Noise Abatement & Noise Nuisance

Many
people have heard of the
Noise
Abatement Society
which was established in 1959 by John Connell
OBE and who successfully lobbied the
Noise
Abatement Act
through Parliament in 1960. This Act enabled
noise to be classified as a �statutory nuisance� allowing it to be dealt with
under the
Public
Health Act of 1936
. This earlier act, which was updated in 1961,
allows the relevant local authority (the council of a borough, urban district
or rural district) to require a statutory nuisance to be �abated�. As a result,
it became much easier for noise nuisance to be dealt with, where it occurs, as,
previously, it could only be dealt with under the provisions of common law (i.e. law made by the Courts in successive judgements).

Difference
Between Private and Public Nuisance

In common law
nuisance is
defined as a
Tort and classified
as either a Private
[1]
or a Public [2]
nuisance, with Public Nuisance also being defined as a crime. Taking a Private Nuisance Action is effectively suing
for compensation as a civil prosecution in the County or High Court. A Public
Nuisance action can only be taken by the Government and is a criminal
prosecution. It should be noted that the distinction between public and private nuisance
is not made in Scottish law.

Statutory
Nuisance

Allowing
something to be classified as a Statutory Noise Nuisance means that it can be dealt
with under laws made by the Government in a magistrates� court and is now dealt
with under the
Environmental
Protection Act
of 1990 (the EPA). Section 79 of the Act defines noise
as being a Statutory Noise Nuisance where it is �
emitted
from premises so as to be prejudicial to health or a nuisance�
and Sections
80 and 82 specify the action which can be taken. Unlike
common law nuisance, which deals with harm to property, statutory nuisance
interferes with personal comfort in a manner that affects wellbeing.

What is a
Noise Abatement Notice?

Section
80 of the EPA allows a local authority to serve a �noise abatement
notice� where it is satisfied that a statutory noise nuisance exists, or is likely to
occur or recur. This requires the abatement of the nuisance and prohibits a
recurrence by execution of whatever works are necessary within a timeframe specified
within the notice.

Section
82 allows an individual to bring their own case to a magistrates� court or, in
Scotland, the sheriff court. This would normally happen where the local
authority does not view the noise as a statutory nuisance but where the
aggrieved individual feels strongly that it is. If the court is satisfied that
the alleged nuisance exists, or is likely to recur, it will make an order,
similar to that made by the abatement notice served under Section 80.

Definition
of Noise Nuisance

Perhaps rather
inconveniently, noise nuisance is not specifically defined in the 1990 Act. It
is, however, generally regarded as something which could be construed as such
by an �average� person. Rather archaically, reference is sometimes made to the
�man on
the Clapham omnibus� in this regard! One case recently established
that normal, everyday residential use of premises would not constitute a common
law nuisance and therefore could not constitute a statutory nuisance. However,
it may be observed that what is normal and everyday for one person may not be
for another because of the differing lifestyles of neighbours. A famous
judgment given in 1879 declared that �
what
would be a nuisance in Belgrave Square would not necessarily be so in
Bermondsey
� and is often cited in nuisance cases where locality is an
issue.

What is very clear,
however, is that a statutory, or indeed common law, noise nuisance is not defined
purely by measured noise level but by its likely effects on an average person.
As well as locality (see above), and of course noise level, a number of other
factors are taken into account including:

• time
  of day of disturbance
  ; sleep disturbance is important in this
  respect, as well as relaxation during the evenings, even outdoors, but special
  provision for shift-workers, or other people with specific needs, is usually
  not made because of the focus on the �average� person.
• frequency
  – how often the noise occurs
  ; something which happens only
  rarely would normally be considered to be less of a nuisance than something
  which happens every night or day.
• duration
  � how long the noise goes on for
  ; a short-term effect would
  normally be considered less of a nuisance than one which extends for several
  hours or even days.
• convention
  � how �normal� is the noise
  ; a neighbour mowing their lawn once a
  week would normally be considered acceptable but a neighbour regularly
  listening to music outside at the same level for the same time would not.
• avoidability; a
  noise disturbance which is easily avoidable can easily be perceived as more of
  a nuisance simply because it can be avoided.

Noise
Abatement

Noise
abatement can therefore consist of reducing the noise level generated, changing
the time of day it operates, reducing number of occurrences and/or the length
of time it operates for and possibly even changing what is done and in what
way. In the case of a Section 80 action, it can be advantageous to agree the
measures to be taken with the local authority; such as permitted noise level
and restrictions on times and durations of activities. Strictly, however, all
that needs to be done to comply is to abate the nuisance; the way in which it
is done is not the concern of the authority.

Alternatively,
a defence to a requirement to abate a noise nuisance is to prove that �best
practicable means� is already being used to prevent or to counteract the
effects of the nuisance or will be used in the future. Best practicable means
is defined in Section 79 as meaning reasonably practicable having regard,
amongst other things, to local conditions and circumstances, current state of
technical knowledge and financial, legal and safety implications.

By Dr Andy McKenzie

If
you are experiencing noise nuisance, or have been experiencing complaints about
noise yourself, please visit our
noise
complaint investigation
page. Our friendly and professional team
would be happy to help you.

[1] affecting
one or more individuals

[2] affecting
the public at large