1. Authorised officers have to exercise considerable discretion and judgement when assessing noise complaints. In coming to a decision on what is the appropriate action, regard shall be had to the following criteria:
2. Enforcement Actions include one or more of the following.
Take no action
No formal action will be taken where:
- the subject is outside the legal duties and responsibilities of the Council and/or the Environmental Health Section;
- upon investigation any relevant allegations are not substantiated;
- any relevant allegations are withdrawn.
Take informal action
Informal action through the provision of advice, guidance and mediation in verbal or written form will usually be the first enforcement option. Circumstances that indicate that informal action is appropriate include:
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the act or omission is not serious enough to warrant formal action;
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from the past history it can be reasonably expected that informal action will achieve abatement of the nuisance;
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there is confidence in the management of the business or individual to act upon the advice given and abate the nuisance in a reasonable timescale;
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the nature of the undertaking is such that formal action in the first instance would be inappropriate, e.g. voluntary groups manned by volunteers.
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abatement of the nuisance may be achieved by liaison with other Council Departments with influence on the person responsible, e.g. Licensing Board for a public house, Social Work and Housing Department for a Council tenant, ASIST Team where noise is only part of anti-social behaviour.
3. Statutory Notices
Where a complaint has been substantiated after investigation and informal action has failed to achieve abatement of the noise nuisance within a reasonable timescale then an abatement notice will be served on the person responsible for the nuisance. In most circumstances this will be served in terms of Section 80(1) of the Environmental Protection Act 1990. In relation to construction site noise the notice will be served in terms of Section 60(2) of the Control of Pollution Act 1974.
The notice may require the noise to be stopped completely, reduced, or limited to certain times of the day and a reasonable time period by which the responsible person must comply with the requirements of the notice will be prescribed.
Attached to the notice will be information relating to means of appeal for the defendant. All notices will be signed by the investigating officer and checked by the Team Leader of Pollution and Public Health, and Section Head before serving on the person responsible.
Notices may be served by:
- Hand delivery to the person responsible. Delivery to be witnessed.
- Hand delivery at the address of the person responsible. Delivery to be witnessed.
- Sheriff Officers.
- Recorded delivery by the Royal Mail.
4. Reports to the Procurator Fiscal.
Where a person on whom an abatement notice has been served fails, without reasonable excuse, to comply with the notice she/he may be recommended for prosecution in terms of Section 80(4) of the Environmental Protection Act 1990. The decision to report the matter to the Procurator Fiscal will be taken by the Section Head of Environmental Health in consultation with the Team Leader and the investigating officers. The circumstances, which will influence the decision to report for prosecution, are:
- the person responsible has a history of non-compliance with this Authority's enforcement actions
- the circumstances that gave rise to the 'nuisance' are likely to continue or recur
- the seriousness of the nuisance
5. Interim Interdict
An interdict is a court order which prohibits someone from carrying out an act which they are legally obliged not to do. Where it is considered that prosecution in the Sheriff Court would not provide a solution to the nuisance, the Authority may ask the Sheriff Court, or the Court of Session, to order the person making the noise to stop. (e.g. a construction company may indicate that the cost of failing to comply with the abatement notice would be less financially punitive than the penalties imposed by the terms of their contract with the developer for non-completion.)
Breach of an order carries higher fines and a possible prison sentence.
Admin and Legal Services will carry out any applications for interdict on behalf of the Pollution and Public Health Team and will be consulted at the earliest opportunity.
