Community Impact Management: Noise Nuisance by Walker Morris

A BTR apartment development brings together a large number of residents and one of the major challenges of living together in harmony, is ensuring residents are not affected by noise from other residents.

Operators need to find a good balance between providing an enjoyable place to socialise, and a suitable place for work, study, quiet relaxation, sleep and generally for residents to enjoy their own home in the way they choose. Some noise is to be expected, but it is the responsibility of all residents to ensure they also behave considerately.

To understand how best to deal with noise problems, first gaining a basic understanding of what could be considered a “statutory nuisance” (a term used under the Environmental Protection Act 1990 and in respect of which local authorities have enforcement power) is necessary. For noise to amount to a “statutory nuisance” it must be such that it is considered to have a wider community impact (i.e. on more than one other household) and also be considered as unreasonable to the “average person”.

Based on Local Authority practices, matters that should be taken into account when deciding if something is a nuisance or not in this context, would include:

Impact – the problem must have a real effect on how a person can reasonably use or enjoy their property. For example, noise from a neighbour may be audible, but it would need to be loud enough to impact on sleep, conversation, watching TV etc. for it to be a nuisance.
Frequency – something happening just once or twice might not be an actionable nuisance. For example, a celebration event with music during the day or early evening, but if the same thing occurred more frequently, or during unsocial hours, then it could be a nuisance.
Duration – if something happens for a relatively short period of time it may not be a nuisance. For example a neighbour’s dog barking when someone comes to the door, but if the same noise went on for longer, for example a dog barking when the owners are out all day, then this could be a nuisance.
Time of day / night – this is similar to impact, because something that might be a problem through the night, might not necessarily be a nuisance when happening in the day.
Everyday activity – things which are part and parcel of everyday normal life, for example flushing toilets, footsteps, talking, closing doors, babies crying, will not amount to a nuisance because there is little the person can do to prevent it. This is sometimes an issue with poor sound insulation, but statutory nuisance can only be used to change unacceptable behaviour and not to require people to do over and above what they should be reasonably expected to.
Sensitivity –nuisance must be considered in the context of an average person, in a reasonable state of good health and having a normal pattern of everyday activity. Nuisance cannot be used to make people do more than might reasonably be expected of them because someone else may be more sensitive than the average person, for example, if a night-shift worker was trying to sleep during the day.
Public benefit – something might cause an inconvenience, but because it is essential to the wider public benefit it may not be considered to be a nuisance – for example, a fire alarm test. Although best practice should be followed to minimise disturbance in that regard.
Motive – if someone deliberately and repeatedly does something then this could be an actionable nuisance. For example, deliberately slamming a door or banging on a wall.

Landlord’s obligation to provide quiet enjoyment

Whether or not there is an express clause to this effect in the tenancy agreement, the law states that a landlord shall not interfere with the tenant’s quiet enjoyment of the property. A resident may complain that the landlord is in breach of the tenancy agreement, if another resident is causing a noise nuisance, referring to the “quiet enjoyment clause”. A landlord may potentially be held liable for a breach of the quiet enjoyment clause due to the nuisance of its other tenants, but only if the landlord actively participated in, or authorised, the nuisance behaviour. Liability on the landlord’s part is therefore unlikely in the context of a professionally run development.

Identifying the category of community impact

In the instance of noise nuisance the following impacts (previously explained here), apply:

Nuisance (captures incidents where an act, condition, thing or person causes trouble, annoyance, irritation, inconvenience, offence or suffering to the local community):

Excessive noise permeating the neighbouring apartments, balconies and/or hallways affecting other resident’s ability to carry out their normal living activities (such as sleeping).
Noise extending to the local area and having affect upon the wider community enjoying their homes and outside spaces which affects their normal living activities (such as sleeping).

Personal (captures incidents that are perceived as either deliberately targeted at an individual or group, or having an impact on an individual or group rather than the community at large):

Intentionally causing a noise nuisance to a specific person (i.e. a tenant regularly banging on a neighbour’s wall throughout the night for no reason other than to cause distress to the neighbour) which has effect on their ability to carry out their normal living activities (such as sleeping).
Confrontational behaviour (possibly leading to a physical altercation) when residents attempt to reason with the person causing the excessive noise.

Environmental (captures incidents where individuals or groups have an impact on their surroundings, including natural, built and social environments):

Residents may avoid communal spaces or facilities during incidents involving excessive noise.

Assess and decide the level of risk to the business

The risk can be assessed by using the three tier structure previously discussed: serious (red), moderate (amber) and minor (green) risk. Focus will however be on the impact upon the harmony of the community, rather than risk to safety. Whilst the impact upon harmony does not create a risk to life, it can create a serious risk to the Owner/Operator’s brand reputation.

The risk scale is quite simple to set with this particular type of anti-social behaviour as it will usually be based on the number of occurrences following previously issued warning letters.

Serious Risk (the safety / harmony of the community is at serious risk)

Persistent instances of noise nuisance (which meet the statutory nuisance standard) affecting multiple residents, after multiple written warnings.

Moderate Risk (the safety / harmony of the community was at serious risk or is at moderate risk)

Regular instances of noise nuisance (which meets the statutory nuisance standard) following the issue of multiple written warnings affecting multiple residents.

Minor Risk (the safety / harmony of the community is or was at minor risk)

Occasional instances of noise nuisance (which meets the statutory nuisance standard) affecting multiple residents.
Occasional instances of noise nuisance (which does not meet the statutory nuisance standard) affecting one household.

Establish the appropriate response and take action

Noise nuisance can have a terrible impact upon those who are suffering as a consequence. There should be a clear procedure for escalation – your noise nuisance policy will need to cover both warnings and methods to document the nuisance. The usual template red, amber and green letters would provide a base for the written warnings. As most of the reports will be from residents, asking them to fill out a form (a template based on the 7 above statutory nuisance standards) will allow you to assess how it is impacting their living experience.

The purchase of a Sound/Noise Level Meter may be good a tool to have on site. They are relatively inexpensive and in the event you have an issue with music related noise nuisance, then taking footage of the monitor whilst it is in use, will provide further supporting evidence. The meter reading(s) can also be placed in the warning letters.

As with most ASB depending on the risk assessment, the first action will be to make contact with the tenant using your usual process or the red, amber, green templates discussed previously. If the tenant does not respond to warning letters, a section 8 notice can be served, followed by possession proceedings. The Court has a discretion in deciding what order to make in such proceedings but it must have particular regard to the impact the behaviour is having and also what it may have in the future if it continues. The Court Rules also allow hearings to take place on an expedited basis in serious cases.

A report could also be made to the Local Authority, which has the power to serve an “abatement notice” on a tenant. This notice would require the offending resident to stop the activity or limit it to certain times to avoid causing a nuisance and can include specific actions to reduce the problem. If the resident does not comply with the abatement notice, they can be prosecuted and fined (the amount is set by the court), including imposing additional fines for each day they fail to comply. An abatement notice would also be very beneficial evidentially in support of any possession proceedings against the tenant.

Another option would be to apply to the court for an injunction against the resident. However, this remedy is not as easily accessible to private landlords as it is to those who operate in the public sector.

There are therefore options available to deal with noise nuisance and your legal advisors will be able to assist.

Coronavirus Related Note

The Coronavirus Act 2020 currently imposes an extended notice period (three months) in relation to both section 8 and section 21 notices until 30 September 2020, and the Courts temporary Practice Directions also restrict possession related claims from being progressed until the end of the stay period which is currently 23 August 2020.