Noise Pollution
Please click on one of the links
below for further information:-
Contact Us
Telephone: (023) 9244 6670
Email: ehenvironment@havant.gov.uk
Visit: Civic Offices, Civic Centre Road,
Havant PO9 2AX
Noise nuisance - your
options
Noise has been defined as
unwanted sound. It is a widespread source of irritation and stress,
and can pose a threat to hearing, when at sufficient volume.
Sound is essential in our daily
lives; however, noise is not and there is legislation to control
excessive noise produced by a variety of activities, i.e. industry,
transport and construction sites.
This web page provides details
and advice to assist those people who are affected by noise
nuisance. It must be emphasised that not all noise nuisances can be
dealt with by the Local Authority, therefore advice on how private
individuals may take action to remedy a situation is also
included.
N.B. Noise within the workplace
is covered by separate legislation, the Health and Safety at Work
etc Act 1974 and The Control of Noise at Work Regulations 2005.
Information concerning this aspect may be obtained from the
Council's Environmental Health Officers in the
Commercial Team
>>.
The Law and Complaints
Procedure
General noise nuisance is covered
by Part III of the Environmental Protection Act 1990 and enables
local authorities to deal with noise from fixed premises (including
land) and from vehicles and equipment in the street (e.g. car
alarms) provided the noise is sufficient to be considered a
statutory nuisance.
Nuisance from loud speakers and
chimes in the street and noise from construction sites is dealt
with under Part III of the Control of Pollution Act 1974.
The Council has no powers to deal
with noise from persons in the street.
The Law
Outlined
Environmental Protection Act 1990
Section 79 - defines noise as
constituting a statutory nuisance for purposes of the Act and
imposes a duty on the Local Authority to inspect their area in
order to detect any statutory nuisance (not only noise)
Section 80 - imposes a duty on a
local authority where it is satisfied of the existence or likely
recurrence of a nuisance to serve a notice and to take court
proceedings if necessary to remedy the situation.
Section 82 - allows the
Magistrates Court to act upon a complaint made by any person who is
aggrieved by the existence of a noise nuisance.
Control of Pollution Act 1974
Sections 60 & 61 - provide
the local authority with powers to control noise from construction
sites.
Section 62 - limits the times
during which loudspeakers may be sounded in the street (i.e. ice
cream van chimes)
Section 63 - provides the Local
Authority with the means to designate all or part of its area as a
noise abatement zone.
There are rights of appeal
against any action under these Sections.
The Complaints Procedure
The Environmental Protection Act
1990 allows either the Local Authority or an individual to take a
case before the Magistrates Court. Local authorities, cannot act on
every occasion due to the problem of being able to establish a
nuisance.
Generally speaking because of the
difficulties in establishing nuisance the Local Authority is
frequently not able to take formal action when the noise is of a
more private than public nature, i.e. domestic noise, particularly
when intermittent, one-off private parties, barking dogs and
revving of motor vehicles. With noisy neighbour complaints, it is
best to approach them yourself first and discuss the problem
informally; the neighbour may be unaware of any problem.
Portsmouth
mediation service >> operates a free, confidential and
impartial service for tenants of Portsmouth City Council,
Portsmouth Housing Association and Hermitage Housing Association
who live in the Borough of Havant. It is run by local volunteers
that come from many different backgrounds. They are specially
trained in neighbour disputes and understand that you may be angry,
upset, worried or frightened. The mediators will not take sides,
judge or blame and they will not tell you what to do. They will
provide an opportunity for you to talk and be listened to and help
find the best way to resolve neighbour problems. The service helps
with different types of disputes for example, noise, children,
rubbish, animals, property, damage, boundaries and fences,
harassment, parking and more. To find out more information
including how the service works and how to contact the service
please visit the
Portsmouth
mediation service >> website or contact:
Portsmouth Mediation
Service
95 Elm Grove
Southsea
PO5 1LH Tel: 023 9243 1352
Fax: 023 9243 1679
E-mail:
portsmouth.mediation.service@care4free.net
If an initial approach to the
person causing the nuisance fails you may:-
- Complain to the Local Authority
Contact the Environmental Health
Environment Team. If it is agreed that the noise constitutes, or
may constitute, a nuisance the Service will contact the offender,
informally at first, before taking action under the Acts.
The Environmental Health Officer
has to have regard to all aspects of the alleged nuisance before
taking further action. There are a number of varying factors such
as the reaction of individuals to noise, the time of day or night,
the volume of noise, its nature, duration and how often if occurs,
all of these factors have to be taken into account when assessing
nuisance.
The Local Authority must be
satisfied that a noise amounting to a nuisance exists before an
abatement notice is served or action taken in the Magistrates
Court. The word of the complainant is not sufficient for the Local
Authority to prove nuisance; the investigating officer must be able
to witness the nuisance, possibly on several separate occasions. It
is recommended that a written record of dates, times and duration
of the noise disturbance is kept with a description as to the type
of noise and how it interferes with the use or enjoyment of
your home e.g. unable to get to sleep, interference with speech,
etc. These notes must only be made by those people witnessing the
noise.
If other persons (neighbours) are
prepared to substantiate your complaint they should be requested to
complain to the Environmental Health Service separately. The
occasional disturbance by noise may be annoying but not in law
constitute a nuisance.
Should a complaint to the Local
Authority result in formal action, the complainants may be required
to give evidence in Court.
- Complain direct to the Magistrates
If you are the occupier of
premises affected by noise nuisance you can complain under Section
82 of the Environmental Protection Act 1990 direct to a Magistrates
Court. This course of action is recommended when the Local
Authority is not able to substantiate a nuisance.
The person responsible for the
noise must first be approached and it is advisable to write or
speak to the person concerned informing them that you are of the
opinion that they are creating a noise amounting to a
nuisance. If there is no improvement in the situation, a detailed
log of events must be kept by those witnessing the noise in order
to help prove a nuisance. Support may be gained by neighbours
prepared to act as witnesses to the noise.
The next step is to contact the
Clerk to the Justices and inform him that you wish to bring
proceedings under Section 82 of the Environmental Protection Act
1990. Before proceedings are instituted you must give the person
responsible for the noise not less than 3 days notice in writing of
your intention to bring proceedings, together with a description of
the matter complained of.
Note: If, at any
time you feel that the circumstances of the case have changed and
that the Local Authority should take action, you should approach
the Environmental Health Department and discuss the matter
again.
Legal Advice Regarding
Private Action
Although it is not essential, it
is advisable to take legal advice as to your prospects of success
even if you do not intend or cannot afford to ask a Solicitor to
act for you in Court. Such advice can be obtained:
(a) from the Citizens Advice
Bureau,
(b) at a fixed fee interview with
a Solicitor regardless of income,
(c) with the assistance of Legal
Aid, depending upon income qualifications, for help with the
preparation of a case but not for conducting the case itself.
If you take your own case there
are things you should know about Court procedure. This information
will be provided by the Justices' Clerk's Office.
Final
Remarks
There are two sides to every
story. Environmental Health Officers investigate hundreds of
complaints of domestic noise and in many cases they find that the
person being complained about has just as plausible a story as the
complainant. Environmental Health Officers do not act for
individuals professionally and unless the Council is itself
bringing a case they cannot take sides in any dispute. If called
upon to give evidence they will do so as they find the facts, which
may be different to your own views. Very often it is found that
relationships between neighbours are strained and that the noise
complaint is just part of a greater and sometimes complicated
dispute. In these circumstances the Environmental Health Officer
will often recommend the complainant to take his own case. The
Magistrates' Court then has to decide the rights and wrongs of the
situation.
Remember that the person you
complain about may be able to produce counter-arguments in
defence which are just as real to them as your grievances are
to you. One thing you must do is be quite certain of the grounds of
your complaint and that you are not overreacting to a situation
which many people would find acceptable.
List of useful Addresses/telephone
numbers:
Havant Citizens Advice Bureau
Civic Offices
Civic Centre Road
HAVANT
PO9 2AX
|
|
Waterlooville
Citizens Advice Bureau
Swiss Cottage
9 St Georges Walk
WATERLOOVILLE
PO7 7TU
|
|
Leigh Park Citizens Advice Bureau
Leigh Park Community Centre
Dunsbury Way
Leigh Park
HAVANT
PO9 5BG
|
|
Clerk to the Justices
Portsmouth Magistrates Court
Winston Churchill Avenue
PORTSMOUTH
Hampshire
PO1 2DQ
Telephone: (023) 9281 9421
NOISE ENFORCEMENT & PROSECUTION
GUIDELINES
Aim of Guidelines
To ensure a consistent approach
to enforcing legislation concerning noise within the Borough of
Havant.
To provide officers with
guidelines to enable them to make consistent decisions in the
field.
1.INTRODUCTION
1.1 The Council's approach to enforcement reflects the
terms of the Government's Enforcement Concordat to which the
Council agreed in February 2001 and complies with the Council Policy for
Regulation and Enforcement for all Council regulators confirmed
by the Executive on 22 October 2008.
1.2 Under Section 79 the Environmental Protection Act
1990, local authorities are required to act if they are satisfied
that a statutory nuisance exists, or is likely to occur or recur in
their area. The Council has under this Act and others relating to
noise such as The Control of Pollution Act 1974 a range of powers
to enable it to fulfil the duties for which it is responsible.
1.3 The primary responsibility for compliance lies with
individuals and businesses, who are responsible for the nuisance or
who own or occupy houses where the nuisance arises.
1.4 These guidelines direct that enforcement action, be it
verbal warnings, the issue of written warnings or statutory
notices, prosecution, or seizure of noise making equipment is
primarily based upon a measured response to the seriousness of the
problem. Formal enforcement action will not usually, therefore,
constitute the first response to allegations of alleged
nuisance.
1.5 All authorised officers when making enforcement
decisions shall abide by these guidelines. Any departure from the
guidelines will be exceptional, capable of justification and be
fully considered before the decision is taken, unless it is
considered that there is significant risk to the public in delaying
the decision.
1.6 All authorised officers should be fully acquainted
with the requirements of these guidelines and any future amendments
made thereof.
2.0 DECISION MAKING
2.1 Prior to the service of any statutory notice, except
in the case of an emergency, the case officer shall fill out
a Noise Abatement decision checklist for service of
notice. This checklist requires the case officer to seek approval
for formal action by the Environmental Health Team Leader
(Environment) (or Environmental Health Manager or Head of Community
Services in their absence.)
2.2 The decision to refer a case for prosecution, based on
the available evidence and professional judgement, shall be left to
the Environmental Health Manager in accordance with current
practice. The case officer must then consult with
the Solicitor to the Council to ensure that the case has
been properly considered and is sound.
3.0 FORMAL ENFORCEMENT
3.1 Enforcement action may only be initiated by officers
who are authorised to do so.
3.2 The Environment Team recognises and affirms the
importance of achieving and maintaining consistency in its approach
to making all decisions, which concern enforcement action,
including prosecution. The Council has signed up to and follows the
principles of the Enforcement Concordat. It will also ensure that
all actions will be consistent with the Human Rights Act 1998.
3.3 It is our policy to ensure that enforcement decisions
are always consistent, balanced, fair and relate to common
standards that ensure the public is adequately protected. In coming
to any decision many criteria will be taken into account including
the seriousness of the offence, the past history of the case, the
consequences of non-compliance and the likely effectiveness of the
various enforcement options.
3.4 Having considered all relevant information and evidence,
the choices for action are:
- take no action
- to take informal action
- to use statutory notices
- to use simple cautions
- to prosecute
- seizure of noise making equipment
- abatement of the noise by direct action
- injunction
3.5 Even where some of the above criteria are not met,
there may be circumstances in which informal action will be more
effective than a formal approach.
4.0 INFORMAL ENFORCEMENT
4.1 Many persons, having had a problem for which they are
responsible drawn to their attention, will be anxious to comply
with their statutory obligations. In such cases the enforcement
officer's role will be to guide and support. In many cases the
first contact with a person complained about or believed to be
causing or permitting a problem, will be by advisory letter.
4.2 Officers will supply appropriate guidance on
legislation, Council procedures and criteria used to assess the
extent of the problem either verbally, by letter or by leaflet
whenever a complaint is received or a problem is otherwise drawn to
the officer's attention.
4.3 If written observations, suggestion or requirements
are appropriate these will normally be made within 10 working days
after a complaint is notified or a meeting takes place. Such
written guidance will clearly identify the nature of the complaint
or problem and any remedial works that are required. The officer
will, with due regard to technical accuracy express requirements or
suggestions in a manner that is clear and readily
understandable.
- Any requirements made verbally or in writing will clearly
identify whether they are mandatory or advisory in nature. If the
requirements are mandatory, a timescale for compliance will be
specified, unless immediate cessation of the noise is
required.
- Due regard will be had to any special circumstances brought to
an officer's attention by the person responsible when a timescale
for compliance is specified.
4.4 It is appropriate to use informal action in the
following circumstances:
- The act or omission is not serious enough to warrant formal
action.
- From the individual's/enterprise's history it can be reasonably
expected that informal action will achieve compliance.
- Confidence in the individual/enterprise's management involved
is high.
- The consequences of non-compliance will not pose a significant
risk to public health.
4.5 Even where some of the above criteria are not met,
there may be circumstances in which informal action will be more
effective than a formal approach.
5.0 FORMAL NOTICES
5.1 Abatement notices can be effective and quick in that
they require problems to be rectified without the potential delays
and uncertainty of going to Court. The recipient has the right to
appeal to the Magistrates' Court.
5.2 In this section enforcement action means serving a
notice under section 80(1) of the Environmental Protection Act
1990.
5.3 In the event of an appeal, the notice may be suspended
until the appeal is abandoned or until the outcome of the appeal
hearing.
5.4 The notice may not be suspended in the event of an
appeal if the notice is worded accordingly because, in the opinion
of the Council,
- the noise is prejudicial to health or likely to be of limited
duration such that suspension would render the notice of no
practical effect
- the expenditure which would be incurred by any person carrying
out works in compliance with the notice before any appeal has been
decided would not be disproportionate to the public benefit to be
expected in that period from such compliance.
6.0 FORMAL ENFORCEMENT - PROSECUTION
6.1 The Council will generally initiate prosecution
where;
- the person served with an abatement notice fails to comply with
the requirements of the notice
and
- there has been no appeal against the terms of the notice or any
appeal made has not been upheld
and
- The Council regards prosecution as likely to be a more
appropriate and effective remedy than work in default in the rare
instances that this would be possible.
6.2 In deciding whether to
prosecute, the Council will consider
- the gravity of the offence
- the general record and approach of the person responsible
- whether it is in the best interest of the public to ensure
remedial action or to deter others who may fail to comply with
notices.
- whether the evidence available provides a realistic prospect of
a conviction
- whether it would be more efficient use of public funds to
simply carry out works in default.
6.3 If warranted by the circumstances, the Council will
prosecute without additional warnings and without prior recourse to
alternative sanctions.
7.0 OTHER ENFORCEMENT POWERS - SEIZURE OF NOISE-MAKING
EQUIPMENT
7.1 Where the requirements of the notice are not carried out,
in many instances the Council is empowered to do whatever is
necessary to abate the nuisance. This can include the seizure of
noise making equipment.
7.2 The Council may seize noise-making equipment
when:
- the person served with an abatement notice failed to comply
with the requirements of the notice
and
- the Council regard seizure to be a more appropriate or
effective remedy than prosecution or a successful prosecution has
already been taken but the problem remains
7.3 If appropriate, the Council will seek a warrant from a
Magistrate authorising entry to premises, if necessary by force, to
facilitate seizure of noise making equipment.
8.0 OTHER ENFORCEMENT POWERS - WORKS IN
DEFAULT
8.1 Where the requirements of a notice are not carried
out, in many instances the Council is empowered to do whatever is
necessary to abate the nuisance and this can also include works in
default. The Council will generally carry out work in default
when:
- the person served with an abatement notice failed to comply
with the requirements of the notice,
and
- there has been no appeal against the terms of the notice or any
appeal made has not been upheld
and
- the Council regard work in default as likely to be a more
appropriate or effective remedy than prosecution or a successful
prosecution has already been taken but the problem remains
- the Council may, in exceptional circumstances, also carry out
work in default on behalf of the person responsible where a written
request and an undertaking to pay is received from them.
8.2 In deciding whether to carry out work in default, the
Council will consider:
- The urgency of the need to abate the nuisance.
- The wishes of the person responsible for the problem.
- Whether the evidence available provides a realistic prospect of
defending the Council's action in the event that the person
responsible contests recovery of costs.
8.3 The Council may recover the costs of the work from the
person responsible as a civil debt or by placing a charge on the
property. Such a charge may be repaid by instalments but will
accrue interest at such reasonable rate as the Council may
determine.
8.4 In carrying out duties, duly authorised officers have a
range of far reaching powers,
including the right to enter any premises at any reasonable
time in order to;
- Ascertain whether or not a breach of legislation exists.
- Carry out any action or works authorised in accordance with
these guidelines.
- See Environmental Protection Act 1990 Schedule 3, para
2(1).
8.5 Entry to residential property shall not, except in an
emergency, be demanded as of right unless 24 hours notice has been
given. See Environmental Protection Act 1990 Schedule 3, para
2(2).
8.6 If entry is refused, an officer may apply to a Justice
of the Peace for a Warrant to enter the premises, if necessary, by
force. See Environmental Protection Act 1990 Schedule 3, para
2(3).
8.7 An officer authorised to enter may:
- take with him such other persons and equipment as may be
necessary
- carry out such inspections, measurements and tests as he
considers necessary
- take away such samples or articles as he considers necessary
for that purpose
- See Environmental Protection Act 1990 Schedule 3, para
2(4)
8.8 Before using such powers, an officer will have decided
that informal action, in that particular instance;
- would not be appropriate, or
- would be inadequate for the Council to fulfil its duty,
or
- would not be successful, or
- has already failed
9.0 OTHER ENFORCEMENT POWERS - SIMPLE
CAUTION
9.1 The Statutory Code of Practice on legal matters advises
that local authorities should consider issuing a simple caution as
an alternative to a prosecution.
9.2 Home Office Circular 18/1994 states that the purpose of
the simple caution is:
- to deal quickly and simply with less serious offenders;
- to divert them from unnecessary appearance in the criminal
courts; and
- to reduce the chances of their re-offending
9.3 To safeguard the suspected offender's interests, the
following conditions should be fulfilled before a caution is
administered:
- there must be evidence of the offender's guilt sufficient to
give a realistic prospect of conviction.
- the offender must admit the offence.
- the offender must understand the significance of a caution and
give informed consent to being cautioned.
9.4 If there is insufficient evidence to consider taking a
prosecution, then by implication the conditions are not satisfied
for the use of a simple caution. It is also inappropriate to use a
simple caution where the suspected offender does not make a clear
and reliable admission of the offence. There is no legal obligation
for any person to accept the offer of a simple caution and
therefore no pressure will be applied to the person to accept a
caution.
9.5 Simple cautions shall be used in accordance with the
Home Office Circular and relevant LACORS guidance. The
Environmental Health Manager is designated the "cautioning officer"
to issue simple cautions.
9.6 Where a person declines the offer of a simple caution,
it will be necessary to consider taking alternative enforcement
action. Whilst this will probably mean taking a prosecution, this
is not inevitable. For example, it may be felt that a written
warning would be appropriate.
9.7 Where a simple caution is to be given other relevant
bodies will be advised. These bodies may include home and
originating authorities. Reference shall be made to any detailed
advice offered by LACORS, particularly any guidance issued on
LACORS Home Authority Principle.
10.0 OTHER ENFORCEMENT POWERS -
INJUNCTION
10.1 Where the risk to public health is greatest and/or
the delay that would occur in taking the case for prosecution would
allow an unacceptable continuation of the breach, the Council may
decide to seek an injunction. In cases of such seriousness, it must
be approved by the Environmental Health Manager prior to being
referred to the legal department.
11.0 TRAINING AND QUALIFICATIONS OF ENFORCEMENT
OFFICERS
11.1 No officer will carry out enforcement duties unless
suitably trained and experienced and authorised by Havant Borough
Council. Only officers specifically authorised for that purpose,
being officers having relevant qualifications, training and
experience will sign abatement notices.
11.2 Prior to the service of any kind of notice which,
directly or indirectly would cause a business to cease trading, the
matter must be reviewed by the Environmental Health Manager and the
Solicitor to the Council. Prosecution will only be instigated
following review of the matter by the Environmental Health Manager
and the Solicitor to the Council. Training will be provided for all
enforcement officers as required to meet changes in legislation and
enforcement procedures.
12.0 REVIEW OF GUIDELINES
12.1 The implications and effectiveness of these
guidelines will be monitored and reviewed as necessary.
30 November 2009