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UKNA SCOTLAND The Scottish branch of the UK Noise Association |
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Noise Law - Where Do We Go From Here? |
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Professor Francis McManus: Napier University Tackling Noise Conference 2003 Introduction This paper focuses on the law relating to neighbourhood noise in the United Kingdom and puts forward a case for noise law reform. What is neighbourhood noise? The expression, 'neighbour noise' is not a technical term or term of art. It is generally used to describe noise which impacts on people in their own homes but does not include transport noise. Neighbourhood noise and Statutory Law During the nineteenth century neighbourhood noise did not rank as a criminal offence as far as national legislation was concerned. The only legislation which dealt with certain types of neighbourhood noise was in the form of local authority byelaws which proscribed noise from a variety of sources including noise from street musicians. The first attempt to tackle the problem of neighbourhood noise was the Noise Abatement Act 1960 which added noise to the list of statutory nuisances which were not covered by the Public Health (Scotland) Act 1897 or the Public Health Act 1936. The concept of nuisance as a remedial device in environmental law since the 1840s as a result of adherence to the belief in the miasmatic theory of transmission of disease. The adherents to this theory believed that smell generated disease, especially cholera. One could, therefore, strike at the cause of disease by eliminating environmental nuisances. While the miasmatic theory was based on a myth it did have a profound effect on the development of environmental law and policy in both national and in municipal terms. As far as national legislation was concerned, public health or environmental control statutes have continued to employ the concept of nuisance until the present day. For example, the Public Health(Scotland) Act 1867, the Public Health Act 1936 all used the concept as a remedial device. Indeed, the nuisance provisions of such statutes constituted the main remedial device in the armoury of local authorities until after the Second World War for air pollution and waste. However, the prudence of setting store by the concept of nuisance received a major setback, certainly as far as atmospheric pollution was concerned, with the London Smog disaster of 1952 which cruelly exposed the inadequacy of nuisance as an environmental remedial device. |
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Using existing legislation to deal with noise offered the easiest, if slightly unimaginative route for Parliament to take. The fundamental problem which the government has had to confront in formulating noise legislation is that it is uncertain about the public's values about noise pollution. Environmental laws which have stood the test of time have been largely driven as well as shaped by the government's accurate perception of public values concerning various forms of pollution and their deleterious effect on human health. However, the problem confronting legislators as far as noise is concerned is that reaction to noise is so subjective that it is fiendishly difficult to set appropriate standards. Confusion between common law and statutory nuisance The courts have traditionally had difficulty in interpreting the concept of nuisance as used in statute. There has been a tendency for the courts to import common law principles of common law nuisance into the statutory meaning of nuisance. See, eg, Robb v Dundee City Council 2002 SLT 853. I do not have the time to discuss this case to-day but the three judges who sat in the Inner House of the Court of Session (which corresponds to the English Court of Appeal) had different opinions as to what the word 'nuisance' as used in s79(1)(a) of the Environmental Protection Act 1990 meant. The analysis by judges of the meaning of the word, 'nuisance' as used in the section poignantly illustrates problems which arise when one employs in an environmental statute a word used commonly in everyday language in legislation. It also illustrates problems which can arise when one employs in an environmental control statute a word which is a term of art in private law. The 'rules' pertaining to the latter have a tendency to. 'infect' the former, the upshot of which is a state of confusion. The law of nuisance sets too high a ceiling to trigger action. The law is steeped in Victorian attitudes. For example, Heath v Brighton Corporation (1908) 24 TLR 414 it was held that an Anglican priest who was affected by low frequency noise could not enlist the aid of the law of nuisance because of the unwillingness of the law to protect the over-sensitive. This is still good law to-day. Nuisance law is esoteric, overly technical and complicated. However, any legal regime which is aimed primarily at regulating human conduct must, in order to be effective enjoy public support, be capable at the very outset, of being understood by the public. Nuisance in Scots law (Culpa) Brief mention should be made of the fact that in contrast to the law of England, culpa or blame is required to be proved as far as liability at common law is concerned. The important question, of course, is whether one requires to prove culpa or fault to establish liability in relation to statutory nuisance. This remains problematic in Scots law and does require clarification. Indeed, one can say that as far as noise pollution is concerned that the relationship of culpa to noise nuisance has the inevitable tendency of obscuring the law in toto, thereby rendering it esoteric and palpably alien in nature both to the general public and, perhaps, most importantly, the enforcer. In order to rank as effective, any environmental law must be both clear and precise in content. Another issue of some relevance in the context of culpa and its relevance to the law of nuisance is that it may prompt local authorities to refrain from prosecuting offenders. Given the fact that the concept of culpa is more complicated and esoteric than that of negligence would, in the author's view, render the task of enforcing officers more difficult still. Nuisance abatement procedure In addition to the relevant substantive law being in a state of confusion the actual form which relevant abatement notices served under s80 should take is further complicated by the fact that the content of the abatement notice which requires to be served by the local authority is complicated and has given rise to a plethora of case law which redounds little to the credit of environmental law (see, eg, Brighton and Hove Council v Ocean Coachworks (Brighton)Ltd. [2000] EHLR 91. See, also, F.McManus, 'Statutory Nuisance: validity of abatement notice.' (2001) 86 SPEL 91). The law relating to statutory nuisance is possibly set to become much worse with the advent of the Human Rights Act 1998 the full implications of which have not, thus far, been worked out by the courts in relation to statutory nuisance. Under the Act UK legislation must be interpreted in the light of human rights law. Enforcement officers seem sanguine and supportive about retaining the concept of nuisance as a weapon against environmental noise. A few reasons can be advanced for this. Firstly, a nuisance-based system of pollution control allows environmental health officers more scope for discretion in the course of investigating noise complaints than (say) a regime based on fixed standards. Given the complex nature of the law of nuisance, the officer 'on the spot' in practice enjoys the position of both judge and jury in deciding whether a given noise source amounts to a nuisance in law. The officer operates in a localised system of enforcement where he or she has wide discretion as to what action should be taken when a breach is discovered. One important thing here is that enforcing officers are not subject to effective scrutiny from elected members because of the esoteric nature of the subject. There is less likelihood of the action or inaction of officers being effectively overseen by elected members in relation to the efficacy of the enforcement of noise law by the former than, for example, in relation to the enforcement of waste law vis a vis the regulation of private landfill sites. The enforcement of noise law tends, therefore, to be more officer-based than in relation to other forms of pollution. It should also be mentioned in the context of accountability that by reason of the complicated nature of the law the general public is not really in a position to effectively assess whether an enforcement officer is adequately performing his public duties in relation to the abatement of noise. NOISE LAW REFORM - SOME FUNDAMENTAL PROBLEMS A fundamental problem about noise law reform is that neighbourhood noise pollution is mainly created by people in their own homes. This has acted as a brake on the development of more draconian legislation in relation to noise, for example, the banning of the use of hi-fi equipment and the like after certain hours of the day. Some authors such as Vogel argue that there is a fundamental principle in British politics that the British government should make every effort to avoid coercing its own citizenry. Since 1974 the government has really been striving to find the correct balance between respecting personal freedom and effectively controlling noise generated by human activities. Understandably, the government finds it fiendishly difficult in drawing a line between what is acceptable and what is not. Speaking generally of the criminal law the Law Reform Commission of Canada stated in 1976 that the law re-enforces lessons about our social values, instils respect for them and expresses disapproval for their violation. This function was perceived as the moral educative role of criminal law. As far as neighbourhood noise is concerned since noise is normally generated by people carrying out domestic activities, it is of fundamental importance that, in order to influence individuals not to generate noise, the relevant law should send a powerful message to the relevant client group. In its present state United Kingdom noise law, by its very nature seems incapable of sending any message to the general public. This is largely due to the pronounced nuisance bias in noise law which makes it difficult for the general public to fully understand the nature of the law. HOW COULD THE LAW BE IMPROVED? 1. Make the emission of noise a crime of strict liability One way of streamlining the law would be to make the emission of noise a crime of strict liability independent of intention or fault on the part of the author. There would be no need therefore, for the enforcing authority to serve an abatement notice. The very existence of the noise would ground liability. 2. Replace the Concept of nuisance with that of annoyance and reasonable annoyance Given that the courts have, over the years found interpreting the concept of nuisance problematic the concept of nuisance could be replaced with that of annoyance or reasonable annoyance. This would, it is suggested, get away from the notion that the law derives from the common law and would provide the courts with an opportunity to develop noise law on a more anthropomorphic basis. I am not suggesting that this would be a panacea. Indeed, it is not beyond peradventure that the courts would build up a fairly complicated body of case law as to what constitutes annoyance or reasonable annoyance. The imposition of a legal regime based on strict liability could be supplemented by allowing enforcing officers to impose so-called on the spot fines up to a statutory maximum. The author of the noise would have the option of either paying the fine or facing proceedings before a court. 3. Use fixed standards An alternative to nuisance would be to impose liability based on fixed standards. One therefore commits a crime if the noise one is making exceeds a pre-determined noise level. This is not new. It is used in the Noise Act 1996. This would offer simplicity and, in theory, make enforcers more accountable than is currently the case. 4. The police and noise control Since the passing of the Civic Government(Scotland) Act 1982 the police in Scotland have possessed power to deal with certain types of neighbour noise. The system works well it seems from the purely anecdotal evidence which exists. Scotland is not alone in utilising the police to deal with noise. In both the United States and the Netherlands the police have power to deal with noise. There seems no good reason why police powers could not be extended in relation to noise control. 5. Landlords and noise As far as the civil law is concerned subject to certain exceptions a landlord is not responsible for noise made by his tenants. As far as liability under the Environmental Protection Act 1990 is concerned landlords are immune from criminal action in relation to the conduct of their tenants. Given the fact that landlords derive a pecuniary benefit from letting out property there is no reason why landlords should be completely immune from criminal liability for noise generated by their tenants. The imposition of criminal liability would be in sync with the notion that the polluter should pay. The imposition of criminal liability on the landlord would fortify the notion that a shared responsibility between individuals should apply to the environment. CONCLUSIONS During this brief overview I have pointed at certain deficiencies in the substantive law and how it could be improved. However, no matter how wonderful our environmental laws are they are simply writ on air if they are not going to be properly enforced. I am reciting, of course, the Hawkins principle here. Enforcing authorities must be adequately resourced to effectively deal with noise. Indeed, a legal historian surveying the evolution of environmental law in the United Kingdom to the present day would form the impression that notwithstanding the fact that the substantive law may have its deficiencies, what has really let the side down is the way in which the law has been enforced. There is no time here to go into detail. However, in a NSCA survey covering Scotland only 43% of local authorities provided night time cover as far as noise was concerned. It is almost risible that a major form of noise pollution which is the very bane of society should be treated in such way. END © UKNA All rights reserved |