Appendix 1 List of Relevant Statutes
Appendix 1.1 Current Noise Legislation
A brief summary of the principal current noise controls applying in Scotland is presented below in chronological order.
The Land Compensation Act 1973 and the Noise Insulation (Scotland) Regulations 1975
This Act and the Regulations made under it allow for grants to be made towards the cost of sound insulation in premises subjected to noise from new roads. It cannot be applied retrospectively but may be useful where existing roads are up-graded with the result that noise levels exceed stated thresholds.
The Control of Pollution Act 1974
This Act contains powers for local authorities to deal with noise and vibration from construction and demolition sites. It also contains powers concerning the use of loudspeakers in the street (which have been used successfully in connection with loud car stereos), together with powers for the Secretary of State to approve Codes of Practice for the minimisation of noise. Codes currently exist for audible intruder alarms, ice cream van chimes, model aircraft and construction noise and these may be used in evidence in legal proceedings.
The Health and Safety at Work Act 1974
Though aimed primarily at the protection of workers (and providing, through Regulations, controls over workplace noise), this Act also places a duty on employers to conduct their businesses so as to ensure that others too are not exposed to risks to their health. This can include risks arising to the public at large from noisy work activities.
Licensing (Scotland) Act 1976
This act empowers local authorities to set up Licensing Boards to issue licences for the sale of alcohol. If licensed premises are the source of justified noise complaints, the Board has the power to restrict or revoke the holder's licence.
Civic Government (Scotland) Act 1982
This act contains provisions for licensing various activities. While none of these provisions relate directly to noise, it is permissible to include noise controls within the conditions attached to the licences (Schedule 1). The act also contains the following sections which deal directly with the problem of noise nuisance:
Section 49: empowers a private individual to apply to the District Court for an Order to control a dangerous or annoying creature which is giving rise to a noise nuisance. The court may make an order requiring the owner of the creature to take whatever steps are necessary to prevent the nuisance from recurring (short of destroying the creature).
Section 54: controls noise from musical instruments, amplified music etc by empowering a police officer in uniform to order the cessation of the noise if it is in his/her judgement excessive.
Motor Vehicle (Construction and Use) Regulations 1984
These regulations set limits for the noise levels which may be emitted by motor vehicles. They also prohibit persons from operating a vehicle on the public highway in any manner which causes excessive noise. In addition, the regulations restrict the sounding of vehicle horns unless as a warning to pedestrians or other road users. The use of car alarms is covered by the regulations. The regulations are enforced by the police.
Theatres Act 1986
Provides for the issue of licences for public performances in theatres and other venues. Noise control measures may be specified in the licence.
Cinemas Act 1985
Provides for the issue of licences to show films and may be used in a similar manner to the Theatres Act 1986.
The Human Rights Act 1998
This legislation incorporates into domestic law the European Convention on Human Rights ( ECHR) to which the UK has been committed since 1951. Convention principles were therefore already reflected in Government legislation and policies and have been informing best practice in noise enforcement since then. The Act does not confer any new rights. Incorporation of the ECHR into domestic law enables people in the UK to enforce their existing Convention rights and freedoms in UK courts - see www.humanrights.gov.uk . However, it is still open to people to petition the Court in Strasbourg once they have exhausted their domestic remedies. The Act requires that, as far as possible, primary and secondary legislation is read and given effect in a way which is compatible with Convention rights. It also makes it unlawful for public authorities to act in a way which is incompatible with Convention rights unless they are acting under legislation which made it impossible to act differently. Local authorities therefore should always consider carefully the implications for Convention rights in all that they do, and ensure that they can justify any interference with Convention rights which their work gives rise to. The Local Government Association ( LGA) has worked with the National Human Rights Taskforce and Central Government to ensure that local authorities were prepared for implementation. The LGA circulated a detailed introductory guidance Acting on Rights*, specifically written for local councillors and local government officers. Local Authorities received copies of Putting Rights into Public Service and A New Era of Rights and Responsibilities, also drawing attention to the LGA's introductory guidance and sources of further advice in October 2000 fundamentally in respect of the Human Rights Act.
The Environmental Protection Act 1990
This Act provides the principal controls over so-called "statutory nuisances", including noise nuisances, whether arising from industrial, leisure or domestic activities. By virtue of the Noise and Statutory Nuisance Act 1993, it also applies to nuisances arising from vehicles (e.g. from car alarms but not traffic noise), machinery and other equipment such as loudspeakers, in the street. Under the 1990 Act, local authorities have a duty to inspect their areas from time-to-time to detect nuisance and, when satisfied that one exists or is likely to occur or recur, to serve an Abatement Notice on the person responsible. They also have a duty to investigate any complaint made by a person living within their area. Though businesses have a defence of "best practicable means", failure to comply with a Notice is a criminal offence. Local authorities have a power of entry to private premises, power to seize noise-making equipment and powers to carry out works in default of Notices.
The Building Standards (Scotland) Regulations 1990
Part H of the document deals with acoustic standards for new buildings. It lays down 'deemed to satisfy' specifications for various construction materials and methods with regard to their sound reducing properties. Part H can be used as a guide in determining whether or not a noise problem is due to defective sound insulation between affected premises.
The Town and Country Planning (Scotland) Act 1997
This Act is aimed at prevention rather than control and controls development and land use in Scotland. It may be used to prevent noise-generating development in noise sensitive areas and vice versa. It further allows noise controls in the form of conditions to be attached to planning consents for new development. Advice on the use of these powers is given to authorities in Planning Advice Note PAN 56 Planning and Noise.
Crime and Disorder Act 1998
This Acts provides powers to deal with anti-social behaviour which may include creating undue noise.
The Pollution Prevention and Control Act 1999
This Act imposes duties on both local authorities and the Environment Agency to control environmental emissions from many industrial processes through a system of prior consents. Among the emissions which may be controlled in this way is noise.
The Regulation of Investigatory Powers (Scotland) Act 200
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.
Anti-Social Behaviour etc (Scotland) Act 2004
This act deals with various forms of antisocial conduct including noise.
Local Government (Scotland) Act 1973
Local authorities may adopt bye laws to help control issues that do not come within the remit of other statutory controls. Such bye laws may be enforced by the police and with the advent of community support officers assisting the police by enforcing low level street issues, this option could provide an efficient and effective response to certain problems.
Appendix 1.2 Overview of Noise Nuisance
1. NOISE NUISANCE
1.1 Noise and Statutory Nuisance
Whereas to the lay person anything that annoys him is a nuisance, the legal test for noise nuisance is objective: the noise must be both excessive and unreasonable. Courts give scant regard to the sensitivities of particular individuals [Heath v Brighton Corporation (1908) 98LT718]. As was said long ago by Lord Selborne LC in Gaunt v Fynney 1: '…a nervous, or anxious, or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and exaggerates into some new significance, originating within himself, sounds which at other times would have been passively heard and not regarded'. This case concerned noise and vibration produced from the working of a steam engine in which the court found for the defendant, holding that the level of noise had not become worse over time but that the plaintiff's sensitivity to noise had increased.
These objective requirements mean that an invalid suffering from noise has no right to expect a higher standard of protection than a person in good health.
The consequences of this traditional concept of noise nuisance can lead to injustices. Life-style is not always a simple matter of choice. For example, necessity may force the manual worker to work night shifts and to sleep during the day. Whether his neighbour's ordinary, everyday, daytime noise, which prevents him from sleeping, amounts to a statutory nuisance, will be problematic.
1.2 Establishing Liability in Statutory Noise Nuisance
The legal requirements for establishing liability in statutory nuisance are objective. The threshold is a high one: either substantial personal discomfort or a health effect must be proved. The standard cannot be defined precisely and much will depend on the view taken by the court of the seriousness of the harm.
Statutory nuisance cases differ from those brought in private nuisance because it is the opinion of the local authority as set down in the abatement notice which defines the boundary of the nuisance. Crucial in establishing the reasonableness of that opinion is the quality of the evidence justifying service of the abatement notice. Evidence that may assist the court includes victims' noise diaries (see also Appendix 3.3) and noise monitoring, which needs to be supervised by competent persons (see also Section 4.11). A contemporaneous note made by officers of the extent and type of noise witnessed will also be relevant, see Appendix 3.4.
1.2.1 The 'Give and Take' Principle
Noise cases are often about a neighbour's use of land causing personal discomfort to the victim and interfering with his enjoyment of his own property. Such cases - as with all forms of nuisance - are subject to the concept of 'reasonable user': the principle of give and take. 2 This requires the person causing the nuisance to consider not whether his own use of the land is reasonable but the effect this use has on his neighbour. The point is well made with regard to private nuisance by Lord Millett in Baxter v London Borough of Camden:
"It is not enough for a landowner to act reasonably in his own interest. He must also be considerate of the interest of his neighbour. The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him."3
1.2.2 The Way a Property is used: 'Normal Use'
Does this mean that a statutory nuisance is established if the everyday noise of a resident interferes with his neighbour's use and enjoyment of property? Poor sound insulation between adjoining properties often triggers complaints. Whether or not this is a factor, neighbours often do cause annoyance to each other. Moreover, toleration of noise is variable and often there is an inequality between the maker and victim of the noise; a disc jockey working in a nightclub is unlikely to perceive noise in the same way as his elderly, housebound neighbour.
Normal, everyday noise will not constitute a common law nuisance; therefore there can be no statutory nuisance. In other words it is not reasonable to expect neighbours to behave especially quietly because the sound insulation between their properties is poor. Lord Hoffmann in Baxter v London Borough of Camden 4 argued that:
"I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other."
The key variable is 'normal use', so nuisance would require some additional, unreasonable aspect, e.g. placing domestic appliances against an adjoining wall unnecessarily and using such equipment during unsociable times, or playing musical instruments loudly for long periods or late at night. The concept of 'normal use' does not address the issue that what is normal and everyday for one person may not be for another because of the differing lifestyles of neighbours.
1.3 Planning Consent
Where noise limits have been specified in a planning consent this does not provide immunity in respect of a statutory nuisance prosecution. A planning authority is entitled to specify noise limits and PAN 56 provides guidance. 5 Neither a planning consent 6 nor a waste management licence 7 can be used as a defence against a statutory nuisance prosecution. 8 Planning permission may change the character of a neighbourhood so that what would have been a nuisance before the grant of permission is no longer so afterwards. In Gillingham BC v Medway Dock Co. Ltd., 9 road traffic levels increased substantially as a result of planning permission being given for a change of use from a naval base to a commercial port. It was held at first instance by the Queens Bench that planning permission could alter the character of a given locality, the upshot of which was that what would formerly have ranked as a nuisance ceases to be so. This decision is not binding on the Scottish courts.
1.4 Noise Emitted from Industrial, Trade and Business Premises
The fact that a locality is a noisy one or of an industrial character does not in itself constitute a defence to nuisance. In Rushmer v Polsue and Alfieri Ltd., Cozens-Hardy LJ said:
"It does not follow that because I live, say in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most approved pattern and is reasonably worked."10
Noise produced by industrial and manufacturing processes or by using equipment associated with such activities is a complicated area of control. As the above words of Cozens-Hardy LJ show, taking the best available steps to mitigate the noise does not necessarily mean that a common law nuisance cannot be established.
Particularly problematic are cases involving low frequency noise, where the technical solutions may be elusive and the cost of abatement considerable. Research work commissioned by Defra has recently been published on this topic ('A Review of Published Research on Low Frequency Noise and its Effects' - Dr G Leventhall, Dr P Pelmear and Dr S Benton 2003 - see www.defra.gov.uk/environmental/noise/lowfrequency/pdf/lowfreqnoise.pdf) which provides greater clarity in this area. One might expect such noise problems to be dealt with at source, but this does not always solve the problem. Consequently, enforcement using Part III EPA 1990 is important and becomes relevant when the noise affects residents or other neighbours.
Exposure of the workforce to noise ('occupational noise') - and other individuals having sufficient proximity to the site which may present a hazard to health or safety - is regulated by the Health and Safety at Work Act 1974 and regulations made under that Act.
1.5 Best Practicable Means Defence
Statutory noise nuisances are subject to the "best practicable means" [ BPM] defence, which is available in relation to noise emitted from industrial, trade and business premises. 11 It can be raised by the recipient of an abatement notice at two stages: when appealing against an abatement notice or as a defence in a prosecution for non-compliance. In either case, it will be up to the noise polluter to prove, to a civil standard, that BPM have been used to prevent or to counteract the effects of the nuisance.
Local authorities may wish to consider whether BPM have been used before serving an abatement notice. This may require expert advice, in which case the authority will need to consider whether to accept expert advice obtained from the company or to instruct its own, independent expert. Such advice may be needed in deciding whether a statutory nuisance has been caused, and, if so, in considering the form of notice the council is contemplating serving on the company. However, the council still has a duty to serve an abatement notice when satisfied that statutory nuisance exists, and investigation of possible BPM defences should not unreasonably delay service of abatement notices.
A particular difficulty arises when the noise producer has taken all reasonable steps to reduce the level of noise, but the problem remains and still constitutes a nuisance in the eyes of the local authority. The extent of the nuisance may have been diminished by steps taken by the noise producer and the noise may only 'just about' constitute a nuisance. This situation, though not uncommon, seems to be rarely litigated probably because companies and local authorities usually co-operate in seeking a solution in order to avoid litigation. The opinion of the local authority as to whether there is, or continues to be, a nuisance is likely to be elastic to some extent and this may have implications for the human rights of persons affected by the noise.
1.6 Standard of Abatement
Local authorities need to avoid interpreting their duty under Part III EPA 1990 as a way of obliging businesses to adopt too high a standard of abatement. They have no powers to require the most expensive, best available, or 'state of the art' technology to reduce noise problems to a minimum. 12 The requirement is that enough is done to prevent or (as far as practicable) counteract the effects of the nuisance: a somewhat ill defined concept.
The BPM defence is available to protect commercial interests and sometimes this results in a nuisance being allowed to continue. The origins of the defence were to prevent such interference in the activities of the manufacturing and business classes, as would have harmful economic consequences. 13 Some of this philosophy still attaches. Manley v New Forest DC 14, illustrates this point. This case concerned the commercial keeper of a pack of Siberian huskies, who had a licence going back many years allowing the dogs to be kennelled in a mixed residential/ commercial area. The problem arose from the howling of the pack. The Divisional Court accepted the findings of the Crown Court (on appeal from the magistrates' decision) that noise abatement measures, such as glazing the kennels, would be impracticable. However, it rejected the judge's finding that BPM requirements would be satisfied if the kennels were relocated elsewhere, this being considered too onerous a requirement to impose upon a legitimate business. The Divisional Court accepted that the nuisance would continue but that it was not actionable as a statutory nuisance. 15 The decision in Manley v New Forest DC confirms that great care is needed before serving a notice in noise cases where the BPM defence is available.
1.7 Specific Works Notices and Industrial Noise
Low frequency noise from generators, air conditioning plants (both heating and cooling plants) or from other industrial machinery sometimes produces intrusive, low frequency noise which is very difficult to reduce to below a level causing nuisance. Very often, companies will already have taken ameliorative measures, but the nuisance remains. Should the local authority serve a notice in this situation, and, if so, in what form?
It is doubtful whether an actionable statutory nuisance can be said to exist where the company has taken all reasonable steps to reduce the noise. This is an area of difficulty because the EPA 1990 does not require the local authority to consider BPM before service of the notice or in deciding whether something is a statutory nuisance. BPM is a statutory defence, and it is up to the court to decide whether it has been made out. Practitioners should note that the BPM requirements under the Act include 'counteracting the effects' of the noise, so full abatement of the nuisance is not the test. 16
Although currently there is no reported authority on this point, it would be inadvisable for the local authority to decide in a low frequency noise case that a statutory nuisance existed and then to serve a simple abatement notice where it was unable to specify what further steps were required to abate the nuisance. Despite having discretion to serve the notice in the simple form, it could be appealed on the grounds that it was unreasonable.
Local authorities are advised to consider very carefully whether to specify the works required to be carried out. This may mean that councils have to pay for expert advice early on to enable them to specify precisely what is required to be undertaken by the noise producer. Service of a simple notice which is unspecific risks losing on appeal or enforcement, on the grounds that the notice is unreasonable and/or BPM has been exercised
1.8 Statutory Authority
A statutory authority can provide a defence to activities which would otherwise be a nuisance. A statutory authority is sufficient justification particularly where the public benefit is great and the nuisance comparatively small. 17 The precise scope of the defence depends on the statute which provides the statutory authority.
Railway operations are generally exempt from common law nuisance actions, subject to operators exercising reasonable diligence in avoiding making unnecessary noise. 18 A statutory authority defence does not however apply to all operations e.g. a statute authorising tramways did not authorise the setting up of stables for horses. Even though such stables were necessary to the operation of the tramway, they were not included in the statute and therefore they did not attract statutory authority immunity. 19 Where a nuisance is incidentally committed whilst carrying out an authorised act and the nuisance was a necessary consequence of the act, then the courts have been prepared to find that a statutory authority defence will apply.
To what extent can statutory authority provide a defence to statutory nuisance proceedings? Usually the position for statutory nuisance will be the same as for common law nuisance. But there is doubt. The case of Camden LBC v London Underground Ltd 20 involved service of an EPA 1990 notice on the company in respect of noise emanating from the lift-winding mechanism and generator at Russell Square underground station. The court gave a 'provisional view' that the defence to common law nuisance provided in section 122(3) Railways Act 1993 did not apply to all statutory nuisances. The court reasoned that the prejudice to health limb in section 79 EPA 1990 meant that a statutory nuisance differed from common law nuisance and that Parliament could not have intended to authorise a defence where prejudicial to health was shown. However, this part of the decision was obiter since the court had decided that the notice served by the council was invalid on other grounds. The relevance of the defence of statutory authority to statutory nuisances, therefore, remains a grey area of the law.
1.8.1 Who is the Person Responsible?
The abatement notice is served on the person responsible for the nuisance. This is defined in section 79(7) of the EPA 1990 as: 'the person to whose act, default or sufferance the nuisance is attributable'. There is a tendency for judges, in interpreting the expression 'person responsible' to refrain from construing the expressions 'act, default and sufferance' conjunctively, that is to say, that the expressions have the same meaning. However the expressions have both a separate and distinct meaning. The giving of relevant instructions can constitute an act [R v Mead ex p Gates (1895) 59 JP 150]. The expression 'default' encompasses default in terms of both contractual and statutory obligations. It simply means not doing what is reasonable in the circumstances [Re Young and Hartson's Contract (1895) 31 ChD 168]. Any relevant contractual provisions which obtain between parties, for example, those between a landlord and tenant in relation to the maintenance of premises, are not solely determinative of who ranks as responsible in terms of the paragraph. [Wincanton RDC v Parsons (1905) 2 KB 34]. In order to 'suffer' an adverse state of affairs one must be in a position to put an end to it and then fail to do so [Rochdale v Port of London (1914) 2 KB 916]. One requires to have either actual or constructive knowledge of the existence of the nuisance [Network Housing Association Ltd v Westminster City Council (1995) Env LR 176]. Where the nuisance arises from any defect of a structural character, the owner of the premises is the person responsible. 21 'Owner' is not defined in the EPA 1990. However, in [Camden LB v Gunby (1999) 4 AllER 602] the Court of Appeal decided that for the purposes of the EPA'90 the owner of premises was the person entitled to receive the rack rent (as per the previous Public Health Act 1936 from which the EPA'90 evolved). Consequently the "owner" may be the freeholder in a purpose-built block of flats, or a long leaseholder, or the head leaseholder or simply the managing agent who collects the rent.
In the case of a statutory nuisance arising in respect of noise in the street, which has not yet occurred 22, or in respect of noise from an unattended vehicle, machinery or equipment 23, the person to be served is the person responsible for the vehicle, machinery or equipment. 24 If that person cannot be found, then the notice can be served by fixing it to the vehicle, machinery or equipment. 25 This last provision is aimed at the situation where a vehicle alarm on an unattended car is causing a statutory nuisance. If the person responsible is then found within an hour of the notice being affixed, then a copy is served on that person. 26 The time for compliance can then be extended in the copy of the notice that has been served on the person responsible. 27
The object of the legislation is, as far as possible, to serve the abatement notice on the person who is culpable for the nuisance. This may be someone who causes the nuisance either by their act or their failure to act. So, an owner who allows a nuisance to continue, having been alerted to its existence, may be responsible alongside the occupier who is, in fact, the person directly causing it. This would also apply where a trespasser had caused the nuisance. 28 There may be a question as to whether the owner knew of the nuisance (or ought to have known of it). If they do have knowledge then any delay in remedying it will be a relevant factor in determining their liability. 29
More than one person can be responsible for the nuisance, so more than one person can be served with the notice. 30 In such a case, unless separate notices are served on each person responsible, then an appeal by one will have the effect of suspending the notice against all, until the appeal is resolved.