APPENDIX 25
Memorandum from Mr John Wilkinson, Senior
Environmental Health Officer
PROPOSAL TO CREATE A COMPLIANCE CULTURE AND TO
ALLOW LOCAL AUTHORITY ENFORCEMENT TO BECOME MORE EFFECTIVE
PREAMBLE
Local Authorities have very effective powers
available to them to deal with noise problems. However, the cost
of funding enforcement, especially if a 24-hour service is to
be provided, can be daunting. Currently very few local authorities
have set up true 24-hour operations, able to respond quickly and
effectively to an increasing number of noise complaints. The aim
of this proposal is to produce a Compliance Culture where unreasonable
behaviour is strongly discouraged whilst avoiding an excessively
punitive, fiscally centred enforcement policy. Any fines or charges
levied will defray the costs associated with a 24-hour Noise Team.
This approach might usefully be extended to
other areas of Local Authority enforcement activity where a lack
of compliance causes severe problems to residents. An example
might be breaches of Planning Law or breaches of Regulations governing
Houses in Multiple Occupation.
There are three principles:
— A complainant should not suffer the
double burden of enduring the noise offence and the costs (as
a council taxpayer) of enforcement action to control that offence.
— The Local Authority should retain
the revenue generated by Noise Fines to fund Noise services.
The proposal is likely to require legislation
to be passed by Parliament and could, if expanded to other enforcement
roles, exert a significant change in Local Authority enforcement
and funding throughout England. These proposals are broadly compatible
with the ethos implicit in DEFRA's paper "Living Spaces—Powers,
Rights and Responsibilities". The Cabinet Office "Enforcement
Concordat" must be strictly adhered to in order to prevent
these fines becoming a "cash cow" rather than an effective
method of increasing compliance.
BACKGROUND
There is legislation that provides for a fixed
penalty in respect of noise. The Noise Act 1996 created a night
time noise offence that allows a local authority to serve a fixed
penalty notice on a noisy occupier of a dwelling house without
hampering powers to seize equipment or prosecute when necessary.
The offence (a breach of a notice served) can only occur between
the hours of 11.00 pm and 7.00 am the following day. Any notices
served last only until the 7.00 am deadline. The process of using
the act can be lengthy and might be best suited to an authority
where noise complaints are uncommon. The Act is too unwieldy to
use effectively in a busy urban environment.
In a central London Borough, the levels of complaints
are variable but can be as high as 80 per night. On nights where
more than 6 complaints are received, it becomes impractical for
officers to devote the 1 or 1½ hours necessary to obtain
the evidence required to impose the fine.
Much of the work of a Noise Team is taken up
with daytime noise, and noise which may not be from "a dwelling".
The Noise Act 1996 does not apply in these cases and so the fixed
penalty concept is relevant to only a small part of a 24-hour
Noise Team's workload. This proposal would extend and simplify
the application of the Noise Act 1996.
THE PROPOSAL
In essence, the proposal is to apply, to use
an American term, a "Citation" principle to noise (and
possibly other) enforcement actions. In any instance where prosecution
would, under present circumstances, become possible, a "Citation"
could be served, requiring the payment of a fine. (Presently,
prosecution in a Noise context only becomes possible after breach
of a notice served by the Noise Team). If the citation is paid
promptly a discount is applied to the fine. The citation would
be subject to an appeal if the aggrieved party believed they had
a statutory defence. This appeal could initially be to a manager
or a Panel within the local authority with a further appeal to
the courts.
The person on whom the notice had been served
retains their right to appeal the terms of that notice; some notices
under appeal allow for prosecution if the terms of the notice
are breached, though the result of any appeal would affect the
eventual collection of the fine.
The proposal would not replace all prosecutions
but would make the point to those breaching a notice's terms that
the law was being broken, and make the point quickly. Often the
threat of prosecution seems so remote in time to building contractors
and other noisy individuals that they ignore the possibility (and
the consequences) and continue to breach the terms laid down in
notices served on them. This can leave an impression (in the minds
of complainants and offenders) that the local authority is powerless
to stop noise. An "on the spot" fine would concentrate
their minds on the requirements of noise team notices.
The Local Authority would retain the fine. The
amount raised could only be used to help fund the service that
imposed the fine. The fine could also fund small schemes to permanently
improve/eliminate noise problems.
FINE SCALES
Unlike parking fines, the proposal is that the
scale of charges could increase substantially where offences are
repeated. Fines could also start at different levels for different
types of offence. Non-payment of fines could trigger legal action
resulting in seizure of goods to the value of the fines. The top
level of fine would be limited by the maximum fine a court could
impose. A building contractor faced with a £5,000 citation
fine for a breach of a S60 notice (max fine in Court £5,000)
might well elect to go to court anyway. Hence the maximum fine
might be £4,000 reducing to £2,000 if paid promptly.
Maximum fines in Nuisance Law are £5,000
(residential) and £20,000 (Commercial).
SCOPE
The scope of the proposal includes offences
relating to:
— Noise nuisances generally;
— Building sites working noisily outside
permitted hours;
— Air-conditioning plant noise;
— Ventilation plant noise;
The principle could be extended to Housing,
Planning, Licensing enforcement.
BENEFITS INCLUDE:
— The generation of revenue which is
retained by the Local Authority;
— A consequent high degree of self-funding
of high quality services;
— A fairer distribution of the costs
of enforcement so that "The Polluter Pays";
— A greater level of ready compliance
with existing legislation;
— A positive effect on the speed with
which local authorities can act to improve the local environment;
— An increased public perception that
antisocial behaviour does not pay;
— A reduction in the demands on the
busy Court system;
— Part of the fines could, in some
circumstances, be used for minor works to improve the complainant's
lot, increasing the perceived level of service to council taxpayers;
— Notices served under S80 of the Environmental
Protection Act 1990 and S60 of the Control of Pollution Act 1974
remain in force beyond the day on which they are served, giving
very practical control over noise makers (Unlike the Noise Act
notice which expires at 07.00hrs on the day after service).
DISBENEFITS
— There would be a potential reduction
in the educational principle of much of the work of Environmental
Health Departments;
— There would be an increased risk
of violent confrontation;
— Extra resources needed to ensure
that the correct person/company is billed.
RESOURCE IMPLICATIONS
— There would be a need for increased
support for collection of the fines. This would include staff,
IT hardware and software;
— Proper procedures would be needed
to prevent fraud; auditing and monitoring structures need to be
formulated and then adequately staffed. Perhaps Parking Wardens
could advise on how they avoid this problem.
PROBLEMS
— Obtaining correct details for billing
at the time of the infraction (who is in charge of the party,
what is the precise name of the building contractor—may
need new "information required" notices). Perhaps the
owner/occupier could be made liable if other enquiries fail;
— Officers should not collect money
themselves;
— There needs to be a system to protect
officers against accusations of "back handers";
— Conflict of Professional, educative,
role versus Cash Generation;
— Extension of enforcement policy needed
to cover the circumstances giving rise to susceptibility to Citations.
(See Enforcement Concordat)
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