Local authority duties to deal with noise

If the affected person is not able or willing to approach directly the person responsible for the noise, and mediation is not appropriate, they can complain to the local authority.

Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of noise so as to decide whether the noise is a statutory nuisance, and to inspect its area to detect any statutory nuisance.[1]

If the noise is a statutory nuisance, then the council must serve an abatement notice.[2] If a statutory nuisance is not abated, then a criminal offence may be committed.

An occupier can also take action directly themselves This is particularly useful where the council is responsible for the statutory nuisance, as a council cannot serve an abatement notice on itself. Specific action may also be taken in urgent situations.

Noise is a statutory nuisance where it is:

• emitted from premises so as to be prejudicial to health or a nuisance.[3] This does not include noise caused by aircraft but does include model aircraft[4]

• prejudicial to health or a nuisance that is in a street and is emitted from or caused by an unattended vehicle, machinery or equipment, for example a car alarm.[5] This does not include noise caused by traffic, the armed forces or a political demonstration[6]

The definition of noise includes vibration.[7] Prejudicial to health is defined in the Act as 'injurious, or likely to cause injury, to health'.[8]

Nuisance is not defined in the Act but has been defined in case law[9] as either a:

• public nuisance at common law. This is where an act or failure to act affects adversely the comfort or quality of life of the public generally or a class of people

• private nuisance at common law. This is a substantial interference by the owner or occupier of property with the use and enjoyment of neighbouring property

There are two main consequences of this definition. First, to be a 'statutory nuisance', the nuisance, unlike 'prejudicial to health', must affect the occupiers of more than one premises.[10] Secondly, what qualifies as a nuisance may not qualify as 'prejudicial to health'. It is usually enough that the noise limits the enjoyment of the property and makes life uncomfortable for the occupiers of adjoining properties.[11] Whether the noise actually constitutes a statutory nuisance depends on the particular circumstances.

Case law indicates that normal domestic noise that causes a problem due to poor sound insulation cannot cause premises to be in a state that is prejudicial to health even if there is good medical evidence. This is because, as a matter of statutory construction, it has been held that the legislation was not aimed at the method of construction of a building and was instead aimed at the quick removal of 'noxious matters'.[12]

Examples of noise as a statutory nuisance range from barking dogs,[13] to quarry machinery,[14] to overnight use of facilities provided by a garage forecourt.[15]

The council's duty to investigate complaints and inspect its area is usually carried out by an Environmental Health Officer (EHO). An EHO has a right of entry to inspect property that may be in such a state as to be a statutory nuisance. They can obtain a warrant to force entry and it is a criminal offence for anyone to prevent access.[16]

If the council decides that a statutory nuisance exists, or is likely to occur or recur, then the council must serve an abatement notice.[17] The notice requires the person responsible for the statutory nuisance to carry out any works and take any steps necessary to stop or restrict the noise.

The notice must be served:

• on the person responsible for the statutory nuisance[18]

• if the noise is due to a structural defect, on the owner of the property[19] (note that poor sound insulation would not constitute a defect)

• in cases where the person responsible for the statutory nuisance cannot be found, or the nuisance has not yet occurred, on the owner or occupier of the premises[20]

In the case of noise in the street that is caused by an unattended vehicle, machinery or equipment, such as a car alarm , then, whether a statutory nuisance has occurred or not, the notice can be fixed to the item in question.[21] An EHO also has the power, after notification to the police, to enter, open or move the unattended vehicle, machinery or equipment to deal with the noise. If this is not possible then they can immobilise it.[22]

The council cannot serve a notice on itself.[23] Instead, in cases involving noise caused by defects in council properties, it may, as a matter of local practice, serve an 'informal abatement notice' on the relevant section of the council. However, in practice this is very rare. If a council tenant causes the noise, then the council can serve a notice on the tenant. The person on whom the notice has been served can appeal.[24]

If the person on whom the notice has been served fails to comply with the notice, without reasonable excuse, then they are guilty of an offence.[25] The council may prosecute, but there is no duty to do so.

The council can also carry out the works itself and recover the cost from the person who failed to comply with the notice.[26] This is usually called 'works in default'. If the noise is coming from a property and is caused by equipment, such as a stereo, then the council can seize the equipment.[27]

The High Court has held that the fact that a property had planning permission to be used as a religious place of worship, and the property was registered for that use, was relevant when determining whether or not there was a statutory nuisance.[28] In the same case, the High Court also stated that the evidence of an Environmental Health Officer would not be conclusive evidence of statutory nuisance but just one of the factors to be considered.

Previous legislation

Prior to the Environmental Protection Act 1990, local councils could issue Statutory Notices to control noise nuisance under section 58 of the Control of Pollution Act 1974.

Notices issued under this section, despite section 58 having been repealed by the Environmental Protection Act 1990, are still enforceable by the issuing council.[29]

Complaints

Occupiers can take further action if they are unhappy how a local authority or a private registered provider of social housing (PRPSH) has dealt with their complaint about noise nuisance.

Court action 

Any occupier has the right to take action directly themselves.[30] Since a council cannot take legal action against itself, this right is particularly useful for taking action against a council. This is also useful for an occupier who is unhappy with the council's action or inaction.

The occupier must first serve a notice that they intends to bring proceedings. The notice needs to state the noise that is being complained about,[31] but otherwise does not need to be comprehensive or set out what remedial works are required.[32] The notice is to be served on the same person as the notice that could be served by the council, above.[33] In noise cases only, the notice must give at least three days' notice of court proceedings.[34]

If the noise continues, the occupier may apply for a summons in the magistrates' court.[35] The court can order the person responsible for the noise to abate it and/or stop it recurring, and can also impose a fine.[36]

In addition, an occupier who is dissatisfied with the council could request that the Secretary of State intervenes to compel the council to act.[37] In practice, it is unlikely that the Secretary of State would exercise this power.

Although rarely used in noise cases, in urgent situations for which the above procedure would cause unreasonable delay, under the Building Act 1984 the council can serve a notice giving nine days for the statutory nuisance to be abated.[38] If no action is taken after this period, then the council can abate the nuisance itself and recover its expenses from the person responsible for the noise.[39]

The person on whom the notice is served can prevent the council abating the nuisance, and recovering its expenses, if they serve a counter-notice and abates the nuisance in a reasonable time.[40]

This Act only applies where local authorities have adopted its provisions.

Advisers should check whether it is in force in their area. Under this legislation, local authorities have a duty to investigate complaints of excessive noise being emitted from any dwelling between 11pm and 7am.[41]

If an offence is committed, the authority has the power to issue a warning notice.[42] Non-compliance with such a notice is punishable by a fine,[43] and can also lead to seizure of noise-making equipment, such as stereos.[44]

Judicial review

Judicial review is a general legal remedy which can be used to challenge administrative decisions of local authorities.

To judicially review a PRPSH, the court must persuaded that the PRPSH is carrying out public functions. In certain cases, particularly where the PRPSH has taken over a local authority's housing stock, judicial review may be an available remedy.

Judicial review is not an appeal against a decision but a challenge to the way the decision was made. Judicial review can challenge decisions that are:

• irrational

• perverse

• unlawful

• flow from a misdirection in law

• the result of taking irrelevant considerations into account

• the result of not taking relevant considerations into account

• contrary to 'natural justice', or

• so unreasonable that no authority properly directed in law could have reached the decision that it made[45]

The challenge is made by a civil action in the High Court. It may be relevant to any local authority decision, for example an alleged failure by the local authority to meet its duties under the Environmental Protection Act 1990.

Occupiers should get legal advice about asking for a judicial review of a decision. Judicial review claims should be made promptly, and no later than three months after the decision was made.

Ombudsman

The Ombudsman deals with injustice caused by maladministration, for example, when an organisation takes too long to do something or does not follow its own procedures. However, the Ombudsman service does not question the merits of a decision if it has been taken properly.

Usually, an occupier must first exhaust the organisation's internal complaints procedure. If  still dissatisfied, they can contact the Ombudsman. For example, if an occupier wants to object about the way that a noise problem has been handled by the council's environmental health department, they should use the council's complaints service. If still dissatisfied, they can then approach the Ombudsman.

Following investigation, if the Ombudsman agrees with the complaint, the Ombudsman may order that particular action is taken to remedy the situation, and that compensation is paid.

The relevant Ombudsman service for noise nuisance is likely to be the Local Government Ombudsman.[46] In some cases, the occupier may need to contact the Housing Ombudsman. [47] The two Ombudsman services have arrangements in place for transferring cases between them and/or working together on cases of overlapping jurisdiction.

In one case, the Local Government Ombudsman recommended that a council tenant living in a tower block be paid £1,500 compensation for failure by the council to act on its own environmental health officer's recommendation of works to improve sound insulation.[48] In another case, the Local Government Ombudsman recommended that a council should not only pay compensation, but also pay towards the legal costs of local residents disturbed by noise nuisance that the council could have taken action to stop sooner than it in fact did.[49]

Human Rights Act 1998

Article 8 of the European Convention on Human Rights, which is incorporated into UK law by the Human Rights Act 1998,[50] gives everyone the right to respect for their private and family life and home. This is subject to interference by a public authority where it is in accordance with the law, and necessary in a democratic society in the interests of national security, public safety or for other purposes including the protection of the rights and freedoms of others.

An occupier who believes that their rights have been or would be breached by a public authority in the UK, can bring a claim against that public authority in the domestic courts.[51] The definition of a public authority includes councils and can also include registered social landlords when they undertake functions of a public nature.[52]

In two cases, the state was found responsible for not taking sufficient action to prevent pollution, though it was not itself responsible for the pollution.[53] These cases and the Act may mean that an occupier can now expect councils to do more to protect them in matters relating to noise.

In Hatton v UK,[54] an application was made by residents who claimed that they and their families suffered intolerable disturbance to their sleep from Heathrow night-time flights. They claimed a violation of Article 8. In October 2001, the European Court found in the applicants' favour. It was referred to the Grand Chamber of the European Court of Human Rights. In July 2003, this court reversed the decision. The court emphasised that in dealing with policy issues, national governments must be given a large measure of discretion in determining when breach of such rights is in the public interest. This case shows the reluctance of the court to interfere in domestic issues, especially where policy issues are involved.

It is also clear from various Court of Appeal and House of Lords decisions that the implementation of the Human Rights Act is unlikely to create substantial new rights relating to housing conditions where they did not exist before.[55] This is generally because of the potentially huge resource implications and because the courts defer to the wishes of Parliament.