Noise abatement

Andrew Waite, partner in the planning and environment department of solicitors Berwin Leighton Paisner, advises on dealing with problems with building work noise.

The problem

A hotel owner upsets his neighbours when the builder of his hotel extension works at night to stay on schedule. The local authority slaps a notice on the owner and builder, prohibiting work outside certain hours. Now the builder says that the hotel won't be able to open on time. What can he do?

Expert advice

The hotel owner is in a difficult position. He and the builder can appeal against the notices and try to have the permitted working hours extended. It will be necessary to show that any extended work hours will not cause nuisance to neighbours. If successful, the planning authority should be prepared to change the planning condition accordingly.

However, this situation could have been prevented. There are a number of precautions the hotel owner should have taken before employing the builder.

First, he should have checked the local authority's policy on permitted hours for building work and informed the builder of these. Then he should have drawn up a written contract with the builder which made the builder responsible for complying with applicable legislation and lawful requirements of regulatory authorities under that legislation. Any resulting delays would then have been the responsibility of the builder, who would have had to pay damages.

The contract should also have required the builder to take all reasonable steps to minimise disturbance to neighbours.

Before any work was carried out, the hotelier should have made contact with the local community to explain the proposed works programme and the likely effects, in terms of noise and dust, and how any inconvenience was to be minimised. A phone line should have been set up to deal with any complaints. Advance warning should have been given of any particularly noisy operations or work at unsociable hours.

Then, when the notice was received, the hotelier should have appealed immediately to the magistrates' court. The time limit for this is strict - 21 days. It should then have been possible to negotiate an acceptable amendment to the terms of the notice without a full court hearing.

Irrespective of any action by the local authority, neighbours who are disturbed by noise from construction work may take action themselves. They can do this via the magistrates' court for an order to abate a statutory nuisance, or in the county court by demanding compensation and an injunction to prohibit nuisance.

Such court action can be successful only if those doing the work do not take reasonable steps to avoid undue inconvenience to neighbours. The hotel owner who orders the work to be done can be liable as well as the builder, unless the former ensures that such steps as those outlined above are taken.

The law

Section 60 of the Control of Pollution Act 1974 allows local authorities to serve a notice imposing requirements as to the way in which works on a construction site are carried out. This is generally done by restricting the permitted hours of work. The local authority can serve a notice even before work starts, without waiting for complaints.

Beware!

Failure to comply with the council's notice carries a maximum fine of £5,000 and a further daily fine of as much as £50 for each day after that. If neighbours are successful with an action, that too carries a maximum fine of £5,000. The builder usually must pay this, but any action means more delays.

Check list

Before you hire a builder:

• Check the local authority's policy on permitted hours for building work, and inform the builder.
• Draw up a written contract with the builder which makes him responsible for complying with applicable legislation.
• Ensure that the written contract says that any delays resulting from compliance with noise notices will be the responsibility of the builder, who will have to pay damages.
• Ensure that the contract requires the builder to take all reasonable steps to minimise disturbance to neighbours.

Before work begins:

• Make contact with the neighbours to explain the proposed works programme and how any inconvenience will be minimised.
• Have a phone line to deal with complaints.
• Give advance warning of any particularly noisy operations or work at unsociable hours.

If a notice is received:

• Appeal to the magistrates' court within 21 days.

Contacts

Berwin Leighton Paisner
020 7760 1000
www.berwinleightonpaisner.com

Chartered Institute of Environmental Health
020 7928 6006