Hamish Birchall Bulletin
Friday 6th June 2008 - Noise controls irrespective of entertainment licensing
Responding yesterday to another of Lord Colwyn's recent questions, the government set out the legislative powers available to local authorities or police to control noise at live music events, irrespective of entertainment licensing (see Q&A below).
Ministers repeatedly claim that entertainment licensing is necessary to control noisy live music, despite the fact that the government has no data about complaints caused by live music, and the data they have suggests that noisy people outside licensed premises is a far greater problem.
Dale Collins, a lawyer with Bond Pearce in Bristol (http://www.bondpearce.com/People/110), has expertise in licensing as well as health and safety legislation. On reading the government's reply to Lord Colwyn, he said:
'The answer simply confirms what we said from the very beginning....the existing legislation is sufficient to deal with both noise problems (as detailed below) and any health and safety risks (through the health and safety legislation). The question is therefore, why license an entertainment which is small enough and/or occasional enough to be adequately controlled by existing legislation?'
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Lord Colwyn asked Her Majesty's Government:
In view of their concerns about potential noise nuisance at live music events, what legislation other than entertainment licensing is available to the police or local authorities to pre-empt potential sources of sound nuisance and to regulate it when members of the public complain. [HL3716]
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): The Government take the issue of noise seriously, and have given new powers to local authorities to deal with noise with the Clean Neighbourhoods and Environment Act 2005.
Statutory Nuisance under the Environmental Protection Act 1990
Section 79 of the Environmental Protection Act 1990 (as amended) lists what is capable of being a statutory nuisance. At Section 79(1)(g) is "noise emitted from premises so as to be prejudicial to health or a nuisance".
Section 79 of the Environmental Protection Act 1990 places a statutory duty on local authorities to inspect their areas periodically for existing and potential statutory nuisances, and to take reasonably practicable steps to investigate complaints of nuisance. Once satisfied that a statutory nuisance exists or may occur or recur, the local authority must serve an abatement notice under Section 80 of the Act on the person responsible for the nuisance (or the owner or occupier if the person responsible cannot be found or the nuisance has not yet occurred).
For noise, the local authority can (under the Clean Neighbourhoods and Environment Act 2005) choose to defer serving an abatement notice for up to seven days in order to pursue specific alternative steps to resolve the problem. If the noise nuisance is not abated within seven days, the abatement notice must then be served, and it can served at any point within that time.
A complainant can also take private action through the courts under Section 82 of the Environmental Protection Act 1990. The complainant must give a minimum of three days' notice in writing of the intention to take private action to the person who is the subject of the complaint, and must specify the subject of the complaint. If the court agrees that a statutory nuisance exists, or may occur or recur, it will issue an abatement notice. There is a defence for industrial, trade and business premises of "best practicable means". There is a defence of "reasonable excuse" for causing a statutory nuisance or breaching an abatement notice.
Noise Act 1996 and Licensed Premises
Section 84 of and Schedule 1 to the Clean Neighbourhoods and Environment Act 2005 amend the Noise Act 1996 so that it applies to licensed premises. The fine upon summary conviction for exceeding the permitted level, as measured from within the dwelling of a complainant, will be up to £5,000. The local authority will be able to offer the option to discharge liability to conviction with the payment within 14 days of a fixed penalty notice of £500.
The permitted level is 34dB(A) where the underlying level does not exceed 24dB(A), or 10dB(A) above the underlying level where this exceeds 24dB(A). This permitted level applies to both domestic and licensed premises.
Section 84 of and Schedule 1 to the Clean Neighbourhoods and Environment Act 2005 came into force in relation to England on 1 October 2006. We have revised the permitted noise levels and an approval for devices measuring noise levels.
These were brought into force on 28 February 2008 following a stand-still period required under the Technical Standards and Regulations Directive 98/34/EC.
The Noise Council's Code of Practice on Environmental Noise Control at Concerts
The Noise Council's Code of Practice on Environmental Noise Control at Concerts was published in 1995 and is designed to help organisers, promoters and regulators to plan and manage the noise issues associated with such events. It was prepared by a working party of professionals experienced in this field and was published following a public consultation. Since then, it has become widely used in the UK and can provide a means of enabling successful concerts to be held while minimising the disturbance caused by noise.
Compliance with the various provisions of the code of practice does not confer immunity from any legal obligations, such as the statutory nuisance regime contained within Part III of the Environmental Protection Act 1990.
It is understood that there is dialogue between the Chartered Institute of Environmental Health and the Institute of Acoustics (both of which were members of the Noise Council) exploring the possibility of reforming a working party and the extent to which the code should be reviewed or revised.
Hansard link:
http://www.publications.parliament.uk/pa/ld200708/ldhansrd/text/80604w0003.htm#08060483000019
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