Select Committee on Environmental Audit Written Evidence


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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