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Appendix 3 Officers' Guidance Notes
The following sets of guidance offers specific advice and provides examples of good practice for environmental health services. Invariably, this has been based on guidance produced by others and acknowledgements are given as relevant.
This guidance is not intended to be exhaustive and cannot cover every eventuality. A "one size fits all" approach is clearly inappropriate and Local Authorities are encouraged to critically review the examples of good practice given in the guide and develop their own procedures appropriate to their own circumstances and which are compatible with their other procedures, and those of other departments in their Local Authority.
Appendices 3.1 to 3.11 address complaint processes and general enforcement matters and Appendices 3.12 to 3.20 address general matters e.g. planning applications and construction site noise.
Appendix 3.1 Investigating a Complaint
(Extracted and adapted from Royal Borough of Kensington & Chelsea Procedures)
1.0 Investigating a Noise Complaint
The aim of this guidance is to suggest a structure to provide a consistent approach into the investigation of noise and nuisance complaints. (see separate guidance on procedures for investigating noise complaints under Part 5 of the Antisocial Behaviour etc (Scotland) Act 2004 at http://www.scotland.gov.uk/library5/social/asbn-04.asp).
The complainant will have a named officer (sometimes referred to as the case officer or lead officer) who has overall responsibility and will be accountable for supervising and progressing the investigation of a complaint to resolution.
There are 6 main steps to carrying out a full and proper investigation into a complaint, as follows:
- Interview complainant.
- Decide on strategy for gathering evidence.
- Inform complainant.
- Gather evidence.
- Assess and evaluate evidence.
- Decide what action can be taken and implement.
This guidance outlines each of these steps. It also sets out the interim informal action that might be taken in the form of warning letters to the alleged perpetrator. This section should be read in conjunction with Section 4 and Figure 12 of the main Guide.
1.1 Interviewing the Complainant
This is the critical stage of any investigation and will allow the complainant and case officer/lead officer to have a full exchange of information. It is essential for the case officer/lead officer to obtain and record key information at the earliest stage.
The information obtained from the interview will be used by the case officer/lead officer to decide on the most appropriate strategy to adopt for gathering any additional evidence needed to properly assess the complaint.
1.2 Informing the Complainant
It is essential to give the complainant information on how the investigation will proceed; what they can expect from the Service and what the Service expects of them.
It is important from the beginning that the complainant is informed of the name and contact details of the officer responsible and accountable for supervising and progressing the investigation of their complaint until completion, i.e. the case officer/lead officer.
It may be useful at this stage to issue the complainant with details of the service's performance standards and targets and the investigating officer should be aware that the service's performance will be monitored against these targets in the future. In addition, the complainant will have the opportunity to comment on the quality of service measured against these targets at any stage during the investigation by completing and returning the customer satisfaction survey.
1.3 Strategies for Gathering Evidence
The service has a duty under the Environmental Protection Act 1990 ( EPA) to investigate complaints of alleged nuisance from noise. When satisfied of the existence of a nuisance or that a nuisance is likely to occur or recur, the enforcement officer has a duty to serve a notice under the EPA on the person responsible for causing the nuisance. Any person served with a notice has a right of appeal which must be submitted to a Sheriff Court within 21 days of receipt of the notice.
To successfully defend any such appeal against a notice in Court, the Environmental Health Service must have sufficient evidence to establish that on the 'balance of probabilities' a nuisance exists, or is likely to occur or recur. In order to prosecute a person for contravention of a notice, evidence must be sufficient to establish 'beyond all reasonable doubt' that the Notice has been contravened. The standard of proof is greater for the contravention of a notice, as it is a criminal offence.
It is therefore necessary to gather good quality, robust evidence so that a proper assessment of the complaint can be made. This will allow the case officer/lead officer to determine whether the complaint is substantiated and a notice must be served.
The best evidence is that witnessed first hand at the time of occurrence by an independent qualified person and the operation of an officer led out of hours service will help to facilitate this. A range of alternative strategies may be required to discharge the service's duty to investigate different types of complaint and also to secure efficiency.
One of the aims of this guidance is to enable complaints to be assessed and evaluated as to whether or not formal action can be taken within a target time frame depending on the relative complexity of the case, any BPM defence and the noise characteristics i.e. intermittency. This requires the case officer/lead officer to review the progress of the investigation after an initial period and to implement alternative strategies to gather evidence, as necessary. If all appropriate strategies to gather evidence have been tried and there is insufficient evidence for the Service to act formally, the case officer/lead officer may close the case with the agreement of the service manager. This will entail writing to the complainant confirming the efforts made to gather evidence, the reasons why the matter is not actionable formally by the Council, the details of any informal action taken and advice as to how the complainant may pursue the matter themselves under s.82 of the EPA - see Appendix 3.12.
The majority of noise complaints can be classified into 3 main categories, as follows:
- Category 1: Definitely able to obtain sufficient evidence for formal determination
- Category 2: Uncertain whether sufficient evidence can be obtained
- Category 3: Unlikely to be able to obtain sufficient evidence
This guidance requires that the complainant is interviewed within a reasonable minimum time period. This period is, in general, likely to vary between 2 hours and 3 to 5 working days depending on the nature and alleged severity of the noise problem. Where complaints are deemed of 'low priority', a 15 day response period may be deemed reasonable, see Appendix 3.2. The answers given will assist the case officer/lead officer in determining which of the above 3 categories the complaint fits into and the most appropriate strategy to be adopted to gather evidence.
1.3.1 Category 1: Definitely Able to Obtain Sufficient Evidence
This includes noises which are continuous for long periods, e.g. plant noise, air conditioning units, kitchen extracts, etc. and also noise of moderate duration (i.e. greater than half an hour) within a set time pattern, e.g. commercial music, plant noise, etc. The case officer/lead officer should arrange to visit the complainant personally, or arrange an appointment for the Duty Officer of the out of hours service to visit the complainant, depending on the availability of the case officer/lead officer within the shift pattern and the best time to witness the alleged nuisance. The case officer/lead officer may also consider meeting the person responsible for the noise to discuss the allegation informally and also carry out tests.
In the majority of cases of this type this strategy should result in sufficient evidence being obtained to assess the problem. However, if this is not the case before the end of the review period and complaints continue to be received, the case officer/lead officer will be expected to implement alternative strategies, i.e. use of the Duty Officer Service, digital audio tape recorder ( DAT) installation, etc.
1.3.2 Category 2: Uncertain Whether Able to Obtain Sufficient Evidence
This includes noise of moderate duration (i.e. greater than half an hour) on a frequent or intermittent basis but without any set time pattern, e.g. residential loud music, DIY works, etc.
Due to the random nature of the alleged nuisance, it is unlikely that evidence will be gathered by arranging an appointment. The duration of the nuisance is nevertheless sufficient for there to be a reasonable chance of an enforcement officer or a Duty Officer responding quickly to witness the event and therefore they need to be briefed in advance so that they can respond accordingly.
It would also be prudent to request the complainant to complete the diary sheets for a reasonable period, often 2 - 4 weeks, and obtain details of any other neighbours or professional witnesses who may be able to substantiate the complaint (i.e. police, estate officers, other council officers etc.).
However, if difficulty is experienced in witnessing the noise and there is genuine concern the decision to install a DAT should not be delayed.
1.3.3 Category 3: Unlikely to be Able to Obtain Sufficient Evidence
This includes intermittent, short duration (i.e. less than half an hour) noise at random intervals, e.g. slamming doors, anti-social behaviour, shouting, etc.
These are the most difficult and frustrating cases both for the complainant and for the noise service to address. It is unlikely that an enforcement officer or Duty Officer will be able to witness noise of an intermittent and short-term nature. The chances of gathering evidence by appointment are also remote. The complainant should be advised of this as early as possible.
Where, at least, there is sufficient evidence of similar repeated events, the recommended strategy for these complaints is to require the complainant to complete diary sheets and time plots - see specimen examples in Appendix 3.4. The case officer/lead officer must attempt to obtain corroborative evidence using remote monitoring equipment, or from other independent witnesses. If the complainant is unwilling to give evidence in Court, and/or it is not possible to gather other corroborative evidence to substantiate the complaint, it is unlikely that formal action by the council will be possible.
In such cases, the case officer/lead officer would be expected to provide basic mediation between the complainant, alleged perpetrator and, in relevant cases, the landlord or other third party. This may involve a meeting between the parties if all are agreeable. There are some Housing Associations that provide a mediation service for their tenants. The case officer/lead officer should investigate the possibility of this. If the complainant has indicated they are willing to pursue the matter to Court and has produced diary sheets indicating the possibility of a nuisance but the service has been unable to corroborate this after undertaking all reasonable attempts, the case may be closed with the agreement of the service manager, and the complainant advised on s.82 action - see Appendix 3.13.
1.4 Gathering Information and Evidence
The information and evidence necessary to act formally (or close a case) will comprise:
- information obtained through interviewing the complainant
- diary sheets completed by the complainant
- statement from the complainant to accompany a DAT recording and diary sheets
- statements from officers who have visited the complainant and/or perpetrator
- statements from other professional witnesses or persons
- transcripts of PACE interviews with the perpetrator
- DAT recordings
- reports containing the outcome of any noise monitoring exercise.
The following are examples of the type of information which needs to be recorded:
- time complaint received
- time of officer's arrival outside the complainant's premises
- observations of any noise noted outside the premises
- detailed observations of noise inside the complainant's premises, both extraneous noise and the noise complained of i.e. volume (subjective and measured), frequency and tone (heavy bass beat, high pitched, whine or drone, etc.), type of music, vocals audible, continuous or intermittent, windows open/closed, most affected room(s).
- detailed observations as to how the noise is affecting the complainant's enjoyment of their property, e.g. disturbing sleep, unable to study/concentrate, interferes with watching TV, unable to relax
- confirmation as to how the source of the noise was established, if no visit made at the time (i.e. listen at the letterbox, standing next to the outlet of the extraction system), etc.
- time the officer left complainant's premises
- time of arrival of the officer at the perpetrator's premises
- detailed account of discussions and outcome of visit to the perpetrator's premises including name and description of person responsible, caution if given, etc.
- time officer left perpetrator's premises
1.4.1 Diary Sheets, Time Plots and DATs
It is unlikely that complainants with Category 1 complaints will need to complete diary sheets and time plots. Officers may wish to encourage the completion of these sheets for the aforementioned Category 2 and Category 3 complaints where repetition is a factor. Time plot sheets are to be used in conjunction with DAT recorders or automated Annoyance Recording Systems and diary sheets in order to plot an accurate history of the offending noise(s) and provide a visual record of disturbance that may be submitted to the court. The case officer/lead officer should draw up the time plot based upon information contained in the diary sheets summarising the frequency and brief description of the noise events being complained of.
The complainant should return the completed diary sheets to the case officer/lead officer after a representative time period, e.g. 2-4 weeks for assessment. The complainant should be advised to continue maintaining these sheets, as they may be useful to them should they wish to pursue their own action under s.82 of the EPA or for annoying creatures under section 49 of the Civic Government (Scotland) Act 1982. The diary sheets and time plots alone may present insufficient evidence for a notice to be served by the Council on the perpetrator. Further corroborative evidence may be required in the form of DAT recordings or recordings made on an automated Annoyance Recording System, statements by professional witnesses or other affected parties. In addition, the complainant will be required to give evidence in Court concerning the contents of these sheets and also to testify that any noise captured on a DAT recording is from the source premises. The case officer/lead officer therefore must also be satisfied that the complainant would be capable of performing adequately as a witness.
The case officer/lead officer should advise the complainant on how to complete the diary sheets and time plots and their relevance to the investigation. The completed sheets should be kept on file until the investigation is complete and a decision has been made as to whether formal action can be taken. If there is insufficient evidence to pursue formal action the sheets should be returned to the complainant enclosed with a letter confirming this and a copy retained on the file. If it is decided there is sufficient evidence to pursue formal action the sheets must be retained. In the event of an appeal against a notice or prosecution proceedings, the diary sheets and time plots should be available for exhibit. The complainant should be provided with a copy of the diary sheets.
1.5 Assess and Evaluate Evidence
The guidance requires a review of the investigation into a complaint within a maximum time period if a notice has not been served by then. The case officer/lead officer should first discuss the case with the complainant if there has been no recent contact between them, and establish the current position. The case officer/lead officer should then meet with the service manager and decisions will be made regarding:
- the use of alternative strategies to gather evidence
- whether a further warning letter should be sent to the perpetrator
- if a meeting with the perpetrator is appropriate
- referring and/or sharing the matter and any evidence gathered with other enforcement agencies.
After a further maximum period (to be agreed on a case by case basis), if formal action still has not been taken, the case officer/lead officer must fully consider all of the evidence gathered, including visits by Duty Officers, diary sheets, time plots, DAT recordings, statements from other persons, noise monitoring reports, etc. The officer must then decide if there is sufficient evidence to establish statutory nuisance in Court. Obviously a notice must be served if the case officer/lead officer is satisfied there is sufficient evidence to act.
If the case officer/lead officer decides there is not, the case must be discussed with the service manager who will review the investigation and may agree to close the case if satisfied that all reasonable steps have been taken to investigate the matter properly. Otherwise the service manager will extend the investigation period further, identifying further strategies and/or alternative action that should be implemented.
1.6 Closure of Case
A file record must be prepared summarising the reasons and justifications for closing the case, e.g. efforts made to gather the evidence; inability to gather sufficient, reliable evidence; complainant unwilling to act as witness in proceedings.
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