Noise nuisance: How to take your own action

Shared Regulatory Services investigates complaints of noise nuisance arising from domestic, industrial and commercial sources. If the noise is established to amount to a statutory nuisance, an Abatement Notice can be served on either the owner or occupier of the premises or on the person responsible for the noise.

In cases where the noise nuisance cannot be substantiated e.g. due to its irregularity, the Service is unable to take statutory enforcement action. In these circumstances, or where you do not wish to involve the Council on your behalf, you are able to take your own action under Section 82 of the Environmental Protection Act 1990 by bringing proceedings against the person making the noise in the local magistrates' court.

You may wish to employ the services of a solicitor to assist you, however although recommended, this is not essential and will be at your own expense.

The following guidance is intended to provide you with advice on how to take your own action under Section 82. It doesn’t guarantee a successful outcome and it must be pointed out that, in the event of a court case not being proved, the defendant may be entitled to apply for costs against you. The court has a discretion in such circumstances and, if satisfied that you had reasonable grounds for bringing the proceedings, even though the case was not proved, would be less likely to award costs. However, if the court was of the opinion that the complaint was misconceived, malicious or frivolous, it would usually be minded to award costs.

If you decide to take your own action you will need to keep copies of all documentation as these will be required at the court hearing.

Step 1 - Keeping a Record of the Noise

Keep a written record of the noise to include the following:

Dates, times and duration of the noise for each occurrence
A description of the noise complained of and how it affects you

It is important to make your notes at the time or very soon after the noise occurs. The magistrate's court will need to be persuaded that the noise problem amounts to a statutory nuisance and although not necessary, it will be invaluable, if you are able to obtain supporting evidence from any other witnesses or other neighbours who are also being affected by the noise.

Step 2 - Identify the "Person Responsible" for the Noise

The person you should "summons" to appear in Court, "the defendant", is the person you allege to be causing the noise nuisance.

Step 3 - Give "Notice of Intention" to Bring Proceedings Against the "Person Responsible" for the Noise

Before you start legal proceedings, you are required to write to the person making the noise and to explain that you intend to take legal action.The noise maker must receive three days written "notice of intention" before you begin proceedings. If you send the letter by post you should allow a reasonable time for it to be delivered before starting to count the days.
This can be done by:

Handing it to the person concerned or;
Placing it through the letter box at the place where the person is residing or;• Sending it to the person, at their address, by recorded delivery post.

Step 4 - Complete a "Statement of Witness Form"

You will need to complete a statement of witness form. The following information should be included in your "witness statement":- (see appendix 1)

Your name and address;
Name and address of the defendant;
Dates on which the noise occurred;
The times and duration of the nuisance;
The place where the nuisance is emanating from;
Description of the noise;
The effect of the noise on you and your reason for believing it to be a nuisance within the meaning of the Environmental Protection Act 1990.

Much of this information can be obtained from your written record sheet.

Step 5 - Starting Proceedings - Making a Complaint to the Magistrates Court

Where the "Notice of Intention" is ignored, or where the response is unsatisfactory, in order to proceed you must apply, to the Magistrates Court, for a "Summons" to be issued against the alleged offender under the provisions of Section 82 (1) of the Environment Protection Act 1990.

To apply for a summons you attend, in person, at the Magistrates Court. To make your complaint ask to see "Clerk of the Court" who will give you a "Complaint Form" and a "Summons Form" and will advise you on how to complete them.

Once the forms are completed, you will be requested to wait until you are given the opportunity to explain the complaint to the Magistrate. If the Magistrate is satisfied that the complaint is justified the Summons Form will be signed. The Summons Form will have on it the date and time when it is intended that the case is to be heard by the Court. It is possible that there may be an adjournment of the case on the day, so be prepared to return to Court on another day.

Step 6 - Securing the Summons

The Court normally serves the Summons, but if you are required to serve the summons, you will need to certify on the back of the Summons form the method of service you have chosen. There are two ways in which you can serve a Summons:-

• By handing it to the person being "Summonsed" to appear;

• Sending it, by recorded delivery post, to the person being summonsed to appear.

NB. If you are not clear about the method of service, ask the Clerk of the Court.

Step 7 - The Court Hearing

You do not have to be represented by a solicitor but, if you decide to conduct the case yourself the Court will expect you to follow proper Court procedure. When your complaint is heard in Court, you must ensure you have a copy of your statement and noise diaries with you. When you give your evidence in the witness box, ask the Magistrates if you can read from the notes you have made and explain that you made the notes at the time the noise occurred.

It is suggested that your evidence is presented in the following way:-

Give a description of the premises where the noise comes from, e.g. detached, semi-detached property etc and the position and proximity of your dwelling in relation to the noise source.
Give a description of the noise and why you believe it to be a nuisance. Read out your statement and quote from the actual records of noise kept by you.• Confirm that the person who was in receipt of the "Notice of Intention" is the person responsible for the "Statutory Nuisance".
Produce a copy of the "Notice of Intention" to confirm that sufficient information was given to the addressee and show that it was properly served.
Confirm that there was no reasonable or satisfactory response to the "Notice of Intention" within the appropriate time period and that the "Statutory Nuisance" existed at the date of applying for the Summons or that it had recently occurred.

Once you have presented your evidence the defendant has the opportunity to ask you questions and the Magistrates are also likely to question you. You will then be given the opportunity to call any witnesses. If you do, the Court will expect you to question them in order to present their evidence. The defendant and Magistrates may also question the witnesses.

Once the defendant has given evidence you will be able to question him/her but be sure to avoid any arguments or make statements when you should ask questions. You will not help your case if you become antagonistic in Court.

Step 8 - Court Judgement

If the Court is satisfied that an alleged nuisance exists, or may recur at the same place, the Court must make an Order for one or both of the following:-

To require the person causing the nuisance to cease the nuisance within a specified time
To prevent the recurrence of the nuisance.

Section 82(12) of the 1990 Act makes it clear that the Court must order the defendant to pay, to the prosecution, such amount as the Court considers reasonably sufficient to compensate him/her for any expenses necessarily incurred in bringing the proceedings. If you wish to claim these costs you should have an idea how much and how you arrived at that figure. You may also ask the Court to grant compensation under Section 35 of the Powers of the Criminal Courts Act as the offence is classified as criminal.

Step 9 - Further Action to Take if the Noise Continues After the Court Order is Made

If the Court order is not obeyed, you can make a further complaint to the same Court, by seeking the advice of the Clerk to the Court. You should keep a record of noise occurrences up to and after the original Court Case. The Court can fine a person who disregards the Court Order. Blank copies of Noise Diary Sheets and Statement of Witness Forms can be obtained from Shared Regulatory Services.