Current noise legislation
Like many environmental controls, those concerned with noise have grown over the years in a piece-meal way which is difficult for the layman to access. To help address that problem, below is a brief summary of the principal current controls applying in England and Wales.
The Environmental Protection Act 1990
The Environmental Protection Act 1990 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 nuisances and, when satisfied that one exists or is likely to occur or recur, to serve an Abatement Notice on the person responsible. The failure to comply with an Abatement 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. Businesses have the defence of causing a statutory nuisance of “best practicable means”,
The legal definition of what constitutes a statutory nuisance is complex and based on many years of case law. We need to consider the following key factors when investigating a noise nuisance:
- There must be a material interference with the enjoyment and use of the complainant’s property. The noise must therefore be considerable.
- The noise must substantially affect the enjoyment of comfortable living, such as loss of sleep, interfering with conversation or watching television. However there would have to be consideration of the time and frequency the noise occurs, the intensity of the noise, its character and its duration.
- Temporary or occasional incidents causing little actual or potential harm, would not be considered to be a nuisance, for example ‘one-off’ parties. The problem must normally be continuous or frequent.
- Trivial, harassing or repetitious (vexatious) complaints will not be taken into account.
- Any assessment of whether a particular problem amounts to a statutory nuisance has to be made from the perspective of an ‘ordinary reasonable person’. This means that the council must exclude any personal circumstances or sensitivities of the complainant from our considerations when assessing nuisance.
- Factors such as unusual shift patterns, medical conditions or other sensitivities of the complainant cannot be taken into account when we decide whether a particular problem is causing a statutory nuisance.
It is a person’s basic right to use and enjoy their property. However, there is no right to tranquillity or silence.
The Control of Pollution Act 1974
The Control of Pollution Act 1974 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 chimes, model aircraft and construction noise and these may be used in evidence in legal proceedings.
Such codes, although having statutory recognition, do not have the force of law, and infringements do not constitute an offence in themselves. However non-compliance will usually be taken into account in any proceedings for a nuisance.
The Licensing Act 2003
The Licensing Act 2003 provides a comprehensive framework for the licensing by local authorities of a variety of premises and events. Licenses may be subject to conditions, including noise control.
The Anti-social Behaviour Act 2003
The Anti-social Behaviour Act 2003 strengthens the Housing Act 1996 to facilitate the regaining of possession from tenants of social landlords responsible for anti- social behaviour.
It also introduces a power of local authorities, acting through their Chief Executive or Environmental Health Officer, summarily to close licensed premises which cause a public nuisance by reason of noise.
The Clean Neighbourhoods and Environment Act 2005
The Clean Neighbourhoods and Environment Act 2005 provides new powers to deal with noise from intruder alarms and extends the powers for dealing with night- time noise in the Noise Act 1996. It also contains a discretionary provision allowing local authorities to defer the serving of an abatement notice for up to seven days once satisfied that a statutory nuisance relating to noise from premises exists, provided that other steps are taken (such as mediation or use of the Noise Act 1996) to abate the nuisance.
If the nuisance continues after seven days, an abatement notice must be served.
Anti-social Behaviour, Crime and Policing Act 2014
Anti-social Behaviour, Crime and Policing Act 2014 covers a wide range of conduct that affects the amenity of others in the neighbourhood.
For example, noise, odour, smoke, overgrown gardens, pest control, rubbish accumulations, planning issues normally dealt with through section 215 of the Town and Country Planning Act etc. In addition, the powers can be used to tackle a wider range of issues such as the impact on neighbours from a person operating a business from home i.e. parking, delivery noise, that often Planning powers are unable to deal with.
Under this legislation there are a wide range of powers available to the Council to tackle these issues which include:
- an ASB injunction;
- an interim ASB injunction;
- Community Protection warnings and Notices;
- Fixed Penalty Notices;
- Legal action through the Courts to prosecute and fine;
- force others to rectify the issues (remedial orders);
- seizure and forfeiture;
- the imposition of Criminal Behaviour Orders to impose longer term controls.
The definition and therefore tests of what constitutes anti-social behaviour can be found in the Act and differs between the various powers available.
For injunctions and interim injunctions the definition is
Section 2 of the ASBCPA 2014:
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person
(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
(c) conduct capable of causing housing-related nuisance or annoyance to any person.
Note there is a likely to or capable of element hence it can be used to prevent ASB occurring like other civil injunctions.
For Community Protection Warnings (CPW), Notices (CPN) and further Court action the definition is:
Section 43 of the ASBCPA 2014: reasonable grounds that:
(a) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and
(b) the conduct is unreasonable.
For CPW’s there is no requirement for the conduct to be persistent or continuing. For all action under this definition the conduct must be happening – there is no preventative option to prevent things occurring like with the injunctions.
Community Protection Warning
A written warning shall be issued where there is sufficient evidence (this is required prior to the service of a CPN). This warning will:
- Detail the behaviours that are causing the problem
- Detail the timescale by which the behaviour is expected to have been amended
- Describe the steps that should be taken to cease or amend the problem behaviour
- Outline the potential consequences of failing to comply i.e. service of a CPN and what that could mean
Community Protection Notice (CPN)
If the behaviour continues following a CPW then a CPN will be considered. This will assess whether the unreasonable behaviour is persistent or of a continuing nature and that the behaviour has had a detrimental impact on the quality of life of those in the locality.
It also allows for escalation for those whose behaviour causes or is likely to cause harassment, alarm or distress to any person, by way of an application for a Criminal Behaviour Order during prosecution for an offence of failure to comply with a CPN.
A CPN can:
- Require specified things to stop
- Require that specified things are done
- Require reasonable steps be taken to achieve specified results
There are several enforcement options for failure to comply with a CPN.
- Prosecution in the Magistrates’ Court and if found guilty a fine of up to scale 4 for an individual or up to £20,000 for a body. A Criminal Behaviour Order can be applied for at the time same time.
- A Simple Caution can be considered as an alternative to prosecution whereby the individual both admits guilt of breaching the CPN and agrees to the caution.
- A warrant to seize any item reasonably believed to have been used in the breach of a CPN may be sought from a Magistrate.
- A Fixed Penalty Notice (Section 52) can be issued. It can be up to the sum of £100 and if paid discharges the persons liability to conviction for the specified offence.
- Remedial action (Section 47) may be taken by the local authority to remedy a failure to comply, but only on land that is open to the air. Remedial works may be undertaken in premises not open to the air, but only with the defaulter’s express consent. The cost of any such works may be charged to the defaulter for the sum of the cost incurred by the local authority in completing them.
There is a comparison between the behaviours Community Protection Notices seek to remedy and the statutory nuisance legislation contained with the Environmental Protection Act 1990.
The Statutory Guidance for the Anti-social Behaviour Crime and Policing Act 2014 recognises this and states that issuing a Community Protection Notice does not discharge the council from its duty to issue an Abatement Notice where a statutory nuisance under has been established. It states that ‘it remains a principle in law that a specific power should be used in preference to a general one’.
A Community Protection Notice may be issued in parallel (including before or after) but must complement the terms of any existing or future Abatement Notice.