Council refusal to serve an Noise Abatement Notice

Hi,,
Quick summary for my problem. After suffering loud music and other noise nuisance through the night, I complained after having spekn with my neighbours on 3 occasions. The council I think didnt follow its own procedures. Complained  a second time and the council wouldnt come out to witness. Got PCSo to witness and my other neighbour to witness. Both filled Section 9 witness forms. The Council have refused to serve a Noise Abatement Notice because it was not witnessed by them. Despite the law saying The Council have a duty to serve A Noise Abatement Notice on witness, recur or likely to recur.

 

Any advice on this would be great.

 

Regards

Mac

The council is of course

The council is of course obliged to investigate all complaints of unreasonable noise.

It's officer will almost certainly ask you to keep a record detailing times, duration and the nature of the noise.

If the council decides the noise constitutes a statutory nuisance they will issue a Noise Abatement Order on the offender.

If he does not comply the council can seize equipment and/or bring the offender to the magistrates court.

The council might also consider an Anti Social Behaviour Order (ASBO) if the offender is particularly troublesome.This enables the council to involve the police.

I appreciate that all this is known to you already.

I cannot speculate as to precisely why the council will take no action at this time without seeing the papers but I would advise that you persist for the moment in trying to get them to take action. If they refuse you should ask the council to state in writing the reasons for their inaction.

If they do not follow the proper procedures you may be able to go to the High Court to seek a judicial review.

This is a very expensive procedure and if successful would only result in the council having to reconsider the matter and follow the correct procedure.

Under sec 82 of the Environmental Protection Act 1990 you can issue your own proceedings in the Magistates Court.

You can also bring an action in the County Court for damages for nuisance.You would be able to attach to that action an application for an injunction seeking an end to the offending behaviour. Again this likely to be very expensive.

At this stage however I suggest you go back to the council in a last attempt to make them do something.If that fails and you have sufficient evidence you should bring your own action under sec 82 above.

icox@s-law.co.uk

 

 

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Hi Ian,   Many thanks for

Hi Ian,

 

Many thanks for your reply and your guidance. It is much appreciated as is the quick response.

You may not be surprised to hear that one serving EH Officer (from a different council) and one private Accoustics Specialist are unable to believe the stand taken by the council.

They are not acknowledging the problem exists even though it has been witnessed by a PCSO and another person. There comment on the nuisance after receiving the Section 9 statements is 'we have no doubt that you feel you are suffering levels of disturbance ...'

I guess the reason for coming on here was to ask one question; is there any court cases on an issue such as thiswhich would bind the council to making the right decision? and where the council stand is contrary to the EH Act and guidelines from the Ombudsmen, Home Office and DEFRA.

Their stated reason is legal have advised them not to issue the notice because it has not been witnessed by them.

I know about Section 82 but this puts the onus on me and not where it should be. It also means that my council are getting off scott free by not having done their job in the first place and continuing to fail to do so.

Regards

Mac

OK- I will investigate

OK- I will investigate further and report back.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Hi again,   Thanks for that

Hi again,

 

Thanks for that much appreciated.

Regards

Mac

The council will only tke

The council will only tke action if their officer witnesses the nuisance.

Having provided the evidence yourself an officer should make a visit to you to assess whether the noise is actionable.

Coventry Council for instance say that the noise level should be above the normal TV volume or require normal conversation to be at raised levels.

Is it the case here that the council will not make an assessment visit despite being asked?

As I have said this could be judicially reviewed but again as I think you are aware a complaint can be made to the Local Government Ombudsman for inter alia failure to take action.

The Ombudsman number is 0300 061 0614

 

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Hi Ian,   Thanks for that.

Hi Ian,

 

Thanks for that. The problem is this, in the past when I have asked them to come out, they didnt saying they were busy.

A Noise Abatement Notice should be served on the strength of occuring, likely to occur to recur. In order to prove that the nuisance existed I asked for got a PCSO to come out who has attested that loud music was being played (through a cinema kit with speakers placed on the part wall - and yes you can imagine the effects from that) by my neighbour and the vibrations from the bass could be felt on the walls both downstairs and upstairs in my house. A quick confirmation for you if I may be so cheeky - 1990 Act does not stipulate levels to achieve discomfort and allows for other factors to be taken into account in this case the bass and vibration.

I had a meeting with Principle Officer and Section Manager in December 2009, handed over the letter from PCSO, confirmed that my other neighbour would provide evidence to confirm the nuisance.

In the meeting no request was made for witness by EH Department, similarly no request was made for this during 2 verbal conversations in January 2010. During the same meeting I specifically asked What would you like me to do, what else is it that I can do? The answer from both was Carry on keeping the diaries. I have this on record from the minutes of the meeting. No request to peronally witness by their officers.

Section 9 statements were obtained and a meeting with the Council Legal team was made on the 14th January 2010 that no Noise Abatement Notice would be served because it had not been witnessed by them direct.

This is the important point - their stated reason is that it is their procedures that nuisance has to be witnessed by them and only by them.

In my case they did not request and have not requested for them to witness until 3 days before that meeting.

My question is is the following legal and I would be interested if your contact at Coventry Council could comment on this post and the following statement by my council:

'Whilst the legislation does allow a noise abatement notice to be served without witnessing a nuisance our procedure clearly states that we should witness a disturbance in order to verify the complaint'

This says that the evidence of an officer who is qualified to provide evidence to a criminal standard in a magistartes court is not acceptable.

By the way your forums are a great idea. Can I use your email as shown on your posts for the future?

 

Regards

Mac

I can understand the

I can understand the council's desire to have their own officer giving evidence - after all the burden of proof is on them.

However if as seems to be the case here the council are refusing to even investigate, this would appear to me to be a breach of their duty.

The remedies are as stated in this post.

Have the council formally stated their position?

If so we need to look at that in more detail.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Hi Ian, It seems that making

Hi Ian,

It seems that making an official complaint is the only way forward.

 

Thanks for that.

Regards

Mac

One further point does occur

One further point does occur to me.

You could enlist your local councillor to assist.

 

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Abatement notice

Hi,

As a seperate query on the above thread, I have a similar problem and have complained council of the same, they issued letter to the neighbour but the nuisance persisted, when I asked for proceeding towards the abatement notice, they said they can do but warned me that it will be difficult for me to sell house once abatement notice is served to neighbour, hence I withdrew the request. It looks like the law heavely favours the nusaisance creators, they do not lose anything if notice is served (unless they do not stop nuisance at that point) but the victim will loose the value of the property and the stress will shift towards the valuation of the house from the noise, both ways the victim is the looser and no wonder the neighbour keeps continuing noise after council formally briefed them of the proceedings. 

Regards

Amar 

Hi, It is not uncommon for

Hi,

It is not uncommon for council officers to try and persuade people to withdraw complaints using a variety of methods. If you accept what they say and sell your house anyway, you are legally obliged to declare any problems with source of the nuisance. If you dont and once the new people move in and experience it for themselves, you are liable and they could pursue litigation against you. Of course if you dont take action then until you move you are going to have to put up with nuisance as well.

 

Regards

Mac

serve an Noise Abatement Notice council

York city council have just removed some of my tenants property after only 11 days from the first complaint to them .

the court issued a warrent directly to the council without giving the tenants the chance to give there side of the story is this acceptable

also 11 days is extreamly fast does this form a presidance where the council would have to act as fast in other cases and if they didnt would this form a case for victomisation

 

let me make the point clear the tenants deserved it, 

steven

 

Profile: york landlord

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