A London couple have won their long-running legal battle with the Royal Borough of Kensington and Chelsea council over a noise abatement notice that severely restricted the amount of time their children could practise the piano in their own home.
Annette and Jim Carrabino initially won their case against RBKC in April 2016 at Westminster Magistrates’ Court, when District Judge Elizabeth Roscoe found the terms of the council’s notice “were not reasonable”. RBKC was due to appeal against that decision at the High Court in July 2017, but on the eve of the new hearing they elected to ‘vacate the proceedings’. In other words, the Council has withdrawn the notice and agreed to drop its appeal, including against the Carrabinos’ costs award.
The background to the case is a dispute between the Carrabino family and their neighbour Joao Baptista and his former wife Elizabeth Allen over piano playing by the Carrabinos’ two sons, James and Stephen, at their home. Mr Baptista and Ms Allen complained to RBKC, which decided there was a ‘statutory nuisance’ under the 1990 Environmental Protection Act. As a result, RBKC issued a noise abatement notice against the Carrabinos. However, in the Magistrates’ Court hearing, DJ Roscoe said: “Play is absolutely an entitlement unless its extent makes it a nuisance. That does not seem to me to be the approach taken by RBKC. Their approach is that any noise interference is nuisance and thus all must be prohibited. That is not the correct approach so I find the terms of the notice were not reasonable bearing in mind the nature of the activity.”
In other words, instrument playing is a normal household activity and neighbours have no right to expect absolute peace and quiet. The only things that can make music playing a nuisance are factors such as volume, duration and the time of day the instrument is being played at. Speaking to the Musician’s Union, Mrs Carrabino expressed her relief that the matter had been resolved: “We tried everything possible to reach a satisfactory resolution, which the Baptistas, and so the Council, rejected,” she explained. “We asked for mediation from the very beginning, before the Notice was served, and the Baptistas refused. It didn’t matter what steps we took to reach a sensible compromise on the hours the piano was played. It was because of the Council’s intransigence and unreasonableness the judge ordered RBKC to pay our costs.”
Mrs Carrabino added: “Our case has shown that environmental health officers (EHO) across the country have come to misinterpret the law on statutory nuisance. Statutory nuisance was meant to deal with matters such as people living next door to dog kennels, car racing tracks, night clubs and music venues - not domestic piano playing. EHOs have come to believe everybody is entitled to peace and quiet 24 hours a day – which is not right. They even told us soundproofing would not work.”
After a two-year wrangle with RBKC, which has often proved distressing for the family, Mrs Carrabino advised that musicians facing a dispute of this kind should act as quickly as possible. The first thing they need to do is try to resolve the issue with neighbours, because this heads off the complex and expensive challenges associated with fighting councils through the courts.
If the dispute reaches a point where a council issues a warning then it is important for musicians to respond before they go on to administer a noise abatement notice. “Many councils are unfamiliar with the noise nuisance law as it relates to instrument playing,” said Mrs Carrabino. “So musicians armed with our judgement will give them pause for thought.”
Should litigation become unavoidable then she stresses that a musician must be seen to have been reasonable: “It is important to be seen to be making efforts to resolve the dispute because, if the case does go to Court, sincere attempts to resolve the dispute will increase the likelihood that the musician will be able to recover their costs, as in our case.”
It’s also important to get good representation, she adds: "We are very grateful throughout this ordeal to have had the professional support of the Musicians’ Union and our barrister, Mr Richard Turney of Landmark Chambers, both of whom have worked tirelessly to defend musicians’ rights throughout the United Kingdom."
Although her case is now satisfactorily resolved, Mrs Carrabino is aiming to keep lobbying on behalf of musicians “EHOs have little understanding of a musician’s needs and should not be given this sort of power to interfere with people’s lives. There is indeed a more appropriate private route to settling neighbour disputes that councils should be directing people to. RBKC is now directing people towards this procedure via its website and I am keen that other councils should take this approach.”