Council's weak response on legal 'duty to inspect' for noise
At the recent (Feb 8, 2021) council Scrutiny meeting where I spoke, I also submitted written questions as part of the public-forum process. The questions and the answers I received are set out below, along with my comments about the answers.
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Communities Scrutiny Commission, Bristol City Council, February 8, 2021
Public Forum Questions
(To see the meeting agenda, go to the following page and choose the public-forum link: https://democracy.bristol.gov.uk/ieListDocuments.aspx?MId=8601.)
Question 1:
The Environmental Protection Act 1990 imposes on the council a duty "to cause its area to be
inspected from time to time to detect any statutory nuisances …"
In respect of statutory nuisances that relate to "noise emitted from premises" (as defined by the Act),
when did the council last carry out an inspection, and what methodology was used? Or, when will the
council next inspect, and how? (It is noted that the Act doesn't specify when or how inspections
should be held.)
Answer, Team Leader – Neighbourhood Enforcement:
Bristol City Council does not carry out a specific inspection of the district. Officers carry out
investigations based on reactive reporting and proactive observations. Proactive observations, or
“inspections”, generally relate observable nuisances such as accumulations of waste, dust or smoke
that officer come across as part of their everyday duties or when on working late shifts on a weekend.
My comment: This seems to me a weak answer. Malcolm and Ponting 2011, a legal textbook*, states on page 202, paragraph 14.03, after noting the wording of the Act (which I quoted in my first sentence above): " ... The Act is no more specific than this, so it is for a local authority to determine the frequency of its inspections. The availability of local authority resources might well have a bearing but it would clearly not be sufficient for an authority to be inactive. Failure to inspect adequately, or at all, could result in an action for judicial review. "14.04 A reasonable approach would be for a local authority to adopt a risk-based approach. First, it should identify those areas which have a high, medium, or low risk of nuisances occurring. Secondly, it should adopt an inspection procedure which reflects this perceived level of risk. So, an industrial area, which lies cheek-by-jowl with a residential area, might be considered a high-risk area, and should, therefore, merit relatively frequent inspection. ... Another factor in the strategy might be the occurrence of complaints … So, where there is a history of complaints and, perhaps, enforcement action, it would be appropriate for an authority to adopt a more frequent level of inspection." In paragraph 14.05, the authors note that Paragraph 4, Schedule 3 of the EPA 1990 allows the Secretary of State to declare an authority to be in default of its duty to inspect and subsequently to direct that an inspection be carried out in a specified manner and at a specified time. * Malcolm, R. and Ponting, J. (2011). Statutory Nuisance: Law and Practice. 2nd ed. Oxford: Oxford University Press.
The officer suggests that council officials are both reactive and pro-active. Well, reactive doesn't count: the purpose of the duty to inspect is that councils should be in a position to act on their own initiative, and not be dependent on complaints to identify and respond to statutory nuisances. The pro-active steps suggested amount to little more than officers keeping their eyes and ears open, and possibly sniffing the air, when they are out and about attending to other matters. I note the officer makes no mention of noise, which is specifically what the question was about.
Based on the comments by Malcolm and Ponting, it seems that residential areas which lie cheek-by-jowl with a large university, accommodate thousands of its students, and have a long history of generating noise complaints, ought to be regarded as high-risk areas for noise statutory nuisances, and therefore should merit specific attention. (This is not happening.)
While it would be possible to devise a physical inspection programme to identify nuisance noise, it probably would be an elaborate and costly exercise. I good alternative would be a web page, open to noise complaints of all forms. Once a complaint has been registered, the council can decide if it has powers to deal with that incident, and, further, whether the details of the case suggest it would be "reasonably practicable" (the legal test in statutory nuisance cases) for the council to investigate. If the web forms are correctly designed, the initial triage of cases could be automated. Where cases fail the threshold tests, complainants would receive an automated email telling them why the council cannot proceed, but also offering practical advice, where possible. For example, the council might consider there is not enough evidence to deal with a noisy party as a statutory nuisance. But if, for instance, the complainant has indicated students were involved, the council can nevertheless explain how to complain to the university. (Better still, there would be a relevant question on the web form, and a complaint involving students would be automatically copied to the university, regardless of whether the council intended to take the matter forward itself.) The important point is that people who have a complaint to make are allowed to make it. If nothing else, the council now has relevant data that can be used to inform policy. The response to the complaint is the second step—it might be a response under the EPA or one using some other legislation. This is in stark contrast to the current complaints page, which prevents people reporting a complaint unless it meets a simplistic and arbitrary test.
Question 2:
How much use does the council make of the Environmental Protection Act, not just for noise but for all
forms of statutory nuisance defined in the Act? (It appears the Neighbourhood Enforcement Team
uses the EPA to deal with noise complaints; do the NET or other departments use the EPA to deal with
other forms of nuisance? Could the council provide figures from a recent year to illustrate the range of
uses of the EPA?)
Answer, Team Leader – Neighbourhood Enforcement:
Statutory Nuisance is most commonly used to tackle noise complaints but is also used by NET in
dealing with odour, smoke and light pollution cases. Environmental Health Teams, such as Private
Housing, also take action under Statutory Nuisance under their appropriate remit. I would advise that
is not uncommon for there to be overlaps in legislation, where a number of types of legal powers
could be used, for example an accumulation of waste that could be considered a statutory nuisance
could also be dealt with under Prevention of Damage by Pests Act 1949, Anti-Social Behaviour, Crime
and Policing Act 2014 or Town & Country Planning Act 1990. I would suggest that Andrew Waller
submits a Freedom of Information request if he would like to know the full range of circumstances
that the power has been used by complaint type and department.
My comment: This provides food for further thought and investigation. It might be interesting to compare how the council receives complaints about odour, smoke and light pollution, and whether its handling of these statutory nuisances is consistent with its approach to noise. Apparently, if I want the details I will have to file an FoI request. Cllr Anthony Negus, the chair of the meeting, said officers would be asked to explain why that should be necessary.
Question 3:
How does the council coordinate its enforcement activities with the police? There are several areas
related to noise enforcement in which the council's responsibilities under the Environmental
Protection Act may overlap with investigation by the police of matters covered by the Anti-Social
Behaviour, Crime and Policing Act 2014 and other legislation. Does the council have a partnership
agreement with Avon & Somerset Constabulary that determines which agency, council or police, is
regarded as the primary responder to certain kinds of incidents and, equally, seeks to ensure that no
incidents fall through the cracks—that is, are not responded to by either? (If there is such an
agreement, is it publicly available, or can the council make it so? If there is no agreement as such, are
there other arrangements that seek to coordinate activities?)
Answer, Team Leader – Neighbourhood Enforcement:
There is a range of Tasking and Multi Agency Meetings that NET feeds into and is tasked, from regular
Tasking meetings focussing on licenced premises, ASB Multi-Agency Meetings around specific
individuals and then specific local Problem Solving Plans such as the one linked to Operation Beech. In
terms of formal agreements, on a council wide scale there is the Keeping Bristol Safe Partnership.
My comment: I had hoped to get some indication of the formal division of responsibilities between the council and police for responding to night-time noise disturbances, and in particular to discover what is the official basis for the police telling 101 callers that noise, even of the clearly anti-social variety, is the council's responsibility. I should have asked a more pointed question. I will in due course raise this with the police directly. Overall, the answer seems to indicate that most partnership working with the police is governed by ad hoc or narrowly specific arrangements rather than a framework-type agreement that I thought might exist.
Question 4:
NET has an agreement with the city's two universities covering responses to noise complaints. This has
a planned review date of April 2021. Does NET plan to renew the agreement and what changes, if any,
will it be seeking?
Answer, Team Leader – Neighbourhood Enforcement:
NET hopes to renew the agreement and the review will include a discussion on any changes. The
purpose of the agreement is to set out clearly the role of each organisation for both students & the
general public, so that it is clear to all the responsibilities of each party and the appropriate action that
can be taken.
My comment: It's a pity that renewal of the agreement is likely to take place before the Scrutiny commission is able to conduct a review of the kind I'm pressing for (and, of course, there is no guarantee that any review will be held). It's not clear what, if any, mechanism exists for anyone beyond the signatories to inject any ideas into what the agreement includes. At the very minimum, a copy of the agreement should be available through the council's website, in the interests of transparency. At the moment, it appears to be available only on the University of Bristol website: http://www.bristol.ac.uk/media-library/sites/accommodation/documents/Protocol%20for%20Liaison%20BCC-UWE-UoB%20%202018%20.pdf.