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