Quality Procedure Domestic Noise

GUIDANCE NOTE – DOMESTIC NOISE

1.0Introduction

1.1This procedure deals with domestic noise RFA’s and must be read in conjunction with the advice given by the Head of EPU (see Appendix 1), and the Guidance
Note - Seizure of Sound Equipment.

2.0Request for Assistance

2.1Request for assistance received.

2.2The complainant must be contacted by telephone or personal visit in accordance with RFA Quality Procedure.

2.3The complainant must be advised of the procedural steps involved and their confirmation obtained that in the event of court action being taken, they will be prepared to act as a witness. The complainant must be encouraged to contact the alleged source themselves prior to further action being taken.

2.4Where the alleged source is a Council tenant a memorandum (memorandum to the Housing Department, Appendix 2) must be sent to a named housing officer requesting details of any previous involvement and highlighting the need for discussion of how together the issue may best be resolved by the two Departments.

2.5Where the alleged source is a Housing Association tenant a letter, (letter to Housing Association, Appendix 3) must be sent to a named Housing Association Officer requesting details of any previous involvement and highlighting the need for discussion of how together the issue may best be resolved by the two organisations.

2.6In cases where the RFA involves racial harassment the officer must contact the Head of Corporate Admin and Equality Development (Appendix 18) for further advice.

2.7Where the information available indicates the alleged offender is suffering from a mental illness or special needs, contact must be made with either Social Services, close family members or friends, the GP or the local Mental Health Team, with a view to resolving the matter without formal action. If this route proves unsuccessful further advice must be sought from the District Services Area Managers
(Appendix 18).

District Services Area Manager AOS - Janet Bradley - 303 5435

AON - Roger Berry- 303 9920

3.0Action Before Service of Notice

3.1A letter must be sent to the complainant (initial letter to complainant, Appendix 4) and to the alleged offender (initial letter to offender, Appendix 5) except where the complainant wishes no further action to be taken or where completed diary sheets have been sent by the Housing Department or Housing Association. In the latter case see point 3.7.

3.2The diary sheet accompanying the initial letter to complainant (Appendix 4) must be completed and returned unless extreme circumstances exist (e.g. noise is occurring each night and the complainant is unable to sleep) or the complainant has severe difficulties in completing the form. On these occasions see point 3.5.

3.3Where no contact is received from the complainant within 3 weeks the RFA must be closed on Panorama.

3.4Where the returned diary sheet indicates no actionable nuisance, a letter must be sent to the complainant (letter to complainant diary sheets returned no nuisance identified, Appendix 6).

3.5If the diary sheet returned by the complainant indicates a potential noise nuisance or extreme circumstances exist or the complainant has severe difficulties in completing the form, letters (second letter to complainant Appendix 7 and second letter to offender Appendix 8) must be sent to the complainant and alleged offender respectively. (Delete paragraphs as appropriate)

3.6Automatic noise monitoring must be requested using Link Job on Panorama. In order to comply with the requirements of RIPA (Regulation of Investigating Powers Act 2000), it is essential that all monitoring of noise (whether by equipment or personal witnessing) is conducted within 3 months of advising the alleged offender of the intention to undertake monitoring of the noise. Failure to comply with this requirement will invalidate any evidence obtained.

3.7Where diary sheets sent by the Housing Department or Housing Association indicate a potential noise nuisance, letters (second letter to complainant Appendix 7 and letter to offender where information provided by Housing Department/Housing Association Appendix 9) must be sent to the complainant and alleged offender respectively. Monitoring must be requested as in 3.6.

3.8If the noise occurs outside of normal office hours, consent to place the complainant on the Rapid Response Noise Team Register (RRNTR) must be obtained from the officers team leader, prior to putting the job onto the RRO diary on Panorama.

3.9Should officers be called during normal office hours every effort must be made to personally witness the noise.

3.10The complainants’ details remain on the RRNTR for a period of 6 weeks.

3.11If it has not been possible, either by personal visit or automatic noise monitoring, to establish a nuisance, a letter (letter to complainant – no further action Appendix 10) must be sent to the complainant advising them that no further action can be taken at this stage, together with details of how they may take their own legal action. (Troubled by Noise – Appendix 11).

4.0Service of Abatement Notice

4.1Once a statutory nuisance has been established an Abatement Notice shall be served.

4.2When the Abatement Notice is served it must be accompanied by an explanatory letter, (letter to source accompanying Abatement Notice, Appendix 12) advising the offender of the implications of non compliance.

4.3A letter (letter to complainant informing them that an Abatement Notice has been served, Appendix 13) must be sent to the complainant advising them of action taken. Where the complainants details are contained on the RRNTR the officer must remove their details from the RRO diary before 4.00pm the same day.

4.4In the event of the source being a Housing Department or Housing Association tenant, memorandum (memo to Housing Department Notice served, Appendix 14) and letter (letter to Housing Association Notice served, Appendix 15) must be sent to the Housing Department or Housing Association respectively.

5.0Breach of Notice

5.1If the complainant alleges a breach of the notice, letters (letter to complainant following further complaints after Notice has been served, Appendix 16) and (letter to offender following further complaints after service of Notice, Appendix 17) must be sent to the complainant and source respectively.

5.2The procedure as detailed in points 3.6, 3.8 and 3.9 relating to requesting automatic noise monitoring, placing of the complaints details on the RRNTR and contact during the day, must be repeated.

Authors: Kevin Hall

Team Leader – AON

303 9929

Appendices

Appendix 1------Advice given by Head of EPU

Appendix 2------Memo to Housing Department

Appendix 3------Letter to Housing Association

Appendix 4------Initial letter to complainant

Appendix 5------Initial letter to alleged offender

Appendix 6------Letter to complainant diary sheets returned no nuisance identified

Appendix 7------Second letter to complainant

Appendix 8------Second letter to offender

Appendix 9------Letter to offender where information provided by Housing Department/Housing Association

Appendix 10------Letter to complainant – no further action

Appendix 11------Troubled by noise

Appendix 12------Letter to source accompanying Abatement Notice

Appendix 13------Letter to complainant informing them that an Abatement Notice has been served

Appendix 14------Memo to Housing Department. Notice served

Appendix 15------Letter to Housing Association. Notice served

Appendix 16------Letter to complainant following further complaints after service of Notice

Appendix 17------Letter to offender following further complaints after service of Notice.

Appendix 18------List of officers

AON.GUIDANCE NOTES-DOMESTIC NOISE.1

MISC.M1

Appendix 1

All Environmental Health StaffGT/jph/3198

Gavin Tringham

Advice on Section 80 Notices

In the last few months further developments have taken place concerning S80 notices and some queries have been raised. To assist I am issuing the following advice and re-issuing previous advice.

New Advice

A)A recent case involving London Underground determined that any accompanying letter or schedule forms part of the notice. If your notice just says “abate the nuisance” with no remedy but your letter suggests a remedy then you are in practice specifying works. In that case only do so if the works are totally and accurately specified.

B)Antisocial Behaviour Orders (See also Question 1 in previous advice)

It is becoming clear that where behaviour is the key problem then Antisocial Behaviour Orders are the best option. Roger Berry is considering how we might pursue this and will arrange briefing when appropriate. I would remind you that Section 80 is not appropriate.

Further Questions

Q11.What happens to a prosecution if the complainant or the person responsible for the nuisance vacates the property?

A.The prosecution file MUST be reviewed with your senior manager [PO5/6] to assess whether the prosecution is still in the public interest. But first make sure you know the whereabouts of the defendant.

Q12.How many breaches of a notice are required to take a prosecution?

A.As to how extensive a breach has to be or how often it is contravened, this is your professional judgement, but you must be able to convince a court on both the positive evidence you have got weighed against any negative evidence. For instance, compare if you have visited a property ten times and not witnessed anything and then on one day time visit heard 10 minutes of excessive noise, as against turning up on the first occasion in the middle of the night and hearing the noise. My advice would be to try to get several breaches of a notice or an extensive breach, either in terms of very loud noise or long duration. If there have been a number of unsuccessful attempts at witnessing a breach of the notice, the details will need to be disclosed and could be used against the prosecutions evidence.

Q13.Repeated breaches would cause unnecessary delay in the preparation of a prosecution file.

A.The report should be prepared for half time on the basis of the first breach. If subsequent breaches are to be included, discuss this with Peter Barrow. In discussions with him it should be agreed wherever possible that the details of subsequent breaches be included in the case papers and made available to the prosecution and defendant when the case goes to court.

Previous Advice

Question 1

Are Section 80 powers suitable for dealing with nuisance from the human voice? The original enquiry was prompted by complaints of noise nuisance from the vocal behaviour of an autistic child who was the subject of a referral from the Ombudsman. Since then, we have received a number of complaints where the noise source is the voice or voices of either children or adults.

Answer

The advice is that the definition of “nuisance” should be viewed in its common law sense and it is reasonable to argue that a local authority should not serve a Notice in cases involving behavioural noise because such noise does not constitute a statutory nuisance. This is because it can be argued that it was never the intention of the legislation that the Act should be used to control and penalise those people.

Question 2

There is confusion about how long a Notice is valid for. In the case of R – v- Birmingham Justices, exp Guppy (1988) 152 JP 159, the prohibition of a nuisance is said to continue indefinitely.

Answer

Legally the notice continues indefinitely, but following discussions, a “rule of thumb” is 18 months without a recurrence and a new Notice should be served. This will be shorter if an officer is of the opinion that the nuisance was fully abated, eg a faulty fan had been replaced by a new one which then fails.

Question 3

Can we suspend the effect of the Notice on appeal on several grounds, for example, both limited duration and limited expenditure, or is it a case of one or the other?

Answer

In my view, an officer can refuse to allow a notice to be suspended on all or any of the grounds, eg injurious to health, limited duration, expenditure not disproportionate

Question 4

Many Section 80 Notices are served on the basis of listening to a tape recording of a sound source. In such cases, is the nuisance “in existence” and one assumes that in such cases it would be appropriate to “abate” the nuisance? However, there is a view that since the nuisance is unlikely to be occurring at the time that the Notice is served, should the Notice be worded “likely to occur” or “likely to recur” and, in such circumstances, would it be more appropriate to “prohibit” as opposed to “abate”? If we are prohibiting, is it to prohibit an occurrence or recurrence?

Answer

In my view, in listening to a tape, if the officer is satisfied that there is nuisance which is intermittent, then the phrase should be “that a nuisance has occurred and is likely to recur” and the appropriate wording is to prohibit its recurrence.

Question 5

If “abate” means abate for all time, then we do not need to say prohibit.

Answer

In my view, a nuisance should be abated if it is an ongoing and continuing nuisance that will occur inevitably eg a fan noise. A nuisance should be prohibited if it has ceased, but is likely to recur, but its recurrence is not inevitable.

Question 6

Section 80(1) states that the local authority can “impose all or any of the following requirements”. Does this mean that we require the abatement and prohibition of a nuisance in one Notice despite the fact that Section 80(1)(a) states “requiring the abatement of the nuisance or restricting its occurrence or recurrence”? The ‘or’ has been emphasised since it appears that a Section 80 Notice can only require one solution.

Answer

All or any of the requirements can be imposed, eg either (a) or (b) or both or any parts therein.

Question 7

Do we “require you to prohibit the nuisance” or should this phrase read “prohibit the nuisance”? Your answer is obviously dependent on who you think is responsible for the prohibition ie whether it is the local authority or the person causing the nuisance.

Answer

I believe the wording must include the word “require” and hence “require you to prohibit the nuisance” is the correct wording.

ADDITIONAL MATTERS

8.Where does the nuisance arise?

Barry Berlin raised legal queries about where “the nuisance arises”. I have previously sought clarification from the D of E who said “our legal advice is that the place where the nuisance ‘arises’ is in fact the place where the nuisance emanates from”. We are following this advice so accordingly in your Notices you must use that interpretation.

9.Barry Berlin gave advice that cast doubt on the notion that a resident coming to a nuisance was not a defence against that nuisance. I fully agree with Barry Berlin’s advice and as such would you please be aware of the following types of complaints that would probably not be actionable as a nuisance.

(a)A fully employed person who lives next door to a commercial/industrial unit. The person then retires and becomes aggrieved about problems that have always been there, but they only now notice.

(b)A new occupant of a house complains about a problem the previous occupant did not complain about.

Essentially in these types of cases it will be necessary to show that something has materially changed before taking any action, eg machinery has not been maintained, new machinery, changes in working practices.

10.A notice is perfectly legal if it just specifies “abate the nuisance within (XX days)”. If you choose to specify anything by way of remedial works then that must be precise, readily understood and in full detail. The following would meet that criterion:-

(a)prohibiting the use of a specified machine between 2200 hrs and 0700 hrs;

(b)specifying a noise level that must be met, together with the measurement procedure, including the measurement point;

( c)replacement of a machine or structure with one that meets a documented standard, eg in accordance with a British Standard or with Building Regulations.

The only time where you must specify a remedy is when the person in receipt of the notice has no control over the source of the nuisance, eg in the Westminster case where one flat created the noise, but the landlord was required to insulate the building.

Sajeela Naseer

Head of Environmental Protection

Tel: 0121 303 6113

Fax:0121 303 6124

Guidance on the use of the revised Section 80 Proformas

Three proformas have been produced for the service of Section 80 notices. Each proforma enables the service of a notice with a minimum of editing in a defined set of circumstances. The proformas are labelled N1 to N3 on their top right hand corner.

All earlier section 80 proformas should be destroyed.

The circumstances under which each proforma should be used are:

Proforma N1

Nuisance has occurred and has been witnessed, but is not occurring at the time when the notice is served.

Proforma N2

Nuisance has occurred, has been witnessed, and is occurring at the time when the notice is served.

Proforma N3

Nuisance has not yet occurred or has not been witnessed. Note that this notice must be served on whoever is the owner or occupier of the premises rather than the person responsible (see S80(2)(c))

Additional guidance

1. Suspension of notices

Section 80 notices should normally be suspended in the event of appeal.

In the event that a notice is not to be suspended in the event of an appeal it is important to be absolutely certain of the reason. The three possible reasons for not suspending the notice are:

6(i) Injurious to health. The meaning of injurious to health has been defined in case law. All notices specifying injurious to health must be referred to the Head of EPU (see point 2 below)

6(ii) Limited Duration. This is intended for use where suspension of the notice would render it useless due to the limited duration of the nuisance. Eg a single event or party.

6(iii) Limited expenditure. This is intended for use where compliance with the notice does not entail significant cost on behalf of the recipient. Eg reducing the volume of domestic amplified music.

Note that the inability to operate commercial premises or equipment is likely to lead to expense. The term ‘limited’ is not defined. However, if an appeal is successful and the

notice was not suspended, then the Department is likely to be liable for all losses arising from compliance with the notice.

Any combination of these reasons may be used.

2. Unusual Circumstances

Where a section 80 notice is to be used in unusual or uncertain circumstances the case should be referred to the Head of EPU. Examples of such circumstances are:

i)Where a notice uses prejudicial/injurious to health.

ii)Where the nuisance relates to behavioural noise. (Antisocial Behaviour Orders or the Protection from Harassment Act may be more appropriate)

iii)Where a notice seeks to specify a solution rather than simply abate/prohibit the nuisance.