Antisocial Behaviour etc. (Scotland) Act 2004: noise nuisance guidance

Guidance on Noise Nuisance

INTRODUCTION

1. This guide provides operational guidance, primarily to local authority Environmental Health Officers, on how to administrate the noise provisions in Part 5 (sections 41 to 54) of the Antisocial Behaviour etc (Scotland) Act 2004. As these noise provisions are enabling and flexible, it will be for each local authority to decide if it wishes to adopt the provisions, and for what periods of the day and week.
2. The antisocial noise offence is a further tool to complement not replace existing legislation, in dealing with unreasonable noise within domestic dwellings. The offence is based on noise exceeding set permitted levels after a warning notice deterrent is not complied with. The investigation will require experienced officers to determine whether noise is caused by reasonable behaviour, including consideration of mental health, poor sound insulation, where use of mediation could be advocated.
3. The guidance is mainly technical and specific to local authority authorised officers and the police, The accompanying Regulations on Permitted Levels and Approved Noise Measuring Equipment will be laid in January 2005, on receiving clearance from the EC, whose member states must consider for a three month period under the terms of Trading Standards Directive 83/94EC.
4. The Antisocial Behaviour etc.(Scotland) Act received royal assent on 26 July 2004. The Act is available on the Scottish Executive Website at : http://www.scotland legislation.hmso.gov.uk

   References and Further Information

5. The Scottish Executive would like to thank and acknowledge the work undertaken by consultants Hamilton & McGregor Acoustics Division, who produced the noise level feasibility study(4) and the research to inform this Antisocial Behaviour Noise Management Guide(3), which included a tele survey of all 32 Scottish local authorities, their responses(1) and additional information received(2). These four research documents are not included in this guidance, for reasons of brevity, but if you wish access to the complete documents, they can be accessed at weblinks listed below.

6. Weblinks
   http://www.scotland.gov.uk/about/ERADEN/EcolAU/00017824/asbnmg_An1.pdf
   http://www.scotland.gov.uk/about/ERADEN/EcolAU/00017824/asbnmg_An2.pdf

   Full Report -Consultant's complete Report
   http://www.scotland.gov.uk/about/ERADEN/EcolAU/00017824/asbnmg_rpt.pdf

   Noise Level Feasibility Research Report -full report
   http://www.scotland.gov.uk/about/ERADEN/EcolAU/00017824/nlr_rpt.pdf

   Contacts

7. If you have any queries relating to this document, please contact :
   Air Noise and Nuisance Team, Scottish Executive 1H, Victoria Quay, Edinburgh EH6 6QQ. Tel. 0131 244 0393 e-mail duncan.mcnab@scotland.gsi.gov.uk
8. In addition, as part of the wider programme of support for the implementation of the Antisocial Behaviour etc (Scotland) Act 2004, the Executive is funding a telephone advice line for practitioners. The service will provide telephone advice and support on a wide variety of technical issues such as how to apply for an Antisocial Behaviour Order, the process of granting a closure notice etc. This service will be available from the end of November 2004 and the number will be widely published in advance. If you want to find out more information about the advice line, you can contact the Executive's Antisocial Behaviour Unit by email at antisocialbehaviourunit@scotland.gsi.gov.uk

   CONTEXT AND BACKGROUND

9. Part 5 of the Antisocial Behaviour etc. (Scotland) Act 2004 contains provisions in relation to noise nuisance. In particular it:gives local authorities additional powers to deal with noise nuisance;tackles the problems of night noise in dwellings.
10. These provisions are contained within sections 41 to 54 of Part 5 of the Act. If an officer of the local authority considers that the noise being emitted from a dwelling exceeds, or may exceed, the relevant permitted noise level, as measured from a relevant place, the officer may issue a Warning Notice under section 44. Where that Warning Notice is not complied with, within the stated time period, the person responsible for the noise will have committed an offence under section 45. The Officer may then issue a Fixed Penalty Notice, as described in section 46. The permitted noise levels will be determined by order from the Scottish Ministers. Recent research (McKell, 2004) has identified the objectively measured day, evening and night time permitted noise levels. The time periods and corresponding permitted noise levels have been defined as follows:-

• Daytime 07.00 - 19.00 hours L _Aeq 41dB
• Evening 19.00 - 23.00 hours L _Aeq 37dB
• Night-time 23.00 - 07.00 hours L _Aeq 31dB.

1. Whilst the provisions of Part 5 of the ASBA give local authorities power to implement a noise nuisance service for up to 24 hours a day, 7 days a week, it is recognised that not all local authorities within Scotland will require the same level of service. Therefore, to ensure best value is maintained within each local authority, individual authorities must be able to determine, based on local needs, the level of service best suited to their needs. Part 5 of the Act provides local authorities with the discretion to adopt a service, which if adopted, would have the power to set the times and days over which such a service would operate.
2. The provisions of the ASBA, in relation to noise nuisance, are intended to compliment the existing provisions for dealing with noise complaints, e.g. Civic Government (Scotland) Act 1982, Environmental Protection Act 1990, Control of Pollution Act 1974, civil actions and the use of mediation services. The offence is based on exceeding an objective measured sound level value ('the permitted level'). It has the advantage of not being subject to the same subjective uncertainties about judgements of nuisance which can prolong court proceedings for noise offences. The availability of a fixed penalty system, as well as providing a swifter sanction, may also prevent some cases being brought to court, and may relieve pressure on the Police to respond to complaints of party noise.
3. The permitted level, for the ASBA noise offence, should not be taken as an indication of whether or not noise is a statutory nuisance. It is possible that a noise which is not an offence under the ASBA may nevertheless be prejudicial to health, or a common law nuisance, and so be a statutory nuisance.
4. While the ASBA does not define the type of noise to which the ASB noise offence might apply, technical aspects of measuring the complained of noise means that there may be difficulties in assessing some impulsive or sporadic noises e.g. slamming doors and isolated incidents of shouting. The ASBA noise offence is likely to be most appropriate for cases of disturbance from persistent noises e.g. amplified music or prolonged noisy DIY activity
5. To maximise efficiency in dealing with noise complaints local authorities will require effective routing of incoming complaints of domestic noise and will be required to streamline initial investigations so as to ensure that the most appropriate course of action is taken. The routing of complaints of domestic noise will require alignment with the local antisocial behaviour strategies required by Part 1 of the ASBA.

6. THE SCOTTISH LEGISLATION

7. This Scottish legislation, which includes provisions similar to those contained within the Noise Act 1996, is the Antisocial Behaviour etc (Scotland) Act 2004, hereafter referred to as the ASBA. Part 5 of the ASBA deals with noise nuisance. However, the word 'nuisance' is taken to be representative of noise of a domestic origin that is found to be excessive, i.e., unacceptable to neighbours. It should not to be confused with statutory nuisance. The fact that a permitted level is exceeded is not proof that a statutory noise nuisance exists. The provisions of the ASBA, like those of the Noise Act in England, Wales and Northern Ireland, are to complement the statutory nuisance controls on noise. The provisions are intended to allow a fast response and remedy to the problems of neighbour noise. For clarification, noise nuisance can be controlled either by action at common law or under statute.
8. Antisocial behaviour is defined in section 143 of the ASBA, and for the purposes of clarification, a person engages in anti social behaviour if he/she

9. acts in a manner that causes, or is likely to cause, alarm or distress;
   pursues a course of conduct that causes, or is likely to cause, alarm or distress to at least one person who is not of the same household.

10. The Scottish Ministers wish to give local authorities the power to implement a noise nuisance service, in their area, up to 24 hours a day, 7 days a week. Local authorities will have the discretion to adopt such a service and, if adopted, will have the power to set the times an days on which such a service will operate. Also, if adopted, the local authorities will have a duty to take reasonable steps to investigate complaints of excessive noise and to take any appropriate enforcement action; in accordance with any adopted scheme
11. The proposed legislation is contained with sections 41 - 54 of the ASBA. Section 41 enables the local authorities to adopt the noise control provisions of Part 5 according to their needs with section 42 allowing a local authority to revoke, or vary, any resolution made under section 3. Section 43 sets out the duties of a local authority, and its officers, in relation to the investigation of noise from a dwelling. The provisions for the warning notice, the offence and the fixed penalty notice are contained within sections 44 to 46 respectively. Under section 48 the Scottish Ministers have the power, by order, to determine the maximum level of noise which may be emitted from a property, as measured from a relevant place. Section 49 provides for the Scottish Ministers to approve, by order, sound measuring devices and section 50 makes provision for Scottish Ministers to fund local authorities who wish to adopt the provisions. The format of the fixed penalty notice may be specified under the provisions of section 51 and section 47 allows for powers of entry and seizure of equipment used to make noise unlawfully.
12. The ASB offence requires that the noise emitted from the offending property be measured from a relevant place (complainant's dwelling) using an approved measuring device in a specified manner. The permitted level is set out, by order of the Scottish Ministers, in terms of section 43 of the ASBA. The Scottish Ministers also have the power to approve measuring devices for use in Scotland. The noise complained of must be measured using an approved device in accordance with any conditions, subject to which such approval is given.

13. RECENT RESEARCH ON PERMITTED LEVELS

14. Recent research (McKell, 2004) has identified the permitted levels appropriate for the different times of the day. It has been established that it is feasible to introduce objectively measured levels which, if breached during any time of the day, would cause an offence liable to conviction. The day, evening and night objectively measured intervention levels have been identified as 41dB, 37dB and 31dB respectively. The parameter to be used is the L _{Aeq, 5min}.
15. All relevant definitions and terms will be provided in the Regulations, to be issued by the Scottish Ministers, under section 48 of the ASBA. For the purposes of the ASB noise offence it is recommended that the permitted level (as defined in section 48 of the ASBA) shall be determined for each noise control period in accordance with the following:
16. In any case where the underlying level of noise does not exceed 21dB between the hours of 23.00 - 07.00 (night), 27dB between the hours of 19.00 - 23.00 (evening) and 31dB between the hours of 07.00 and 19.00 (day), the permitted level shall be 31dB, 37dB and 41dB for each of the noise control periods respectively.
17. In any case where the underlying level of noise exceeds 21dB, 27dB and 31dB for night, evening and day time noise control periods respectively, the permitted level shall be 10dB in excess of that underlying level.

18. Underlying level of noise

19. The "underlying level of noise" can be determined even though the dominant noise, e.g. amplified music appears to be continuous. This can be achieved, using currently available instrumentation, the use of a statistical parameter (such as L _A99.8,5min, L _A99.5,2min or L _{A 99,lmin}) as a proxy for the underlying level of noise.
20. For measurement of the underlying noise using L _AN,T measurements the equipment must meet certain criteria with regard to its sampling rate and its method of operation of statistical calculations, as detailed in the in the ASBA section 49 detailing the approval of measuring devices. It is understood that at the present time, only the instrument manufacturer, or their agent, can usually supply such information for such instruments. Details of the Class 1 noise measuring equipment approved by Scottish Ministers will be included in Regulations along with permitted noise levels for the proposed February 2005 commencement.
21. Local authority officers should be aware that the measurement procedure may require measurements of relatively low levels of noise. They should also recognise that the self-noise of the approved device (including the microphone) will always have the effect of elevating the underlying level of noise to a greater extent than the offending noise. At low levels of noise, the self-noise of the approved device can significantly affect the underlying level, making confirmation of an offence less likely.
22. To obtain suitable measurements, for the purposes of the legislation proposed by the ASBA, in situations where underlying levels of noise are around 21 dB(A), it is recommended that the self-noise of the measuring device (including the microphone) should be no greater than 17 dB(A).
23. Where the determination of the underlying level results in a non integer value, that value shall be rounded up to the next integer and where the determination of the noise giving rise to the complaints results in a non integer value, the value shall be rounded down to the next integer.
24. The information contained within Table 1 may assist with the appreciation of a typical subjective evaluation of objective levels.

25. Table 1 The dB(A) Scale

    

    SUMMARY OF FEEDBACK FROM LOCAL AUTHORITY TELE-SURVEY

26. With the exception of Glasgow and Edinburgh and to a lesser extent Dundee, EHOs in all other local authorities will only respond, out of normal hours, on a pre-planned basis. In general, EHOs do not, at present, deal with party/loud music noise situations because they do not feel they have the means to do so.
27. In general, party/loud music noise (especially out of hours) is dealt with by the Police who may use CG(S)A s54 to deal with the problem. In some areas this type of noise complaint is a low priority for Police and if there is a 'history' of repeat offences EHOs or ASBO teams will generally become involved.
28. In Dundee and West Lothian there is a different approach to dealing with noise complaints which is based on the use of ASBO teams with good Police back up. These ASBO teams provide a form of out of hours service. In Dundee a freephone telephone number is provided for current complainants who are experiencing ongoing anti-social noise problems.
29. When EHOs do become involved in ASB noise complaints this is generally on a pre-planned basis. They normally handle these complaints by attempting to 'witness' the noise complaint first hand and, then either make a subjective assessment and/or (occasionally) make an objective assessment using a sound level meter. In such circumstances EHOs will almost always work in pairs, and are most wary about personal safety. In Borders region, EHOs will ask for, and receive, back-up from Police, while in Shetland there is good communication between EHOs and the Police on an informal basis.
30. In almost all areas the Police support, in relation to ASB noise issues, is generally at a higher 'committee level' from senior officers, rather than at operational level, and EHOs seldom ask for the direct Police support, nor do they work closely with ASBO Teams in most areas.
31. Almost all local authorities agree that the current EPA s80 noise abatement procedure is inefficient and largely ineffective in dealing with ASB noise and related nuisance noise problems where there is no detectable 'behavioural' component. (In particular, see the recent South Ayrshire experience for an example of an exercise in frustration!)
32. Most EHOs recognise that the proposed ASBA FPN approach offers a potentially more effective method for dealing with ASB noise complaints. Their concern is centred on the actual implementation issues surrounding the use of the procedure, particularly its use out of hours when personal safety and non standard working practices would be required to support, and extended, evening and night services to a level that approaches the Glasgow City Council Night Noise Team system. Clearly this points to a need for specific training and a well thought out and safe investigation protocol.
33. During recent years the increase of mediation services has improved the handling of noise complaints of a domestic origin. This approach is particularly effective in local council housing and housing association tenancies where the noise maker and complainant are bound by tenancy agreements.
34. Mediation clearly has a place where non synchronised live styles create conflict. Mediation is a well established approach in Dundee, Falkirk, Highland region and other local authorities. There is also a recent move to establish community wardens through ASB strategies in some areas, this may increase the use of mediation services. However, it is hard to see how mediation will effectively deal with true ASB noise complaints, especially where there is an intent to annoy, or cause distress, or a clear disregard for those affected by the noise makers' activities.
35. In almost every local authority area the two main sources of noise complaint, of a domestic origin, are party/loud music noise (often out of hours) and barking dogs. A brief summary of the findings of the survey in relation to barking dogs is provided below.
36. The only 'legal' remedy available to complainants is CG(S)A s49. It may therefore be useful to create a national leaflet outlining this information. This could include information about Court pro- formas similar to those used in Edinburgh. East Dunbartonshire offer loan use of citronella collars to help train dogs. The use of a Bark Buster or even advice to owners regarding dog training is offered by some local authorities.
37. Dog Wardens in some local authorities appear to offer a highly cost effective method of responding to noisy dog issues by relieving the EHOs of a high volume non technical burden.
38. Extra resources, focussed on this area of high volume complaints, may bring relief to many complainants.
39. At present ASB noise complaints arising from a repeated pattern of party noise/ amplified music noise/ loud voices can be dealt with in a more immediate fashion by using section 54 of the Civic Government (Scotland) Act 1982. The survey suggests that this option works well where; there are good links between EHOs, ASBO teams and the Police; the Police have the resources and set priorities to deal with ASB noise complaints using CG(S)A s54. In fact this is the most favoured route used by local authorities to deal with night noise from parties/loud music even when Night Noise Teams and ASB/NeRT teams are available (as in Glasgow and Edinburgh). In Dundee and West Lothian ASBO Teams will respond to party/loud music noise complaints but only because they have good Police back up when required. This again reflects the concerns of EHOs and ASBO teams for personal safety, and the difficulties of applying EPA s.80 to such situations. The survey also suggests that Police in some areas are reluctant to apply this option (lack of awareness; unsure what noise level is acceptable; lack of training or lack of resources?).
40. Most local authorities recognise that, provided safety, resourcing and training concerns are addressed, the introduction of ASBA Noise FPN procedures will enable a more direct response to be made to ASB noise complaints. It is clear that improved Police awareness and support is also essential (see Dundee, West Lothian, Borders and Shetland) if such procedures are to be effective.
41. Many local authorities commented that poor sound insulation is at the root of many complaints, rather than true behavioural problems.
42. Without exception EHOs believe that the tackling of noise issues, including those of an ASB nature, requires EHO leadership to ensure that both subjective and objective assessments are undertaken on the basis of a full understanding of the nature of noise and other factors such as the likely level of sound insulation between the properties.
43. In summary, with the exceptions described above most local authorities deal with ASB noise complaints, and indeed general noise complaints on the basis of well established informal agreements and protocols. Many local authorities welcome the opportunity to benefit from the current research, whereby existing best practice can be identified and used as a basis for forging better local procedures and creating local protocols to make the handling of all types of noise complaints more efficient and thereby offer a better service to their residents.

44. TRAINING NEEDS

45. There is a need for all officers dealing with ASB noise to be able to assess the appropriateness of the different tools available to them, i.e. mediation, EPA and ASB provisions
46. The training needs identified during the discussions are as follows:

47. familiarisation with basic acoustic theory;
    a recognised minimum level of formal training into the use of dedicated sound level meters for indoor measurement
    familiarisation with issues relating to sound insulation and potential legal remedies;
    safety training including how to deal with potential conflicts;
    serving of s.80 EPA abatement notices;
    training in ASBA provisions and procedures;
    training in use of appropriate use of Civic Government (Scotland) Act

48. The Institute of Acoustics (IOA) and REHIS have been approached with a view to formalising training courses. At this stage it is proposed that the IOA education committee, which has oversight of the delivery of current short courses and a one-year part-time postgraduate "Diploma in Acoustics and Noise Control", at several universities and colleges in UK, will take responsibility for the quality assurance of the proposed ASB noise course, with final REHIS accreditation.
49. In the first instance the training course will need to address two distinct groups of personnel; those who have relevant experience of noise measurement and assessment and those who do not. Many of the former group will already hold the IOA's Certificate of Competence in Environmental Noise Measurement and will be competent to make noise measurements outdoors and to make assessments, under the relevant legislation pertaining to the nature of the noise source, based on those measurements. For this group, a focused short course covering the measurement of noise indoors, under the circumstances likely to prevail in ASB situations, and the assessment and reporting of those measurements, will meet their needs.
50. For those who do not have relevant experience, further training will be needed and it is proposed that the IOA will utilise elements of their existing short courses syllabi, in environmental and workplace noise measurement, to cover aspects such as the basics of sound and the use of sound level meters.
51. It is proposed that, similar to the existing IOA courses, assessment will be by means of practical and written examinations, thus ensuring a threshold of proficiency is maintained.
52. For initial training to commence in November 2004 it is recommended that a series of one-day "update" courses for existing holders of the IOA Certificate of Competence in Environmental Noise Measurement be held in on-site locations throughout Scotland. The one day "update" course would include an assessment element. The IOA and REHIS will issue guidance on entry level requirements for each course.