Annex 2
NOISE AND EMERGENCY TEAM
FIXED PENALTY
NOTICES—NOISE
ACT 1996
Background
The Act was passed following a campaign by the
Daily Mail and the Right to Peace & Quiet Campaign for new
powers to be given to Local Authorities to control noise , because
they felt that the Environmental Protection Act was not an adequate
means of control. The Right to Peace & Quiet Campaign acknowledged
that Westminsters' Noise Team is a model to be followed and that
in its' operations the Team had sufficient enforcement options
available.
Amongst the provisions of the Noise Act are
adoptive powers which provide for Local Authorities to deal with
noise at night (11.00 pm to the following 7.00 am). In particular
it lays down a procedure to be followed on receipt of a complaint
from an individual in a dwelling that excessive noise is being
emitted from another dwelling.
Method of Operation
The procedure requires an officer of the Council
to investigate, and if that officer is satisfied that the noise
within the complainants dwelling exceeds the "permitted level"
(currently 35 dBA, or 10 dBA over background with a minimum background
level of 25 dBA) then he or she may serve a Warning Notice. The
Act requires that the sound level will be assessed by measurement
with a Sound Level Meter. Guidance on the method to be followed
has been provided by the Department of the Environment. These
are based on pilot studies in which WCC Noise Team participated.
The Warning Notice must state that the permitted
level is being exceeded, and that if this continues after a specified
period the person responsible may be guilty of an offence. The
Notice has to be issued at the time the noise occurs, on a person
who appears to be responsible for the noise.
If the officer later returns, after the time
allowed has elapsed, and is able to establish that the noise continues
over the permitted level by measuring it in the complainants dwelling
then an offence is established. The person issued with the Warning
Notice may be prosecuted or may be issued with a Fixed Penalty
Notice.
The recipient of the Fixed Penalty Notice has
the option to pay a fixed penalty—currently £100—within
14 days. By paying this penalty liability to prosecution is avoided.
Westminster City Council adopted the powers
to allow service of Warning Notices and Fixed Penalty Notices
in 1999.
Advantages of Fixed Penalty Notices
The powers provide an addition to the arsenal
of powers available to the Council for the reduction of noise
nuisance.
Some noise nuisances may be more rapidly resolved
if the recipients of Warning Notices are able to appreciate that
a penalty of £100 could result from a failure to cut the
level of noise. Additionally an officer could advise an occupier
by how much noise must be turned down to avoid exceeding the permitted
level. This could avoid situations where the officers' subjective
opinion of nuisance is open to challenge.
If it is accepted that dealing with noise nuisance
only requires an assessment by means of measuring sound levels,
then it is relatively easy to train staff in a repetitive sound
measuring procedure. This may allow employment of low cost staff.
Disadvantages of Fixed Penalty Notices
The procedure for issuing first a Warning Notice
then a Fixed Penalty Notice is cumbersome and time consuming.
Not only are two visits required to the complainants' premises,
but sufficient time has to be allowed for measurements to be made.
Officers will be carrying equipment to make
the necessary measurements, and are therefore quite likely to
be spotted entering the complainants' premises by those making
the noise. This is particularly likely to occur on the return
visit when the officer must establish that the Warning Notice
has been breached.
Additionally recipients of a Warning Notice
would want to know by how much they should reduce music in order
to meet the permitted level requirement. For an officer to provide
this information one of the Noise Team officers would need to
be in the complainants' premises with a sound level meter as the
level of music was adjusted at source, again giving information
as to the origin of the complaint.
This has implications for customers who are
making complaints to us, and the confidentiality we normally accord
them.
As more time is required to investigate each
complaint additional teams of officers will be needed to investigate
the same number of service requests if response time targets are
to continue to be met. There is therefore an additional cost to
the Council in using this procedure. More sound monitoring equipment
will likewise be required giving an additional capital cost.
Any monies received by the Council through the
fixed penalty procedure must be paid to the Secretary of State
and cannot therefore be used to offset the additional costs outlined
above.
Warning Notices are issued on the basis of sound
levels only and cannot take account of the character of the noise
(a factor which can be allowed for in the service of Abatement
Notices under Section 80, Environmental Protection Act 1990).
Typically the breakout of thumping bass from a party into a complainants'
flat might not exceed the permitted level, but still be sufficient
to the residents awake because of the disturbing nature of such
noise.
The way sound is transmitted and absorbed, the
construction of buildings, configuration of rooms and furnishings
can all play a part in whether or not the permitted level of noise
is exceeded. Thus the shape of the complainants dwelling and how
they choose to live (say minimalist furniture, no soft furnishings
may contribute to permitted levels being exceeded. Clearly those
generating noise can have no control over these factors. Proceedings
for a breach of a Warning Notice could be open to challenge in
Court on this aspect.
There is concern of an increase in violence
to officers during monitoring and service of notices. This is
especially likely when on issuing a Fixed Penalty Notice the recipient
(frequently intoxicated in one way or another) realises that the
action of the officer will cost them £100.
A further twist may be that party-goers may
simply have a "whip round", pay the officer the fixed
penalty on the spot and continue causing noise nuisance with impunity.
It is technically possible to issue an Environmental Protection
Act Notice in addition to the Warning/Fixed Penalty Notice procedure,
in which case officers could then use powers to act to seize equipment
where the above scenario arises. Caution must be exercised however
as the Council could be open to proceedings against it on the
basis of double jeopardy.
March 2004
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