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NOISE NUISANCE

By Maria Reynolds,2014-08-12 09:29
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NOISE NUISANCE ...

    NOISE NUISANCE

    Going to consider nuisance as a legal concept both at common law and as controlled by statute together with nuisance as lay people may understand it that noise is a

    s****** nuisance

COMMON LAW

1. Public Nuisance

    Power to act derives from s.222 Local Government Act 1972 which

    states …………………. LA must prove there has been interference with the

    exercise of the common rights of members of the public, namely:-

    1.1. the alleged conduct on part of the alleged perpetrator did, in fact, occur;

    1.2. that conduct affected a representative cross-section of a class of people;

    1.3. the alleged conduct had a material affect on that class not merely individuals:

    Nottingham City Council v Zain (a minor) [2002] 1 607 CA [housing estate

    affected by drug dealer’s antic]; and

    1.4. the alleged conduct has been so widespread in its range or so indiscriminate in

    its effect that it is not reasonable to expect 1 person to take action but should be

    taken by community at large: A-G v PYA Quarries Ltd [1957] 2 QB 169 @

    191

    2. usual criteria for granting injunction met ie damages insufficient/inappropriate

    remedy;

    3. the class must emanate from the neighbourhood in which the conduct occurs:

    A-G v PYA Quarries Ltd [1957] 2 QB 169 @ 184.

    4. act(s) complained of must affect either a considerable number of people or a

    section of the public as distinct from individuals : R v Madden [1975] 1

    WLR 1379 (bomb hoax which effected only the telephonist and eight (8)

    policemen did not constitute a public nuisance as group too small);

    5. LA must define the class which it seeks to protect as eg street traders, members

    of the public, its employees, populace of a village (rock festivals);

    6. whether the alleged conduct has materially affected a sufficient number of

    persons to constitute a class is a question of fact in every case R v Madden

    [1975] 1 WLR 1379 . LA needs to show a representative cross-section of the

    class has been affected;

7. The alleged victims must be representative of the identified class AND

    exercising a common right together with other members of the public when

    the alleged incidents took place

    The test for common law nuisance is :

    …….. whether by the standards of an ordinary person, taking into

    consideration the character of the area, there was a nuisance……..”

    Murdoch & Murdoch v Glacier Metal Co Ltd (1998) Env LR 732

8. Remedy - Injunction:

    8.1. there must be evidence that alleged conduct amounts to a pattern of behaviour; 8.2. there must be evidence that the alleged conduct is more likely than not to recur;

    8.3. there must be an emergency justifying the grant of an injunction alternatively,

    the nature of the conduct is so severe that only stopping it would be an adequate

    course.

    This course of action could be taken when there is no time to go through the

    abatement notice procedure

    9. Remedy - Damages:

    9.1. there must be evidence of public nuisance;

    9.2. there need not be evidence of actual loss as that is assumed once nuisance is

    proved, at least for nominal damages;

    9.3. there must be grounds on which damages could be due to the LA as opposed

    to the alleged victims of the alleged conduct, if the incidents were to proved to

    have occurred/caused loss.

    STATUTORY

    Environment Protection Act 1990

    1. s. 79(1) statutory nuisances include:

    (a) any premises in such a state as to be prejudicial to health or a nuisance

    Clear from Haringey London Borough Council v Jowett ( 1999) LGR 667

    that state of premises” will not include a lack of sound proofing such that traffic noise was complained of constituted a statutory nuisance. This is salutary reminder to be quite clear when preparing abatement notices which section of the Act is chosen for to get it wrong can lead to finding that notice void and fruitless/expensive proceedings.

     (g) noise emitted from premises so as to be prejudicial to health or a nuisance………………

    .. it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under s.80 below [or sections 80 and 80A below] and, where a complaint of statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint

    (ga) noise that is prejudicial to health or a nuisance and is emitted from or

    caused by a vehicle, machinery or equipment in a street…”

    2. “prejudicial to health OR a nuisance

    2.1. statutory nuisance can be merely intrusive and irritating ie remember the “or”.

    People often forget and concentrate on the prejudice to health: Godfry v

    Conwy County Borough Council (2001) Env LR 674

    2.2. Noise must amount to a nuisance in the ordinary legal sense ie common law

    definition

    2.3. noise must interfere with personal comfort and need not be a public nuisance 2.4. always a question of fact ie degree

    2.5. intention of perpetrator to be taken into account eg malicious

    3. Sec of State has default powers if the LA fails to act: s.81(7) Sched 3 para 4

    4. s.80 Summary proceedings (See more particularly Robin Howats talk)

    4.1. abatement notice to be served subject to appeal to mags’ court within 21 days

    R v Canterbury Crown Court (1) Thanet District Council (2) ex

    parte………. (2001) Env LR 36 Magistrates must give their reasoning for

    arriving at their conclusions and if they don’t then a conviction is liable to be

    quashed. So make them spell it out

    Lambie (1) Minter (2) v Thanet District Council (2001 Env LR 21 Scope

    of powers under s.80

    SFI Group PLC v Gosport Borough Council (1999) Env LR 750:

    abatement notices will not be void if they do not identify the work necessary

    to abate the noise. “Best practical means test is to be applied to the time

    before the service of the abatement notice

    Brighton & Hove Council v Ocean Coachworks (Brighton) Ltd (2000).

    (2001) Env LR 4: notices must be clear, superfluous words would merely be

    disregarded, notices must be understandable in all the circumstances

    Cambridge City Council v Douglas (2001) Env LR 715: failure to identify

    what should be done to stop” the noise will not make an abatement notice

    void for ambiguity. [can require works or merely say STOP depending on the

    circs]

    4.2. failure to comply = offence liable to fine at level 5, continuing for every day

    when it recurs (?20,000 if non-domestic premises)

    4.3. defence for non-domestic noise nuisance of having used best practical

    means to avoid [as to which see s.79(9)]

    4.4. pseudo defence for construction sites if prior arrangements made under

    Control of Pollution Act 1974

    5. s80A abatement notice re noise in street

    6. s.81 additional/ augmenting powers

    6.1. take high court proceedings for injunction etc (where consider that summary

    proceedings would be inadequate, LA may decide merely before hearing even

    if no such decision formally recorded before issue)

    John Lloyd v Ellen June Symonds, Kevin Anderson, Karina Lucas (1998)

    CA Lawtel (unrep)

    ; Quia temet injunction should only be granted if it there is a very strong

    possibility that , unless restrained, the defendants would have done something

    which would have cause the claimants irreparable harm ie irreversible or could

    not adequately been compensated by damages or restrained by immediate

    interlocutory injunction.

    ; Great care be taken when problem not persist at date hearing ie no current

    breach of abatement notice

    ; Any damages which are awarded should reflect the cessation/gradual

    reduction on the nuisance

6.2. take steps identified in abatement notice

    7. NB provisions re service of notices s.160

Hewlings v McLean Homes East Anglia Ltd [2001] 2 All ER 281

    ; Requirements as to service are permissive not mandatory hence failure to

    comply is amenable to correction

    ; Service on co. registered in England & Wales can be on company or its

    secretary at its registered office or at principal office consistent with

    purposive construction of s.82

    ; Statute less rigid than company legislation and not to be frustrated by

    technicalities (! Like getting it right…)

    ; Defendant need only know the nature of the complaint

; Company cannot allege prejudice to defendant where someone with

authority had received the notice and acted upon it

Noise Act 1996

1. summary procedure for dealing with noise at night” not the most

    sophisticated legislation, shallow (?), specific

2. must first be specifically adopted by local authority

    3. deals exclusively with noise emanating from 1 dwelling house so as to be

    heard in another, provided the noise is excessive”. No definition of

    excessive but use of noise measuring equipment to determine whether it

    reaches/exceeds the permitted level”. [Sec State determines the “permitted

    level]

    4. if on investigation the noise does so exceed, LA serve warning notice that

    may be committing offence. Liable on summary conviction to fine

    NB party receiving notice is merely the one responsible for the noise, need

    not be householder, owner etc etc

    5. the LA can send in the SAS to seize the offending record player

    6. like parking fines, the culprit may reduce his liability if he pays an on the

    spot fixed penalty

CONTRACTUAL NUISANCE

Landlord & Tenant

    1. covenant for quiet enjoyment = Ts lawful possession would not be

    interfered with by L or those claiming under him ie other Ts. Covenant

    prospective in operation hence did not cover situation where state of

    premises (which existed before the tenancy began) gave rise to nuisance.

    Other Ts had merely been using their premises lawfully and not per se in

    manner amounting to a nuisance: Southwark Borough Council v Tanner

    [1999] 3 WLR 939;

    2. L liable for nuisance perpetrated by T1 on T2 if had authorised the nuisance

    express/implied. But authorisation is a matter of fact in each case: Mowan v

    Wandsworth London Borough Council [2001] LGR 228 For which read if

    society considers that some people should be able to/encouraged to live in

    the community then we cannot all turn into NIMBYs

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