for assessment for indoor is specified to be "at a position 1.2 metres above floor inside the nearest Noise Sensitive Receivers in Carlton Building".

5. By a Notice of Appeal dated 20 April 2002 as amended on 11 July 2002, the applicant appealed to the Board against the part of the NAN imposing an indoor noise limit of "not audible" for the period between 2300 to 0700 hours. Before the Board, the appeal proceeded on the basis under section 19(2)(a), (b) and (c) of the Ordinance.

6. By a written decision dated 29 July 2002, the Board, by a majority, dismissed the appeal. The decision was communicated to the applicant on 14 August 2002.

7. The applicant applied for leave to judicial review on 3 September 2002 and leave was granted on 6 September 2002. The Notice of Motion was issued on 10 September 2002.

8. Subsequently, by a variation notice dated 28 November 2002, the original period of six months specified in the NAN was replaced by 12 months. It is common ground between the applicant and the 1st respondent that both the NAN and the variation notice are to be dealt with together in these proceedings.

The decision of the Board

9. The main thrust of the arguments before the Board is that the limit of "not audible" is unlawful and/or unreasonable in that it is not authorized by law, is purely subjective and uncertain.

10. The Board took the view that "not audible" should be understood to mean not audible to a reasonable man and the concept of reasonable person is well known in law. The Board further took the view that the limit being conceptually certain, the imposition of the limit of "not audible" cannot be said to be never justified by the terms of the Ordinance or section 13(1)(a) thereof. The Board also rejected the argument that the limit imports such subjective and uncertain limits that the appellant would be rendered unable to comply with the NAN.

10. The applicant also argued before the Board that the imposition of the limit of "not audible" is unreasonable for two reasons. Firstly, it was said that the threshold of "audible" ought to be transformed into dB(A) so that the appellant could have an objective criterion to follow. The Board did not agree that the adoption of the "not audible" limit, as opposed to a limit based on dB(A) level, renders the limit unreasonable in character or extent, having regard to the aim of issuing a NAN under section 13(1)(a), namely, to remove the source of the annoyance. The Board considered that when the source of annoyance is music, particularly music with a strong base, it is difficult to set a proper dB(A) limit for a number of reasons set out in paragraph 20 of the decision.

11. Secondly, the applicant contended that what is not audible may become audible as a result of background or other noise, which may fluctuate in circumstances completely beyond the applicant's control and may be within the control of third parties. Accordingly, the limit of "not audible" exposes the applicant to risk of criminal prosecution for non-compliance with the NAN through the act of third parties or circumstances beyond the applicant's control. The imposition of the limit is therefore unreasonable.

12. The Board's opinion on this was divided and the applicant's argument was rejected by a majority. The views of the majority and the minority, as set out in paragraph 22 of the decision, are these :

" ... The minority accepted the argument and considered that as a matter of principle the imposition of a limit which would render the appellant vulnerable to criminal sanction owing to the acts of third parties is unreasonable in character. However, the majority considered that one should also have regard to the nature of background noise and reality of the situation. The majority is of the view that the background noise in an urban environment is often made up of noise from many sources coming from both near and afar and hence there are certain regularities in its level and variations over time. Sudden and abrupt changes in background noise are extremely rare and short in duration even if they occur. In complying with the requirements of the NAN the appellant should take into account the fluctuations of the background noise which could reasonably be expected. Mr. Chan Kin On gave evidence that the background noise may drop, for example, in winter when the air-conditioner of most premises would be turned off but an acoustic engineer could take into account of such variations in background noise when he designs the noise mitigation measures. The majority accepted Mr. Chan's evidence that measures to make such noise 'not audible' is both feasible and reasonable, in the same way as the calculation of safety factor of a bridge would take into account the likely meteorological conditions. It is thus incumbent upon the appellant to make the necessary investigations and incorporate measures to cater for reductions in the background noise which could reasonably be expected. Given the fact that the background noise is made up of noises emanating from many sources, the majority is of the view that it must be a very extreme case that all of a sudden most of these noises would be reduced to such an extent that what is hitherto not audible would become audible so as to expose the appellant to the risk of criminal sanction. Furthermore, the NAN is only valid for 6 months, the appellant is not forever exposed to the risk of criminal sanction. The majority is thus of the view that this is most unlikely to happen and hence the theoretical argument of the appellant is untenable in reality. The majority finds it unreasonable that the appellant should rely principally on the existence of background noise from third parties to assist it to comply with the NAN. Having regard to the above considerations, the majority is of the view that it is not unreasonable to impose the limit of 'not audible' in the NAN."

Grounds for judicial review

13. The grounds for the application for judicial review, as appeared by the Form 86A, are twofold :

(1) The Board has erred in law in upholding the NAN in that the limit of "not audible" is ultra vires the Ordinance and is not prescribed by the Ordinance or the Technical Memorandum issued thereunder.

(2) The majority of the Board erred in law in its approach to the reasonableness of the NAN in imposing a limit that renders the applicant liable to criminal sanction as a result of the actions of others over which it has no control.

The Ordinance

14. Section 13 of the Ordinance governs the issue of a NAN by the Authority. The relevant parts of the section read as follows :

"13. (1) Where the Authority is satisfied that noise is emanating from any place other than domestic premises, a public place or a construction site and that such noise, whether on its own or together with noise emanating from any other place other than domestic premises, a public place or a construction site, -

(a) is a source of annoyance to any person (other than a person in the place from which the noise is emanating) in any place considered to be a noise sensitive receiver in any Technical Memorandum issued under section 10;

(b) does not comply with any standard or limit prescribed for the purposes of this section; or

(c) does not comply with any standard or limit contained in Technical Memoranda issued from time to time under section 10(1),

the Authority may serve a noise abatement notice in the prescribed form on any or all of the following -

(i) the person making the noise or causing or permitting the noise to be made; or

(ii) the owner, tenant, occupier or person in charge of the place from which the noise is emanating.

(2) A noise abatement notice served under subsection (1) relating to noise emanating from any place may require the person on whom it is served to abate the noise within the period specified therein and to do all things as may be necessary for that purpose, and may require the person on whom it is served to -

(a) ensure that the noise emanating from such place does not exceed any limit or standard specified in the notice;

(b) ...

(c) ...

(3) ...

(4) The Authority may, by notice in the prescribed form served on any person on whom a noise abatement notice has been served under subsection (1), cancel the noise abatement notice or vary any requirement therein.

(5) ...

(6) Any person who, having been served with a noise abatement notice under subsection (1) or a notice under subsection (4), fails to comply with any requirement therein commits an offence.

(7) Any person who commits an offence under subsection (6) shall be liable -

(a) on first conviction to a fine of $100000;

(b) on second or subsequent conviction, to a fine of $200000,

and in any case to a fine of $20000 for each day during which the offence continues."

15. In respect of places other than domestic premises, public places or construction sites, section 10 of the Ordinance makes provision for the issue of Technical Memoranda by the Secretary for the Environment, Transport and Works ("the Secretary"). It is common ground that the premises are non-domestic premises. The material part of section 10 reads :

"10. (1) The Secretary may issue from time to time Technical Memoranda setting out principles, procedures, guidelines, standards and limits for -

(a) the measurement and assessment of noise emanating from any place other than domestic premises, a public place or a construction site;

(b) the issuing of noise abatement notices in respect of such noise;

(c) the determination of whether or not a noise abatement notice is being complied with.

(2) The Authority shall be guided by Technical Memoranda issued from time to time under subsection (1) when undertaking any measurement or assessment to determine if a noise abatement notice should be served under section 13(1)(c).

(3) ..."

16. Section 11 further provides that all Technical Memoranda thus issued shall be tabled before the Legislative Council for negative vetting.

17. With regard to appeals against NAN served by the Authority, section 19(2) sets out the statutory grounds for bringing such appeals. Of relevance to the present proceedings is section 19(2)(c), which is that "the requirements of the notice are unreasonable in character or extent or are unnecessary".

The issue

18. The issue that falls for determination in this application is whether the Board has erred in law in upholding the NAN issued by the Authority. This involves two considerations. The first is whether it is within the Authority's power to prescribe a limit of "not audible". Secondly, whether the "not audible" limit is unreasonable by subjecting the applicant to risks of criminal sanction for actions of third parties over which the defendant has no control.

The limit of "not audible"

19. It is important to the determination of this application to consider the limit of "not audible". There are included in the evidence of this application several academic writings on the use of inaudibility as a criterion for assessing noise level. They show that inaudibility has since the 1980s been used as a means of assessing amplified music from entertainment premises such as pubs and clubs. Two of these articles are in favour of the use of inaudibility with the third one being against using it as a criterion for nuisance. It is not the function of this court to resolve the differences between the experts. Nor is this court called upon to decide which academic view is to be preferred. These articles are however relevant in that they show that inaudibility has been accepted and adopted as a limit for amplified music played on entertainment premises, particularly for night time and in relation to music carrying a heavy case : Craik, Inaudibility as a Criterion for Assessing Amplified Music, Williamson, Inaudibility in Practice and Dibble, Inaudibility - the Argument Against. The limit of "not audible", albeit a subjective criterion, is not an absolute prohibition as suggested by the applicant.

Power to impose a limit of "not audible"

20. Mr Coleman for the respondent accepts that the decisions of the Board and the Authority would be unlawful if it can be shown that the Authority has no power to impose a limit of "not audible" in the NAN. The applicant argues that it is ultra vires the Authority's power to impose the limit because the limit is not prescribed by the Ordinance nor by the Technical Memorandum issued by the Secretary.

21. The power of the Authority to issue NAN is derived from section 13(1) of the Ordinance. Under section 13(2)(a), the Authority may specify in the NAN a limit or standard and require the person served with the NAN to ensure that noise emanating from his premises does not exceed the limit or standard so specified. Plainly, the section confers a wide discretion on the Authority with regard to the limit or standard that may be specified in a NAN. It does not oblige the Authority to set a dB standard or even to adopt a limit that is based on objective assessment : see Secretary for Justice v. Tak Yue Restaurant Ltd [1998] 1 HKC 236.

22. As for the Technical Memoranda, it is issued by the Secretary for the purposes set out under section 10(1)(a) to (c) of the Ordinance, namely, the measurement and assessment of noise emanating from places other than domestic premises, public places or construction sites, the issuance of NANs in respect thereof and the determination of whether the NANs have been complied with. Section 10(2) requires the Authority to be guided by the Technical Memoranda when undertaking the measurement or assessment for determining whether to issue a NAN under section 13(1). The legislation does not mandate the Authority to be guided by the Technical Memorandum when specifying the limit or standard in the NAN under section 13(2) : Secretary for Justice v. Tak Yue Restaurant Ltd, at 240D-H. The Authority is not restricted to specifying in the NAN a limit or standard contained in the Technical Memorandum.

23. It is therefore of no consequence that "not audible" is not a standard prescribed in the Technical Memorandum. It is not ultra vires the Authority to specify in the NAN a limit or standard that is not in the Technical Memorandum. This is so even if the standard of "not audible" is, as suggested by the applicant, harsher than the standards in the Technical Memorandum.

24. Likewise, the reference to the internal guidance notes of the Environmental Protection Department is irrelevant. The fact that the Internal Note relating to Entertainment Noise from Outdoor Venues contains the "not audible" criterion does not mean that the criterion can only apply to outdoor music.

Reasonableness of the "not audible" limit

25. The evidence of the Environment Protection officer before the Board was that for music played after 11 p.m. when people would normally try to rest and sleep, the tolerance level is little. It would not be appropriate to use the decibel level or sound meter to measure the noise level. The Authority had therefore resorted to the annoyance term or inaudibility as a criterion. The officer's explanation is supported by the academic writings of Professor Craik and Dr Williamson. Professor Craik's study showed that the difference between the threshold of audibility and annoyance is small. Indeed even Dr Dibble, whose article was relied upon by the applicant, did not take issue with the use of the annoyance terms for music or noise from pubs or clubs played after a certain time of the night. The Board took the view that it was not unreasonable for the Authority not to use a limit based on decibel and to adopt the limit of "not audible" instead.

26. The main plank of the applicant's argument in this application is that the limit of "not audible" exposes the applicant to risk of criminal sanction for the acts of third parties over which it does not have control. It is said that a sudden lull in the background or ambient noise, for whatever reason, may cause the noise from the applicant's premises, which was previously inaudible, to become audible. Given that the applicant is not in a position to control the environmental noise, the limit of "not audible" necessarily exposes the applicant to risk of criminal prosecution for acts of third parties. The limit is considered by the applicant to be intrinsically unreasonable as violating a fundamental principle of criminal law. This argument had been considered by the Board but was rejected by the majority. It is the applicant's contention that the majority's view is erroneous.

27. The applicant's objection boils down to fluctuations in the background noise. In my view, the objection is dispelled once two points are made clear. Firstly, as the Board concluded, the limit of "not audible" is conceptually certain and is a standard adopted in other jurisdictions to control amplified music played at night time. The criminal act envisaged by section 16(6) of the Ordinance is the failure to comply with the NAN. It follows that a party on whom a NAN is served, is under a duty to take steps to ensure compliance with the requirements of the NAN. In designing abatement measures, he is expected to take account of and make provisions for variations in background noise that are reasonably expected. The majority view of the Board in this regard is correct both as a matter of legal principle and as a matter of pragmatic approach.

28. Secondly, the purpose of a NAN is to remove the source of annoyance, which is defined under section 2 of the Ordinance as that which would not be tolerated by a reasonable man. Where the threshold of tolerated noise is based on "annoyance", tolerance to noise increases as background noise increases. Therefore irrespective of whether the limit is based on decibel level or one of inaudibility, the problems associated with fluctuations in background noise remain.

29. In short, the limit of "not audible" does not expose the applicant to risk of criminal sanction caused by the acts of third parties. It is thus not an unreasonable standard. The requirements of the NAN issued by the Authority are not unreasonable in character or extent.

Conclusions

30. For the reasons aforesaid, the Board's decision to uphold the NAN involves no error of law. The application for judicial review therefore fails. The Notice of Motion is accordingly dismissed. There is no reason to depart from the usual rule of costs follows event. There is an order nisi that the applicant pays the respondents the costs of these proceedings, to be taxed if not agreed.