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Noise Nuisance and the Expert Witness

Medico Legal

by Dick Bowdler, Noise Consultant - www.dickbowdler.co.uk

 

I have been an acoustic and noise consultant for nearly 50 years. My first noise nuisance case was in the early 1980s. We were in the Court of Session in Edinburgh with all the parties represented by senior and junior counsel. The case was brought by a private citizen living next to the Edinburgh Military Tattoo at Edinburgh Castle seeking interdict to prevent the Tattoo being held1. The defender was the Lord Advocate of Scotland. Our senior counsel became a court of session judge a few years later. Although I had already given evidence in licensing hearings that often involved some assessment of nuisance, the Tattoo case (Webster v The Lord Advocate) was a steep learning curve. Since then I have been involved in many potential nuisance cases. Most of these never reach court either because the case is considered not strong enough or, more often, because a “deal” is reached.

Webster was a good one to start my experience in noise nuisance because it clearly laid down the principles behind a nuisance action and the role of the expert. I represented the pursuer in this case and got criticism from friends who thought that it was wrong to try to stop the Tattoo which was an internationally renowned event. But my role as an expert was not to try to stop the Tattoo but to furnish the court with technical evidence to assist a decision. If it was found to be a nuisance then the pursuer was entitled to some redress.

In particular, my first lesson was that the role of experts is ancilliary in a nuisance case and they should not get too big for their boots – it is the court that decides what is a nuisance. Sometimes an expert’s evidence will dominate the case as they do in TV dramas but that is rare. As the Crown Court judge said in Roper2 “ . . . experts, do not decide the case. If it were as simple as that we would not need to have heard from anyone other than the two experts in this case”. Lord Stott, in Webster agreed that the role of the expert was merely to test whether the lay evidence could be relied upon. He said “So viewing it I have found in Bowdler's evidence, even if taken with the qualifications suggested by Mackenzie, ample confirmation of my conclusion that the evidence of the pursuer and her witnesses was not an exaggerated reaction of the hyper-sensitive but represented the honest impressions of a cross-section of reasonable people”.

Readers will notice my use of the words “interdict” and “defender” instead of “injunction” and “defendant” or “pursuer” instead of “plaintiff ”. This is because most of my work as a skilled witness has been in Scotland. Yes, in Scotland we are properly called “skilled” witnesses though most people now talk about expert and I will stick to that.

What I am discussing here is what is called “private nuisance” in England. Public nuisance is a different matter and does not exist in Scottish law.

What is Nuisance?

Even after nearly 40 years of involvement with noise nuisance there are still points of law that can surprise. Much of the case law is old but there are still important decisions being made which set a precedent.

We should start with what nuisance is generally. In Scotland the test for nuisance generally is slightly different from England and Wales. In Scotland the test is simply whether the noise is intolerable to a reasonable person. If the judge finds it is, then it is a nuisance.

In England and Wales two judgements will serve to define the test. Lord Neuberger in the Supreme Court judgement in Coventry v Lawrence3 said nuisance is an action “which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land. . . . what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” There is a more detailed discussion in the House of Lords decision on Hunter and others v Canary Wharf4. In the recent case of R v Winvest Ltd5 and Another at Kirklees Magistrates Court the magistrate said “to be an actionable nuisance the noise would have to interfere to an unreasonable degree with the personal comfort of, or injure the health of, the reasonable persons use and enjoyment of their land – having regard to the ordinary comforts of human existence in the particular location. This is an infinitely variable test. Every case is fact specific”.

The test in the Republic of Ireland is similar to that in England. The Supreme Court, in the case of Hanrahan v Merck Sharp & Dohme 6 set out the following: "It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that."

There is rarely much argument between lawyers as regards the basic definition of nuisance. It is the finer points of each case that make the difference. For example, can you come to a nuisance? If you move into a house next to a noisy factory and both the house and the factory have been there for more than 20 years without any complaints being made by the householder then you may have no right to claim the factory is a nuisance because your right is extinguished by prescription. On the other hand, if you buy a piece of land next to a shop that has been noisily making confectionery for more than 20 years and build a consulting room on it, as Dr Sturges did in 18797, then you may indeed have the right to claim it is a nuisance.

The point I touched in my second paragraph – can the greater public interest in the defenders activities (in my case the international Edinburgh Tattoo) influence the decision on nuisance? In short, no, it cannot but it might affect the remedy. In the English case of Miller8 a neighbour applied for an injunction to prevent a village cricket club from striking balls into her garden. The appeal court, though finding it a nuisance, refused to grant an injunction because of the greater interest of the village inhabitants in enjoying their summer cricket; though it did award damages. In making the decision, Lord Denning said that the dictum that an Englishman’s home is his castle and is inviolate could not apply in that case. However, Lord Stott in his decision in the Scottish case of Webster said “Lord Denning's suggestion in Miller that an Englishman's home is no longer his castle cannot in my opinion apply to a Scotswoman's flat”. Anglo-Scottish rivalry is not confined to the sports field and politics!

What is Noise Nuisance

To appreciate the evidence in noise nuisance cases it is worth saying something about the role of the expert witness generally. I don’t intend to dwell on this because, as experts themselves, readers will be familiar with what I say. The best description is perhaps “Expert witnesses however skilled or eminent can give no more than evidence. . . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence”9. Although as experts we are sometimes called “witnesses of opinion” it is not acceptable for the expert merely to give an opinion; that is the job of the court. It is the expert’s job to explain to the court the state of knowledge in such a way that the court can reach an opinion.

So, in a noise nuisance case the pursuer and other lay witnesses describe the sound they hear. They describe it in subjective terms and whilst they may say it is loud or very loud or that it wakes them at night, most of the description is of the character of the noise. It is humming, whistling, grinding, pulsating, clattering and so on. Like “a train passing” or “a helicopter hovering overhead”. They may say that the noise annoys them during the day or even frightens them or wakes them up at night. On the other hand the expert may measure the noise level. She may rate or otherwise assess the characteristics of the noise. There are standard ways of rating hums and whistles and impulsive noise such as hammering. So the expert may be able to put a numerical value on the noise and compare it with a standard that will say whether that number is likely to cause complaints or likely to be annoying. One expert may say that the lay witnesses’ description is entirely consistent with what would be expected when measured by one standard and another expert say that the description is not consistent by some other standard.

In a recent (ongoing) case of wind turbine noise10 the Sheriff found that the complaint arose not just because of the volume of noise, but also “the fact that it can continue at a significant, intrusive level for lengthy periods; the character of the noise, whether it takes the form of rhythmic, repetitive 'blade swish' or any of the other, apparently less well understood, forms of turbine noise; the unpredictable manner in which the volume and character of the noise emitted by the turbines can change, or the noise can cease altogether, only to resume again in an equally unpredictable manner”

The type of sound and its context is also important. In Webster there were three claims: first that the erection and dismantling of the stands totalling about four months (constructed each year with a specialist form of scaffolding) was a nuisance: second that the rehearsals with music (about eight over four days) were a nuisance: third that the Tattoo itself (about 20 performances) with music and explosions and gunfire was a nuisance. The pursuer won the first argument but lost the second and third. The erection and dismantling of the stands was judged a nuisance because of the duration and the character of the noise and in particular the banging of metal. The rehearsals were not a nuisance because of their relatively low number and the Tattoo itself was not a nuisance because the character of the noise was such that the pursuer “still stages parties at the flat to enable friends to enjoy the ‘nuisance’”. In any case, had the judge decided that the Tattoo performances themselves were a nuisance he would probably have ruled that the rights of the pursuer in this respect had extinguished by prescription because they had been going on in much the same way for more than 20 years. On the other hand, the erection of the stands was not subject to prescription because the method of erection had substantially changed in recent years to involve much more banging of metal.

There is another conundrum relating to noise nuisance was argued in Coventry all the way to the Supreme Court. That is the question of locality and in particular whether the grant of planning permission itself changes the locality. It has always been recognised that the nature of the locality is relevant – “it must be accepted that a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price the pursuer pays for staying where he does in a city tenement”11. So what is not a nuisance in a city might be one in the country. In Coventry it was argued by the defendant that the stadium and motor racing track which was the subject of the nuisance claim should itself be taken into account in considering the locality. Lord Neuberger in the Supreme Court said “. . . in the present case, where the judge concluded that the activities at the Stadium and the Track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the basis that (i) it includes the Stadium and the Track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance”.

Further in Coventry the argument was put forward that the prior granting of planning permission to the defendant for the stadium and racing track deemed to be a noise nuisance had itself changed the locality. In the original case, the judge held that the actual use of the Stadium and the Track with planning permission could not be taken into account when assessing the character of the locality for the purpose of determining whether the activities constituted a nuisance. The court of appeal overturned this. The supreme Court said that it was wrong in principle that a planning authority should be able to deprive a propertyowner of a right to object to what would otherwise be a nuisance though it conceded that there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case.

So the development alleged to be a nuisance can be included as part of the character of the locality to the extent that it can be and is conducted so as not to be a nuisance.

Statutory Nuisance

Nuisance is a long-standing common-law principle that has been used for around 800 years. However, in 1974 the Control of Pollution Act introduced the concept of Statutory nuisance. This still continues in the same form but incorporated into the Environmental Protection Act 1990. In fact many of the cases that I mention are statutory nuisance cases.

The test for Statutory nuisance is the same as that for common law nuisance but there are some differences in the procedures. The first is that action can be taken not only by the person aggrieved as in common law nuisance (in s82 of the Act) but by the local authority (s80). The local authority route is the most common way to deal with excessive noise. Local Authority action is nearly always instigated as the result of a result of a complaint. The Act gives the authority wide powers, in particular it can serve a noise abatement notice. Indeed, if it considers a statutory nuisance exists “the local authority shall serve a notice” under the Act (authors bold emphasis). In fact Council officers, usually environmental health officers, have unusual powers in statutory nuisance. They can serve a notice stating that a noise is a nuisance based on their own opinion, subject to possible appeal by the court.

In R v Windvest at Kirklees Magistrates Court, six environmental health officers had been to listen to a wind turbine at various times and five of them had considered it to be a nuisance. The defendants were unmoved by this and believed that without any noise measurements to show that the level of noise was above a certain threshold, they could not possibly be shown to be causing a nuisance. The judge disagreed. The subjective judgement of the neighbours and the six environmental health officers was sufficient. Interestingly, none of the six environmental health officers appeared to have been treated essentially as an expert witness but more like lay witnesses describing the noise though they did, in all but one case, express the opinion that it was a statutory nuisance.

Having served a notice under the act, if that notice is breached “without reasonable excuse” the noise maker can be guilty of a criminal offence. Unlike an injunction in a common law nuisance case there is a defence of best practicable means against statutory nuisance. Best Practicable Means takes regard, amongst other things, to local conditions and circumstances, to the current state of technical knowledge and to the financial implications.

Specifying Abatement Measures

In s82(2) of the Environmental Protection Act, if a sheriff finds there is a nuisance he or she is required to make an order to abate the nuisance. In common law nuisance the judge has to formulate the terms of an injunction. In either case there comes a point in any successful nuisance case, whether statutory or common law, that a form of words is required to tell the defendant what to do. One option is to tell them simply to “abate the nuisance”. In Webster that is more or less what happened. The terms of the interdict were worded to prevent the defenders making preparations for the Tattoo “in such manner as by reason of noise to create a nuisance”. The defenders returned to court to have this amended on the grounds that "in all cases . . . where interdict is granted by the court the terms of the interdict must be no wider than are necessary to curb the illegal act being complained of, and so precise and clear that the person interdicted is left in no doubt what he is forbidden to do"12. The Inner House of the Court of Session agreed and changed the interdict to “in such manner as by reason of metallic construction noise to create a nuisance” (authors bold emphasis).

It may be that the order will simply say that the noise must stop and the offending machinery is to be taken away. Then it is easy, but in most cases the aim is to achieve a reduction of noise so that the impact is abated to the point that it is no longer a nuisance. A case is judged on the subjective evidence of the lay witnesses but it might not be reasonable to have a form of words that allowed the complainant to decide whether the nuisance had been abated – much as the complainant would most likely think it a good idea. Generally one of two solutions can be adopted. First, a simple open order instructing the abatement of the nuisance, provided that the reasons for the nuisance are sufficiently defined so that “the person interdicted is left in no doubt what he is forbidden to do” such as the final interdict in Webster – this in effect leaves the question of compliance to the lay witness. Second, an order that translates the nuisance into quantifiable terms as in Roper where the judge set a specific noise limit that included character corrections.

Epilogue

The Edinburgh Tattoo is still running every year at the same place and has been since 1950. The interdict which was granted was delayed for six months which allowed that year’s Tattoo to take place. The method of erecting the stands was changed, in part as a result of the court case.

References 1, Webster v The Lord Advocate. 1985 SC 173, 1985 SLT 361, [1985] ScotCS CSIH_1

2, Roper v Tussauds Theme Park. [2007] EWHC 624 (Admin)

3, Coventry and others (Respondents) v Lawrence and another (Appellants) [2014] UKSC 13. On appeal from [2012] EWCA Civ 26

4, Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords

5, R v Winvest and another

6, Hanrahan v. Merck Sharp & Dohme [1988] I.L.R.M. 629

7, Sturges v Bridgman [1879] 11 Ch D 852

8, Miller v. Jackson 1977 Q.B. 966

9, Davie v Magistrates of Edinburgh. 1953 SLT 54, 1953 SC 34

10, Milne v Stuartfield Windpower. Aberdeen Sheriff Court 2018.

11, Watt v Jamieson - 1954 SC 56

12, Murdoch v Murdoch 1973 SLT (Notes) 13

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