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3. LOCAL AUTHORITY NOISE MANAGEMENT FRAMEWORK
3.1. Local Authorities' Roles and Responsibilities
The statutory duties placed upon a Local Authority in Scotland by the Environmental Protection Act 1990 ( EPA) and relevant to organising its noise service are:
- the duty to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under s.80 (the s.79(1) - Preventative Investigation Duty)
- the duty to take such steps as are reasonably practicable to investigate a complaint of a statutory nuisance made by a person living in its area (the Section 79(1) -Responsive Investigation Duty; and
- the duty to serve an abatement notice where the Local Authority is satisfied that a statutory nuisance exists or is likely or occur or recur in the area of the authority (the s.80 (1) Statutory Nuisance Duty).
'Under s43 (1) of the Anti-Social Behaviour (Scotland) Act 2004 where a local authority receives a complaint from an individual that excessive noise is being emitted from relevant premises it is under a duty to investigate the matter. If the officer of the local authority is satisfied that noise is being emitted from the relevant property during the noise control period and the noise either would or might exceed the permitted level, the officer may serve a warning notice-s43(3).If a warning notice has been served in relation to noise from relevant property any person who is responsible noise which exceeds the permitted level commits an offence-s45(1).
Under s46 where a relevant officer has reason to believe that an offence is being or has been committed under s45 he can serve on the person a fixed penalty notice offering the person the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.
Under s47 where a warning notice has been served in respect of noise which is emitted from relevant property and an officer of the local authority has reason to believe that at any time in the period noise which is emitted from the relevant property has exceeded the permitted level as measured from a relevant place, the officer may seize and remove any equipment which appears to be being or to have been used in the emission of the noise-s46(2).
Under s 54 of the Civic Government (Scotland) Act 1982 any person who sounds or plays any musical instrument or sings or performs or operates any radio or television receiver, record player, tape recorder or other sound-producing device so as to give any other person reasonable cause for annoyance and fails to desist on being required to do so by a constable in uniform commits an offence.
If a constable reasonably suspects that an offence has been committed the constable is empowered to enter the relevant premises and seize the relevant equipment -s54(2A)
In addition the implementation in 2000 of the Human Rights Act 1998 has influenced Local Authority responsibilities. Section 6 of the Human Rights Act 1998 makes it unlawful for Local Authorities to act in a manner, which is incompatible with the rights contained in the European Convention on Human Rights ( ECHR). These rights extend to both the noise victim and noisemaker. The key principle of the Human Rights Act 1998 is that wherever possible there should be compatibility with the Convention rights. This principle covers actions and any failure to act by the Local Authority.
The convention rights with the most significance for Local Authority noise services include:
- Article 6 - Right to a fair trial.
- Article 7 - No punishment without law.
- Article 8 - Right to respect for private and family life.
- Article 1, First Protocol - Right to peaceful enjoyment of possessions
However it is important to understand that the Act, like the ECHR, aims to ensure that not just the rights of an individual, but everyone's, rights are properly respected. This means that one individual's rights will often have to be balanced against another's or the wider interests of the community as a whole. For example, the property rights of a person causing persistent noise nuisance may need to be balanced against the rights of the victims of the nuisance to a private life.
Some of the Convention rights are absolute e.g. Articles 6 and 7, whereas some are limited or qualified e.g. Article 8 and Article 1, First Protocol. For example, combating crime, promoting public health and the protection of the rights and freedoms of others are several reasons why Local Authorities might need to limit the rights of an individual.
Interference with qualified rights is only permissible in the following circumstances:
- A. has its basis in law; e.g. Control of Pollution Act '74, Environmental Protection Act'90, Noise and Statutory Nuisance Act' 93. And
- B. is done to secure a permissible aim set out in the relevant Article, for example for the prevention of crime, or for the protection of public order or health, or the protection of rights to privacy, and the rights and freedoms of others; and
- C. is necessary in a democratic society; which means it must fulfil a pressing social need, pursue a legitimate aim and be proportionate to the aims being pursued
3.1.1. Proportionality
The aforementioned points are important tests to see if interference by a Local Authority in an individual's rights is allowed under the ECHR, for example by restricting noise victims access to an effective noise service (Article 8) or entering a noise makers premises and seizing noise making equipment (Article 8 and Article 1, First Protocol). At first sight both these scenarios appear to contravene ECHR. However, of critical importance is the proportionality condition in test C above. This means that, even if a particular policy or action that interferes with a Convention right pursues a legitimate aim, such as providing a noise service within allocated resources; or the seizure or noise making equipment to secure abatement of on-going noise nuisance or to prevent recurrence of a noise nuisance. This will not justify the interference if the means used to achieve the aim are excessive in the circumstances. Fundamentally, even if there is a pressing social need and the Local Authority has the relevant powers and sufficient reasons for carrying out (or not carrying out) a particular action against (or in line with) the ECHR rights of an individual. They must ensure that they are taking action in a way which is the minimum needed to achieve the objective without overly interfering with the rights of the noise victim or offender.
Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. In this context, making decisions on the provision of noise services informed by an objective assessment of need and guided by written policies, procedures, practice notes and enforcement policies approved by members can be very helpful in ensuring and demonstrating that Local Authority actions comply with the Human Rights Act 1998. As such documentation can be used to ensure and demonstrate that the Local Authorities actions are not arbitrary or unfair and that Local Authorities are not abrogating their duties or using "a sledgehammer to crack a nut".
The response of any individual to noise is inherently subjective and can depend on specific circumstances; such as time of day, the type of activity being interfered with, attitude to the noise source or noise maker, age of the listener and perceived need for the noise. This can make it difficult, if not impossible, to determine a measured noise level or standard level of noise service provision that is satisfactory to all people in every circumstances. Consequently, it is important to ensure frameworks exist to ensure that Local Authorities undertake independent and consistent assessments of noise problems, the outcomes of which can be justified and sustained if challenged by either the noise maker, the noise victim, or both. These frameworks should attempt to balance the rights of individuals to conduct legitimate activities that may create noise and their responsibility to consider the effects of the noise they create, and any unreasonable interference with other people's rights to "quiet and peaceful" enjoyment of their land and their "personal comfort". In this context, the public is increasingly reliant on Local Authorities for assistance in resolving noise problems. As a result, Local Authorities are encouraged to adopt a holistic approach to tackling community noise problems. In practice, this involves the development of corporate policies and procedures designed to address the noise issues in both a pro-active and a reactive manner through the implementation of statutory and non-statutory powers, see section 3.4 below.
3.2. The Holistic Approach to Noise Control
A successful noise management strategy needs to be both proactive and reactive, see Figure 9.
- At one end of the spectrum is prevention using long-term strategic approaches that aim to avoid or restrict potential noise impacts before they occur. Land use planning, licensing and pollution prevention and control legislation have key roles to play in helping to prevent potential adverse noise impacts, both at the strategic level for an area overall and at a tactical level for specific projects.
- At the other end of the noise management spectrum is the need to react to noise problems when they have occurred. Powers contained in the Control of Pollution Act 1974, the Environmental Protection Act 1990, the Anti-Social Behaviour Act 2004 provide the main tools to deal with these problems at a local level.
Figure 9 - Noise Management Spectrum*
*Table modified from New South Wales Environment Protection Agency's Noise Guide for Local Government
Note: Liaison with external agencies and other Local Authority departments can be a proactive or a reactive measure.
3.3. Assessment of Local Need
Good practice suggests that a robust and objective assessment of all the current and anticipated demands likely to be placed upon a local authority noise service in the foreseeable future, is necessary in order to quantify, in precise terms, the type of service required. An effective assessment might include the following:
- a review of data collected, to include the manner in which data is recorded, to ensure it is fair and accurate.
- an objective assessment of how the current service is promoted and publicised to the local community.
- A survey of local stakeholders' opinions on the adequacy and efficacy of the present service and canvassing views on areas where the service could be extended or improved. Stakeholders that could be consulted include; members of the Council, residents panels, social landlords including the Local Authority, residents and tenants groups, local community groups, local chamber of commerce and business groups, previous noise complainants and noise perpetrators.
- an analysis of trends in noise data collected, such as the number of complaints recorded for each of the categories of noise, e.g. domestic, commercial, construction, industrial, leisure etc.
- an assessment of the number of repeat complaints about the same problem as a proportion of overall complaint numbers for each noise type. This can be a useful indicator of the need for a review of the effectiveness of the outcomes of the current service.
- an assessment of the distribution and the nature of the complaints, in terms of time of day and the days of the week the most noise problems occur; and any seasonal or geographic trends in complaint rates. This information can be critical in determining the demand for a service overall and when it should be provided i.e. the need for an out of hours service, on which nights, at which times, where and at what periods of the year?
- A cost-benefit assessment of the merits of the service adopting the noise provisions of the Anti-Social Behaviour Act 2004 and what measures need to be put in place to make the service effective, including a review of staff training needs.
- an analysis of the current performance of the service in terms of time scales for initial response and for resolution of cases- see definition in Section 4. Comparisons can then be made against any performance indicators or adopted standards which the Local Authority may wish to measure itself against or move towards.
- an assessment of current levels and outcomes of statutory enforcement activity, in terms, for example, of numbers of statutory nuisances established, the number of statutory notices issued, number of nuisances abated - both formally by service of notice etc. and informally by arbitration/mediation/negotiation; the number of seizures of noise making equipment or abatement of nuisances in default; the number of prosecutions instigated and the number of successful prosecutions.
- a review of the existing arrangements for liaising with the local police service in terms of how the two services presently interface with each other; how reliable and co-operative the police service is in responding to calls for assistance e.g. entering premises, seizing equipment, service of Fixed Penalty Notices etc; whether there is a need to establish more formal working arrangements, i.e. through ratifying a joint Memorandum of Understanding.
- an objective evaluation of the performance of the service against other comparable service providers e.g. using benchmarking exercises as part of a 'best value' or similar review.
- an assessment of the balance of resources deployed reactively and pro-actively. For example, by assessing the extent to which the service is actively pursuing noise prevention measures by working corporately within the town and country planning and licensing processes, as part of the Local Authority's corporate responsibilities, as a public sector landlord, and in partnerships to tackle anti-social behaviour.
It is ultimately for elected members to shape the noise service within the context of any over-arching political aspirations they may hold for the service and other competing statutory duties and priorities for resources. This inevitably leads to difficult judgments and decisions on the apportionment and allocation of finite resources, especially where the overall cumulative demand upon resources to meet all identified service needs may, in practice, exceed the resources available. Such decisions form part of the burden of management responsibility for senior officers and members of the local authority. If challenged, such decisions can be readily justified and may ultimately be more sustainable when the decision-making process incorporates a quantified assessment of the need for noise services and the resource requirement for meeting all or varying proportions of that need.
When making difficult decisions on allocation of limited resources, the importance of public consultation cannot be over-emphasised. The ODPM has produced guidance on Enhancing Public Participation as part of the Modernising Local Government programme; a summary of this guidance, with links to the detailed advice is available on the ODPM web site at: www.odpm.gov.uk/stellent/groups/odpm_localgov/documents/page/odpm_locgov_023831.hcsp
Example of Good Practice - Public Consultation on Noise Residents Panel Survey October/November 2002 Results of Noise & Nuisance Questionnaire
Residents Panel consultation surveys are carried out by the Council four times a year. The October 2002 questionnaire contained specific questions covering noise and nuisance. From a total of 708 completed questionnaires (a response of 58%) 146 residents identified noise as the environmental problem with which they were most personally concerned. This was then subdivided into the noise source that bothered, annoyed or disturbed them, covering the various transportation noise sources; building, construction and demolition and road works; neighbour noise, both within the home and outside; entertainment noise; and industrial noise. Residents were asked to rank the top five most annoying noise sources. The table below details the score for each source of noise. |
Score |
Road traffic | 1912 |
Building, construction, demolition, renovation or road works | 1747 |
Neighbours inside their homes, e.g. parties, music | 1385 |
Aircraft | 1127 |
Other people nearby | 707 |
Other entertainment or leisure, e.g. pubs, restaurants | 522 |
Any other noise | 381 |
Other commercial premises (including refuse collection from commercial premises) | 343 |
Trains or railway stations | 336 |
Community buildings, e.g. churches, community centres | 172 |
Sports events | 116 |
Factories or works | 100 |
River or canal work | 46 |
Although traffic noise is not strictly relevant in the context of this guide, evaluating transport noise alongside other noise complaints can prove persuasive when pursuing funding for a "noise service". In this case, noise from road traffic was the most annoying type of noise, followed by construction, demolition, renovation or road works, then noise from neighbours inside their homes. As part of the survey the residents' sensitivity to noise was also questioned, with most residents responding around the middle of the scale between being not sensitive at all, and being very sensitive. Further detailed questioning related to response to noise within the home, at different times of the day and night, and any consequent actions taken to deal with noise. Source: Royal Borough of Kensington & Chelsea |
On an annual basis REHIS gathers and publishes statistics relating to nationwide noise complaints and enforcement activity. This data is based on voluntary returns requested from all Scottish local authorities. These 'noise statistics' are used by both REHIS and the Scottish executive to evaluate trends in noise complaints and to help identify areas where local authorities may be experiencing problems.
3.4. Developing Noise Strategies, Policies and Procedures
As a prelude to the establishment of noise services that can meet the needs of the community, it is recommended that local authorities have a written policy, strategy and subordinate procedures and practices in place which set out in clear, unambiguous terms how the service is to be scoped, organised and delivered.
The Scottish Executive and REHIS both acknowledge that the generation of written policies etc. can often incur a significant short-term investment in time and effort, which can temporarily divert staff from other matters in hand. However, the medium to long- term benefits of having documented policies in place are clear and can be summarized as:
- defining the corporate, departmental and sectional remit, roles and responsibilities for the noise service;
- defining the remit, roles and responsibilities of the individual staff charged with providing the noise service;
- the establishment and monitoring of service standards and performance;
- the management of customer expectation;
- the promotion of consistency and effectiveness of the service;
- providing support and guidance for field staff;
- identifying and implementing improvements in operational costs and efficiencies ;
- reducing the incidence of operational failures,
- dealing effectively with challenges to the service.
As a guide, it is suggested that the following elements should be addressed in any written policy, strategy and subordinate procedures and practices for noise services:
- details of the legal context in which the service operates;
- the optimum (and minimum) resources allocated to the service, including a description of the organisational structure, including named individuals;
- details of how the service assures the competence of its authorised officers, including professional and technical qualifications, experience and developmental training, etc;
- a detailed description of the scope of the service, including provision for responding to service requests out of hours;
- a digest of service standards, including relevant performance indicators and targets, where these have been developed;
- a practical definition of what constitutes 'resolution' of a complaint;
- a noise enforcement policy incorporating details of the enforcement concordat;
- a review of stakeholder issues, including equal opportunities, ethnic monitoring and customer feedback;
- service level agreements and procedures for liaison with different local authority departments e.g. housing, planning, social services, legal
- procedures for liaising with external agencies such as the Police, SEPA, Highways Agency etc.
- a set of detailed, procedural guidance notes outlining how the service intends to achieve consistency in dealing with a variety of matters, such as:
- dealing with complaints where poor sound insulation is a contributing factor
- consultations on new planning applications
- consultations on new applications or renewals of premises licences
- consultations on IPPC authorisations with SEPA
- recording and tracking the progress of service requests
- responding to complaints regarding building and vehicle intruder alarms
- responding to complaints regarding building works and construction sites
- responding to complaints regarding domestic noise
- gathering evidence and applying objective tests to interpret its significance by the use of sound measuring apparatus and by cross-referencing to published technical guidance and standards, where appropriate
- obtaining Sheriffs' Warrants to enter premises
- seizing equipment
- drafting and serving statutory abatement notices, including a transparent system for delegating authorised powers to officers
- preparing cases for submission to the Procurator Fiscal's Office
- performing and recording health and safety risk assessments of specified tasks
- the role of alternative disputes resolution mechanisms in resolving noise problems
- dealing with individuals with special needs, e.g. mental health problems.
The procedures described above may form part of the noise service's quality management system and it is recommended that key elements of the strategy i.e. Policy and strategy/enforcement procedures are subject to elected members' scrutiny and approval and that the strategy be formally adopted by the authority, thereby ensuring corporate status and commitment. A suggested hierarchy of documents is presented in Figure 10. These matters are discussed more fully in Chapter 4, Delivering the Service.
Figure 10 - Hierarchy of Noise Management Guide Documents
1 Member sign-off
2 Member sign-off (optional)
3 Assessment of Need (Statistical Analysis/Service Evaluation)
Example of Good Practice - Edinburgh City Council Extract from Enforcement Policy - Noise Section
The policy is based on the following key principles: - that the enforcement activity will be based on the risk to health and the severity of nuisance, annoyance and the level of disturbance
- that there is a commitment to having regard to relevant guidance and the enforcement concordat of support for inter-authority liaison group mechanisms and the relevant professional bodies for resolving inconsistencies
- by identifying by qualification and/or experience the various enforcement decision maker and the limits of their authorization
- clearly communicating the status of any requirement being statutory or informal
- identifying circumstances appropriate for taking informal and formal actions and for the issue of Notices
- identifying the criteria for submitting reports to the Procurator Fiscal.
|
Formal Enforcement Action The decision to initiate formal enforcement action may be made by an authorized officer who meets the following criteria: (a) is an environmental health officer and has a minimum of 6 months experience in noise and vibration control work (as appropriate); or
(b) is an enforcement officer who possesses the Institute of Acoustics Diploma in Noise and Vibration Control and has a minimum of 12 months experience in noise and vibration work (as appropriate). |
3.4.1. Preventative Strategies
When seeking to address potential noise impacts, prevention is not only preferable to providing a reactive service to complaints, but is also a discrete statutory duty under s.79 (1) Environmental Protection Act. Resolving noise problems after they occur may not be possible and is often more time consuming, difficult and more costly than preventing them happening in the first place. It is better to anticipate and avoid, or mitigate potential noise impacts as early as possible in the planning and design process of any new scheme, development or activity.
Example of Good Practice - Pro-active Initiatives A good example of a pro-active initiative involves the Council's noise service working actively to seek out nuisances and working in a co-ordinated way with planning and licensing officers on joint enforcement initiatives by: - Carrying out post planning permission monitoring of compliance with conditions and joint enforcement action with the planning department.
- Pro-actively patrolling high-risk locations for nuisances.
- Inspecting all licensed premises e.g. entertainment establishments, massage parlours, night cafes etc, and prior to granting or renewal of licenses.
- Carrying out joint enforcement action with licensing.
Source: City of Westminster |
3.4.2. Land Use Planning
In most planning cases where noise is a material consideration, a noise impact assessment (noise survey) should be an integral part of the process for making land use planning decisions. Advice on the need for such a survey should be sought at the earliest possible stage of the planning process. Effective land use planning decisions can help prevent or mitigate potential noise impacts. By avoiding the co-location of noise-sensitive and noise-producing premises, noise problems can often be prevented. Where this is not possible noise controls need to be incorporated into new noise-producing developments, and mitigation measures may be prudent for new noise sensitive developments (including residential development, schools, hospitals, nursing homes, hotels and places of worship).
See Planning Advice Note PAN 56 Planning and Noise which describes how the land use planning regime deals with noise issues.
A local authority's Town and Country Planning powers do not usually fall directly within the remit of most EHOs. However, the Environmental Health Service is usually the department of a local authority where any expertise in noise and noise impacts resides. Consequently, EHOs are encouraged to work constructively and corporately within the land use planning regime; the Environmental Health Service should contribute to a Local Authority's town and country planning functions by providing professional and technical support and expert advice, which may include:
- drafting policies relating to noise for the local authority's Local Plan;
- assessing the localised noise impacts of new development proposals by vetting planning applications and drafting, where appropriate, relevant planning conditions and informatives;
- contributing to the process of scoping Environmental Impact Assessment reports for major development projects;
- contributing to the decision making process by preparing or contributing to Committee reports and attending planning service committees where necessary;
- providing technical input into the assessment of compliance with planning conditions, as these relate to noise, and contributing to the planning enforcement process.
See Appendix 3.15, which sets out a model procedure for Environmental Health Services to deal with planning applications.
Examples of Good Practice - Town Planning A number of environmental health services throughout Scotland have established excellent liaison arrangements with their counterparts in the town planning service. In Edinburgh the service receives in the region of 5000 planning referrals per year and has a team of dedicated officers devoted exclusively to vetting planning applications for major developments. One post is funded by planning application fees generated. In Aberdeen the service has a planning liaison officer who acts as a direct interface with the planning service; the officer advises on the circumstances where a noise impact study needs to be undertaken and represents environmental health at all planning service committee meetings. In Dundee regular scoping meetings are held between EHOs, planners, applicants, agents and other relevant parties. In Falkirk the environmental health service has recently started to use Road Noise 2000 software to develop noise contours of the district. In Glasgow EHOs had an input to developing noise policies for the Glasgow City Plan. |
3.4.3. Licensing
Licensing (Scotland) Act 1976
In a similar way to town and country planning, noise problems associated with public entertainment can be prevented or greatly reduced by assessing the potential noise impacts from venues at the application or renewal stages under the Licensing (Scotland) Act 1976.
The Environmental Health Service should contribute to the licensing process by providing professional support, technical and expert advice, which may include:
- drafting policies relating to noise for the Licensing Board.
- assessing the noise impacts of existing licenses where complaints are raised or when new licence proposals or applications for variations to licences are made; and drafting relevant licence conditions or objecting to the granting of new, varied or renewed licences, where appropriate.
- contributing to the decision making process by preparing or contributing to reports and attending Licensing Committees where necessary
- providing a technical input into the assessment of compliance with licence conditions, as these relate to noise, and contributing to the licensing enforcement process.
Example of Good Practice Dundee City Council Noise Control from Licensed Premises
Previously musical entertainment noise complaints were investigated in isolation by the receiving agency and it was recognised that a partnership approach would be more effective. The roles of Tayside Police, Environmental Health and the Licensing Board were re-examined and over several months various approaches were trialled before the partners agreed to a workable system and a Memorandum of Understanding ( MOU) was signed between Tayside Police and Dundee City Council Matters of musical entertainment noise disturbance are investigated by each agency upon receipt by them and matters dealt with in legally appropriate manner by each. Police officers are encouraged by their line managers to submit reports of each investigation to the Divisional Licensing police officers who in turn forward the information to the EHOs. Consistency and continuity of personnel is important and points of contact limited in both the police and the City Council (2 divisional licensing police and 2 EHOs). EHOs reporting and collating information on behalf of the Licensing Board have made themselves known to all police station sergeants and liaison sergeants and Divisional Licensing police officers in Dundee and vice versa. Encouraging these inter-agency work co-operatives has lead to the service expanding beyond what was originally agreed in the MOU. Police officers and EHOs will now arrange joint visits to problem premises, liaise closely and meet regularly to discuss problem premises. Calling cards for EHOs are distributed by police officers when attending such complaints and on occasion police officers will monitor the noise breakout from licensed premises and report this back to the EHOs. Training sessions have been held to raise awareness and promote co-operation among police officers, particularly station and liaison sergeants and some police inspectors and EHOs. NB: see Appendix 6 for details of Memorandum of Understanding between Dundee City Council and Tayside Police |
3.4.4. Pro-active Initiatives
Local Authority environmental health services are encouraged to be imaginative and innovative in the development of their noise services. Examples of pro-active initiatives include:
- a number of authorities now have dedicated web sites detailing a range of information including descriptions of the scope of the service; how to make a complaint; specific initiatives such as policies on restricting construction site activities to control noise; and publicising successful prosecutions etc.
- each year many local authorities contribute to the raising of the awareness of noise issues by participating in the NSCA's National Noise Awareness Day.
- several local authorities have found that improved advertisement and promotion of their noise services has led to a significant increase in uptake.
- Many environmental health services participate in a 'joined up' approach to administering services e.g. through membership of Anti-Social Behaviour Working Groups etc.
3.4.5. The Role of Other Local Authority Departments in Providing Noise Services
Whilst each Local Authority has overall corporate responsibility for a wide range of noise services, the provision of specific services is often the responsibility of several departments, not just the Environmental Health service. Often the solution to a particular noise issue will require input and liaison between different sections of the Local Authority. Consequently, noise service managers should aim to establish formal mechanisms, reinforced by informal communication networks that define the roles and responsibilities of each Department, and promote co-operative working between the different sections of the Council with responsibilities for noise services, to ensure that the corporate duties and the policies of the Local Authority are satisfied.
Generally, other Local Authority Departments with responsibility for noise services include:
Local Authority Building Control
Ensure compliance with Part E of the Building Regulations relating to sound insulation between, and reverberation in the common parts of, new and converted residential buildings; and acoustic conditions of schools.
Local Authority Housing Services
Those Local Authorities who have retained direct ownership and management of their own housing stock will have common law, contractual (through the tenancy agreement) and statutory duties to deal with noise nuisance caused by their tenants/lease holders. Compliance with these duties is usually the responsibility of the Local Authority's Housing Department; however good practice and negative Ombudsman reports suggest that effective lines of communication and liaison with the Environmental Health Department will assist in successfully discharging the corporate responsibility for these duties e.g. Environmental Health staff can provide the Housing Department with evidence for injunctions, possession proceedings, or Anti-Social Behaviour Orders ( ASBO's) against tenants/leaseholders who cause nuisance etc. In order to ensure efficient communication and liaison, many Local Authorities have found it useful to establish a formal service level agreement between their Housing and Environmental Health Departments, including a written protocol that sets out the different roles and responsibilities of each department and how they can best work together to fulfil their legal duties. Some Environmental Health Departments have found that the additional expenditure of resources that a collaborative policy requires, can be compensated for by re-charging their Housing Department for the additional noise services provided to their tenants, over and above the basic noise service to which all residents are entitled.
Good Practice - Liaison protocol with the Local Authority Housing Department Re. Neighbour Noise Complaints from Council Tenants In most cases a complaint referral to the Environmental Health Team ( EHT) will follow some kind of investigation by the Housing Dept. What EHT will expect to see in the referral papers - The complainant has been interviewed and informal remedies, such as mediation have been explored and discounted, or tried and failed.
- Interview with alleged perpetrator and at least two attempts/letters inviting the alleged perpetrator to meet and discuss the allegations.
- Full case notes and any relevant history concerning vulnerability of either party.
- Copy of the Noise Incident Form ( NIF) giving details of the complainant, the noise events, the alleged source of the noise, prior history and of any witnesses.
- Noise dairies have been kept or alternatives if complainant has been unable to complete diaries
- If possible some independent evidence has been gathered, this can be a report for the Weekend Noise Service, caretaker or other council officer, other neighbours etc.
- Copy of the referral form (not all cases papers) should be sent to the Service Level Agreement Monitoring Officer, in the Service Development Team.
The only exceptions to the above will be if a leaseholder is complaining about another leaseholder or a resident is complaining about commercial premises. In these cases a referral directly to EHT will be appropriate. What housing can expect from EHT - Notification within 5 working days of the named allocated officer dealing with the case.
- Contact will be made with the complainant and or the alleged perpetrator within 10 working days.
- Case conference meeting at the beginning of a case, to be convened by EHT within 15 days of the referral. All relevant officers to be invited to that meeting - in the case of vulnerable complainants or perpetrators, it may be useful to invite the Support Workers involved.
- Agreement from the above meeting to constitute EHT course of action e.g. installation of sound recording equipment, collection of further evidence leading to Service of Noise Abatement Notice if nuisance does not cease.
- Regular feedback on the case, via email every 21 days.
- Aim to resolve or take action on cases referred within the shortest time limits possible to avoid cases hanging dormant for months and leading to further frustration on the complainant's part.
Monitoring meetings will be held quarterly between the Team Manager of the EHT and the Monitoring Officer in the Service Development Team. The meeting will: - Review the number of cases referred
- The quality of the referrals
- Time taken on cases
- Numbers of cases closed
- Numbers of cases action taken
- Types of action
- Feedback from either service and or residents
- Disputes about referrals will be resolved at these meetings
Source: Extracted and amended from LB Camden's Nuisance Guidance Notes June 2003 |
Local Authority Social Services
Several Environmental Health Departments have had negative experiences of dealing with noisemakers and victims who are mentally disordered. As a consequence they have found distinct benefits in establishing a common policy with their Social Services departments for dealing jointly with noisemakers and victims who may be suffering from mental disorder. See Appendix 3.14 for advice on dealing with persons with mental health problems.
Example of Good Practice - Stirling Council Stirling Care Programme Approach ( CPA)
This is a means by which people with severe and enduring mental illness and who have complex health and social care needs are looked after in the community. The CPA scheme in Stirling is a multi-agency approach involving Forth Valley Health Board, Stirling Council and Central Scotland Police. A formal protocol has been drawn up to facilitate the sharing of information between the various agencies. A nurse or social worker is appointed to the individual as a key worker and it is their responsibility to co-ordinate the care arrangements for that person by maintaining regular contact with the individual in order to monitor his/her progress and to co-ordinate activity across agencies by liaising with all those involved in the individual's care. This may involve contacting Stirling Council's Housing Service if the individual has housing related needs, including neighbour disputes. The following example illustrates this approach. Mr A is a Stirling Council tenant. He is on the CPA scheme and suffers from complex mental health issues. Mr A has complained on a regular basis about his neighbour making excessive noise. Despite extensive and sympathetic efforts by Housing staff, Mr A's mental health problems meant that it was often difficult for them to discuss the situation with him. Mr A also believed that Housing Services were taking insufficient action against his neighbour to address the problem. In the event Housing staff were able to liaise directly with Mr A's key worker and to explain the council's position including the action taken by the Housing service to resolve the problem. The key worker in turn was then able to discuss the matter with Mr A to re-assure him that his concerns were being addressed. |
Role of External Agencies
External agencies outside of local authorities are also involved in the control of noise. Close collaboration and co-operation between the local authority and these agencies is essential, although, regrettably this is not always the case in practice. Good practice suggests that noise service managers should aim to establish formal mechanisms, reinforced by informal communication networks, that define the roles and responsibilities of their local authority and external agencies in dealing with noise issues and which promote co-operative working to ensure that the ownership of a noise problem is quickly identified and, where appropriate, mutual support in dealing with a noise problem is forthcoming. The role played by external agencies is summarised below:
Registered Social Landlords ( RSL) (a.k.a. Housing Associations)
Registered Social Landlords have similar duties to Local Authority landlords, but rarely have similar resourcing or staffing levels to carry out those duties. However, some council's have found that by making appropriate arrangements with their local RSLs, they can support them in taking possession proceedings against tenants who cause nuisance e.g. council staff giving evidence in court and the loaning or hiring of noise measuring/recording equipment.
Mineral Planning Authority
The authority responsible for minerals applications has a duty to consider the impact of noise in connection with proposed mineral extraction activities, which are controlled through the planning process. Any consent issued may incorporate conditions relating to noise control. In assessing the overall noise impact of any application, the authority should have regard to Planning Advice Note PAN 50 'Controlling the environmental effects of surface mineral workings' Annex A.
Scottish Environment Protection Agency ( SEPA)
Is responsible for administering the Integrated Pollution Prevention and Control ( IPPC) regime in Scotland, including waste regulation. This is a regulatory system employing an integrated approach to controlling the environmental impacts of certain industrial and waste activities. It involves determining the appropriate controls to apply to industry in order to protect the environment through a single permit process. In order to gain a permit, operators will have to show that they have systematically developed proposals to apply the Best Available Techniques ( BAT) to a range of pollutants including noise, and to meet certain other requirements, taking account of relevant local factors. SEPA's Noise Guidance Document www.sepa.org.uk/ppc/guidance/index.htm provides guidance on the regulation of noise and vibration in line with the concept of IPPC as implemented by the Pollution Prevention and Control (Scotland) Regulations 2000. It should be noted that PPC Part B installations are specified in the regulations, but noise provisions of this regime will not apply to these activities. The aforementioned regulations provide that the statutory nuisance provisions contained in Part III of the Environmental Protection Act 1990 will not apply to activities in plants regulated by the IPPC scheme.
Clearly there is scope for overlap between SEPA and local authorities and a need for good communications, therefore to facilitate the IPPC process the EA and the LGA have developed the "Working Better Together 2003 - memorandum of understanding" - see www.wlga.gov.uk/publications/2003/working-better-together-e.pdf . This document highlights 8 protocols, each aimed at establishing clear and agreed divisions of responsibility between LA's and the EA, and LA's are encouraged to sign up to the memorandum and the individual protocols. In the context of noise, a good starting point is Protocol number 7 entitled "working better together in town & country planning" - see www.environment-agency.gov.uk/commondata/103599/planning_protocol_526372.doc .
At an early stage, SEPA will liaise with the Local Planning Authority, including Environmental Services, to discuss the proposed application for a PPC permit. It is important at this stage to determine any existing noise conditions previously imposed by the planning authority. Relevant information relating to local history, agreements with neighbouring local authorities, existing background noise levels and planning policies concerning 'creeping background/ambient' noise levels will be established, as will any other known site-specific information. The planning authority and SEPA will seek to keep each other updated should further information or details come to light regarding the PPC activity, including public complaints and any action (formal or informal) taken, and any changes to the process. SEPA will endeavour to impose permit conditions relating to noise and vibration in line with the planning authority's local plan and policies and will apply Best Available Techniques ( BAT) in setting emission limit values and conditions relating to the process parameters or technical measures.
Transport Department - Scottish Executive
For their own projects the Scottish Executive has a duty to consider the noise impact of road construction and similar works and must exercise its powers in connection with the control of traffic as set out in the Road Traffic Regulation Act 1984. The relevant Authority is responsible for carrying out noise impact assessments and providing secondary glazing etc. for new and improved roads as laid out in the Noise Insulation Regulations 1975 (as amended).
Additionally the Executive's duties include:
- the consideration of the noise impact of road construction and similar works
- the administration of the noise insulation regulations scheme
Police
The police in Scotland, unlike their counterparts in England and Wales, have specific powers to deal with noise. Section 54 of the Civic Government (Scotland) Act 1982 as amended by section 24 of the Crime and Disorder Act 1998 provides that:
(1) Any person who
- sounds or plays any musical instrument;
- sings or performs;
- operates any radio or television receiver, record player, tape recorder or other sound producing device
so as to give any other person reasonable cause for annoyance and fails to desist on being required to do so by a constable in uniform, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £50. This section is without prejudice to any offence under section 62 of the Control of Pollution Act 1974, as amended by the Noise and Statutory Nuisance Act 1993 (operation of loudspeakers in streets).
(2) Where a constable reasonably suspects that an offence under subsection (1) above has been committed in relation to a musical instrument or in relation to such a device as mentioned in (c) above, he may enter any premises on which he reasonably suspects that instrument or device to be and seize any such instrument or device he finds there.
A constable may use reasonable force in the exercise of the power conferred by this section and Schedule 2A of this Act makes provision in relation to the retention and disposal of property so seized.
In researching this guide, wide discrepancies and variations were discovered in the liaison arrangements between local authority environmental health services and their local police force. It should be self evident that to be truly effective in serving the needs of the community at the times and places required, the active support and co-operation of local police officers become an essential pre-requisite. This issue will assume an even greater significance when authorities begin to adopt the noise provisions of the Anti-Social Behaviour Act 2004. Accordingly local authority officers are encouraged to take the initiative by opening up lines of communication with their local police service and entering into formal arrangements for joint working. The Memorandum of Understanding produced by Dundee City Council and Tayside Police serves as a model. Some useful background information may also be found in the document Noise Liaison Guide: Good Practice Guidance for Police and Local Authority Co-operation published jointly by the Chartered Institute of Environmental Health ( CIEH) and the Association of Chief Police Officers ( ACPO) in 1997 available from the CIEH.
Examples of Good Practice - Local Authority Liaison with Police Glasgow City Council
Strathclyde Police seconds full time police officers to the council's Environmental Protection service to deal with a range of environmental issues including noise. Many benefits of joint working have been identified including: - health and safety of officers assured through joint patrols
- police powers of arrest e.g. when establishing people's identities and in issuing Fixed Penalty Notices
- police expertise and experience in evidence gathering and preparing reports for Procurator Fiscal.
Falkirk Council - Car Cruising Events
An excellent initiative has been established between environmental health service and local police to deal with regular 'car cruising' meets. Once a month approximately 750 cars come into town in an organised rally. A joint liaison group has been set up comprising councillors, transport officers, EHOs, police and members of the cruise organisation. 'Boy racers' are perceived to be a problem since they tag along to these meets and can cause nuisance. Noise control measures include: - police restricting access to certain residential roads
- significant police presence (5 patrol cars to prevent engine revving and to keep order
- EHO performing cursory, indicative vehicle noise tests to assess vehicles' compliance with Construction and Use Regulation limits for noise.
Moray Council - Car Cruising Events
Moray Council carried out a number of noise monitoring exercises in order to provide information for the police in respect of car cruising events and the extent to which noise was likely to result in a nuisance within Elgin. Dundee City Council - Licensed Premises
At 02.00 hrs early on a Sunday morning two senior police officers observed music noise to be clearly audible from a city centre pub. The officers visited the premises, warned the licensee and the volume was reduced. The police submitted a detailed report to the environmental health service. Despite the fact that no public complaint had been made about the pub, the EHO visited the premises and gained the agreement of the licensee to address the issue of music noise breakout. |
Civil Aviation Authority ( CAA)
The CAA has a duty to investigate and act appropriately in any alleged incidents of low flying by non-military aircraft.
Ministry Of Defence ( MOD) (Air Staff)
The MOD has a duty to investigate and act appropriately in relation to incidents of low flying by military aircraft. The MoD also administers a non-statutory discretionary scheme to provide noise insulation grants for those living within a 70 dB LAeq,16 hour noise contour, or offer to purchase houses in an 83 dB LAeq,16 hour noise contour, around military air fields.
An information leaflet Military Low Flying: an Essential Skill has been produced by the MOD and is available together with other advice from:
RAF Community Relations Office
Irvine House, Canonbie
Dumfries and Galloway
DG14 0XFTel: 013873 81156
References
- Noise Guide for Local Government - New South Wales Environment Protection Agency November 2002. www.epa.nsw.gov.au/noise/draftnoiseguide.pdf
- MORI - Neighbour Noise: Public Opinion Research to assess Nature, Extent and Significance - Defra 2003 - www.defra.gov.uk/environment/noise/mori/pdf/mori.pdf
- Defra Research Project into the Electronic Collection of Noise Statistics undertaken by University of Brighton and Faber Maunsell EPG 1/2/47 published on Defra web site - www.defra.gsi.gov.uk
- Planning Advice Note PAN 56 Planning and Noise published by the Scottish Executive
- IPPC Horizontal Guidance Notes (as Chapter 4 references) published by the Environment Agency (see www.environment-agency.gov.uk )
- Various Press Releases issued by Noise Abatement Society
- Crime and Disorder Act 1998: Anti-social behaviour orders - guidance, March 1998, Home Office.
- Licensing (Scotland) Act 1976
- Anti-social Behaviour Act 2004
- Military Low Flying: an Essential Skill produced by RAF Community Relations Office.
Recommendations for Further Reading
- NSCA National Noise Survey 2002
- Greater London Authority - The Mayor's Draft Ambient Noise Strategy Part 1 & 2
- Defra - Neighbour and Neighbourhood Noise - A review of European Legislation and Practices 2002 pts 1 and 2
- Air Pollution and Noise Bulletin, an information service for Local Government published monthly by Birmingham Central Libraries.
- Acoustics, Beranek, L.L., 1954, McGraw Hill Book Co.
- Guidelines for Community Noise (1999) - World Health Organisation.
- Damage to hearing arising from leisure noise: a review of the literature. M.R.C. Institute of Hearing Research, 1985, H.M.S.O.
- Domestic Noise Complaints, Grimwood, C. and Ling, M., B.R.E. Report No. 204732, December 1999.
- Effects of environmental noise on people at home, Grimwood, C .J. BRE. Information Paper IP 22/93, December 1993.
- Environmental Health Criteria 12 - Noise, 1980, World Health Organisation.
- Future Noise Policy, Commission of the European Communities, Coin (96) 540 Final, 4.11.1996, Brussels.
- Garner's Environmental Law Vols. 1-3, Butterworth and Co. (Publishers) Ltd.
- Noise Climate: A Review of National and European Practices, 1st June 1999, D.E.T.R.
- Noise Climate Assessment - Review of National and European Practices, Report for the D.E.T.R. by Environmental Resources Management, November 1997.
- Noise Control, The Law and its Enforcement, 3rd Edition, Penn C, 2002 Shaw and Sons Ltd
- Report of the Noise Review Working Party 1990, H.M.S.O
- Statutory Nuisance: Law & Practice, Malcolm, R, Pointing, 2002. Oxford University Press.
- Noise and Noise Law: a Practical Approach, Melville S Adams and Francis McManus, Wiley Chancery Law 1994
- The Future for Mediation, Holder, P, February 1994, NSCA
- The U.K. National Noise Attitude Survey /999/2000, Grimwood, C. Skinner CJ, Raw GJ, BRE Report to CIEH Noise Forum May 2002.
- The U.K. National Noise incidence Study 2000/2001
- Towards a National Ambient Noise Strategy: A consultation paper from the Air and Environmental Quality Division, November2001, Defra
- ENCAMS Neighbour Noise - A guide for the public, 2003, Defra.
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