Construction and the Sound of Silence: As Determined by the Control of Pollution Act 1974 - Case Study Example

Construction and the Sound of Silence: As Determined by the Control of Pollution Act 1974 Constructionand the Sound of Silence: As Determined by the Control of Pollution Act 1974 In order to control noise from works of construction, demolition, road-works, railway maintenance and other sources, the Control of Pollution Act of 1974 sets forth specific actions to be followed in order to serve a notice on a company in which non-compliance with the Act has been cited. There is, however, more involved than just non-compliance. If a company has just cause, an appeal can be filed and a determination made in the Magistrate's Court. Two means of controlling noise are set forth in CoPA1974: prior consent and nuisance law. An application can be made by the contractor under section 61 and should contain enough detail of works to be carried out, the plant and equipment to be used, the times of operation and the duration of the work. However, the most common means of controlling noise is the nuisance law. Section 58 of CoPA74 as well as the Environmental Protection Act 1990 offer specific requirements, and if a developer creates a nuisance, the local authority is obliged to serve a notice requiring that the noise be abated. If, however, the developer feels the notice was wrongly served, an appeal can be entered. Sections 60 and 61 of CoPA74 give powers to the local authority to control noise and vibration from construction sites. The City of London presents on their website a Department of Environmental Services Code of Practice for Deconstruction and Construction Sites following CoPA74 and EPA 1990 guidelines (Code, 2004). This Code offers information and gives an overall view of what a company must do to follow these regulations in order to prevent a situation prejudicial to health or a nuisance. Neighbours must be informed of contractor's plans with at least fortnightly communication of progress (Code 5.5, 5.6). Normal work hours are 08:00 - 18:00 hours (Monday to Friday; 08:00 - 13:00 hours (Saturday) with certain noise sensitive areas 09:00 - 14:00 hours on Saturdays. No working is permitted on Sundays or Bank Holidays (6.0). Quiet working hours are periods when noisy site operations are not allowed. These hours are generally 10:00 - 12:00 (Monday to Friday) and 14:00 - 16:00 (Monday to Friday) in order to allow neighbours at least four quiet hours a day through duration of construction. Essentially, during these hours, there should be no noise audible at the boundary of the site (6.5, 6.6). Noise limits depend on the individual situation and the facts are: (1) Characteristics of noise and effect on neighbours; (2) baseline ambient noise levels; (3) nature and duration of works (14.13). Health and Noise Pollution Persistent exposure to noise, especially at night, is apt to cause psychological distress. The London Health Organization (LHO) defines "noise" as unwanted sound which is perceived as "noise pollution" (Determinants, 2006). Noise constitutes a problem in more than construction sites. Aircraft, trains and road vehicles might well contribute to unwanted noise, and if measured at high levels can effect whole neighborhoods. Another area that can create problems in noise levels is in the work place. People exposed to noise over a long period might have loss of hearing and even 'tinnitus" (ringing in the ears). Noise levels in decibel units (dB(A) are factors in determining excessive noise. There are three 'action' levels; the first two are values of 'daily personal noise exposure' expressed as L EP,d with the first level at 85 dB(A) and the second 90 dB(A). The third is a peak action level of 200 pascals (where loud impulsive sources such as cartridge operated tools are used). The LHO offers the following guide to noise levels under the Health and Safety Executive: Normal conversation 50 - 60 dB(A) A loud radio 65 - 75 dB(A) A busy street 78 - 85 dB(A) A heavy lorry about 7 metres away 95 - 100 dB(A) A pighouse at feeding time 110 dB(A) A chain saw 115 - 120 dB(A) A jet aircraft taking off 25 metres away 140 dB(A). (HSE, 2000) Contraventions of either Section 60 or 61 may well result in legal proceedings leading to further costs and delays for the contractor. It is important, however, that the noise complaint be properly served on the contractor since once legal proceedings are underway, the notice can be negated if proper procedure in sending it is not followed. The two cases below are separate examples of a legitimate complaint against a contractor being dismissed due to incorrect handling of the paper work. Amec v. London: Wrong Company Served with Notice The legality of proceedings is not always determined by the complaint but by the way in which it was served. In the case of Amec Building Limited and Another v. London Borough of Camden (Auld and Ebsworth 1996), the notices related to dust, smoke and noise were directed to Amec Construction Limited, not to Amec Building Limited which was the intended recipient. Both were located at the same address but were different companies. In the Magistrates Court, the appeals were against convictions arising out of notices served under section 80(4) of the EPA 1990 and section 60(8) of the CoPA74. Both Amec Building and Squibbs & Davies Demolition appealed to the Magistrate's Court under the same notice. Amec Building won its appeal since section 60(5) of CoPA74 reads: A notice under this section shall be served on the person who appears to be the local authority to be carrying out, or going to carry out the works and on such other persons appearing to the local authority to be responsible for, or have control over, the carrying out of the works as the local authority think fit. In other words, if the correct person is not served, the notice is invalid. The second company, however, neglected to submit an appeal against the abatement notice. If they had done so, it would have been possible to put forward a wide range of arguments. The result was that the issue of statutory nuisance was found irrelevant in the case of the second company, Squibb & Davies. The decision was as follows: It was only necessary for the magistrate to consider whether the notice had been complied with where it related to the abatement of an existing nuisance. This distinction was supported by the wording of section 80(7) where the best practicable means defence was provided in relation to offences under section 80(4) "in respect of a statutory nuisance". If section 80(4) only applied where a statutory nuisance existed this distinction would be superfluous. The second appellant's appeal was therefore dismissed. (Auld & Ebsworth, 2) Walter Lilley v. Westminster C.C.: Two different jobs under one notice Two contracts were issued to Walter Lilley on two separate jobs but only one notice of noise pollution was served by the Council under Section 60 of the Control of Pollution Act 1974 (Mann & Scott Baker, 1994). The appellant replied to the notice that the works identified as being on the fifth floor, as well as the third, sixth, seventh and eighth floors and to the basement, would carry on to the end of January 1992. In mid February 1992 a second and different contract was created to work on the fourth floor. This job was to be completed in September 1992. When noise readings were taken between April and June 1992, the respondent prosecuted the appellant for noise pollution under the notice of September 1991 and secured a conviction on February 15, 1993. This decision was appealed. The question on appeal was: Are works not contemplated at the time of notice covered by that notice (Mann & Scott Baker, 1994). In this case there was a break of two to three weeks between the two jobs. The first job was on the whole fifth floor of the building, and the second contract covered the fourth floor in three parts. The appellant did not know the second job would be forthcoming at the time of the first notice. Only one notice was served, and the complaint of noise was not valid for the second job under this notice. The decision of the Court on February 2, 1994, under Section 60 and Section 61 of CoPA74 was that the works under the notice were specifically identified and did not include the second job; therefore, a fresh notice was necessary for the complaint under the second contract. This was a case that again related to the way in which the proper filing of a notice was interpreted by the respondent. The Council should have served a notice for noise complaints against the newly contracted job. The case lasted over a three-year period and must have created a financial hardship for the company under notice. However, without the CoPA74 under Sections 60 and 61, Walter Lilley might not have won their appeal. The case cited Section 60 (1-3) which identifies the kind of works in general, service of notice imposing requirements, and makes reference to equipment. Based on this, two different jobs were identified--one on the fifth floor and an entirely different job divided into three parts under a separate contract on another floor. Section 60 (4-5) identified method and service of notice on identifiable works only. Under Section 60 (8) it was determined that the company had a reasonable excuse for the first contract but unreasonable for the second contract (Mann & Scott Baker, 1994). The two cases discussed above are indicative of the need for understanding the various factors involved in a case of law and how important it is to follow the letter of the law. In the first case, the notices were legitimate but were technically dismissed because the City Council did not make sure they were serving the right company. In the second case, the construction company was able to win their appeal in Divisional Court because Westminster did not pay enough attention to the definition of "works" as set forth in CoPA74, and Squibb & Davies Demolition had their appeal dismissed because it applied to statutory nuisance, for which there was no proof, according to Section 60(7) and 60(5) of CoPA74. Westminster City Council Relies on CoPA74 for Noise Control In the case of Westminster City Council v. French Connection Retail, Ltd. (Sedley & Pitchers, 2005) care was taken to follow the Control of Pollution Act 1974 under Section 62(1) and the EPA90 as amended by the Noise and Statutory Nuisance Act 1993 which prohibited the use of loud speakers in the street to advertise business. The respondent used audio pucks, or suckers, attached to the inner surface of glass windows of the shop. The windows worked as loud speakers to send music and advertising "in the street". The sections noted above provided that "a loudspeaker in a street shall not be operated for purpose of advertising and . . . business" (CoPA74). A case was stated for the Administrative Court when the Westminster Justices dismissed the information because all ingredients of the offence were proved except the requirement that the loudspeakers be in the street. The Court held that the window pane itself functioned as a loud speaker. The equipment made loudspeakers of the windows themselves, with the outer face in Regent Street even if the inner face was in the shop. It was determined that the street extended to the face of the building. According to the Court, common law presumes that a highway bounded by hedges or fences extends to the hedges or fences and the same would be true of a highway bounded by buildings. Therefore, the decision against French Connection Retail Ltd was for conviction. Noise, smoke, smells and other nuisances In order to utilise the benefits of CoPA74 and EPA90, it is necessary to understand the process to be followed if there is a noise complaint. In a recent article in Guardian Unlimited (2006), MP Tony Wright offers information on noise pollution which he says nearly always comes under the remit of local authority (LA) Environmental Health Officers (EHO) and not the police. Recourse from noise pollution and other types of pollution such as smoke coming from any buildings or land; dust, steam or smells coming from factories, shops or offices; fumes or gases coming from private homes and buildings or areas of land which are left in a dangerous state or are a risk to people's health are covered under the proper statutes. If the EHO decides that you are suffering a "statutory nuisance" they will first try to sort out the complaint informally. If this does not work, the LA can issue the offending party an "abatement notice" [under section 60] which may require a noise nuisance to stop immediately and/or prohibit or restrict its occurrence. Wright goes on to state that "if the noise continues, EHOs can seize offending noise-making equipment if they feel this is necessary; the offender may also be taken to court and fined up to 5,000. The issuing of an abatement notice and/or the confiscation of the offending noise-making equipment can theoretically be performed within one hour. If the council is having difficulty dealing with your complaint (because the nuisance only happens occasionally for instance), you may go to the magistrates court yourself" (2001). Special Circumstances in Emergency Situations Even though a company can make every effort to meet the protocols set forth in a construction project, emergencies can arise. Perhaps the project is taking place in a congested area, and it would dangerous to bring in big equipment during the day. Since noise has to be damaging to be a Statutory Nuisance and because the noise from building sites is apt to be transient, there is more tolerance for temporary issues. Direct contact between the contractor and the complainant usually resolves the complaint. But when excessive noise is going to be experienced out of hours, special arrangements should be made ahead of time to set a specific time frame for the equipment to be brought in. In the case of construction work brought about by damage to an electrical cable or unexpected smoke pollution or building collapse, these are emergency situations that must be resolved immediately and would not constitute grounds for a complaint. Even so, the local authorities should be made aware of the situation as well as any night emergency crew active in the area. Future Planning for Environmental Justice A University College of London (UCL) research report recommended a new environmental tribunal to strengthen the framework for dealing with complex cases of environmental pollution (Macrory & Wood, 2003). The UCL team found current appeal arrangements confusing due to the wide variety of appeal mechanisms and bodies which exist. In some instances, "no explicit right of appeal is provided and individuals and businesses have to resort to time consuming and costly judicial review procedures in the High Court" (par. 3). The report specifies how an environmental tribunal might operate in the following case scenario: After complaints of noise and dust pollution from local residents, a local authority serves a statutory nuisance notice on a company operating a foundry works in an urban area. Because of complex issues involved, the appeal is handled by the environmental tribunal rather than the local magistrate's court. If the notice is upheld and if the company fails to comply, the prosecution for non-compliance would then be heard in the local magistrate's court which would need only to assess the factual evidence rather than the validity of the notice. The report summary quoted Lord Justice Carnwath, chairman of the research project steering board, who said, "Regulating the environment is one of the most important challenges facing the law. For that task we need a modern system based on an expert and accessible tribunal. I welcome the UCL report as mapping the way forward" (Macrory & Wood, 2003). Future Planning for Controlling Noise Pollution When the Control of Pollution Act 1974 became effective, it set up noise abatement zones which were welcomed at the time, but local authorities found it was more cost effective to utilise the Statutory Nuisance provisions rather than having blanket registration of all emissions (Pollution, 1999). Over the years, changes have been made to the Act in an effort to stay up to date with new ways of determining noise mapping. The interactive London Noise Map is the first detailed noise map of the whole of London and is forming the focus for a huge body of information. It will provide data on levels of road traffic across London. Other projects on aircraft noise and excessive noise from neighbors are planned or in progress. In planning new construction sites, the map can show how different types of building layout can affect the spread of noise and allow for more quiet areas. Also, this project will give experts the tools they need to refine designs for maximum benefit at affordable cost (Tompsett, 2004). W.S. Atkins, a company specializing in noise and vibration, undertook a major field and laboratory study on behalf of the Department of Trade and Industry to evaluate environmental industrial noise (Industrial, 2003). Three factors were shown to affect the subject response to noise - "potency, impulsive clarity and non-low frequency tonality" (par. 1). This company offers up-to-date software for use in studying specific areas concerned with the possibility of excessive noise such as: Night-time factory noise - The company carried out noise surveys and gave advice on how to reduce noise emission from the building. CHP Station, London - Careful design of extract vent systems and wall systems was required to meet stringent neighborhood noise criterion. Peel Power Station Extension - Assessment of noise generated by engines and proposed building construction. Scrap Metal Yard, Noise Abatement Notice - After many complaints, a local authority felt that a noise nuisance existed but was not sure that a Noise Abatement Notice could be constructed in a manner that would be effective and secure on appeal. W.S. Atkins worked with legal advisers to formulate an appropriate notice taking account of Appeal Court rulings. Conclusion The two cases discussed earlier in this paper offer an idea of how a notice can be appealed successfully, and it is important for local authorities to be aware of possible pitfalls in serving notice. Noise News notes that modern computerized meters, computational methods and noise mapping can help resolve problems that 1970s technology could not resolve (Pollution, 1999, pars. 9-10) and new programmes are being developed that will give both developers and authorities the ability to resolve noise problems. At present, CoPA74 is the legislation of choice for cases of noise pollution on construction sites. It offers recourse for local authority to follow through on noise complaints by serving a notice on the contractor. However, it is evident from the cases discussed in this essay that there are two parts to every case. If the contractor feels the notice was improperly served, an appeal can be entered. The need for a stronger framework under the law for guidance in serving a notice is evident. According to Richard Macrory of the UCL Centre for Law and Environment: The current system that has developed for dealing with environmental cases is one that is not easily understood even by regular users, and has failed to reflect contemporary developments in environmental law (2003). The conclusion reached is that CoPA74, even with updates, needs a major overhaul, taking into consideration the technological improvements in determining noise pollution as well as development of computerized programmes which will allow for a simplified method of serving notices and filing appeals in the areas of construction and building operations. References Action Levels. (2000). Health and Safety Executives (HSE). Retrieved 16 June 2006, from http://www.hse.gov.uk/lau/lacs/59-5.htm#actionlevels Auld L. J. and Ebsworth L. J. (1996, July 19). 330 Amec Building Limited and Another v. London Borough of Camden. Queen's Bench Division. Department of Environmental Services Code of Practice. (2004, July). City of London. Retrieved 15 June 2006, from http://www.cityoflondon.gov.uk/NR/rdonlyres/15455411-AA0D-4489-969C-E72B43311B77/0/HS_EH_codeofpractice.pdf Determinants of Health-Environment-Noise Pollution. (2003, December 2). London Health Observatory. Retrieved 16 June 2006, from http://www.lho.org.uk/HIL/Determinants_Of_Health/Environment/Noisepollution.aspx Environmental Health. (2006). Construction Noise. Borough of Telford & Wrekin. Retrieved 15 June 2006, from http://www.telford.gov.uk/Environment+and+planning/Environmental+health/construction_noise.htm Industrial Noise and Vibration. (Revised: 2003, September 22). W.S. Atkins Noise & Vibration. Retrieved 17 June 2006, from http://www.wsanoise.com/text/services/ind_s.html Macrory, R. and Woods, M. Modernising Environmental Justice Regulation and the Role of the Environmental Tribunal. (2003, June 11). UC Media Relations. Retrieved 18 June 2006, from http://www.ucl.ac.uk/laws/environment/tribunals/ Mann L. J. and Scott Baker J. (1994, February 2). 380 Walter Lilley & Co., Ltd. V. Westminster C.C. Queen's Bench Division. Noise. (2004). City of London. Retrieved 15 June 2006, from http://www.cityoflondon.gov.uk/Corporation/our_services/health_safety/Environmental_Health/Pollution_Control/noise.htm. Pollution and Prevention Control Act 1999. (1999, December). Noise News On-Line, Issue 16. Retrieved 17 June 2006, from http://www.wsanoise.com/information/NoiseNews/16/Page8_t.html Sedley L. J. and Pitchers J. (2005, April 29). 957 Westminster City Council v. French Connection Retail, Ltd. Queen's Bench Division. Tompsett, Roger. (2004, September 20). The London road traffic noise map. Atkins Environment. Retrieved 17 June 2006, from http://www.londonnoisemap.com/ Wright, Tony, MP. (2001, July 19). Environment: Local authority responsibilities. Guardian Unlimited. Retrieved 17 June 2006, from http://politics.guardian.co.uk/mpsurgery/story/0,9061,445415,00.html#article_continue Read More