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

Guidance on Noise Nuisance

1. DEVELOPEMENT OF A MANAGEMENT GUIDE

2. This guidance document offers advice in relation to dealing with noise complaints of a domestic origin and possible options for action by the authorities involved. The guidance document includes reference to the existing framework for noise control, and overall ASBA strategy, and offers guidance on the use of permitted noise levels. This is presented in the form of an option matrix for ASB noise control and takes the form of a 3-stage flow chart, which allows the user to ensure that the most suitable means of control is selected for the problem in hand. The means of implementing that control are therefore clearly explained, thus ensuring comprehensive Good Practice and Management Guidance.
3. The flow chart contains references to paragraphs in this chapter, which expand on possible options or provides further information. The management guide provides local authority officers with a clear skeleton pathway from receipt of call to outcome. (outcomes are shown in yellow, ASB noise in pink, and non ASB noise in blue). The process between receipt of call and outcome, described in this chapter, is independent of the means of implementation. The means of implementation will be dependant upon the Part 1 ASB strategies adopted by local authorities. The implementation will be influenced by factors such as :-

4. resources - financial, available staffing levels and particular competencies;
   main resource provider (EHOs .ASB teams, Police,);
   needs assessment e.g. need for out of hours service.

5. It is also essential that the success, or otherwise, of the ASB policy is assessed as effectively as possible. This requires that ASB calls are identified and the complaint outcome logged. Every ASB noise complaint can be considered in terms of potential outcomes shown in Table 1.

6. Table 1 Possible Outcomes

   Outcome 1	No Action
   Outcome 2	Instigate EPA s.80 investigation
   Outcome 3	Public Disorder issue identified. Police matter
   Outcome 4	Referred to Mediation
   Outcome 5	Poor sound insulation identified and remedial works investigated
   Outcome 6	Subjective/Objective assessment made - No further action
   Outcome 7	Subjective/Objective assessment made - WN issued
   Outcome 8	Noise stops
   Outcome 9	FPN issued
   Outcome 10	Equipment seized
   Outcome 11	Use of CG(S)A (caution or offence)
   Outcome 12	ASB Noise complaint
   Outcome 13	Non ASB Noise complaint

   Stage 1 of Investigation

7. Upon receipt of a noise complaint, and at this stage it is assumed that there will be one contact point within each authority for receiving noise complaints, and that all normal contact details will be taken, it is recommended that potential ASB calls are filtered out as early in the process as is reasonably practicable. This can be achieved by the screening process illustrated in Figure 7.1. The non ASB noise complaints would simply be routed to the conventional investigation noise protocol adopted by that particular local authority. It should be noted that it is unlikely that a Warning or Fixed Penalty Notice would be the most appropriate remedy to deal with noise generated by an individual with autistic spectrum disorder or any disability or other developmental or medial condition which might cause their behaviour. Where an individual has such a condition, or is suspected of having such a condition, advice should be sought from medical experts on support which is available. The use of Mediation Services in such circumstances may also be appropriate.

8. 

   Figure 7.1

9. This Option Matrix covers the flow of decision from receipt of call to outcome. This process is independent of the implementation model and based on the information obtained in the tele-survey. It is recommended that a top tier is dropped on to the 3 stage assessment; the top tier is a local authority ASB screening process which will facilitate efficient progression through the Stage 1 flowchart

10. Stage 1 Outcomes

11. The outcomes (shown in yellow) at this stage of the process are therefore:

Stage 2 of Investigation

Figure 7.2

1. Once identified as an ASB noise complaint it is then necessary to determine the nature of the noise and the time of occurrence. Both of these factors will determine the action to be taken. For example, a call during out of office hours in a remote area may be routinely routed to the Police, whereas in a city authority it may, depending on the Part 1 ASB strategy adopted, be routed to a 24 hour Noise Response Team. The Noise Response team may comprise wholly of EHOs and Technical Officers, and could also involve ASB Officers, Community Wardens and Police Officers. The potential for a public disorder issue should be identified at this stage, if possible, to minimise the risk to non Police Officers.
2. If the Civic Government (Scotland) Act and Police action route is either not appropriate or is not relevant, as a consequence of the locally agreed ASB strategy, further investigation by the local authority is required. At this stage it is important to identify, if possible, whether or not poor sound insulation is likely to be a contributing factor to the complaints and whether or not mediation is an appropriate alternative strategy. Advice notes on sound insulation and mediation are offered in paragraphs 68 to 74.
3. The No Action outcome may occur as the result of the incoming call being identified as non-noise.

4. Barking Dogs and Domestic/ Car Intruder Alarms

5. Whilst the current Defra guidance, Circular NN/31/03/2004, specifically states, in paragraph 65, that the "1996 Act powers are not intended to cover noisy animals such as barking dogs", noisy animals such as barking dogs could be included within the provisions of Part 5 of ASBA. The tele-survey revealed overwhelming evidence in relation to the problem of barking dogs. In almost every local authority the two main sources of noise complaints of a domestic origin were given as music noise and barking dogs. Similarly, a study of the role of mediation in tackling neighbour disputes ((Brown, Barclay, Simmons and Eley) revealed that dogs were amongst the most common presenting issues.
6. The tele survey revealed that the main issue with the legal remedy is once again the time taken from complaint to resolution. Section 49(2) of the Civic Government (Scotland) Act 1982 allows a person who has reasonable cause for annoyance, as a result of a barking dog, to make an application to the District court for an Order to be made requiring the owner of the creature to take action to prevent the annoyance from continuing. The application requires that the complaint be made on a specified form and, subject to the Court considering that there appeared to be reasonable cause for annoyance, a date is set for a Hearing. Both the complainant and the owner of the creature are required to attend the Hearing to state their cases. Subject to the Court agreeing that the complaint is justified, an Order is issued specifying what action the owner of the animal is require to take. The complainant would also be advised of the terms of the Order and if these are not complied with, subsequent complaints about failure to comply with the Order would then require to be made to the Police. If the Police can substantiate that the conditions in the Order are not being complied with they can then make a report to the Procurator Fiscal with a view to the Court taking action against the owner of the creature for failure to comply with the Order.
7. The whole process is lengthy and involves the complainant attending court at the same time as the person responsible for the dog. The use of ASBA Part 5 provisions could potentially allow a rapid resolution to the problem of barking dogs. However, Part 5 is only applicable where the dog is in a relevant property (relevant property is defined in section 53 of the ASBA). The noise from a continually barking dog is capable of being measured using the noise control provisions contained within ASBA Part 5. However, section 47 covers the powers of entry and of equipment used to make unlawful noise. The powers of seizure apply where, a warning notice has been served and the officer has reason to believe that, at any time in the period specified in the notice, noise emitted from the relevant property has exceeded the permitted level as measured from a relevant place. The officer (or authorised person) may, using the powers available under section 47, enter the premises and remove the equipment, which could apply to animals. As with other domestic noise sources, local authority officers will be required to decide on the most appropriate form of action, e.g. EPA nuisance action or ASB provisions or, in the case of noisy animals sec. 49 of the Civic Government (Scotland) Act 1982 or ASB provisions. A suggested protocol for obtaining a warrant has been included as Appendix 8.
8. In the case of domestic intruder alarms, presently dealt with using the Environmental Protection Act (1990), local authorities generally have established operational procedures for dealing with domestic and car alarms. The procedures involve local arrangements with the Police for the identification of vehicle owners and obtaining a warrant to break and enter premises to silence an alarm with the assistance of a locksmith and alarm specialist. Once the provisions of the ASBA are legally enforceable local authorities will also have the option of adopting their locally developed procedures so as to include the possibility of issuing a FPN's with respect to domestic/car intruder alarms if the noise originates in a relevant property.

9. Sound Insulation

10. Once the initial screening has identified an ASB noise complaint a further investigation in to the relevant facts pertaining to the complaint is required. Sound insulation is a major consideration as to whether or not it is appropriate to consider serving a WN or FPN. During the tele-survey all local authorities acknowledged the fact that some of the housing stock in their area has a poor standard of sound insulation. The issue of sound insulation and nuisance has received a great deal of attention in recent years and there is the notion amongst some EHOs that nuisance provisions do not apply to cases of poor sound isolation. The decision of the House of Lords in London Borough of Southwark -v- Mills and another, and Baxter -v- Mayor etc., of the London Borough of Camden ('Mills and Baxter') on 21 October 1999 has generally been regarded as a major setback for the rights of tenants and residents in England and Wales. While the House of Lords was primarily concerned with English common law remedies, and not statutory remedies under the Environmental Protection Act 1990 (EPA), the Mills & Baxter judgment has had a knock-on effect for remedies under the EPA.
11. In Mills & Baxter, the House of Lords held that there was no authority for the proposition that the normal and ordinary use of a property 'in a way which shows as much consideration for the neighbours as can reasonably be expected, can be an actionable nuisance'. Accordingly, if neighbours were not committing a nuisance, the Council could not be held liable for authorising/allowing them to commit one. The tenants in Mills & Baxter accepted that their neighbours were not 'unreasonably noisy' and 'for the most part' were behaving 'quite normally'. The problem was their tenancy properties had no sound insulation, resulting in them being able to hear 'not only the neighbours' televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making'.
12. How then does this decision affect remedies for noise nuisance under the EPA where. section 79(1) creates a 'two limb' test; 'prejudicial to health' or 'nuisance'? .The provision of such advice is outwith the cope of this guidance, however, it is clear that in a local authority area where poor sound insulation is likely to be an issue a clear and defensible policy statement should be drawn up by the local authority legal advisors and issued to enforcing officers to enable them to offer the appropriate advice and take appropriate action. Local authority officers considering the implications of poor sound insulation in deciding the options available for dealing with ASB noise and poor sound insulation should be aware that where the property is rented it would be open to the tenant to excise his or her rights in terms of the contract of let. If poor sound insulation between two private properties is an issue the fact that an EPA abatement notice could be served on both parties should be explained to the complainant. Poor sound insulation is not defined in this document but it may be helpful for investigating officers to consider that whilst from time to time it is reasonable to expect to hear occasional loud noises you should not be able to routinely hear your neighbour's normal conversation or television.

13. Civil Rights

14. Failure by an investigating officer to consider the influence of the level of sound insulation between properties could result in the local authority sanctioning inappropriate action. The prevention of crime and disorder is where the use of provisions contained within the Anti-Social Behaviour (Scotland)2004 Act would be used in interfering with an individual's right to create as much noise as he/she pleases within their own home. However, in using the provisions of the Anti-Social Behaviour. (Scotland) 2004 Act to protect others from the anti-social behaviour of an individual, the rights of that individual (the perpetrator of the noise) must not be prejudiced, and any action taken to stop the noise maker from making noise must be proportionate given the circumstances. Consequently, where there is poor sound insulation the use of a Warning or Fixed Penalty Notice in response to an exceedance of the Permitted Noise Level through normal everyday behaviour by the noise maker is unlikely to be an appropriate action/outcome.
15. There is also the concept of reasonableness, in that an investigating officer should determine if the antisocial noise from an offending property is caused intentionally or unintentionally, or reasonable in the circumstances.. An example would be in dealing with people with disabilities, where the behaviour may be a consequence of a disability or other medical or developmental condition. Where an individual has such a condition, or it is suspected they may have such a condition, advice should be sought from medical experts or support where available. The investigation officer should give consideration to the wider circumstances, and possibly offer mediation as a resolution of complaints between neighbours.

16. Mediation

17. In a recent Scottish Executive funded research project (Brown, Barclay, Simmons and Eley) which investigated the role of mediation in tackling neighbour disputes and anti-social behaviour found that in most of the cited case studies, "the main presenting issue was noise, either noise of domestic appliances, children, dogs, and other 'normal' living, or noise of parties and loud music". In 61 percent of cases, the outcome recorded by the mediation service, was either full or partial agreement or some improvement in the situation. In just under half of these cases (in 28 percent of all cases), the mediation service recorded an agreement on all presenting issues. Mediators themselves, however, suggest that there are likely to be positive outcomes which cannot easily be measured in terms of improved relationships and the capacity to handle disputes in future, even in 'unsuccessful' cases. The report acknowledged that mediation will not be sufficient to deal with serious anti-social behaviour, which is associated with alcohol and drug abuse, mental health problems or criminal activity. The crucial role that referral to mediation services can play in tackling anti-social behaviour noise is illustrated in a chart included in the aforementioned report (reproduced below). The chart shows that mediation has the potential to play a pivotal role in the local strategies required by Part 1 of the ASBA.

18. 

    (Brown, Barclay, Simmons and Eley)

    Stage 2 Outcomes

19. Prior to the consideration of a site visit; either immediate or pre-arranged, it is recommended that the possibility of referral to mediation services be highlighted as a possible option. It is possible that the offer of such a service may negate the need for a site visit by Noise Team Officers and may in fact be a more efficient use of resources. .The second stage of the investigation process is outlined in Figure 7.2. The possible Outcomes at this stage of the process are:

20. Civic Government (Scotland) Act 1982 - Section 54 warning
    Civic Government (Scotland) Act 1982 - Section 54(1) offence
    No Action
    Breach of the Peace
    Referral to Mediation Services
    Poor sound insulation identified

    Stage 3 Investigation

21. The Stage 3 investigation can be considered as detailed in Figure 7.3. However, it should be noted that any measurement procedure must take cognisance of The Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA). This subject is considered in some detail in the Noise Management Guide presently being prepared for the Scottish Executive by Temple Environmental Consultants Ltd,: While it is unlikely that the RIPSA provisions will apply to ASB noise measurements all local authorities should consult their legal advisors in respect of RIPSA provisions.

22. 

    Figure 7.3

23. Once the preliminary investigation with respect to sound insulation has been completed a decision then has to be made as to the need and timing of a site visit for further investigations. Additionally, there may be times when, due to peaks in the demand for the service, especially any night noise service, or pressure from other competing priorities, a local authority may find that the level of service that can be provided within available resources will not meet the increased demand. In such circumstances, in order to ensure the most effective use of available resources, complaints may need to be subject to prioritisation, whereby the level of response to a complaint is based on a screening and assessment process in order to determine priority for action, based on factors which could include:

24. how often the complained of noise occurs;
    how likely it is that investigating officers will be able to witness and measure the complained of noise; and
    how the noise is affecting the complainant.

25. If the occurrence is predictable (e.g. very loud music being played or generated between certain hours every weekend), and there is no immediate risk of adverse behaviour (e.g. one neighbour assaulting another), a pre-arranged visit may be a better use of resources than an immediate response. However, if the noise is occurring at the time of the complaint, and its occurrence is not predictable, then an immediate response is likely to be appropriate. At the stage of taking complaint details it is recommended that the local authority officer explains the procedure in investigating an ASB noise complaint, including the possible need to measure from within the complainant's dwelling, and the conditions under which the measurement would be made. Prior to any visit, whether it be pre-arranged or immediate, a risk assessment must be undertaken and, if necessary, a request for a Police presence to accompany the ASB officer(s) made. It is assumed that each local authority will make available to officers the details of areas where visits at particular times of the day or night would not be sensible without a Police presence. It is worth bearing in mind that, at this point in the decision process, Belfast City Council Officers, who have extensive experience in the implementation of the Noise Act 1996, routinely issue WN's without Police presence, but always request a Police presence prior to issuing a FPN. The outcome of the risk assessment will determine the presence required for the investigation.

26. ASB Assessment and Measurement

27. The provisions for the investigation of excessive noise from a relevant property are detailed within Part 5 of the ASBA. If it has been decided that a site visit is appropriate, the main purpose of the visit should be to decide whether or not the noise complained of exceeds, or may exceed, the permitted level for that noise control period (i.e. day, evening or night-time). In coming to a decision, it is for the local authority officer concerned to decide whether to assess the noise from inside or outside the complainant's dwelling and whether or not to use any device for measuring the noise. There is no requirement to measure the noise at this stage.
28. Where a local authority officer decides, by judgement or by taking a measurement, that the noise being emitted from the relevant property, during a noise control period, does not exceed the permitted level, for that period, or where it is decided that the noise cannot be measured, or where it is considered that the provisions of the ASBA are inappropriate, the officer may nevertheless be satisfied that the noise is a statutory nuisance under the provisions of the EPA. In such cases, the local authority is under a duty to serve an abatement notice under section 80 of the EPA.
29. If the officer is satisfied, either by judgement or measurement, that the alleged noise being emitted from a relevant property, if it were measured from a relevant place, exceeds or may exceed, the permitted level during the relevant noise control period, then a warning notice may be served, although there is no requirement on the officer to do so. However, if a warning notice is not served, no ASBA noise offence is committed, even if subsequent measurement shows that the permitted level for the relevant noise control period is being exceeded.
30. The measurement must take place within a habitable room. Common sense dictates that a habitable room will usually be a living room, sitting room, study or bedroom. In the case of a dining kitchen area it may include the kitchen. It does not, in these circumstances, include a hallway, stairway, bathroom, lavatory or other areas such as utility rooms. Conservatories and holiday caravans are, at present, excluded because of the possibility of plastic roofs and the uncertainty over typical levels of sound reduction offered by such roofs. The measurement should be made at least 0.5m away from any room surface and from any items of furniture. Any windows and doors to the external environment must be closed. The microphone should be located at a height of 1.2 - 1.5m from the floor. Normally only one measurement will be required, but should that measurement be corrupted it may be necessary to undertake further measurements.
31. If the investigating officer is satisfied that a statutory nuisance is being caused, as well as the permitted noise level being exceeded, then the mandatory duty to serve an abatement notice also applies. However, should the permitted noise level, for the relevant noise control period, continue to be exceeded, or a statutory nuisance continue after service of both a warning notice and an abatement notice, the local authority has discretion, whether to follow the remainder of the ASBA provisions or the EPA enforcement processes. In such cases it would be inappropriate to use both enforcement regimes; the local authority must decide which is the most appropriate. .

32. ASB Warning Notice ( see Annex 3 for example)

33. The warning notice must be served by delivering it to any person present at, or near, the offending property and appearing, to the local authority officer, to be responsible for the noise, or if it is not reasonably practicable to identify such a person, by leaving the notice at the relevant property (e.g. post through the letterbox). It is not an offence to refuse to provide a name for the Warning Notice. The Warning Notice can be addressed to the person who is responsible for noise.
34. For the purpose of the noise control provisions, a person is responsible for noise emitted from the relevant property if the emission of the noise is wholly or partly attributable to the person's act, failure or sufferance.
35. The warning notice, must state:

36. that the officer of the authority considers that noise is being emitted from the offending property during a noise control period; and
    that the noise exceeds, or may exceed, the permitted level, as measured from a relevant place; and
    that any person who is responsible for noise which is emitted from the offending property, in the period specified in the notice, and exceeds the permitted level as measured from a relevant place, may be guilty of an offence;
    the specified period, beginning not earlier than 10 minutes after the time when the notice is served; and ending at the relevant time;
    the time at which the notice was served.

37. There is no provision in the ASBA for a standard form for a Warning Notice, but a sample of the form used by Belfast City Council is included as Annex 3.
38. The period of the notice cannot begin earlier than ten minutes after the notice has been served, although the notice may provide that the period commences later. An example of this could be where the officer responds to a complaint of a noisy party and, on attempting to serve the warning notice, is assured that the party will cease in twenty minutes. If the officer believes that it is a reasonable response in the circumstances, the initial period before the warning notice comes into effect could then be extended to twenty minutes.

39. The warning notice is valid until the end of the noise control period.

    ASB Noise Offence

40. Where a warning notice has been served with respect to noise emitted from the offending property and the noise level measured in accordance with the required procedures, using approved devices, at a relevant place, exceeds the permitted noise level for the relevant noise control period, the person responsible for the noise shall be guilty of an offence and liable on summary conviction or a fine not exceeding level 3 on the standard scale. The measurement protocol is included as Annex 5 and the instrumentation specification as Annex
41. At this stage it is recommended that if an offence has been committed, and a FPN is to be served, that the relevant officer, if a Police Officer is not present, considers the need to request the presence of a Police Officer prior to issuing the FPN.

42. ASB Fixed Penalty Notice

    The relevant officer can offer a person who is committing, or has just committed, an ASB noise offence the option of discharging liability to conviction by payment of a fixed penalty notice (FPN). The FPN is given to the person responsible for the noise emitted from offending property in the period specified in the warning notice. No further FPN can be given to that person with respect to noise emitted from the offending property during that noise control period, although further exceedances of the permitted level may be reported to the Procurator Fiscal.

43. The FPN may be served by delivering it to the person, or by leaving the FPN, addressed to the person, at the offending property. The FPN must state the following:

44. the period during which, by virtue of paragraph (a) of section 51(2), proceedings will not be taken for the offence;
    the amount of the fixed penalty; and
    the person to whom, and the address at which, the fixed penalty may be paid.

45. Section 51 of the ASBA enables the Scottish Ministers, by order, to specify the form in which a FPN must be issued.
46. As a result of section 42 of the Criminal Procedure (Scotland) Act 1995 no child under the age of 16 years shall be prosecuted for any offence except on the instruction of the Lord Advocate. Therefore, consideration should be given to the this provision when considering issuing a Fixed Penalty Notice to a child under 16 as non payment may result in a criminal prosecution.

47. Powers of Entry and Seizure

48. Where a warning notice has been served with respect to noise emitted from an offending property, and the local authority officer has reason to believe that, at any time in the period specified in the notice, noise emitted form the relevant property has exceeded the permitted level for that noise control period, as measured from a relevant place, the authorised officer may enter the offending property to seize the noise-making equipment. These powers are likely to be considered when it is abundantly clear to the officers involved that the serving of a FPN will have absolutely no impact on the noise generated or if a Fixed Penalty Notice has been served and the problem continues or recurs. The procedures for using powers of entry are fully detailed within the "summary procedures for dealing with noise from certain places" in Part 5 of the ASBA. Such noise-making equipment will typically comprise electronic items such as a Hi-fi, mixer desk, loud speakers, TV, DIY equipment, and musical instruments such as drum-kits, keyboards or guitars and their amplification. It may, potentially, also include a collection of CDs, records, mini-discs or tapes. As referred to in paragraph 64 it may also include dogs or other noisy animals. The seizure of equipment may also take place when a FPN has not been complied with. A suggested protocol for obtaining a warrant has been included as Appendix 8.

49. The Stage 3 assessment is represented in Figure 7.3.

    Stage 3 Outcomes

50. The possible Outcomes at the end of Stage 3 are as follows:

1. The process from receipt of call to outcome is now complete. As was stated in 56 the process between receipt of call and outcome described in this chapter is independent of the means of implementation. The means of implementation will be dependant upon the Part 1 ASB strategies adopted by local authorities and consideration of the alignment of Part 1 and Part 5, is considered in Paragraph 97.