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Noise and the Law

It is the duty of every local authority to inspect its area to detect statutory nuisances and investigate complaints.  If having done so it is satisfied that a statutory nuisance exists and is likely to recur, it should serve an abatement notice.  A statutory nuisance is a nuisance at common law that causes a nuisance of public health significance, which causes unlawful interference with a person’s use or enjoyment of land.  The interference can take the form of physical damage to land or premises, but also can take the form of causing discomfort to an owner or occupier.

 

When considering if a statutory nuisance is in existence a number of factors must be considered in conjunction with the effect of the annoyance.  In general terms an element of repetition is required as a one-off incident will rarely constitute a nuisance, also the locality must also be taken in to consideration as something which may be a nuisance in a residential area may not be considered such in an industrial location.

 

As mentioned above section 79 of the Environmental Protection Act 1990 places a duty on every local authority to inspect its area from time to time to detect whether a nuisance is likely to occur or recur.  Therefore if the Council receives a complaint of nuisance then the Council is obliged to investigate it.  Section 80 provides that where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, they must serve an abatement notice on the person whose act, default or sufferance it is attributable to, or where that person cannot be found or the nuisance has not yet occurred, serve on the owner or occupier of the premises from which the nuisance arises.  The following categories of statutory nuisance are listed in the Environmental Protection Act 1990, s79(1):

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

b)         smoke emitted from premises so as to be prejudicial to health or a nuisance;

c)         fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

d)         any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;

e)         any accumulation or deposit which is prejudicial to health or a nuisance;

f)          any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

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

ga)       noise emitted from or caused by a vehicle, machinery or equipment in a street;

h)         any other matter declared by any enactment to be a statutory nuisance.

 

Investigation has been interpreted in its widest sense and includes a range of options.  It should be borne in mind that some sources of noise are outside of the legal control of local authorities, for example noise from road traffic or flying aircraft (except model aircraft) and also if a defence of ‘best practical means’ (BPM) can be established.

 

A statutory noise nuisance is not defined in terms of noise levels, but is legally understood to be what would be a nuisance to the average person.  No account can be taken of any particular person’s sensitivities or way of life.  As well as the references mentioned above there is also other guidance documents which can be are considered such as relevant British Standards, Planning Policy Guidance Notes, and World Health Organisation recommended standards.

 

In order to substantiate if complaints are justified it is necessary for officers to attend sites to monitor whether in fact noise is at such a level to be causing a nuisance to residents.  There is legislation and guidance (as described above) in place which officers must have regard to in order to decide whether the noise level being complained about is considered to be causing a statutory nuisance, with many factors taken into consideration before they make their professional judgement.

 

There are a number of factors that must be considered when investigating claims of a statutory noise nuisance and the judgements made by professionally qualified Environmental Health Officers (EHOs).  These factors are:

 

 - How often the noise occurs;

 - The duration of the noise;

 - How loud the noise is;

 - The time of day/night;

 - The character of the noise (whether it has any particularly annoying characteristics);

 - The nature of the area.

 

It must be noted that just because a noise is audible, this does not automatically mean it is a statutory nuisance.  Investigations must be complete and thorough, with monitoring/witnessing of the nuisance taking place in order that any abatement notice which may served, in the event of a nuisance existing, can stand the legal tests applied by the Magistrates Court.

 

The role of Environmental Health is to ensure that the public and the environment are protected using legislation that underpins the basics of public health and protection.  With regard to statutory nuisance the role of an EHO is to act as an independent third party, usually where two parties disagree, in order to consider the facts of a situation based on their individual merits and current legislation and guidance; and as stated above where a nuisance is determined to exist then the local authority must take action to abate the nuisance.

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