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

Guidance on Noise Nuisance

ANNEXES

ANNEX 1- Local authority completed tele-survey forms
http://www.scotland.gov.uk/about/ERADEN/EcolAU/00017824/asbnmg_An1.pdf

ANNEX 2- Additional information provided by local authorities:
http://www.scotland.gov.uk/about/ERADEN/EcolAU/00017824/asbnmg_An2.pdf

ANNEX 3- Belfast City Council Warning Notice

Serial N0 1154~

WARNING NOTICE REGARDING EXCESSIVE NOISE

Noise Act 1996 : Section 3

WHEREAS Belfast City Council has adopted the provisions contained in Sections 2 to 9 of the above Act AND NOW in consequence of the investigation of a complaint made to it about excessive noise an officer of the Council considers

(i) that noise is being emitted from the dwelling known as

………………………………………………………………

(the 'offending dwelling') during night hours ², and

(ii) the noise exceeds, or may exceed, the permitted level ³ as measured from within the complainant's dwelling.

TAKE NOTICE THAT any person who is responsible ⁴ for noise which is emitted from the offending dwelling, in the period specified below, and exceeds the permitted level, as measured from within the complainant's dwelling, may be guilty of an offence. ⁵.

The period referred to above is the period beginning (time) on (date)

(being a time not earlier than 10 minutes after the time when this Notice is served) and ending with the following 7 am.

Signed: (an officer of the Council)

Date: (Time)
(for notes, see reverse)

ANNEX 4 - NNCC-possible service levels- for access to complete ASB NMG research report:
http://www.scotland.gov.uk/about/eraden/ecolau/00017824/nlr_rpt.pdf

Annex 5 measurement protocol

1. This measurement protocol is intended for use by local authority officers investigating complaints received by the local authority in terms of the Anti-Social Behaviour Act 2004 (ASB Act). It details the measurement requirements and procedures required to ensure compliance with the ASB Act.
2. All noise investigations will be undertaken in response to complaints received by the local authority as there is no requirement within the ASB Act for the local authority to inspect its area. It will generally not be possible to plan too far in advance and it is therefore important that all officers involved or likely to be involved in such measurements are familiar with the requirements of the legislation. As with all complaint investigation officers must carry out an initial risk assessment and should be continually aware of any change in circumstances that may result in an increases risk to personal safety or the safety of others present.
3. There are some definitions which must be understood prior to embarking on an ASB noise investigation. Definitions can be found in section 53 of the ASB Act.
4. Relevant Place means any place within accommodation (except, in the case of measurement of noise emitted from relevant property which is accommodation, that accommodation). Accommodation means a building or other structure (or part of a building or other structure) used or intended to be used as a separate unit of accommodation (whether on a permanent basis or otherwise).
5. Relevant Property means any accommodation or land associated with that accommodation, (e.g. garage, shed yard etc).

6. Information to be given to the complainant

7. Section 43(2) requires that "Where a local authority receives a complaint from an individual that excessive noise is being emitted from relevant property during a noise control period, it shall ensure that that an officer of the local authority investigates the latter matter". If the officer is satisfied that noise being emitted from relevant property would, or might, if measured exceed the permitted level, the relevant property then becomes known as the offending property. At this stage in the investigation it is for the officer concerned to decide the place from which to assess the noise. Therefore, the assessment at this stage could be based on a subjective assessment made by the investigating officer. It is recommended that at the initial stages of the investigation the officer informs the complainant of the full procedure and obtains an agreement that if the warning notice is not complied with entry to their home must be obtained for the purposes of obtaining measurements from a relevant place. If this agreement is not obtained it is for the investigating officer and the local authority policy to decide on the appropriateness of allocating time to an investigation which cannot be followed through to a conclusion.

8. Warning Notice

9. If the officer decides that the noise, if it were measured from a relevant place would, or might exceed the permitted noise level, a warning notice may be served. The warning notice must be served by delivering it to any person present at, or near, the offending property and appearing to the 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 offending property. The provisions of the ASB Act define a person is responsible for noise emitted from relevant property if the emission of the noise is wholly or party attributable to the person's act, failure or sufferance.
10. The warning notice, must state:

• that the officer considers that noise is being emitted from the offending dwelling during a noise control period;
• that the officer considers that the noise exceeds, or may exceed, the permitted level, as measured from a relevant place;
• that any person who is responsible for noise emitted from the offending dwelling, in the period specified in the notice, which exceeds the permitted level when measured from within a relevant place, may be guilty of an offence;
• the specified period; and
• the time at which the notice was served.

1. 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.

Measurement of the ASB Noise

1. The measurement of the permitted level is determined by reference to the underlying level of noise. There will be cases where the level of noise complained of is clearly substantially above the level of noise that would otherwise be present and where there will be obvious gaps or lulls in the noise. The measurement technique makes it is possible to determine the underlying level of noise even if the dominant noise, such as amplified music, appears to be continuous. This can be done, using currently available instrumentation, by 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.
2. 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 approval of measuring devices. It must sample the sound pressure level at a rate of not less than 10 times per second, and use in the statistical calculation a class interval of no greater than 0.5dB. (It will be necessary to check with the manufacturer.)

12. It is necessary to ensure that the following measurement requirements are adhered to.

• The equipment used must comply with the requirements of Type 1 of British Standard BS EN 61672-1:2003.
• Where necessary the appropriate parameter must be selected, i.e. L _Aeq for measurement of noise emitted from the offending dwelling and L _AN,T for the measurement of the underlying noise. The underlying level is, using time weighting 'F', the A weighted sound pressure level which is not exceeded for 0.6 seconds and it shall be determined in a period which shall be no shorter than 1 minute and no longer than 5 minutes. This determination shall be made within the same 15 minute period within which the noise emitted from the offending dwelling may be measured.
• Where measurement of the underlying level results in a non integer value, that value shall be rounded up to the next integer.
• The number of people in the room should be approximately as would normally use the room. The presence of additional bodies may have an adverse effect on the measured level as a consequence of additional absorption in the room. In addition anyone in the room other than the officer actually carrying out the measurement must be at least 1m away from the microphone as it can be demonstrated that at frequencies of around 400Hz reflections from a person may cause errors of up to 6dB when measuring at less than 1m away from a person.
• Within the dwelling 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 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.
• Where the measurement of the noise causing the complaint is a non integer value, the value shall be rounded own to the next integer.

1. Prior to commencing the measurements the following steps should be taken:-

• A check should be made on the available battery power to ensure that the sound level meter will not cut out during the measurement. Spare batteries should always be carried.
• The orientation of the relevant place to the offending dwelling.
• The number of people present in the room should be noted.
• Any animals should be removed from the room.
• A general note on the external noise climate should be made, e.g. traffic audible, rain on windows etc.
• The windows and doors in the room in which the noise measurements are made shall be closed.
• A note should be made of the subjective assessment of the 'offending noise' as heard in the relevant place.
• The sound level meter must be calibrated and the calibration level noted.
• An appropriate dynamic range must be selected.
• The measuring microphone of the approved device shall be positioned at least 0.5m from any room surface (including the floor) and from any items of furniture and be located at a height of 1.2-1.5m from the floor.
• If possible a tripod should be used for supporting the sound level meter.

1. Once the equipment is ready to measure the procedure requires that within a period of no more than 15 minutes the equivalent continuous A weighted sound pressure level of the noise emitted from the offending dwelling shall be measured for a continuous integration time of 5 minutes (L _Aeq,5min), except for pauses to exclude from the measurement any significant noise other than that causing complaint. Where the measurement results in a non integer value, that value shall be rounded down to the next integer.
2. Once the measurement has been completed the sound level meter should be calibrated. Where there is a variation of 0.5dB or more then any measurements made by that device, between the time when the sensitivity of that device was checked and rechecked, shall not be used for any purpose determination of the permitted level

   Assessment of Offence

3. The assessment of whether or not a FPN should be issued is clearly dependant upon the permitted level, the underlying level and the relationship between them.
4. 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.
5. 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.
6. If it is established has been established that the permitted noise level has been exceeded and the warning notice has been served any person who is responsible for the noise can be served with a fixed penalty notice (FPN). The form of the FPN may be specified in an order made by the Scottish Ministers and if such an order is made the FPN must be issued in that form.

   Seizure of Equipment

7. An authorised officer may seize and remove equipment which is being, or appears to have used in the emission of noise. This can only be done after a warning notice has been served and the officer of the local authority believes that, at any time in the period specified in the noise, noise emitted from the relevant property has exceeded the permitted level as measured from a relevant place. An officer of the local authority or person authorised by them may enter the offending property to seize and remove the equipment that he or she believes is being, or has been used, in the emission of noise during the period when the noise exceeded the permitted level. The person carrying out the seizure must produce their authority to do so, if requested. The powers of entry and seizure of equipment used to make noise unlawfully are detailed in section 47. Noise-making equipment will typically comprise electronic items such as a HiFi, mixer desk, loud speakers, TV, and 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, minidiscs or tapes. If the noise producing source is an animal then the animal cannot be removed without the presence of the local authority Dog Warden or the RSPCA. The seizure of equipment may also take place when a FPN has not been complied with. A suggested protocol for obtaining a warrant is included as Appendix 8.

Annex 6 Summary of instrumentation requirements

1. For measuring the noise emitted from the offending dwelling:
2. Integrating sound level meters, or measuring equipment or measuring systems, must comply with the requirements of Class 1 of British Standard BS EN 61672-1:2003 "Electroacoustics - Specification."
3. For measuring the underlying level of noise:

   (i) Subject to paragraph (ii) below, sound level meters, measuring equipment or measuring systems, must comply with the requirements of Class 1 of British Standard BS EN 61672-1:2003 "Electroacoustics - Specification" and be capable of determining the A weighted sound pressure level, time weighting 'F', which is not exceeded for 0.6 seconds in a time period of no shorter than 1 minute and no longer than 5 minutes.

   (ii) Where L _AN,T measurements are used for the measurement of the underlying level, the sound level meters, measuring equipment or measuring systems mentioned in paragraph (i) above shall:

• sample the sound pressure level at a rate of not less than 10 times per second; and
• use in the statistical calculation a class interval of no greater than 0.5dB.

1. For measuring both the noise emitted from the offending dwelling and the underlying level of noise:

   Single meters or measuring equipment or measuring systems which satisfy the requirements of paragraphs (1) and (2) above.

   Conditions

2. Testing and verification of approved devices etc:

   (a) An approved device shall, within a period of not more than 24 months before being used for any purpose set out in this Approval, be verified together with an acoustic calibrator or pistonphone in accordance with BS 7580: Part 1:1997 'Specification for the verification of sound level meters.'

   Self Noise

3. The self noise of the sound level meter must be no greater than 17dB(A).

Annex 7 option matrix management guide summary

1. This summary guide is intended to provide investigating officers faced with noise complaints of a potentially ASB nature with a guide to assist in deciding whether or not the ASB fixed penalty notice (FPN) route is appropriate in the circumstances, or whether in fact other available legislation may be more appropriate in the circumstances. The three stage flow charts are simply to provide guidance in relation to the options and are not intended to be prescriptive or exhaustive. All references to paragraphs within the flowcharts are to the text within the main report and not the summary.

   Stage 1 Assessment

2. Upon receipt of a noise complaint all potential ASB calls should be filtered out as early in the process as is reasonably practicable. This can be achieved by the screening process illustrated in the Stage 1 flow chart. The non ASB noise complaints would simply be routed to the conventional investigation noise protocol adopted by that particular local authority.
3. The potential use of formal mediation services should always be considered where appropriate.
4. All outcomes (shown in yellow) should be recorded. The possible outcomes of the Stage I investigation are:

• Non ASB Noise complaint
• ASB Noise complaint
• No Action

  Stage 2 Assessment

1. The Stage 2 flow chart describes a process for determining whether or not the fixed noise penalty route (FPN) should be pursued. Paragraphs 6 - 9 below provide further information on various noise sources where other remedies may be more appropriate.

   Barking Dogs and other Noisy Animals

2. There may often be questions raised in relation to the use of FPNs to deal with barking dogs or other noisy animals. The main issue with the use of sec. 49(2) of the Civic Government (Scotland) Act 1982 is the time taken from complaint to resolution. Section 49(2) 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 to 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 would 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. 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 FPNs will potentially allow a rapid resolution to the problem of barking dogs. However, FPNs are only applicable where the dog (or other noisy animal) is in a relevant property.
3. Section 47 of the Act covers the powers of entry and seizure of equipment used to make noise unlawfully. 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 natives, 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 may apply to animals.

   Domestic/ Car Intruder Alarms

4. In the case of domestic intruder alarms, presently dealt with using the Environmental Protection Act, local authorities generally have established operational procedures for dealing with domestic and car alarms. The procedures involve local arrangements with the Police for 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. The FPN route provides local authorities with the option of adopting their locally developed procedures to include the possibility of issuing a FPN's in respect of domestic/car intruder alarms if the noise originates in a relevant property.

   Potential Issues with Civil Rights and Sound Insulation

5. In using the provisions of the ASB 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 exceedance of the Permitted Level, with normal everyday behaviour by the noise maker, is unlikely to be an appropriate action/outcome. Therefore, the issue of sound insulation must be taken into account when assessing the appropriateness of using the provisions of the Act. If lack of sound insulation is a significant factor in the excessive noise complained of there are various options for legal remedy to lack of sound insulation. A more detailed consideration of these matters is contained in paragraphs 68 to 70 in the full Management Guide.
6. The possible Outcomes at this stage of the process are:
   • 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

1. The investigation then moves on to Stage 3 as outlined in the Stage 3 flow chart. However, the some additional information in relation to the possible use of the EPA is provided in paragraphs 11 - 13.
2. 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 the relevant noise control period, or where it is decided that the noise cannot be measured or where it is considered that the provisions of the Act 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.
3. 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 ASB noise offence is committed if subsequent measurement shows that the permitted level for the relevant noise control period is being exceeded.
4. 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 as to whether to follow the remainder of the Act provisions or the EPA enforcement process. In such cases it would be inappropriate to use both enforcement regimes; instead the local authority must decide which is the most appropriate and either cease that under the Act provisions or stay with that under the EPA.
5. The outline of the procedures for measurement in a relevant pace and the possible issue FPNs are provided in the Stage 3 flowchart. The measurement protocol is included as Annex 5 in the main document and a summary of the instrumentation requirements in Annex 6.

Annex 8 Suggested protocol for obtaining a warrant

APPLICATION FOR WARRANTS (from Strathclyde Police)

PROCEDURE

1. Applications for all search warrants should be submitted in writing to the Procurator Fiscal, for consideration of the granting of a Sheriff Warrant. This procedure requires to be followed in all cases and at all times, even outwith office hours, except in cases of emergency or where it is otherwise not practicable for the police to contact the Procurator Fiscal.
2. The police may only make application directly to a Justice of the Peace, without prior consultation with the Procurator Fiscal where the aforementioned criteria apply, and then only for the grant of a warrant to search in terms of the Misuse of Drugs Act 1971, Section 23(3) or at Common Law to search for property obtained by theft, any aggravation of theft or robbery. The latter does not include applications for warrants to search for evidence of the commission of an offence e.g. weapons, clothing etc. Furthermore, cases which involve large quantities of drugs or where the circumstances are particularly unusual, the police must make application to the Procurator Fiscal and not to a Justice of the Peace.
3. A warrant must only be craved from a Justice of the Peace where immediate police action is required and therefore normally precludes pre-planned operations.
4. So far as possible, applications for search warrants should be submitted to the Procurator Fiscal during office hours, with the Procurator Fiscal only being contacted out of office hours in cases of genuine emergency, as in circumstances where it would not be appropriate to contact a Justice of the Peace directly.
5. Applications for warrants under the Mental Health (Scotland) Act 1984, the Wildlife and Countryside Act 1981, the Forgery and Counterfeiting Act 1981, the Immigration Act 1971 and the Asylum and Immigration Act 1996 should be made to the Procurator Fiscal and within office hours. Out of hours applications must also be made to Procurators Fiscal. Only in highly exceptional circumstances and where there is difficulty in contacting a Sheriff and where evidence may (on a specified and not merely conjectural basis) be lost, authority may be given to approach a Justice of the Peace direct. Applications for those warrants specified, must not under any circumstances be made direct to a Justice of the Peace without the express authority of the Procurator Fiscal.
6. A summary of the evidence upon which each warrant application is based must be submitted for the consideration of the Procurator Fiscal. Applications supported only by vague or imprecise information will be refused. All applications for warrants should be examined and authorised by a supervisory officer.
7. Where the Procurator Fiscal directs that a Justice of the Peace warrant will suffice, or where the aforementioned exceptional circumstances exist, the Investigating Officer will make a written request to the Duty Officer. This report should outline the circumstances surrounding the warrant application and the reason why the sheriff warrant was not obtained.
8. The Duty Officer will, where appropriate, issue an original warrant of an approved style - 1:25:15 or 1:25:16, complete the counterfoil receipt or if not the Justice of the Peace Warrant Control Sheet (Form 1:25:21) and issue a consecutive number to the warrant. "On no account should a Justice of the Peace Warrant of any description be photocopied." Whenever practicable, when Justice of the Peace warrants have been signed, a supervisory officer should again examine it to ensure its accuracy prior to execution.
9. Irrespective of whether the warrant is executed, a subject report outlining the circumstances should be submitted to the Divisional Commander and retained within the Divisional Registry, together with the original request.
10. Where a Sheriff Search warrant has been granted, a brief subject report providing detail of the outcome must be submitted to the Procurator Fiscal, whether executed or not. The warrant should thereafter be retained as a production or within the Divisional Registry as appropriate.
11. Where execution of any search warrant results directly or indirectly in evidence being obtained, the original warrant must be lodged as a production and included in the Police Report submitted to the Procurator Fiscal.
12. Where no report is submitted to the Procurator Fiscal, the warrant is to be retained in the Divisional Registry.
13. The permitted exception will not apply where the case is of an unusual nature or of particular importance. In such cases the application MUST be made to the Procurator Fiscal.