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Sound Advice on Noise
Section 1
What to do if you have a problem with
noise
You can't stand your neighbour's stereo playing all
night, so what do you do? Don't suffer in silence. You
could try talking to your neighbour - explain (politely)
that you are being disturbed by her/his noise. You might
find this difficult and confrontational, but often people
are unaware that they are causing a problem. Your neighbour
may therefore be happy to reduce the noise she/he is
making. However, approach your neighbour carefully if you
think she/he might react angrily. Remember that we may all,
from time to time, make a noise without realising we are
disturbing other people. The problem is not always one of
inconsiderate behaviour - even homes with good sound
insulation may not cope with noise from powerful modern
equipment.
Similarly, if the noise is from a local business or
manufacturer, approach them directly.
If the noise continues, you could start a noise diary,
recording dates and times of the nuisance, and the effects
it has on you e.g. that you cannot sleep at night. You
could write to your neighbour, using the information in
your diary to support your case, to emphasise the
seriousness of the problem.
Mediation - reaching agreement
If your neighbour does not reduce the noise she/he is
making, and the noise is persistent, you could consider
mediation - an independent third party will listen to the
views of both sides and try to help them reach an
agreement. You might find meeting a "difficult" neighbour
face to face stressful, but mediation is increasingly
popular, and many people find it an effective method of
resolving disputes. A number of mediation services are
listed at the back of this booklet. Contact your local
mediation service or local authority for advice.
It is usually better to resolve neighbour disputes
informally - you should only contact your local authority
or turn to legal action when all other approaches have
failed. Complaining formally will probably worsen your
relationship with your neighbour.
How do I complain?
If the problem persists, and you do wish to complain
formally, you could take your complaint to
your local authority. Local authorities are legally obliged
to investigate complaints of noise coming from premises
(land and buildings) and vehicles, machinery or equipment
in the road.
Under sections 80 and 81 of the Environmental Protection
Act 1990 (as amended by the Noise and Statutory Nuisance
Act 1993, and the Environment Act 1995), local authorities
have a duty to deal with any noise which they consider to
be a statutory nuisance. Section 79 of the 1990 Act lists
various statutory nuisances, including noise.
Approaching your local authority
If you wish to complain about noise, you should contact
your local authority, usually the environmental health
department; their number can be found in the telephone
directory.
What will the local authority do?
The local authority may send an environmental health
officer to visit your home. She/he may record noise levels
to determine whether a statutory nuisance exists. If the
officer concludes the noise is indeed a nuisance, she/he
can take action immediately. If the noise is intermittent,
the officer may ask you to keep a diary of the days and
times of the noise, or alternatively leave equipment to
record it. Sometimes, the officer will measure the noise in
investigating the complaint. There is no specific level at
which noise becomes a statutory nuisance - the
environmental health officer must decide if the law is
being breached according to the specific circumstances.
Serving an abatement notice
Like you, the local authority may try to solve the
problem informally - by persuading the person making the
noise to stop. If this fails, and they are satisfied that
the noise amounts to a statutory nuisance, they must, under
section 80(1) of the 1990 Act, serve an abatement notice on
the person responsible. The notice may require the noise to
be stopped completely, reduced, or limited to certain times
of the day. A person on whom an abatement notice has been
served can appeal within 21 days.
Failure to comply with the abatement
notice
If a person on whom an abatement notice has been served
fails, without reasonable excuse, to comply with the
notice, she/he may be prosecuted in the Sheriff Court
(section 80(4) of the 1990 Act). Conviction may result in a
maximum fine of £5,000, plus a daily fine of £500 for each
day on which the offence continues after conviction.
Where the conviction is for noise from industrial, trade
or business premises, the maximum fine is £20,000.
Local authorities have powers to gain entry to premises
to enable them to abate a noise nuisance. They most often
use these powers to stop misfiring burglar alarms. They can
also gain access or entry to vehicles, machinery or
equipment, to stop problems such as misfiring vehicle
alarms when the owner or person responsible cannot be
found.
Seeking an interdict
If, after investigating a complaint, the local authority
considers that prosecution in the Sheriff Court would not
provide a solution, it may ask the Sheriff Court, or Court
of Session, to order the person making the noise to stop.
(This order is known as an interdict).
Other options
If the local authority does not take action, you could
approach the police or take independent legal action.
Police powers
The police can use common law powers (breach of the
peace) against a person making excessive noise.
Additionally, under section 54 of the Civic Government
(Scotland) Act 1982, as amended by section 24 of the Crime
and Disorder Act 1998, the police have powers to confiscate
sound equipment immediately for up to 28 days if a person
fails to stop the noise on being asked to do so by a police
officer. The owner can ask for the equipment to be returned
to her/him, but will have to pay whatever charge the police
consider reasonable to cover their costs.
Courts in Scotland also have the power to order
forfeiture of such equipment.
Taking independent action through the
courts
If the local authority does not take action, you can
take your complaint directly to the Sheriff Court under
section 82 of the Environmental Protection Act 1990. The
court will need to be persuaded that the noise problem
constitutes a statutory nuisance.
However, before approaching the court it is a good idea
to write to the person making the excessive noise, saying
that unless the noise is abated within a fixed period (e.g.
2 weeks), you will complain to the Sheriff Court.
How do I proceed?
If the person making the excessive noise does not stop,
write down and keep a record of the dates, times and
duration of the offending noise. It may also help if a
friend or neighbour can provide evidence that supports your
complaint. If you decide to take action under section 82 of
the 1990 Act, you must
give at least 3 days' notice in writing to the
person making the excessive noise, and provide her/ him with details of your
complaint. Deliver your notice by hand or by post
(preferably recorded), and make sure your letter is
legible, dated and that you keep a copy for yourself - you
may need to refer to it later.
Working with the court
When you contact the Sheriff Court, tell them you are
making a complaint under section 82 of the 1990 Act. You
may find it helpful to seek the advice of a solicitor, or
the Citizen's Advice Bureau, before beginning proceedings.
It is possible that, in some cases, Legal Aid would be
available - again a solicitor would be able to advise you
about this. However, Legal Aid would not be available if
you pursued your case without a solicitor. Sheriff Clerks
are not able to give guidance on the preparation of
proceedings.
The outcome
Win
If the court decides in your favour, it will make an
order requiring the offender to abate the noise nuisance
and prohibit a recurrence of the nuisance.
If the court finds that the nuisance existed at the date
of making the complaint, they may award you the reasonable
costs incurred by you in bringing the action against the
person responsible for the excessive noise. These costs
will be awarded whether or not the nuisance still exists or
an abatement order is made. If an order is made, the court
can require the person responsible to pay your costs.
Compensation
Having won your case, you may choose to go to court
again to obtain financial compensation. However, this would
be a separate legal action, and you would have to
demonstrate that you have suffered loss, injury, or damage
as a result of the nuisance. You could make a claim either
in the Sheriff Court or, if the case were serious enough,
in the Court of Session. Again, you may find it helpful to
seek the advice, and representation in court, of a
solicitor.
Lose
If the court dismisses the case, you will normally incur
your own costs in bringing the case to court, and you may
incur the costs of the other party in addition.
What if the excessive noise persists?
If you win your case, and the noise continues, any
person contravening the requirements of the court's order
without reasonable excuse will be found guilty of an
offence under section 82(8) of the 1990 Act and can be
fined.
You should keep your record of noisy occurrences up to
date in case the order is being ignored and it proves
necessary to return to court. Again, you may wish to gather
supporting evidence from a friend or neighbour. The
procedure for initiating a future case will be the same as
for the original proceedings.
Taking civil action
You can take civil action for noise nuisance at common
law by seeking either an interdict to restrain the noise
maker from continuing the nuisance and/or by issuing a
claim for damages or loss.
Such an action can, however, be expensive, so it is
advisable to seek the advice of a solicitor, or the
Citizen's Advice Bureau, before going ahead. A solicitor
will be able to advise you on your eligibility for legal
aid.
If you are dissatisfied with your local
authority
If you are unhappy about the way your local authority
has handled your complaint, you could make a formal
complaint to the authority's Chief Executive. Most local
authorities have a formal complaints procedure.
Alternatively, contact your local councillor.
Local Government Ombudsman
If you are still not satisfied with your local
authority's response to your formal complaint, you can
complain to the Ombudsman. The Local Government Ombudsman
is officially called the Commissioner for Local
Administration in Scotland, and impartially investigates
maladministration.
The Ombudsman service is independent and there is no
charge. If a local authority fails to deal with a complaint
adequately, this may amount to maladministration. The
Ombudsman cannot, however, question a local authority's
decision just because someone does not agree with it.
Any complaint made to the Ombudsman must be brought
within 12 months of the day on which you learned of the
event about which you are complaining. Before the Ombudsman
will investigate a complaint, the local authority must have
a chance to answer it.
For the Ombudsman's contact details, see the
back
of this booklet.
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