Tort of Private Nuisance:

Nuisance law dates back to medieval times when its main purpose was to eradicate the nasty and unpleasant elements of everyday life, such as stinking privies! The tort has continued and developed as a form of legal action with which to protect the environment. In this context, the protection of property owners from noise nuisance has been well refined.

The first issue is whether you have a legal interest in land. The tort of private nuisance is basically a legal means to protect the landowners enjoying the comfort of their property. The legal position is that freeholders, leaseholders, tenants and those with reversionary interest in land can instigate legal action. Anything less than this is incapable of instigation. So those who have a licence to stay in a property, lodgers, hotel guests, residents of aged persons homes and even hospital patients have no right to take action.

A further issue for prospective complainants is whether or not your particular circumstances could be held as a noise nuisance. It might be safe to assume that some of the more obvious sources of noise could be actionable, but the common law is far from prescriptive. Your own particular problem might only be held as a private nuisance after an examination by the court. The determination of your action is largely down to the notion of reasonableness. Has there been a degree of reasonableness by all parties. To assess this the court looks at a number of issues.

Character of the Area: Do you reside in an area where there is already a high level of noise? The noise environment is an important factor. Those residing in a leafy village would expect a high degree of quietness to protect the rural characteristics of the area. In light of the Gillingham v Medway case, it is important to establish from your local planning department whether planning permission has been granted for premises that create noise. In this case it was the operation of a port. The court dismissed the actions of local residents who complained of the noisy comings and goings of port traffic.

Social Utility: You must look at the usefulness of the person or premises that make the noise. It might be futile to take legal action, for instance, against the blaring klaxons of fire engines if you live in or about a fire station. Unfortunately, the trend of the common law in today’s noisy contemporary society is for people to ‘give and take.’ We must put up with a certain amount of noise in our lives. Nonetheless, this does not mean that we must tolerate unreasonable noise. If you feel that the person or premises creates the noise for the sake of creating noise, such as a public house that turns up the jukebox volume to attract more customers, then this might strengthen your case.

Duration of the Noise: Basically, the longer you have endured the noise nuisance then the stronger your case. The common law does not give a definitive time limit on how long the noise has to go on for to become a nuisance, but it must be more than temporary. However, even if it is temporary, such as road works, the undertaker must use all reasonable care and skill to avoid any nuisance to nearby neighbours.

Malice on the part of the Noise Creator:

Noise can be a potent weapon with which to annoy. If you have evidence of the defendant using noise deliberately to annoy you, this can be of paramount importance. Remember, it does not necessarily have to be loud noise. There was a case of statutory nuisance in Leicester where a person continually played a Whitney Houston song to upset the neighbours. So if your neighbour has some imagination and emits unusual or unexpected noise to aggravate you then this might still be capable of being an actionable nuisance.

How sensitive are you to Noise? The legal term is ‘hypersensitivity’ and the principle is that if a complainant is abnormally sensitive to nuisance then he is unable to complain if the activities of the defendant are not extraordinary. In effect, if you are highly vulnerable to noise then the defendant must be engaged in activity that is of an unusual nature to make any progress. This is a complex and confusing area of the law. For instance, you might be particularly sensitive to low frequency noise that is created by machinery in a local factory. The fact that the factory is engaged in an ordinary manufacturing process might completely defeat your action.

A further problem lies in whether or not you have suffered harm. The law is fairly certain where you suffer from a diagnosable physical problem, such as deafness or tinnitus. However, where noise nuisance is concerned the law is still in its infancy where psychological illness occurs as a direct result of the noise nuisance.

There are defences that a defendant to a private nuisance action can rely on. The noisemaker might rely on the defence of prescription. In essence, if the noisemaker has been making his noise for twenty years and you have full knowledge of this then the law deems that you have accepted this nuisance. However, if there is any change in the noise, your neighbour might have built a noisy workshop, for instance, this might dissolve this defence.

Another defence is that of statutory authorisation. Many noisy activities are sanctioned by parliament. People who maintain the road are, for instance, carrying-out their statutory duties laid down by parliament. But this does not mean that this is a licence to create as much din as possible. There is an important common law rule that requires people who carry-out statutory duties to use all reasonable diligence and take reasonable steps to prevent their operations being a nuisance.

Public Nuisance:

So far we have discussed the law between neighbouring properties. There is also the problem of noise that emanates from the public domain. A good example would be a busker playing a loud instrument near to a business or indeed a home. If you are affected by ‘public’ noise, there are two courses of action.

Firstly, you might be able to instigate a common law tort action for the ‘special damage’ that you have suffered over and above the harm that has been inflicted on other members of the public. So if the busker plays his instrument outside your home, his noise clearly has more impact on you than other residents.

Secondly, you might be able to complain of a public nuisance that affects a number of people, not just yourself. Recently, public nuisance has been used to prosecute organisers of noisy rave events. Public nuisance has, therefore, been revitalised as a legal means to defeat the noisy. Remember that Public Nuisance is a crime and it might be the case that your local police decide to initiate proceedings for this offence.

Environmental Protection Act 1990 – England and Wales:

This Act follows a long line of public health statutes that are concerned with statutory nuisances. Section 79(1)(g) of the Act includes ‘noise emitted from premises so as to be prejudicial to health or a nuisance.’

The Act limits noise, which is created in any premises, on land and in any vessel. ‘Land’ would necessarily include a back garden. It does not include noise that is created in the street or in the public domain.

The Act lays down two separate procedures for dealing with noise offenders. It allows the local authority i.e. environmental health officers, to investigate complaints of statutory noise nuisance. It also allows, under section 82, for you, as a private individual, to take the matter to the local magistrates’ court.

Local Authority Action:

The Environmental Protection Act 1990 and the Control of pollution Act 1974 gives the local authorities in England, Wales and Scotland, the power to investigate complaints of statutory noise nuisance. In the first instance, the environmental health officer (EHO) will try to establish if the noise constitutes a statutory nuisance. He might be satisfied that the nuisance exists on just hearing the noise. This might take a few visits. He might install special equipment in your home which can record the noise. If they are satisfied then they will initiate a process of resolution. Normally, the EHO will try to resolve the matter informally. Sometimes noise issues can be the result of a misunderstanding or ignorance of the law.

If this informal approach fails, then the EHO can serve an abatement notice on the noise creator or the person who owns or occupies the premises from where the noise comes from. The notice states that the noise nuisance must be abated and will contain specific measures to be taken by the noise creator. The EHO has the discretion to draft the notice in the form that would suit the particular circumstances. For instance, if it is a public house jukebox, the EHO might set a maximum noise output in decibels for the equipment.

If the noise creator fails to comply with the notice, they commit a criminal offence, which can be prosecuted in the magistrates’ court or in the Sheriff Court.

Furthermore, if the abatement notice has not been complied with, the EHO has the potent statutory power to abate the nuisance and do whatever may be necessary in the execution of the notice. This power is at the discretion of the EHO and the most obvious expression of this power would be the removal of the noise making equipment. This power can be applied in conjunction with initiating court proceedings.

If the matter proceeds to court, be prepared for the defence of ‘best practicable means’. In both jurisdictions, the noisemaker can argue that in the course of any trade or business the best practicable means have been used to prevent or counteract the noise. So try to find out if the noisemaker is doing their best to abate the noise. It might be the case that they use machinery or equipment that has ‘up to the minute’ noise suppression devices. Remember that, in some instances, technology might not be able to defeat some noise nuisances.

The penalties for breach of the abatement in England and Wales, if the offence is committed on any industrial, trade of business premises, can be up to £20,000. On any other premises, say a house, the person can be fined up to £2,000, with a rolling penalty of a further fine of up to £200 for each day on which the offence continues after the person is convicted.

The local authority has also the legal option of bypassing the magistrates’ court and applying for an injunction in the High Court where it considers that summary proceedings would be ineffective. That means that the High Court can issue an order completely banning the noise.

Follow the link to view the Government’s official guidance on how councils deal with noise nuisance complaints: https://www.gov.uk/guidance/noise-nuisances-how-councils-deal-with-complaints

Criminal Justice and Police Order Act 1994:

The Criminal Justice and Police Order Act 1994 is the principal legislation available to tackle raves and is enforced by the police. This legislation gives the police powers to stop or prevent raves, i.e. unlicensed open air gatherings of 100 or more persons (whether or not trespassers) at which amplified music is played during the night causing serious distress to the inhabitants of the locality.

Powers exist to remove persons attending or preparing for raves, to enter land, seize sound generating equipment and stop persons from proceeding to raves.

Individual Action:

Although the local authority might not be in a position to initiate legal action, this is not the end of the road. You can take your case to the local magistrates’ court. The procedure is initiated by giving the noise creator a warning. The Act does not oblige you to do this but it might be in the interests of fairness to let the offender know you are unhappy. If this fails, then under the Act you must give at least three days written notice to the noise creator that you intend to take the matter to the magistrates’ court. You should outline the nature of your complaint in the letter and that you are acting under the provisions of section 82.

If this does not resolve matters, then the correct procedure is to contact the Clerk of the Court. Tell them that you wish to instigate an action under section 82. They will arrange a time and date for you to see the magistrates when you can explain your case. If the magistrates consider that you have a case then a summons will be issued requiring the noise creator to attend court and answer your allegations. The fact that you bring your own action does not stop you having a solicitor or a representative present.

Please note that the defence of ‘best practicable means’ still applies to a section 82 action.

If you win your case, the courts have the power to order the noisemaker to abate the noise. The order will contain special provisions, including the execution of any necessary work abating and/or an order prohibiting recurrence and any necessary works to secure this prohibition. The order must be complied with. If the noisemaker fails to comply without reasonable excuse with the order, they commit a criminal offence. The court can fine them for this breach.

It can be costly taking your action to court. In England and Wales, the magistrates’ court has the power to award you reasonable costs against the noise offender if the court finds that the noise nuisance existed at the time you made your complaint. However, the magistrates also have to power to make you pay the costs of the other party. This might happen if you lose your case.

Noise Act 1996:

This piece of legislation was largely brought out in response to the growth of acid house parties being held in residential properties. The Act outlaws noise from a dwelling between 11pm and 7am. Although the Act does not specify what types of noise are offensive, it does give the Secretary of State the power to lay noise limits in terms of decibels. You must be present in a dwelling during these hours in order to complain.

If you complain, the local authority must take reasonable steps to investigate your complaint. If, after investigation the environmental health officers are satisfied a noise nuisance exists and, if measured, would exceed the prescribed decibel limit, they can serve a warning notice to the offender. The warning notice only remains ‘live’ until 7am in the morning.

If a person disregards the notice and continues emitting noise, the investigating officer can return to measure the noise to see if it exceeds the permitted level. If it does the offender commits an offence. The investigating officer has two important legal devices with which to try and stop the noise. They can serve a fixed penalty on the person responsible for the noise, requiring them to pay a fine. More importantly, the officer can enter the premises and seize and remove any noise making equipment. The Act does not define this equipment. It can be any conceivable thing that emits excessive noise. Once removed, the officers can apply to a magistrates’ court to have the equipment forfeited.

The Noise Act 1996 contains no nonsense measures to control noise. However, your local authority has to adopt the Noise Act. So before you consider taking action check that your local authority has actually implemented the Act.

Protection from Harassment Act 1997:

On the heels of the Noise Act is another statutory measure designed by the government to make the neighbourhood as safer place. The Act is more or less in response to the escalation of the problem caused by ‘neighbours from hell.’ Noise can be a powerful means to harass one’s neighbour.

Section 1(1) makes it an offence for a person to pursue a course of conduct which amounts to harassment of another and which he or she knows or ought to know amounts to harassment of another. The offence can take place either in public or in a private place. A further advantage is that any complaints of ‘criminal harassment’ have to be handled by the police. The police have the power to arrest those who commit criminal harassment.

The only interpretation in the PFHA 1997 of any significance is the definition of ‘course of conduct.’ This must involve conduct on at least two occasions. This does not necessarily mean that both types of conduct must be noise related. The first might be the playing of excessively loud music; the second might be depositing excrement on one’s property, for instance. There does not have to be a definitive time span between both occasions.

The determination of the government in trying to get to grips with bad neighbours might be shown in the penalties that are available to the courts. A person can, upon summary conviction, receive up to six months imprisonment. Of course, this might mean that after an offender has been released from prison they can just continue where they left off. The Act makes provision for this. On conviction, the prosecutor may apply to the court to invoke a restraining order against the offender, prohibiting any conduct specified in the order. Any breach of the order is an arrestable offence, where, upon further conviction, makes the offender liable to a term of imprisonment of up to five years on indictment.

Moreover, the PFHA 1997 allows the victim of an actual or apprehended breach of section 1 to pursue a civil claim for damages for, among other things, any anxiety caused by the harassment or any financial loss. This is an important legal development as the Act expressly recognises the fact that continual harassment, whether by noise or otherwise, can induce a nervous, often severe, reaction.

Public Disorder:

The Public Order Act 1986 now governs the conduct of persons in public places. It is a strategic piece of legislation in terms of constitutional freedom, particularly the freedom to express political sympathies or otherwise. The ‘otherwise’ can govern public conduct associated with a catalogue of anti-social activity from football hooliganism to the mass picketing of industrial sites. Section 5(1) of the Public Order Act 1986 creates the offence if:

‘A person uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’

Although the Act might appear public in context it does extend to private places. However, the Act creates an important exception where dwellings are concerned. It does not cover offending behaviour that is carried out by a person inside a dwelling where you, the complainant, resides in that dwelling or another dwelling. In effect, you cannot complain against your neighbour.

One of the advantages of this Act is that it appears to deal with those who are subjected to the noise created by disorderly persons. A sudden outburst of noise, like a firework, might cause alarm. The psychological impact of the noise might be sufficient to distress a person.

The police have the responsibility for dealing with people who are disorderly. They can arrest those who breach this measure. However, before the police can use their power of arrest they must have warned the offender to stop acting in a disorderly manner.

Loudspeakers:

Section 62 of the Control of Pollution Act 1974 lays down certain restrictions for the use of loudspeakers in the public domain. Loudspeakers are banned from 9pm in the evening to 8am next morning. So if your neighbour wants to use loudspeakers contained in a large portable music player in the street in the late evening he or she is prohibited. However, the Act does make some common sense exceptions, which allow a loudspeaker to be used for emergency purposes, for example, the use of a loudspeaker by the police or fire service.

Although the act authorises the use of a loudspeaker during the day, where the loudspeaker is used to advertise any entertainment, trade or business it becomes unlawful. However, the Act makes an exemption for those persons using a loudspeaker to sell perishable food between midday and 7pm. The most notable example is the mobile ice cream seller. This exemption does not mean that the loudspeaker can be used irresponsibly. This exemption becomes unlawful if the loudspeaker gives reasonable cause for annoyance in the neighbourhood.

Fireworks:

Notwithstanding the noise impact sudden loud noises can have on the elderly, infirm and indeed animals, the law is arguably very weak where the control of these potentially harmful devices is concerned. Section 80 of the Explosives Act 1875 makes it a summary offence to throw fire fireworks on a street or public place.

Street Trading:

The local authority has the authority under the Local Government (Miscellaneous Provisions) Act 1982 to issue street trading licences. The licence allows a person to trade in a street or public place, such as an outdoor market. The licence might contain conditions relating to the creation of noise. If you’re annoyed by a noisy street trader, contact your local authority. If the market is permanent, there is often a market inspector present. If so, it might be wise to address your complaint to them.

Takeaway Outlets:

The Local Government (Miscellaneous Provisions) Act 1982 gives the local authority the power to shut a food takeaway shop where there is evidence from the public of disturbance. Section 4(1) of the Act provides:

‘A district council may make an order (in this part of the Act referred to as a ‘closing order’) with respect to any premises in the district where meals or refreshment are supplied for consumption off the premises, if they are satisfied that it is desirable to make such an order to prevent residents in the neighbourhood of the premises being unreasonably disturbed either by persons resorting to the premises or by use of the premises for the supply of meals and refreshment.’

Construction and Maintenance Noise:

By virtue of Section 60 of the Control of Pollution Act 1974, the local authority has control over the following types of work:

1. The erection, construction, alteration, repair or maintenance of buildings, structures and roads.

2. Breaking-up, opening or boring under any road or adjacent land in connection with the construction, inspection, maintenance or removal of works.

3. Demolition or dredging work; and…

4…whether or not also comprised in paragraph a, b or c above, any work of engineering construction.

The local authority has the discretion to lay down conditions for the work. The times that the work commences and ceases, for instance. However, section 60(2) places a legal obligation on the local authority to consider the need to protect persons in the locality from the effects of noise. It might be the case that the local authority has determined the maximum amount of noise that can be created by the work.

If you feel that the noise coming from the work is unreasonable check with your local authority to see if a Section 60 notice is in existence and if there any stipulations regarding noise. It might also be useful to peruse the code of practice for noise control on Construction and Open Sites (BS 5228).

Noise and Statutory Nuisance Act 1993:

It might be the case that the noise in the public domain might not come from such works.

The Noise and Statutory Nuisance Act 1993 extends the statutory nuisance provisions of the Environmental Protection Act 1990 to:

‘Noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street.’

This definition can cover a whole host of noise making things. The only exception to the Act is the noise made by traffic or by a political demonstration or a demonstration supporting or opposing a campaign or cause.

The Act appears to be quite comprehensive on where the noise is created. A ‘street’ for the purposes of the Act includes a highway and any other road, footway, square or court that is for the time being open to the public. This definition would suggest that the public area is more or less of an urban character. It is unsure whether the Act would cover a park or village green.

However, bear in mind that any such noise might be subject to the defence of ‘best practicable means’. So if, for instance, a person uses a portable generator to provide electricity, the generator he or she uses might be the best that the current state of scientific knowledge has to offer.

Motor Vehicles:

At first instance it might seem an impossible task to reduce the noise made by road traffic. Nonetheless, attempts have been made to reduce the impact of road noise. The European Union, for instance, has, through various directives, which have been implemented by the UK Government, attempted to quieten the noise made by newly manufactured motor vehicles. To a lesser extent, you as an individual might be in a position to do something about those drivers who intentionally use their motor vehicles to disturb the peace.

Road traffic law creates specific offences relating to noise which include ‘the use of a motor vehicle on a road in such a manner as to cause excessive noise which could have been avoided by the exercise of reasonable care on the part of the driver.’

The idling of a vehicle engine or machinery, such as a generator attached to a motor vehicle can be an irritating source of nuisance. This is often known as ‘quitting’. The driver leaves the motor vehicle stopped and unattended with the engine running. However, there are exceptions to this offence if there is a qualified driver aboard the vehicle, the vehicle is stuck in traffic, the machinery has deranged or the machinery, such as a tail lift, is necessary to carry out the purpose of the vehicle.

Where motor horns are concerned, it is an offence to operate a motor horn when the vehicle is stationary unless there is danger from another vehicle. Furthermore, a moving vehicle cannot sound its horn in a restricted road between 11.30pm and 7am. A restricted road is lit by lamps placed not more than two hundred metres apart. The majority of urban roads are, therefore, restricted roads.

We have all probably been startled by those drivers who show off by sounding a ‘Colonel Bogey’ type horns. These types of devices are strictly prohibited on vehicles first used after 1st August 1973. Only emergency vehicles, such as the police, may use a siren, bell, gong or two-tone horn.

Driving without reasonable care or consideration for other road is perhaps a ‘catch all’ offence for those who use vehicle noise to alarm or distress other persons using the road. There might be circumstances in which a driver has a complete disregard for other drivers and pedestrians. The continual revving of a loud engine is perhaps one instance. The police have the responsibility for prosecuting drivers who allegedly commit these offences.

A further way an individual might use the law to minimise the impact of traffic noise is by traffic management. Drivers using small streets as ‘rat runs’ to avoid congestion perhaps becoming a common feature of urban life. The local authority is empowered under the Road Traffic Regulation Act 1984 to secure the expeditious, convenient and safe movement of vehicles. This Act has been supplemented by the Road Traffic Reduction Act 1997, which requires a local authority to reduce the level of road traffic. The result of these two pieces of legislation is various schemes, such as ‘sleeping policemen’ designed to slow vehicles down.

Aeroplanes:

The main thrust of the legal measures to curb aircraft noise is largely the responsibility of the International Civil Aviation Organisation, which has progressively reduced the amount of noise a particular type of aircraft can create. This has been supplemented by provisions contained in the Civil Aviation Act 1982, which allows airports to fine noisy aircraft.

Boats:

The Countryside Act 1968 has made some effort to preserve the lakeside environment from excessive noise. Section 13(1) of the Act authorises a local planning authority whose area includes the whole or any part of a National Park to make bylaws to prohibit or restrict traffic of any description on any lake in a national park.

The Entertainment:

Licence Schedule 1 of the Local Government (Miscellaneous Provisions) Act 1982 makes provision for the licensing of public entertainment. The legislation gives the local authority the power to prescribe conditions for the licence. The notice might contain, therefore, conditions that limit the noise emitted by the entertainment. Section 1(1) – (3) provides:

1. An entertainment to which this paragraph applies shall not be provided in any place except under and in accordance with the terms of a licence granted under this paragraph by the appropriate authority.

2. Subject to sub-paragraph (3) below, this paragraph applies to public dancing or music or any other public entertainment of a like kind.

3. This paragraph does not apply to:

 a) Any music (i) in a place of religious worship, or (ii) performed as an incident of a religion meeting or service;

 b) An entertainment held in a pleasure fair, or

 c) An entertainment which takes place wholly or mainly in the open air.

The Act is only aimed at venues. It is not a personal licensing system. Those who entertain in the public domain are a notable exception to the Act. The various acts of street entertainers found in many city centres might still be regarded as entertainment though. Moreover, those who reside next to land where a pleasure fair traditionally visits or is a permanent feature could argue that this statutory exception is an important omission.

Where any entertainment is a public musical entertainment and takes place on private premises or public land wholly or mainly in the open air, the local authority must first resolve to invoke paragraph 3 and 4 of Schedule 1 to come into force on a day specified in the resolution. For the purposes of licensing such events, paragraph 3 identifies the activities subject to the Act. The paragraph stipulates that:

a) An entertainment is musical if music is a substantial ingredient;

b) Land is private if the public has access to it (whether on payment or otherwise) only by permission of the owner, occupier or lessee;

This paragraph does not apply to:

a) A garden fete, bazaar, sale of work, sporting or athletic event, exhibition, display or other function or event of a similar character, whether limited to one day or extending over two days or more days, or

b) A religious service or meeting, merely because music is incidental to it.

 If the local council invoke these provisions, this allows the local authority to grant an entertainment licence in respect of one or more particular occasions as may be specified in the licence.

The general tenet of the ‘outdoor’ entertainment licence is the control of open-air musical concerts. Where the entertainment is a mass spectacle, chaos could ensue if restrictions are not placed on the conduct of the entertainment. Section 4 of the Act requires the imposition of any terms or conditions to ensure the outdoor entertainment complies with the following purposes:

i) Securing the safety of performers at the entertainment.

ii) Securing adequate access of emergency vehicles.

iii) Securing the provision of adequate sanitary appliances.

iv) Preventing persons in the neighbourhood being unreasonably disturbed by noise.

Paragraph iv) is of significance to the potential noise sufferer. The local authority might stipulate in the licence the allowable decibel level for the noise output. The open-ended nature of the terms and conditions allows practical resolutions. This could even go as far as requiring the public address speakers being pointed away from residential areas or even restricting the number of amplifier speakers. Perhaps the distinction that outdoor entertainment is subject to the priorities of section 4(b) reflects the potential of outdoor noise intruding into nearby premises. It is all within the discretion of the EHO, there are no fixed parameters for noise limitation, such as an upper noise output level.

In England and Wales, section 2 of the Schedule 1 of the LG(MP)A 1982 extends licensing to what is termed ‘sports entertainment.’ This is defined as any sporting event to which the public are invited as spectators. The event can be a one-off or a permanent occurrence. An exception is created by section 2(2) where the sporting event that constitutes an entertainment is not the principal purpose for which the premises are used on that occasion. A further difficulty might be encountered by the definition of ‘sport.’ Sport includes, ‘any game in which physical skill is the predominant factor and any form of physical recreation which is also engaged in for purposes of competition or display, except dancing (in any form).’ Some forms of sport might not fall within this definition. Hunting, for example, which causes a hue and cry when animal are hunted or requires the firing of noisy weapons to kill or maim the animal, is a matter of intense debate as to whether it is a sport.

A distinction might be drawn between paragraph 1 and 2 provisions, where a non-sporting event is held at sporting premises. In some instances, musical entertainers might perform at a sporting venue that is wholly open to the air. A rock group performing at a cricket ground is a prominent example. In this case, the promoter would have to seek an entertainment licence under paragraph 1. No premises can be used for ‘sports entertainment’ except in accordance with the terms and conditions of an entertainment licence. The term ‘premises’ means, ‘any permanent or temporary building and any tent or inflatable structure and includes a part of a building where the building is as sports complex but does not include a part of any other building.’

The measure would necessarily include sport that is contained within premises. For instance, football, rugby and cricket grounds. It is irrespective of whether part or all of the premises are open to the air. However, the definition would appear to exclude sports that are held on a circuit or course. Premises, such as a grandstand, only form a small part of the actual course. Very noisy sporting events, such as Formula 1 motor racing might escape the provisions of the LG(MP)A 1982. Some sports, such as motor rallying, have extremely long courses and travel through both town and country. Licensing of such events might be impossible.

Licensed Premises:

Premises that sell intoxicating liquor must be licensed (Justices’ Licence) by the Licensing Justices of the local magistrates’ court. If you feel that the premises are not being run properly, it is far too noisy, for instance, this might be grounds for you to object to the renewal of the licence. If you wish to oppose the licence you must give written notice of your intention to the licensee and the clerk to the Licensing Justices at your local magistrates’ court.

The Licensing Justices can also authorise licensed premises to open beyond last orders. A Special Hours Certificate can allow the premises to remain open until the early hours of the morning. The noise of the premises and/or the disorderly behaviour of people leaving the premises can have a significant impact on the peace and quiet of a neighbourhood. Although, the law does not give you a personal right to oppose the opening (or permitted) hours, you can make your feelings known to the police. The police are responsible for the regulation of licensed premises. If the police consider that the operation of the licensed premises is detrimental to the neighbourhood they might seek to modify or even try to revoke the extension to the permitted hours.

Bylaws:

Your local authority might have implemented certain bylaws, which are designed to prevent noise. Section 235(3) of the Local Government Act 1972 gives the local authority the power to make bylaws for ‘the good rule and government of the whole or any part of the district or borough and for the prevention and suppression of nuisances.’ It might be the case that your area is covered by a bylaw that aims to reduce noise nuisance. Examples of bylaws made by local authorities include noisy street trading, music near hospitals, bird scaring devices and barking dogs. The bylaw can be tailored to suit the characteristics of an area.

Codes of Practice:

The Control of Pollution Act 1974 allows the secretary of state to issue codes of practice that are aimed at reducing noise. Only three codes of practice have ever been issued by the government under section 71 of this Act. They relate respectively to noise from ice cream vans, audible intruder alarms and model aircraft. The codes contain advice and guidance on how noise is to be minimised.

To a certain extent, these codes have been supplemented by codes created by private organisations. Some private codes of practice can have a bearing upon the noise level. The Royal Automobile Club organise motor car rallies and include in their code of practice maximum noise levels for such events. If you are affected by noise created by private events, check with the organiser as to the existence of a code a practice and if that code includes noise prevention.

Although codes of practice have no force of law, any breach of the codes can be an indication of the inconsideration of the noise creator. It might be the case that a business premises disregards a code of practice. If this is the case, it might be appropriate to write to the noise creator outlining a breach of the code.

Noise Abatement Zones:

The local authority have by virtue of section 63 of the Control of Pollution Act the power to designate a ‘noise abatement zone’ in its area. Once designated, the local authority has to measure the noise produced by the zone. The zone can be anything from an individual factory to an industrial estate. The importance of this measure is that the local authority can determine the noise output for designated premises and new or converted premises in the zone. If the premises exceed the noise output it is an offence. However, the local authority can give consent in writing. The public have the power to inspect the register of noise levels recorded by the local authority. Unfortunately, noise abatement zones have become less and less important as a means to control noise, so be prepared if your local authority tells you that is does not operate any such zones.

Planning Law:

Planning law in this country is sometimes regarded as notoriously complex. Nonetheless, planners can have an important bearing upon the noise quality of an area. Noise is an important consideration when plans are determined. To a certain extent the private individual can try to influence the decision of planners.

Development Plans: The development plan can be considered as the orientation point for all applications for planning permission. It should be emphasised that the development plan is not prescriptive. It only provides guidance on the way an area should be developed. For our purposes, the vast majority of highly urbanised areas are subject to a Unitary Development Plan (UDP). All metropolitan districts, all London Boroughs and the new unitary authorities established by local government reform in 1995 are required to draw up a UDP. Noise should be considered when these plans are formulated.

During the formative stages of the plan, the planning authority is required by law to consult various bodies and such other persons as they consider appropriate. Before the plan is finally drafted, there must be an opportunity afforded to persons who wish to make representations within a period prescribed in regulations made by the Secretary of State (six weeks). The planning authority must consider these representations in preparing the draft plan. Once the draft plan is prepared it must be made open to public examination. Objections can then be lodged with the planning authority. The authority then must arrange for a local enquiry or other hearing at which the objectors have a right to appear.

Planning Permission:

As an individual you can play a significant part in the process of planning permission. Planning permission can have an important bearing on the noisy quality of your area. The planning authority can insert specific conditions relating to noise in the application. So if the developer wishes to build a potentially noisy development the planning authority can impose conditions that seek to minimise the noise. The Government has requested local planning authorities to assess the probable impact of noise when planning permission is being considered.

An individual can find out if someone wishes to develop land or change the use of existing premises by looking at the local planning register. In some instances, you might be notified either in person or through the post of new developments that will substantially affect neighbouring property. (In Scotland, any development that is likely to generate noise must be published in the press). You have a legal right to object to any planning permission whether it is on the grounds of noise or any other reason. You must lodge your objection with the local planning authority. There is a right of appeal where planning permission has been denied. So it might take some time for the final decision to be reached.

Human Rights:

The Human Rights Act 1997 came into force in autumn 2000. The object of the Act is to incorporate the European Convention on Human Rights, to which the UK is a signatory, into our law. At first instance, one would not consider that such rights might have little to do with noise pollution. However, there is a very important article in the convention that seeks to protect one’s family life. Article 8(1) states:

‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

The purpose of the Human Rights Act is to protect this and other rights under the convention from the excesses of public authorities. ‘Public Authorities’ have been defined as a court or tribunal and ‘any person certain of whose functions are functions of a public nature.’ Even if you feel that a ‘public authority’ has abused your rights, Article 8(2) provides a salient defence:

‘There shall be no interference by a public authority with the exercise of this Right except such as in accordance with the laws and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Before you go rushing out asserting your human rights under the Act, with respect to noise pollution, Human rights Law is very much in its infancy. The most significant assertion of these rights was in the case of Powell & Rayner v UK where two nearby residents challenged the noise created by Heathrow Airport. The airport successfully argued that the airport was of major importance to the functioning of the economy. Since then there has been no case decided in the European Court of Human Rights where noise pollution has been the single issue. It is very much a case of wait and see if these rights will help the plight of the noise sufferer.

Is the noise a nuisance?:

Try to weigh up how much the noise impacts upon your daily life. Does the noise disturb normal domestic activity such as reading a book, listening to music or the pursuit of quiet hobbies? Each case is judged on its own merits. A court has to consider the likely reaction of the average reasonable person to the noise. The ringing of church bells, for instance, might be a particular source of nuisance to you. However, the majority of the local community might accept it as a perfectly normal activity.

Are you oversensitive to noise? You have to bear in mind that the people, who make the decisions, a magistrate, for instance, might not be so sensitive to noise. Try to decide if you can tolerate the noise. Remember noise is subjective. You might feel that you cannot tolerate a specific source of noise, say classical music, whereas other people might appreciate it. Remember that the law might not take into account trivial complaints.

If you feel that you need to take some stronger from of action, you need to compile some evidence of the noise. Sometimes verbal evidence might not be enough. It is useful to make a daily diary. As soon as the noise occurs, enter into the diary the time, the duration of the noise, what type of noise it is. Assess how intrusive the noise is. Do you have to wear earplugs or do you have to move rooms? It is important to state how the noise affects you. Describing your feelings when you hear the noise. Are you unhappy, angry, upset? Does the noise make you physically unwell?

Consider other forms of evidence. A tape recording will give the court some indication of the loudness and type of noise that is being created. A picture is worth a thousand words. If the neighbour creates noise in the open air, such as repairing motorcars, try and photograph the activity. Better still, videotape will provide both sound and vision.

In some cases it might be your word against that of the neighbour. Independent evidence is often crucial. Try to obtain evidence from visitors to your home who are subject to the noise. People with some form of officialdom, the police, environmental health officers, who have visited you, might provide some cogent and unequivocal evidence of the noise nuisance. If the noise affects other people, perhaps a group of your neighbours, consider banding together in a joint action against the noise creator. A larger group might make more of an impact upon the authorities than a sole individual.

You must let your neighbour know of your complaint. Tell your neighbour that you intend to take the matter to the authorities. But a word of caution – do not under any circumstances approach your neighbour if you feel that they could be violent. If you do approach them, do so at a reasonable time. The morning is usually better. It is no good warning them in the late evening when they might be intoxicated. It is no good warning them at the time when you are angry or upset. This might only exacerbate matters. If necessary, send a recorded delivery letter to them outlining your complaint. If you have access to a solicitor then a formal warning from your solicitor can have some measured effect. Always retain a copy of your correspondence with the noise creator and any reply. Remember, the noise might be the result of a misunderstanding. If the noise creator understands your position, he or she might modify their behaviour or activity to suit you.

If the noise creator is a business or a bone fide activity then approach the person who is in charge. This might be the licensee of a public house. Profitable businesses are sometimes very sensitive to public complaints. It can have some impact on their public image. Some businesses are answerable to the authorities. Some have to be licensed to operate. So it might be wise to remind the person in charge that there are higher bodies, including the board of directors, which you can complain to.

Make sure all your evidence is presentable. It might be the case that you have to present all your evidence to a solicitor, environmental health officer or to a court. Accurate records shows that you mean business. You have made the effort to record all your observations, so it would show to people that you’re determined to fight your case.

If the noise continues, decide which is the most appropriate course of action. Will a solicitor’s letter be the solution? Should I call the environmental health department? There are other members of the community who might be in a position to help your cause. A local councillor, for instance, might be sympathetic to environmental issues. Check if your area operates a mediation service. They can try to resolve difficulties between parties without the need for legal intervention. But remember, sometimes using a sledgehammer to crack a nut can be most inappropriate. Environmental health officers, for instance, are hard pressed. They are also very conscientious in their approach. But it will do little for their morale if they have to address trivial complaints that can be adequately dealt with by you. You must also address your complaint

This entry was posted on Saturday, July 9th, 2016 at 11:34 pm and is filed under Soundproofing News. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.