Housing Legislation and Poor Insulation
There have been few legal cases or appeals concerning the use of Housing Health and Safety Rating System with respect to noise issues so generally there are few established precedents concerning application of housing legislation in noise cases. However, it is generally accepted that the use of HHSRS is most likely to be invoked in the case of serious intrusion associated with poor insulation or transport noise (note that it can not be used to tackle neighbour noise issues that are associated with unreasonable behaviour or nuisances). Transport noise could involve road, rail or aircraft noise.
With respect to excess neighbour noise caused by problems associated with poor insulation the established statutory nuisance legislation is generally not applied (by virtue of decisions set out in Southwark v Mills; and Vella v Lambeth). Standards of sound insulation in new buildings are served by Building Regulations Approved Document E (this lays down standards to protect against excess sound transmission between buildings). Therefore, most commonly, the application of HHSRS could be considered in the case of existing dwellings (most often flats and converted properties).
When assessing noise cases there would typically be an initial subjective assessment (witnessing) of noise by the local authority officer. If it is suspected that a noise may qualify for HHSRS assessment the officer should refer the matter to the appropriate officer for classification. They should conduct a physical inspection of the existing building structure and may make a determination of the current level of sound insulation (potentially through a sound insulation test). A determination of risk class is then made and decision as to whether enforcement action is appropriate.
The assessment is complicated. As well as the regulations (Housing Health and Safety Rating Scheme Regulations 2005) operating guidance and enforcement guidance is applied in order to determine the level of risk associated with the hazard. Once the deficiency is identified the risk of harm is assessed, scored, rated and classed.
Enforcement action might include the service of an improvement notice or hazard awareness notice (HAN). A HAN is simply a formal way of notifying a landlord that a hazard exists. Whilst a HAN might seem toothless it has been noted that many social landlords tend to take them seriously (by responding positively to them) due to their responsibilities to protect convention (human) rights and guarding against the possibility of civil claims. Even if the officer who assesses feels that he is unable to take enforcement action to resolve the matter formally you should try to get the opinion of the officer in writing as to the level of risk associated with the issue.
Local authorities can often operate in silos (where different teams or departments have very little interaction and stick within the bounds of their own remits). If you have been told by the noise team (those responsible for enforcing statutory nuisance) that the noise is caused by inadequate sound insulation or is not unreasonable ask for them to refer your case to the private sector housing team. If they don’t you can go to them directly yourself.