The Need for Acoustic Evidence in Nuisance Cases
We read with interest two recent articles from Environmental Health News reviewing two recent noise cases where the subject of acoustic evidence was brought up.
The first1 made mention of Southampton City Council v Odysseas2 in a High Court judgement that resulted in the local authority loosing an appeal. It turned out that a club who had received an abatement notice was not operating at the time of the alleged disturbance that led to the service. Criticism was made of the opinion made by the officer as it was based on a single visit where the officer had failed to locate the source of the noise. Reference in the article was then made to a well known and significant case, Hackney v Rottenberg3, stating that the officer’s evidence ‘would have been more credible had a properly conducted scientific assessment been made involving the recording and analysis of noise measurements/recordings’.
The second4 entitled “Councils Need to Record Noise” made mention of an appeal at a magistrates’ court involving Westminster Council. It was said by an acoustic consultant involved in the case that the judge was critical ‘that there was no corroborative evidence’ and that ‘the notice was served after just one 15 minute visit’.
The Need for Decent Quality Noise Evidence
The suggestion that either case places any requirement on officers to provide an acoustic assessment of noise, or even record it, would be incorrect. In fact the words of the judge in Hackney v Rottenberg (the case quoted in the first of the articles) may actually offer a contrary view. The words of Mr Justice David Clarke are found in the judgement:
‘The subjective judgment in the end is that of the court. If the standard were an objective one, to be measured by some yardstick such as the level of decibels of noise at particular times of day, the case might have been very different. But such a regime of objective measures would have to take into account so many different factors as to be quite unworkable, and there is no such objective standard prescribed by Parliament.’
The Hackney v Rottenberg decision centred around the court’s right not to accept the expert evidence tendered by the environmental health staff (which, in this particular case, was particularly weak). We can not draw any conclusions over the necessity for acoustic evidence. However, the one significant point that both cases do remind us of is the need for the local authorities (and housing associations) to provide sufficient evidence that the threshold for nuisance has been crossed; decent quality evidence.
Acoustics Can Have a Place
It has been found that noise is capable of being a nuisance even when an average measured level is found to be below the background level; particularly if there is a prominent tonal component or characteristic. Judgements in the UK courts have shown that reliable and comprehensive evidence on the character and impact of noise can trump scientific evidence (such as in Godfrey v Conwy5).
Statutory nuisance is not defined in law by any acoustic standard; it can’t be. However, sound recordings may often provide a useful contribution to noise evidence presented by enforcers; particularly if they are able to be played back in suitable conditions. Acoustic measurements and calculations may also provide support to accompany other evidential elements. Importantly, though, the person introducing that part of the evidence must be able (have sufficient expertise) to analyse and explain the significance of the measurements; usually against a known standard. It is worth pointing out, in addition, that acoustic evidence and any use of standards may be subject to challenge; and, where that is the case, may complicate proceedings.
WHO guidance on sleep disturbance and daytime annoyance and BS 4142 guidance for industrial sources of noise are two examples of standards that could be applied to noise measurements. They are no measure of nuisance though, and should not be relied upon in isolation. gathering evidence around the variable factors for nuisance is a fundamental step that should be made in any investigation before an opinion is formed.
1. Environmental Health News, June 2018, p.23
2. Southampton City Council v Odysseas (OP Co) Ltd  EWHC 2783 (Admin)
3. Hackney v Rottenberg  EWHC 166 (Admin)
5. Godfrey v Conwy CBC 200