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APPENDIX 7 Legal Response to Common Concerns raised by Local Authorities

The following legal questions were raised by local authorities during the development of the revised guide. A legal opinion on the questions was sought from two sets of barrister's chambers and there was considerable agreement in the opinions provided. Those opinions are reproduced below for information purposes. However, local authorities are advised not to rely on these opinions on their own and to seek their own legal advice on specific legal issues in the context of specific cases and their own circumstances

1.0 Question 1: Member Agreement/Ratification

What is the legality or otherwise of local authority policies and procedures in dealing with noise where these have been developed solely by officers of the council and have not been subject to member agreement/ratification. For example the common practice of issuing diary sheets to complainants and writing the complaint off, if nothing further is heard from them as an alternative to instituting a proper officer led investigation into the matter."

Opinion

1.1 The duties created by Pt III EPA 1990 are placed upon the local authority ⁵⁴. Local authorities are empowered ⁵⁵ to make arrangements for the discharge of such duties by delegation to committees ⁵⁶, sub-committees or officers. This includes the power for sequential delegation from authority to committee to sub-committee to officer unless the authority or committee provide otherwise ⁵⁷. Delegation to a named officer (e.g. 'the principal environmental health officer') rather than to the named individual in post at the time of delegation is permissible and is commonly the norm ⁵⁸. Neither the Local Government Act 1972 ⁵⁹ nor the EPA 1990 requires noise management action to be taken by a resolution passed by the authority. Therefore, ratification is not required.

1.2 Accordingly, the local authority may delegate the formulation and adoption of noise management policy to officer level without need for ratification by members. That delegation must be by formal resolution otherwise it will be ultra vires ^60. In addition an authority will routinely delegate the operation of that policy at case level to those same officers. In such circumstances the officer is entrusted with both formulation and implementation of policy. Such a position is lawful but has the potential for:

• a lack of accountability for policy formulation and implementation
• an inability to review good/bad practice
• an inability to monitor individual case management; and
• a risk that case level officer decisions in relation to the individual case are based on practical/operational thresholds rather than the statutory duties placed on the authority.

1.3 Regardless of such delegation arrangements the authority remains under the statutory 'investigative' duties ⁶¹:

• to cause its area to be inspected from time to time to detect any statutory duties which ought to be dealt with; and
• to take such steps as are reasonably practicable to investigate where a complaint has been made to it by a person living within its area.

1.4 The nature and extent of the practicable steps required to comply with the duty to investigate will primarily be determined by the nature and seriousness of the complaint received. However, the resources of the authority set against their local conditions and liabilities will not be discounted. The courts will allow the authority a margin of appreciation on formulating and applying a noise management policy which determines practicable steps by reference to, amongst other considerations, the officer time and other resources available to it. Therefore, in circumstances where repetition appears to be a relevant factor, a complaint of 'standard' domestic noise intrusion caused by unreasonable neighbours may be adequately dealt with in the first instance by the provision of noise diaries and information on completing the same. However, if this is employed as a standard first stage step for all complaints combined with a practice of 'closing' that complaint file if the diary is not completed and submitted it is unlikely to adequately discharge the investigatory duties.

1.5 Having regard to the legal duty to investigate authorities would be well advised to ensure, when responding to complaints of noise nuisance:

• that the noise management policy and practice provides a range of practicable (and perhaps 'incremental') investigative steps available to that authority
• that the noise management policy provides guidance/information to the complainant as to what investigative step(s) is/are to be applied in response to their complaint;
• and that the individual response to each case is proportionate to the nature and severity of the complaint and to the likely effect on the complainant.

2.0 Question 2: What Constitutes "Good Service"

"What constitutes good service of a statutory notice, bearing in mind the council's delegation of powers. For example, the custom of getting notices pre-signed with the chief officer's facsimile signature."

Opinion

2.1 This question relates to content as much as to service, refer to Appendix 3.8. This opinion therefore deals with the instant (signature) question only. I have assumed that 'statutory notice' refers to an abatement notice pursuant to the EPA 1990.

2.2 Section 80 EPA 1990 does not require an abatement notice to bear a signature authenticating the same. Indeed the Act does not prescribe a form for that notice nor include any provision for the Secretary of State to prescribe a form by regulation. In such circumstances authentication should follow the general requirements of the Local Government Act 1972 ⁶².

2.3 The abatement notice must be signed on behalf of the authority by the proper officer of the authority ⁶³⁶.

2.4 A notice purporting to bear the signature of the proper officer is deemed, until the contrary is proved, to have been duly given by the authority of the local authority ⁶⁴.

2.5 That signature can include a facsimile of a signature by whatever process produced ⁶⁵.

2.6 The 'proper officer' is the officer appointed for this purpose by the local authority ⁶⁶. Where the authority is a London borough this is the proper officer appointed by the borough ⁶⁷. A "proper officer" should be the competent person within the council, see also Section 4.11 of the Guide.

3.0 Question 3: Recipient of Notice

"In the case of domestic noise, under what circumstances is it appropriate to serve notices on persons other than the occupier of premises, e.g. son, daughter, friends, relatives who it is alleged are personally responsible for creating the noise, notwithstanding the fact they may hold no legal title to the property and/or may be a minor".

Opinion

3.1 The recipient need not hold any legal or equitable interest in the premises from where the nuisance emanates. The recipient need not be an authorised occupier of the premises. The proper recipient in different circumstances is specified by the statute.

3.2 Where, for the purposes of section 80 of the Environmental Protection Act 1990, the authority are satisfied that unreasonable domestic noise is:

• likely to cause a nuisance, the abatement notice should be served on the owner or occupier of the premises
• causing a nuisance or is likely to cause the recurrence of a nuisance the abatement notice must be served on the person responsible, or if more than one person on each of them. (Note: it is quite possible for a noise nuisance to result from the concurrent act of one person and the default or sufferance of another)
• causing nuisance but the person responsible cannot be found (including where the individual within the household responsible cannot be identified) the abatement notice should be served on the owner or occupier.

3.3 Where the person primarily responsible is a minor the notice should be served both on them and on the adult residing with them and having parental responsibility for them. (Note: A child under 14 years cannot normally be prosecuted for a breach of a notice although noise making equipment belonging to a child can be seized).

4.0 Question 4: Timely Service of Notice after Nuisance Confirmed

"Whether the reliance on an informal approach to resolving statutory nuisance, rather than the automatic response of serving an abatement notice is ultra vires, bearing in mind the express duty contained in section 80 of the Environmental Protection Act 1990. An informal ⁶³approach appears to be in sympathy with the Cabinet Office Concordat on the use of enforcement powers."

Opinion

4.1 At the point the authority is satisfied that a statutory nuisance exists or is likely, to recur the Act imposes a mandatory duty to serve a notice ⁶⁸. This is a matter of fact and there is no discretion ⁶⁹. However, the Act does not prescribe a timescale or deadline for serving such notice, nor does it impose any duty to consult the intended recipient prior to service of the notice.

4.2 The Audit Commission contend that abatement notices should be served in all but exceptional circumstances ⁷⁰. The report is silent in timescale.

4.3 The Court of Appeal have considered whether authorities have a duty to provide, or intended recipients have a right to, pre-notice consultation directed at informal resolution ⁷¹ and held:

• there is no duty on the enforcing authority to consult the alleged perpetrator before serving the abatement notice
• it will often be appropriate to consult the alleged perpetrator before serving the abatement notice but the authority should be wary of being drawn too deeply and lengthily into scientific or technical debate and warier still of unintentionally finding itself fixed with all the obligations of a formal consultation process ; and
• where an assurance or promise of an informal pre-notice consultation is given by the enforcing authority or can be implied from their established policy or practice they will be bound by it unless it is fair to release them from it ⁷².

4.4 The Enforcement Concordat issued by the Cabinet Office expressly provides that before formal action is taken an officer will provide an opportunity to discuss the circumstances of the case and if possible resolve points of difference unless immediate action is required (for example in the interest of health and safety or environmental health protection or to prevent evidence being destroyed). Authorities who sign the Concordat commit themselves to applying it, although it has no legal force. Authorities which do not sign it must still have regard to it and give it due weight as current relevant guidance.

4.5 Having regard to the Act, to the Audit Commission report, to the Enforcement Concordat, and to the case law the following guidance can be given:

• the Act does not require an authority to adopt a pre-notice informal resolution step as part of its noise management policy
• the Act does not preclude an authority from adopting a pre-notice informal resolution step as part of its noise management policy for appropriate cases
• if an authority signs up to the Cabinet Office Concordat it should attempt an informal resolution where it is appropriate, if they do not, they will be required to give it due weight as prevailing relevant guidance but are not bound to apply it
• if an authority has given an assurance or promise of such a step or the same can be implied from their established practice they will be bound to provide such a step unless it is fair in the circumstances of the individual case to rescind from that assurance
• in any event such a step is unlikely to be appropriate in cases where immediate action is required ⁷³ unless it will lead to an earlier resolution of the nuisance
• if such a policy is adopted the time allocated for such a step (i.e. the delay before issuing a statutory notice) should be no longer than that which is proportionate to the nature and severity of the nuisance
• if such a policy is adopted such a step should be summary and avoid complex or lengthy technical/expert debate or consultative steps ; and
• such a policy should not create an undue delay in the service of an abatement notice after the investigative determination that a statutory nuisance exists having regard to the circumstances of the individual case.

5.0 Question 5: Poor Sound Insulation - Service of Notice

"In light of the House of Lords decision in Baxter, whether there remains the scope to serve statutory abatement notices in cases where the alleged noise nuisance arises as a consequence of inadequate sound insulation."

Opinion

5.1 B was a tenant of a flat created from the conversion of a house. She had separate flats above and below her. She was disturbed by the noise of the ordinary domestic activities of her neighbours penetrating into her home due to the lack of sound insulation. She claimed that her landlord was in breach of the implied contractual covenant of quiet enjoyment and that the landlord was liable at common law for the nuisance caused by the noise. Her claim failed in the County Court (twice). The Court of Appeal dismissed her appeal. The House of Lords unanimously dismissed B's further appeal to them. The ordinary normal use of their homes by the neighbours was not capable in law of constituting a common law nuisance. The landlord could not be liable in nuisance for having let the adjacent flats to those neighbours or for permitting their normal use of those flats.

5.2 Contrary to some commentary on this case, the door has not been closed on the use of civil proceedings or prosecutions for statutory nuisance, but merely restricted the circumstances in which such actions can be taken.

5.3 The type of statutory nuisance relevant to noise intrusion between domestic dwellings is that found in section 79(1)(a) of the Environmental Protection Act 1990 which provides that any premises in such a state as to be prejudicial to health or a nuisance will be statutory nuisance. This definition is to be read to give effect to the disjunctive and so creates two limbs either of which is sufficient to establish the statutory nuisance ⁷⁴. For a statutory nuisance to be established on the nuisance limb a common law nuisance is required. Where the noise complained of emanates as normal domestic noise in the source dwelling it will not, after Baxter, constitute a common law nuisance. It cannot therefore constitute a statutory nuisance. An environmental health officer or building surveyor with appropriate knowledge and expertise can give expert opinion evidence as to whether a matter is prejudicial to health, medical evidence is not required ⁷⁵. However, there remains some doubt ( see Section 4.3.5 and Appendix 1.2) whether the prejudice to health limb can be invoked in a noise nuisance case.

5.4 Authorities should be aware that a potential defence to such notices may have been provided two years after Baxter by the House of Lords in Birmingham City Council Vs Oakley⁷⁶ when allowing (by a 3 : 2 majority) the local authority's appeal against a finding that a house which was so poorly laid out that a person using the toilet had to wash their hands in the kitchen sink or travel through the kitchen to use a basin in the bathroom was in such a state as to be prejudicial to health within the scope of section 79(1)(a) Environmental Protection Act 1990. Lord Hoffman considered that section 79(1)(a) contemplates a case in which the dwelling as it stands presents a threat to the health of occupiers or neighbours which requires summary removal. Lord Slynn considered that the words 'such a state' in that section were directed to the presence in the dwelling of some feature which in itself is prejudicial to health as a source of illness, disease or infection. The analogy with noise cases was considered by the House with Lords Hoffman & Millet expressing doubts whether the 'classic' traffic noise and inadequate insulation case London Borough of Southwark Vs Ince⁷⁷ was correctly decided. It was not however, overruled.

6.0 Question 6: Reliance on Diary Sheets for Service of Notice

"Whether the institution of formal action, i.e. notices and legal proceedings, on the basis solely of DAT recording data is ultra vires."

Opinion

6.1 The nature of the evidential requirements to institute action will be apparent from the statute providing the power and/or duty to take that action.

6.2 In some instances acoustic measurements are both required by a statute and sufficient as evidence to issue notices and proceedings, for example the Antisocial Behaviour etc (Scotland) Act 2004.

6.3 In some instances acoustic measurements will be required and be sufficient as evidence to compare noise levels against agreed limits for the purpose of issuing notices and proceedings, for example dealing with construction site noise under the Control of Pollution Act 1974.

6.4 In some instances acoustic measurements are not required by statute and notices can be issued and proceedings prosecuted without such measurements, for example the Environmental Protection Act 1990.

6.5 Where the notice and proceedings will be based on a statutory nuisance within the categories specified in section 79(1) of the Environmental Protection Act 1990, acoustic measurements alone are unlikely to be sufficient.

6.6 Nuisance is a matter of both fact and law. Something which arises or is generated on one premises and interferes with the use and enjoyment of other premises is a nuisance. Evidence will be required of the nature, timing, and duration of the nuisance along with prevailing local conditions ⁷⁸. Evidence on the effect on use and enjoyment cannot be given by measurements.

6.7 For the purposes of the Environmental Protection Act 1990 even the breach of an abatement notice may be proved by the 'simple listening' evidence of an experienced expert without the need for measurements ⁷⁹.

7.0 Question 7: Regulation of Investigatory Powers(Scotland) Act 2000 ( RIP(S)A) and Noise Measurement Issues

"Whether or not the provisions of the Regulation of Investigatory Powers(Scotland) Act 2000 ( RIP(S)A) applies to routine noise monitoring and if so what provision should be made by local authorities."

Opinion

7.1 The Regulation of Investigatory Powers(Scotland) Act 2000 (' RIPA') introduced new provisions relating to the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of means by which electronic data protected by encryption or passwords may be decrypted or accessed.

7.2 Part II applies to directed surveillance ⁸⁰, intrusive surveillance ⁸¹, and the conduct and use of human intelligence resources.

7.3 The provisions relating to human intelligence resources are not relevant to the Noise Management Guide. I therefore consider noise monitoring against only the definitions of directed and intrusive surveillance.

7.4 For the purposes of this Opinion I assume that routine noise monitoring will be by:

(a) simple listening and diary keeping by neighbouring occupiers without the knowledge of the occupiers of the source premises; and/or

(b) simple listening and record compiling by an officer of the authority without the knowledge of the occupiers of the source premises; and/or

(c) noise recording by a surveillance device placed in the affected premises with the consent of the occupier; and/or

(d) noise recording by a surveillance device placed outside of the source premises without the knowledge of the occupiers of the source premises.

Categories (a)-(d) all fall within the definition of surveillance ⁸².

7.5 Category (a) or (b) simple listening is unlikely to be directed surveillance as, although it is covert, it is not likely to result in the obtaining of private information about a person ⁸³. It is not intrusive surveillance as it does not involve the presence of an individual or of a surveillance device in the source premises. I am of the opinion RIP(S)A will not apply to category (a) or (b) surveillance.

7.6 Category (c) noise recording is not covert and so will not be directed or intrusive. I am of the opinion that RIP(S)A will not apply to category (c) surveillance.

7.7 Category (d) noise recording is covert. It is unlikely to be directed as it is unlikely to result in the obtaining of private information about a person. By its very nature it is listening to noise as it occurs and can be heard outside of the source premises. It is unlikely to be intrusive as the recording device is outside of the source premises and will not consistently provide information of the same quality and detail as might be expected to be obtained from a device actually present on the premises ⁸⁴ as, again, it is recording the noise as it is heard outside of the source premises.

7.8 In conclusion I am of the opinion that the RIP(S)A 2000 provisions will not apply to the noise management surveillance envisaged by the Guide.

8.0 Question 8: Sharing information between Local Authority Departments and Data Protection Implications

"Whether some local authority departments such as Council Tax are being over-cautious in refusing to divulge property ownership details to their Environmental Health colleagues citing the constraints imposed by the Data Protection Act. As this vital information is held by one arm of the public body then should it always be made available to another arm in the execution of its statutory duties to resolve statutory nuisances?"

Opinion

8.1 The Data Protection Act 1998 regulates the disclosure of information relating to individuals. Where a council tax department hold details which record the identity of the individual(s) owning property those details will constitute personal data ⁸⁵.

8.2 The data controller for the authority may process ⁸⁶ that information to a third party if it necessary for administration of justice, for the exercise of any functions conferred by or under enactment, for the exercise of any other functions of a public nature exercised in the public interest, or for the purposes of legitimate interests pursued by the data controller and/or the third party ⁸⁷.

8.3 For these reasons, where direct approaches to the occupiers of premises have failed to obtain sufficient ownership details for the purposes of serving statutory notices I am of the opinion it is perfectly lawful, fair and proportionate for the data controller managing personal council tax data obtained by council tax declarations to disclose that information to environmental health services as a third party. As can be seen not one but several Schedule 2 conditions are satisfied.

8.4 Alternatively, another method of obtaining confirmation of the identity of the owner available to the local authority is to search the Register of Sasines or the Land Register entry for the property.

9.0 Question 9: Complaint Investigation

"Whether it is ultra vires for local authorities to have in place policies which remain highly selective regarding the type of noise complaint they choose to investigate out of hours, e.g. those they consider to be capable of causing a serious public nuisance such as intruder alarms, large parties, etc. Bearing in mind the duty placed on local authorities in section 79(1) of the Environmental Protection Act 1990 to take such steps as are reasonably practicable to investigate the complaint."

Opinion

9.1 The investigative duty has two aspects ⁸⁸ -

• a duty to cause the authority area to be inspected from time to time to detect any statutory nuisances which it ought to deal with ; and
• where a complaint of a statutory nuisance is made to the authority by a person living within its area the duty is to take such steps as are reasonably practicable to investigate the complaint.

9.2 The periodic inspection duty creates an absolute duty to investigate and will not be satisfied by inaction, a single inspection, or individual inspections in response to complaints ⁸⁹.

9.3 By contrast, the reactive inspection creates an absolute duty to investigate but expressly limits that duty to such steps as are reasonably practicable. It is this duty which determines the policy and practice relating to an out of hours service. In determining that policy the considerations discussed earlier are relevant.

9.4 The duty to investigate is not itself qualified ⁹⁰. A policy which is so selective/restrictive that it negates that unqualified duty will be unlawful. However, the Act does not dictate a timescale for responding to a complaint nor the nature or extent of the response. The response required is that which is reasonably practicable. It is for the authority to determine what is reasonably practicable.

9.5 Providing the 'out of hours' investigatory response to a complaint is appropriate and proportionate to the nature and severity of the complaint and to the likely effect on the complainant, it will be lawful.

10.0 Question 10: Legal Status of NMG

"A general opinion as to the legal status of this guidance document, in terms of its ability to be cited in legal proceedings."

Opinion

10.1 In many areas of law affecting local government and the allocation of public resources individual statutes will make express provision for Codes of Guidance to be issued by the Secretary of State pursuant to secondary legislation after consultation with local government and interested parties. That is not the position here.

10.2 Section 161 of the EPA 1990 makes provision for the Secretary of State to make regulations or orders by statutory instrument. Guidance issued in this way would have the force of secondary legislation. The previous Noise guidance was not issued by regulation or order. For the purposes of this opinion I therefore assume that this 'Noise Management Guide' will not be issued in this way.

10.3 Where a statute or secondary legislation requires the authority to "have regard" to the guidance when carrying out it's duties and functions under that statute ⁹¹ and an authority fails to act in accordance with or depart from that guidance they will be open to public law challenge ⁹² requiring an authority to act to discharge a duty imposed by the statute and that failure or departure will be a relevant consideration in civil private law proceedings and in criminal law proceedings.

10.4 Where an authority adopt such a Code despite not being required to do so by statute they will be required to consider it and give it due weight as prevailing guidance. Their failure to comply with the Code or departure from the same will be a relevant consideration for a court ⁹³ but may be disregarded by the court in an appropriate case ⁹⁴⁹⁴.

10.5 The Control of Pollution Act 1974 expressly provides for the Secretary of State to approve Codes of Practice for the control of noise. Such Codes are used as evidential benchmarks in court proceedings. None of the other statutes relevant to this Guide, and in particular the other main instrument, the EPA 1990, provide for any such Codes of Guidance.

10.6 Therefore the status to be given to this Noise Management Guide in legal proceedings will depend upon whether and how it is adopted by local authorities. The following approach by the courts can be assumed from their treatment of similar situations involving the obligations of local authorities:

• where the statute requires the authority to have regard to the Guide (which none at present do) a failure to comply with the Guide or a departure from the Guide without good reason will evidence a breach of the authority's obligations under the statute
• where the statute does not require the authority to have regard to the Guide failure to do so or departure from the Guide without good reason will only evidence a breach of the authority's obligations if it is adopted and ignored by an authority or if it is perverse ⁹⁵ in the circumstances not to follow the Guide
• where the statute does not require the authority to have regard to the Guide but the authority's noise policy adopts the Guide it may evidence a breach of the authority's obligations if the authority depart from the Guide without good reason
• where the statute does not require the authority to have regard to the Guide but the authority's noise policy adopts the Guide its practice may depart from the Guide in any case for good reason.
• where the statute does not require the authority to have regard to the Guide and the authority's noise policy does not adopt the Guide the court may nevertheless have regard to the provisions of this Guide (as an 'industry standard of good practice') when considering whether the authority's conduct in an individual case complies with it's statutory obligations.

10.7 A simple route is to formalise the Noise Management Guide and make clear its status and effect may be to make provision in the Cabinet Enforcement Concordat that authorities signing up to the Concordat thereby agree to adopt and comply with the Noise Management Guide.

11. Question 11: Motor Vehicles on the Street

"Can motor vehicles on the street be dealt with as a statutory nuisance under the Environmental Protection Act 1990? If so, are there any known examples where local authorities have successfully applied these powers to deal with problems such as 'engine revving', 'street racing'; 'loud car music systems' etc?"

Opinion

11.1 s79(1)(ga) [inserted by the Noise and Statutory Nuisance Act 1993 makes noise that is prejudicial to health or a nuisance and is caused by a vehicle inter alia in a street or road a statutory nuisance. However, traffic noise is excluded. In the absence of authority it would seem that both engine revving and street racing would rank as traffic noise but that loud car music systems would not be caught by the exception and so could constitute a statutory nuisance.

12. Question 12: Corroboration of Evidence

"What would constitute corroboration of evidence during the investigation of a noise case by a local authority? Are statements required from at least two officers or will the evidence of a single authorised officer suffice on its own or supported by evidence such as noise measurement data?"

Opinion

12.1 Corroboration of evidence means an item of evidence emanating from an independent source which can be used to support another item of evidence. In a noise case corroboration could include, inter alia, corroborative evidence given by environmental health officers, victims of noise as well as measurements of noise taken by instruments.

12.2 In Scotland in a criminal trial no crucial fact (for example, that noise exceeded a certain level or ranked as a statutory nuisance) may be proved by evidence from only one source, however credible, except where statute otherwise provides ( Morton v HM Advocate 1938 JC 50). In other words, the proof of crucial facts must be by reference to more than one item of evidence.

12.3 Corroboration of a crucial fact may be obtained by direct evidence of two or more witnesses (e.g. two EHOs or victims of noise) who testify to the same fact will constitute significant corroboration. It is not necessary that the witnesses should corroborate each other. Rather, they must simply agree with each other on the material points. In a noise pollution case, for example, environmental health officers must agree that e.g. a statutory nuisance exists or that noise exceeded a certain level, etc.

12.4 Noise level readings would rank as direct evidence. A single EHO who has taken relevant noise measurements could, therefore, state in court that the noise which he heard emanating from the premises in question amounted to a nuisance. This would be direct evidence. However, since both forms of evidence (the contention that a nuisance exists and that noise exceeded a certain level and the measurements) derive from the same source (i.e. one EHO) they would not rank as independent and would not, therefore, seem admissible. Some other form of corroboration, preferably that of another EHO would be required.

12.5 The presence of acoustic measurement devices/evidence is not a precondition for a conviction of statutory nuisance (see, e.g. Westminster CC v McDonald [2003] EWHC 2698.

13. Question 13: Seeking Interdicts for Noise

"Are the same powers available to a Scottish local authority as are enjoyed by English and Welsh local authorities to seek an Interdict (injunction) in its own name to resolve a case of noise nuisance where summary proceedings would not achieve a satisfactory outcome? How much more difficult is this to achieve in Scotland where summary proceedings for offences under the EPA are taken by the Procurator Fiscal and not in the local authority's own name?"

Opinion

13.1 Similar powers are enjoyed by both English and Scottish local authorities to obtain an injunction/interdict under the EPA. A Scottish authority has general power to invoke civil proceedings under s189 of the Local Government (Scotland) Act 1973. The Procurator Fiscal need not, therefore, be involved at all.

13.2 The local authority would have to come to the conclusion that the provisions of the EPA would afford an inadequate as opposed to a less convenient remedy before it could successfully invoke s81(5)( Vale of White Horse DC v Allen [1997] EnvLR 212.

14. Question 14: Seizure of Equipment

"Are the same powers of seizure of equipment available to Scottish local authorities as are available to English and Welsh LA's? Is a Scottish LA empowered to apply to the court for a Forfeiture Order, upon the conviction of a defendant, notwithstanding the fact that the associated prosecution was not taken in its own name but by the Procurator Fiscal?"

Opinion

14.1 The Noise Act 1996 does not apply to Scotland. Under s54(2A) of the Civic Government (Scotland) Act 1982 a police constable has the power to seize musical equipment, etc which has been used to reasonably annoy any other person and the noise maker has failed to desist on being requested to do so.

14.2 An authorised officer of a local authority can (as explained above) seize equipment under the Anti-Social Behaviour (Scotland) Act 2004. A forfeiture order may be made under Sch 1 para 3 of the Act by the court. No express power is given for the local authority to apply to the court for such an order.

15. Question 15: Prosecution for Breach of Notice

"How is the presumption of guilt (implied by section 80 (4) of the EPA where a party on whom an abatement notice is served, without reasonable excuse, fails to comply with any requirement or prohibition imposed by the notice) reconciled with the reality that the ultimate decision to bring criminal proceedings against the 'guilty' party is out with the local authority since the decision to institute proceedings rests exclusively with the Procurator Fiscal?"

Opinion

15.1 Once the defender has laid the proper evidential basis that he has a reasonable excuse it is for the prosecution to satisfy the court as to the criminal standard of proof that the excuse was not a reasonable excuse ( Polychronakis v Richards and Jerrom Ltd [1998] JPL 588. The Procurator Fiscal would, therefore, in practice always have to take into account the likelihood of such an excuse being raised before he/she instituted proceedings under the EPA.

15.2 It should be emphasised that there is no presumption of guilt under the section. It is up to the Crown to prove guilt.

16. Question 16: Poor Sound Insulation and Statutory Nuisance

"What is the effect upon Scots law of the House of Lords' judgment in the Mills and Baxter cases? In particular are Scottish LA's, unlike their English and Welsh counterparts, still at liberty to serve abatement notices under section 80 of the EPA in order to address deficiencies in the sound insulation of properties?"

Opinion

16.1 I have little doubt that Baxter would be followed by the Scottish courts in terms of action by a Scottish local authority under s79(1)(g) of the EPA. Noise of similar nature would not, therefore, rank as a nuisance under the section. [The nature of the sound insulation would seem to be quite irrelevant. No matter how inadequate such insulation is it cannot transform 'everyday noises which people make in their own homes into an actionable nuisance!!].

17. Question 17: Out Of Hours Services and Application of RIPSA

"Is it necessary for Scottish la's to have the express power prescribed for them to establish out of hours noise services explicitly spelt out as is the case in the Anti-Social Behaviour Act? Presumably such a power is already available to Scottish LA's, as evidenced by the number of authorities who already provide out of hours noise services. Will such a prescription, as provided for in this bill, preclude local authorities from setting up out of hours noise services in circumstances where they elect not to adopt the provisions of the bill?"

Opinion

17.1 The provisions of the Antisocial Behaviour (Scotland) Act 2004 only apply to any area if the relevant local authority has adopted the Act. The local authority has complete discretion as to whether it does so. Even if the authority did adopt the Act it need not specify night noise as falling within the relevant noise control period (s41(2)(b)).

17.2 Certain local authorities have operated a night time noise service for many years. The power to do so would seem to be contained in s64(2) of the Local Government (Scotland) Act 1973 which allows local authorities wide discretion as to the hours any of its officers work. The 2004 Act will have no bearing on how staff are deployed even if the provisions of the Act are not adopted. The local authority could ignore the Act and still provide such a service.

17.3 The Regulation of Investigatory Powers (Scotland) Act 2000 ( RIPSA) was enacted to protect human rights in the wake of the Human Rights Act 1998. Under s6 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. As far as routine noise surveillance which is carried out by local authorities is concerned the most important Convention right is enshrined in Art 8 of the ECHR. This guarantees the right to respect for both private and family life, one's home and correspondence. However, the right conferred by Art 8 is not absolute. Of importance in the present context is the right of a public authority to interfere with such right inter alia for the prevention of crime and the protection of health or for the protection of the rights and freedoms of others No interference can take place unless such interference is authorised by law.

17.4 One now considers the extent, if any, to which investigations by environmental health officers would firstly, come within the terms of RIPSA and, secondly, flout s6 of the HRA 1998 by infringing Art 8 of the ECHR.

NOISE SURVEILLANCE AND RIPSA

S1 of RIPSA applies, inter alia, to 'surveillance' which, under s31, includes, 'monitoring, observing or listening to persons, their conversations or their other activities or communications and recording anything monitored, observed or listened to in the course of surveillance and surveillance by or with the use of a surveillance device. RIPSA distinguishes between 'directed' and 'intrusive' surveillance.

Is the monitoring of noise 'directed' or 'intrusive'?

Under s1(2) surveillance is, 'directed' if it is, 'covert' but not 'intrusive' inter alia, if it is likely to result in the obtaining of private information (defined s1(9) as information relating to the person's private or family life) about a person. Under s1(8) surveillance is 'covert' if, and only if, it is carried out in a manner which is calculated to ensure that persons who are subject to it are unaware that it is or may be taking place Investigations by local authorities into complaints by individuals about the noisy conduct of neighbours is normally done covertly. It would seem that the monitoring of complaints concerning 'noisy neighbours' by use of a sound level meter, irrespective of the nature of the noise being monitored, would not involve the obtaining of 'private information' (which is defined under 1(10) as relating to the person's private or family life) about a person and, therefore, the surveillance would not rank as 'directed' surveillance. This is so because the generation of environmental noise is normally impersonal and lacks intimacy). However, the use of a tape-recorder which is capable of recording conversation could rank as directed surveillance.

Surveillance is 'intrusive' if it is both covert and involves, inter alia, the use of a 'surveillance device,' an expression which is not defined in the Act but would probably include a sound level meter. However, under s1(5) surveillance which is carried out by means of a surveillance device in relation to anything taking place on any residential premises but is carried out without that device being present on the premises is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises. The use of a sound level meter positioned on the premises of a complainant would not, therefore, rank as intrusive since the device could not in that situation provide the same quality of acoustic detail. The use of tape recorders in the investigation of noise complaints is more problematic. However, I am of the view that a tape-recorder placed on the premises of a noise victim/complainant, by virtue of its not being able to provide information of the same quality and detail as might be expected to be obtained from a device which is actually present on the premises of the author of the noise, would, again, not rank as intrusive.

In conclusion, it would seem that the routine investigation by a local authority could rank as directed surveillance if tape recorders are used.

The conduct and use of 'covert human intelligence' sources is also covered in RIPSA (s1(1)). A person is a covert human intelligence source if the person establishes or maintains a personal or other relationship with another person for the covert purpose of using the relationship to facilitate the obtaining of information or to provide access to any information to another person or covertly discloses information obtained by the use of such a relationship or as a consequence of such a relationship (s1(7)). In order to rank as a covert human intelligence source it seems vital that either the establishment or the maintenance of the relationship is effected or allowed to remain in existence with the dominant intention of eliciting information.

It has been suggested that if an environmental health officer, in response to a noise complaint, requests the complainant to keep a noise diary about the noise being made by another person, this would make the officer 'a covert human intelligence source.' In my opinion this would not seem to represent a correct view since the professional relationship which obtains between the officer and complainant is prefaced on the officer simply wishing to investigate and abate the nuisance in question should it be found to exist. The main intention of the establishment or subsequent maintenance of the relationship, therefore, is not to provide access to information about another person. [ Aliter the cultivation of relationships by the victim himself with the 'culprit'].

Even if the conduct of the type which is mentioned above were to rank as either directed or covert surveillance authorisation could be granted on the basis that such conduct is necessary for the purposes of protecting public health (s6(3) and 7(3) resp. This would certainly seem to be the case if one adopted the wide meaning accorded to the expression by the WHO as including social and mental well-being. For the same reason such intrusion would be caught under Art 8(2) of the ECHR which allows interference with ones family life, home etc on the same grounds.

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