Information regarding statutory nuisance

Mr Akhtar made this Freedom of Information request to Birmingham City Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Birmingham City Council,

Under the Freedom of Information Act and Environmental Information Regulations, please could you provide the following information for the last full year for which records are kept; the number of complaints received for the following categories (or your equivalent):

A. Amplified Music & Speech
B. Mechanical noise
C. Behavioural noise

For each of the above categories, please provide a breakdown for:

1. No statutory nuisance found
2. Nuisance found, formal warning issued
3. Noise Abatement Notice issued

Please provide the guidance or applicable criteria used in the assessment of the above which shows the levels at which you would deem a statutory nuisance to have arisen; for example frequency of occurrence - X times per week/month/annum.

Please could you provide any documentation held for noise abatement notices served for the above and redacting any information deemed necessary by the council.

Yours faithfully,

Mr Akhtar

Birmingham City Council

Freedom of Information Act 2000
Request for Information - Reference FOI 5770

Thank you for your request, which was received on 4 July 2011, for
information held by the Council under the provisions of the Freedom of
Information Act 2000. We will respond to you within 20 working days.
Where Birmingham City Council is the copyright holder of any information
that may be released, re-use for personal, educational or non-commercial
purposes is permitted without further reference to the City Council. Where
the re-use is for other purposes, such as commercial re-use, the applicant
should notify the City Council in writing to seek approval or agree terms
for re-use.

If you require any further information please do not hesitate to contact
me on 0121 303 6106, quoting the reference number above.

Sue Barnard
PA to Head of Environmental Health

Tel: 0121 303 6106
Fax: 0121 303 6994

Ladbrooke House
Bordesley Street
Birmingham
B5 5BL

[1]http://www.birmingham.gov.uk/regulatoryc....

Fair Regulation for all - achieving a safe, clean, green and fair trading
city for residents, business and visitors

Data Protection Act 1998
The information you have provided within your Freedom of Information
request will be held on our database and may also be held within manual
records for a period of 2 years from the date Birmingham City Council
received your request. Any personal data that you provide to Birmingham
City Council will be held in line with the requirements set out within the
Data Protection Act 1998.

show quoted sections

References

Visible links
1. http://www.birmingham.gov.uk/regulatoryc...

Birmingham City Council

1 Attachment

FREEDOM OF INFORMATION ACT 2000
REQUEST FOR INFORMATION - REFERENCE FOI 5770

I am writing in respect of your recent enquiry for information regarding
noise complaints held by the Authority under the provisions of the Freedom
of Information Act 2000

Under the Freedom of Information Act and Environmental Information
Regulations, please could you provide the following information for the
last full year for which records are kept; the number of complaints
received for the following categories (or your equivalent):

A. Amplified Music & Speech
B. Mechanical noise
C. Behavioural noise

From 01/04/2010 - 31/03/2011 - please see attached sheet which gives a
breakdown of noise complaints received by Birmingham City Council. "RFA"
means request for assistance.

For each of the above categories, please provide a breakdown for:

1. No statutory nuisance found
2. Nuisance found, formal warning issued
3. Noise Abatement Notice issued

We do not hold the information in the format you request, however we can
tell you that notices issued were as follows:.
Intruder Alarms - 10
Other s80 issued - 160

The information provided is subject to Birmingham City Council copyright,
however, it may be re-used for personal, educational or non-commercial
purposes without further reference to the City Council. If the re-use is
for other purposes, such as commercial re-use, you should notify the City
Council in writing to seek approval or agree terms for re-use.

If you are not satisfied with the decision you may ask for an internal
review. If subsequently you are not satisfied with the Council***s
decision you may apply to the Information Commissioner for a decision.
Generally, the ICO cannot make a decision unless you have exhausted the
complaints procedure provided by the Council. The Information Commissioner
can be contacted at the following address:

The Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Telephone: 01625 545745
Web Address: www.informationcommissioner.gov.uk

Sue Barnard
PA to Head of Environmental Health

Tel: 0121 303 6106
Fax: 0121 303 6994

Ladbrooke House
Bordesley Street
Birmingham
B5 5BL

[1]http://www.birmingham.gov.uk/regulatoryc....

Fair Regulation for all - achieving a safe, clean, green and fair trading
city for residents, business and visitors

Data Protection Act 1998
The information you have provided within your Freedom of Information
request will be held on our database and may also be held within manual
records for a period of 2 years from the date Birmingham City Council
received your request. Any personal data that you provide to Birmingham
City Council will be held in line with the requirements set out within the
Data Protection Act 1998.

show quoted sections

References

Visible links
1. http://www.birmingham.gov.uk/regulatoryc...

Dear Sue Barnard,

Thank you for the information provided, however it only covers a part of the scope of my request.

Please could you provide the remainder of the information in line with my request. The information sought was:

Please provide the guidance or applicable criteria used in the assessment of the above which shows the levels at which you would deem a statutory nuisance to have arisen; for example frequency of occurrence - X times per week/month/annum.

For example it is understood that in relation to Digbeth, serving officers from the council attended a public meeting and stated a music event that was audible in a neighbouring premises, lasting for more than 10 minutes and at a volume was considered by the council to be a nuisance. One could imagine this to form the basis of a criteria.

Please could you provide any documentation held for noise abatement notices served for the above and redacting any information deemed necessary by the council.

Yours faithfully,

Mr Akhtar

Birmingham City Council

1 Attachment

Dear Mr Akhtar

Further to your request below, I can inform you that officers do not
revert to any guidance to determine at what level noise constitutes a
nuisance. Nuisance is subjective and is determined on the judgement of a
professional officer(s) having regard to experience and the prior
judgement of courts when determining nuisances.

I attach a copy of a document showing the number of notices served from
April 2010 to March 2011.

As there are 170 cases, it would take a considerable amount of time to
manually interrogate each file and photocopy all of the documentation
associated with those files, which are kept at 3 different offices. If
we take an average of 3 files per hour (this may take longer or it may
take less, depending on each case), this amounts to over 56 hours.

The appropriate limit specified in the regulations is **450. This
represents the estimated cost of one person spending 18 hours in
determining whether the department holds the information and locating,
retrieving and extracting the information. Consequently, the Council is
not obliged by the Freedom of Information Act 2000 to respond to your
request. See Section 12(1).

However, we are still happy to do so if you pay the fee as set out in this
notice. The estimated cost of processing your request is **1400 for 56
hours. This charge has been calculated in accordance with Section 13 of
the Freedom of Information Act 2000 and the Freedom of Information Fees
Regulations.

Once the fee has been paid a copy of the information will be despatched to
you.

If you require any further information or are not happy with our response
please do not hesitate to contact a member of our team on 0121 303 4876.

Sue Barnard
PA to Heads of Environmental Health

Jenny Millward - Head of Environmental Health (South)
Mark Croxford - Head of Environmental Health (North)

Tel: 0121 303 6106
Fax: 0121 303 6994

Regulatory Services
PO Box 15908
Birmingham
B2 2UD

(Sat Nav Postcode address is B5 5BL Number 27)

[1]http://www.birmingham.gov.uk/regulatoryc....
Fair Regulation for all - achieving a safe, clean, green and fair trading
city for residents, business and visitors

Data Protection Act 1998 *** Any personal data provided will be kept
confidential and processed in accordance with the Data Protection Act 1998

"If you wish to make a donation to the Lord Mayor's Charity Appeal please
visit
[2]http://www.justgiving.com/lordmayorbirmi...

Mr Akhtar To [email address]
<[FOI #78852 email]> cc
Subject Re: Freedom of Information
13/07/2011 19:41 Act 2000

Dear Sue Barnard,
Thank you for the information provided, however it only covers a
part of the scope of my request.

Please could you provide the remainder of the information in line
with my request. The information sought was:

Please provide the guidance or applicable criteria used in the
assessment of the above which shows the levels at which you would
deem a statutory nuisance to have arisen; for example frequency of
occurrence - X times per week/month/annum.

For example it is understood that in relation to Digbeth, serving
officers from the council attended a public meeting and stated a
music event that was audible in a neighbouring premises, lasting
for more than 10 minutes and at a volume was considered by the
council to be a nuisance. One could imagine this to form the basis
of a criteria.

Please could you provide any documentation held for noise abatement
notices served for the above and redacting any information deemed
necessary by the council.

Yours faithfully,
Mr Akhtar

show quoted sections

Dear Sue Barnard,

Thank you for your reply outlining the charges under the Freedom of Information Act. Please accept my apologies for belabouring a point but you are mistaken in your application of section 12(1) of the FOI act. The request detailed a request for environmental information and by the very nature of noise nuisance and the fact that it is covered by The Environmental Health Act 1990 clearly means that the information falls within the definition of Environmental Information.

The EIR covers this point:

The EIR give public authorities the discretion to charge a reasonable amount for making environmental information available, for example to recover the cost of photocopying.

Although Regulation 8(3) does not offer any assistance as to what is meant by the word reasonable, the Directive provides some guidance that “as a general rule, charges may not exceed actual costs of producing the material in question.” In David Markinson v Information Commissioner (EA/2005/0014; 28 March 2006), the leading case to date on charging for environmental information, the Information Tribunal indicated that this will comprise the costs of producing copies of the information requested. The Tribunal concluded that:

1) an authority must satisfy itself that a charge is reasonable. It must do this by only taking into account relevant considerations and ignoring any irrelevant ones.

2) for example, the cost of paper and printing is a relevant factor and can be included in the charge. However, the cost of staff time in identifying, locating and retrieving the information is an irrelevant factor and cannot be included. As these staff costs must be disregarded when the information is inspected by the applicant (in accordance with Regulation 8(2)(b)), it is unreasonable to include them when calculating the cost of copying the same information.

Further guidance can be found on the website of the ICO:

http://www.ico.gov.uk/~/media/documents/...

Further clarification on this point is available at the above link and you are also referred to EC directives on this matter.

The ICO has issued decision notices in such instances confirming all available information should be provided.

You are speicfically requested to provide all of the information held to the email address provided which negates the need for paper copies and hence any costs.

For the purpose of clarity this is not and I repeat is not a formal complaint but a request for you to meet my request in full.

However to narrow the scope of my request, if you could provide a list of all documentation held, I will would be pleased to review the list and see if there is any scope for a reduction.

Yours faithfully,

Mr Akhtar

Birmingham City Council

1 Attachment

Dear Akhtar

Please see the attached further to your email to Ms Barnard dated 27th July
2011.

(See attached file: Appeal Acknowledgement.doc)

Yours sincerely

Corporate Information Governance Team

show quoted sections

Dear Birmingham City Council,

Thank you for your email. It is disappointing that whilst I did not make a formal complaint or request a review in your handling of my request you have chosen to treat it as a complaint and a request for an internal review. Having said this I am happy to follow your lead on this.

I believe I am entitled to all of the information held under the scope of my request and this can be provided in a number of ways including electronic.

For example in the case of Digbeth noise abatement notices it is understood that the council officers have stated in a public meeting that loud music that lasts for more than 10 minutes is a nuisance. This clearly forms one part of the criteria used to assess a noise nuisance.

It may be that noise nuisance is subjectively assessed however such an answer does not provide the criteria used in that assessment nor the point at which a determination is made that a statutory nuisance is occuring.

Your reply makes mention of court cases but fails to provide the court cases used or the application of the court cases to the criteria used to assess a statutory nuisance.

In your decision to review my request made under both the FOI act and EIR you are requested to take into account the Freedom of Information Act, Environmental Information Regulations, Decision Notices and guidance issued by the Information Commissioners Office, relevant court cases, European legislation and decisions reached by the European Courts.

I look forward to the outcome of your review and the resulting information. I re-iterate my offer for you to provide a list of the information held and for me to see if a reduction in the scope of my request can be made. In the alternate you may meet the full scope of my request.

Yours faithfully,

Mr Akhtar

Birmingham City Council

1 Attachment

Dear Mr Akhtar

Further to your FOI Internal Review, please see the attached.

With kind regards
Corporate Information Governance Team

show quoted sections

Dear Birmingham City Council,

Thank you for carrying out the internal review and for concluding that some aspects of my original request remain outstanding.

I look forward to receiving the missing information.

Yours faithfully,

Mr Akhtar

Mr Akhtar left an annotation ()

The internal review panel upheld my complaint on points 2,3 & 4 and confirmed that EIR should have been used. The panel further confirmed that charges do not apply except to copying or postage.

They have asked there client department to look at this again.

Dear Birmingham City Council,

Re: FOI 5770

You wrote to me on the 22nd August 2011 with respect to the outcome of my review.

As of this morning I have not heard anything from your client department.

I would be grateful if you could provide me with an update.

Yours faithfully,

Mr Akhtar

Birmingham City Council

Dear Mr Akhtar

Thank you for your email.  We have forwarded this onto our service area
and they will respond to you directly.

With kind regards
Corporate Information Governance Team

Mr Akhtar To [email address]
<[FOI #78852 email]> cc
Subject Re: FOI 5770 - Internal
13/09/2011 08:50 Review

     Dear Birmingham City Council,
   
    Re: FOI 5770
   
    You wrote to me on the 22nd August 2011 with respect to the outcome
    of my review.
   
    As of this morning I have not heard anything from your client
    department.
   
    I would be grateful if you could provide me with an update.
   
    Yours faithfully,
   
    Mr Akhtar
   
   

show quoted sections

Dear Birmingham City Council,

Thank you for your reply dated 13th September 2011. It seems that your service area are ignoring your own review and its recommendations together with the action requested by your department.

I now require the authority in its capacity as the recipient of my request to confirm the date by which it will have actioned and met its obligations.

You are requested to forwarded the outstanding aspects of the request to the email address provided by Friday 30th September 2011.

Yours faithfully,

Mr Akhtar

Mark Croxford, Birmingham City Council

Dear Mr Akhtar

Further to your request for information with regard to FOI 5770, I write
to inform you of the information that we can release and that which we are
unable to produce in a reasonable time frame or at a reasonable cost, as
detailed below.
   
Question 1
Under the Freedom of Information Act and Environmental Information
Regulations, please could you provide the following information for the
last full year for which records are kept; the number of complaints
received for the following categories (or your equivalent):
   
    A. Amplified Music & Speech
    B. Mechanical noise
    C. Behavioural noise

With regard to this question, the Panel is satisfied that this data has
been released to you on 13.07.2011.

With regard to questions 2 and 4,

For each of the above categories, please provide a breakdown for:
   
    1. No statutory nuisance found
    2. Nuisance found, formal warning issued
    3. Noise Abatement Notice issued

Please could you provide any documentation held for noise abatement
notices served for the above and redacting any information deemed
necessary by the council.

The answer to question 2 (2) Nuisance found, formal warning issued is 0.
 The local authority is required by the Environmental Protection Act 1990
to issue notice requiring abatement of a nuisance when it is satisfied
that a statutory nuisance exists.  We will therefore not issue formal
warnings.

With regard to the rest of the information, I have requested officers to
provide this information but because it is not held in a readily
retrievable format, it is very time consuming for us.  In total, we
believe that there are 3945 complaints of nuisance received by this
Department in the last year.    In running a test, to provide the
information requested 8 random jobs (4 where notices were served and 4
where they were not) it has taken 2 officers 33 minutes 30 seconds and
41minutes 45 seconds respectively.  To scale this up to 3945 jobs would
take 618 hours or just under 17 weeks of an officer's time to produce.
 This is clearly unreasonable to invest this amount of public resource in
one request.  

The information you have requested can fall under both or either the
Environmental Information Regulations and/or the Freedom of Information
Act, and accordingly, Birmingham City Council has considered the request
under both legislative regimes.

Environmental Information Regulations 2004.

Under Regulation 12(4)(b) of the Environmental Information Regulations
2004, a public authority is not obliged to respond to a request where
there “request for information is manifestly unreasonable;”

As you will note, the estimated time involved in collating the information
you requested would take over 600 hours. All exemptions under the EIR
require a consideration of the public interest. Whilst Birmingham City
Council appreciates that the public have a strong public interest in
ensuring that the local authority is open and transparent, and open to
account, Birmingham City Council has to balance this public interest in
respect of being open and transparent against the impact of the resources
required in dealing with the request would have in relation to the
council’s ability to provide its core services.

However, under the Environmental Information Regulations, there is no
provision to allow the Council to charge for the additional resources
involved in complying with the request.

Bearing in mind the resources involved to produce the information
requested, Birmingham City Council has to consider that the public
interest lies in favour of exercising the exemption set out in regulation
12(4)(b), namely that the request is manifestly unreasonable.

Freedom of Information Act 2000

Under the Freedom of Information Act and the Data Protection and Freedom
of Information (appropriate limits and fees) Regulations, a local
authority is obliged to spend up to 18 hours worth of work in dealing with
a request. However, where a request is likely to take over 18 hours, the
local authority is entitled to levy a charge, at the statutory rate of
£25.00 per hour, in relation to the work involved that would take over 18
hours.

On this basis, Birmingham City Council believes that to do the work, it
would be entitled and obliged to request that you pay the sum of £15000 to
cover the subsidised cost of collating the information requested.

Once we receive these cleared funds, we will undertake the work required.
Alternatively, should you wish to scale down the scope of the request,
please contact me. However, the time involved in dealing with this
existing request will be taken into account in respect of your subsequent
request.

With regard to question 3,

Please provide the guidance or applicable criteria used in the assessment
of the above which shows the levels at which you would deem a statutory
nuisance to have arisen; for example frequency of occurrence - X times per
week/month/annum.

There is no de-facto criteria document in relation to the assessment of
nuisance and matters which are prejudicial to health. This is a
professional judgement made by environmental health officers, on a case by
case basis, and it would be reported to the Magistrates Court who would
make the ultimate decision on appeal or on prosecution whether or not a
statutory nuisance existed.  In general, the issues that are taken into
account would include:

·        location, for example the crowing of a cockerel in the
countryside might be regarded differently to one in an urban area
·        time, for example the mowing of a lawn during the day would be
equally as loud at night, but whereas the latter would be unacceptable the
former would not.
·        duration, for example a dog barking at a postman delivering a
letter for a minute as opposed to barking all day whilst an owner was
absent
·        frequency, for example a noisy party held every Saturday night
would be viewed very differently from an occasional one on a special
occasion.
·        convention, for example the modern lawn mowers are much more
irritating than the old, however although people wish to enjoy peace and
quiet it is accepted that people must mow their lawns.

All of the above is supported by case law which is in the public domain,
and is based on legal advice and interpretation.   The guiding principles
can be most easily be found in the Statutory Nuisances book produced by
Robert McCracken QC, Gregory Jones and James Pereira, which is also in the
public domain.  This is the book that we and our solicitors refer to.

If you are not satisfied with the decision you may ask for an internal
review. If subsequently you are not satisfied with the Council’s decision
you may apply to the Information Commissioner for a decision. Generally,
the ICO cannot make a decision unless you have exhausted the complaints
procedure provided by the Council. The Information Commissioner can be
contacted at the following address:

The Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Telephone: 01625 545745
Web Address: www.informationcommissioner.gov.uk

Yours sincerely

Mark Croxford
Head of Environmental Health (North)

Tel:0121 303 6350
Fax: 0121 303 6994
Regulatory Services, P O Box 15908, Birmingham, B2 2UD (Sat Nav Postcode
address is B5 5BL Number 27)

Fair Regulation for all - achieving a safe, clean, green and fair trading
city for residents, business and visitors

"If you wish to make a donation to the Lord Mayor's Charity Appeal please
visit
[1]http://www.justgiving.com/lordmayorbirmi...

show quoted sections

References

Visible links
1. http://www.justgiving.com/lordmayorbirmi...

Dear Mr Croxford,

Thank you for your reply. I have yet to study your reply in any detail and I will reply over the coming days.

Not withstanding this, there are a number of basic mistakes in your reasoning and replies not least of which is the use of Freedom of Information Act.

The ICO have determined that a complaint made under the EPA 1990 and any actions taken as a result falls wholly within the EIR with obvious implications for the information as well.

However I will address all of the points whilst being mindful that prolonged correspondence may potentially confuse any resultant complaint to the ICO.

Yours sincerely,

Mr Akhtar

Dear Mr Croxford,

Thank you for your reply to my request your reference number FOI 5770. This reply takes into account my request, your initial reply, the review and your last response.

In replying to your responses to date information has been sought from the Information Commissioners Office and it is understood that The Information commissioners Office in April 2011 expressed particular concerns about the manner with which Birmingham City Council has treated FOI requests. Given the manner with which you have treated my request to date it would appear that nothing much has changed. It is of particular concern that your own internal review has concluded that the requested information falls within EIR, yet you persist in treating my request under the FOI. This is covered in Para 1, page 2 of the appeal response.

Further information was sought on the appropriate regime for my request and this is taken into account. Recent notice decisions reflect that a complaint made and investigated under the EPA 1990 would fall within the EIR. The requested information is reported and investigated under section 79 of the Environmental Protection Act (or as amended) and any noise abatement notice issued or breaches prosecuted as a result of an investigation are also covered under the EPA 1990. The EIR 2004 confirms that noise is environmental (emissions) in nature and falls within these regulations. This is covered at Regulation 2(1) of the EIR. This is covered at:

http://www.ico.gov.uk/for_organisations/...

On this page there is a link to .pdf file which more fully outlines the scope of the EIR.

Numerous decisions have been made by the Information Commissioners Office and The Information Rights Tribunal on such matters and the ICO has held ‘The Commissioner considers that the phrase ‘any information…on’ should be interpreted widely in line with the purpose expressed in the first recital of the Council Directive 2003/4/EC, which the EIR enact.’

Further guidance is available from the ICO on charging for environmental information, the different formats of held information and redaction.

In light of the above I am of the opinion that none of the FOI exemptions would apply, however I would urge you to contact the ICO and seek verification that information arising from a complaint made and investigated under the EPA 1990 is environmental information prior to confirming whether you will meet the scope of my request.

Your review made a point of seeing if a reduction could be made in the scope of the request. In the spirit of mutual co-operation I am happy to reduce the scope to cover to one aspect – Complaints for amplified music & speech.

Moving on to the points arising in your email, I make the following non exhaustive comments:

Question 1

I sought information on the number of noise abatement notices served. It is likely that since you have been able to identify 10 noise abatement notices were served for a total of 160 complaints made for alarms in the year 2010/2011, that you would equally be able to identify those served for amplified music. Please provide the number of noise abatement notices served. The information provided suggests to me that the information is readily retrievable.

Question 3

The panel accepted that whilst a judgement is made by officers when assessing noise abatement, the response could have provided an explanation of the tools used by officers to determine the level of noise abatement. The panel concluded that this question be referred back to the service area to provide an explanation of how noise is measured and what criteria is used.

In providing your reply you have may have mistakenly omitted some criteria as in the case of amplified music& speech; loudness could perhaps be considered to be the first and main criteria.

You are requested to provide all of the criteria used, how such criteria are measured and how the level of noise abatement is determined. It may be that you do not hold a de-facto document but the request was for information held on the criteria applied and you are asked to provide the held information.

To provide assistance in this matter your attention is drawn to decisions made to serve a noise abatement notice or breaches prosecuted. On the balance of probabilities further information is likely to be held where noise abatement notices have been served in the Digbeth area.

Question 4

The panel considered the information sought and the service area’s interpretation in their application of the fees notice. The panel determined that the service area’s application of the FOIA Fees Regulations was incorrect. Regulation 8(4) of the EIR allows a public authority to require advance payment of a reasonable charge for making environmental information available to recover for example, the cost of paper, photocopying, printing and postage fee. The cost of staff time in identifying, locating and retrieving the information is an irrelevant factor and cannot be included. Further, the panel concluded the service area should have gone back and clarified with the requestor about what specific information he wanted to determine whether the information could have been provided at a reasonable charge.

I would again draw your attention that the information sought is environmental in nature and you are respectfully requested to clarify that it falls within EIR 2004 with the Information Commissioners office and meet the scope of my request in line with
the regulations and decisions on information covered, costs, and use of redaction as appropriate.

Case law

Thank you providing information on the Statutory Nuisance book, however my request was for information held by your authority. I would be surprised if the book in question made reference to the use of the relevant court case by Birmingham City council in its issuing of noise abatement notices, subsequent appeals and prosecution of breaches. I would be pleased to receive information on the appropriate court case used for each of the factors used in cases of a statutory nuisance arising from amplified music & speech.

Request a review

Your last email suggests that I may appeal your decision. This is contrary to the guidance from the Information Commissioners Office since my FOI request has already been appealed and to my mind you have not addressed all of the points from your own appeal decision. This may result in a never ending circle of withheld information, appeals, withheld information, appeals, etc.

Should you require additional information, advice or guidance in bringing this matter to a successful conclusion, please do contact me.

Finally, please accept my apologies for the delay in coming back to you and you are respectfully requested to address all aspects of my request in the context of your review and these further representations.

Yours sincerely,

Mr Akhtar

Birmingham City Council

2 Attachments

Dear Mr Akhtar

With regard to your revised question I have I believe released all of the
Environmental Protection Act 1990 (EPA) Sec80(g) notices served by
Birmingham City Council.  Attached is a report on the jobs that they refer
to as recorded on our computer database to try and differentiate by type.
  I trust this answers question 1 in full.

With regard to question 3 the answer is not as straight forward.  I also
believe we have answered it because we do not hold the information you are
requesting as I hope to clarify below.

There is no definition of what is a statutory noise nuisance and in
reality the actual test is by the Courts either once the recipient of a
notice appeals or through a prosecution. In delivering their verdict they
state if there is a nuisance or not and either ask for it to be abated or
impose a penalty dependant on the nature of the trial.  The Local
Authority is required by the EPA to investigate complaints of statutory
nuisance and where it is satisfied that a nuisance exists, the Local
Authority shall serve notice requiring the nuisance to be abated.  

Speech  
In Birmingham the Environmental Health Division does not get involved in
Statutory Nuisance arising from speech or behavioural noise.  The reason
for this is that here we may be looking at children playing people talking
and shouting.  Unless there is an effective solution, it is difficult to
intervene.  It would be unreasonable to require children to play quietly.
 If there were an exceptional problem we would hope to assist via looking
at noise insulation properties of party walls, possibly using Anti Social
Behaviour powers if the speech were to cause alarm or distress to someone
and was aimed at that person.  It is difficult to require children to
abate noise or ask someone to speak quietly.  Fortunately these are not
common complaints in Birmingham and this way of intervening has worked
well for us to date.

Amplified Noise
With regard to noise levels Statutory Nuisance is not so defined.  It is
about how the noise levels materially affect a resident and whether or not
this is reasonable.  It is not therefore a matter of using noise level
meters and stating that there is an exceedance of a specified level.  It
is more around evidence for example “the Officer heard that music was
being played in the adjacent property” and they would describe what they
heard.  E.g. “I could clearly hear the bass beat” or “I heard …..(artist)
singing and noted the following lyrics….”.  This noted evidence along with
how it materially disturbs the recipient of the noise is linked with the
time of day, frequency of occurrence, duration, location and convention
would then lead the officer to judge in their opinion if they felt there
was a statutory nuisance requiring the service of notice.  This is a
professional assessment and is not documented other than in professional
texts used in the training of Environmental Health Officers.  The
principles in Statutory Nuisance by Robert McCracken QC are those we
follow.  The information we use to determine Statutory Nuisance is
therefore in the public domain consequently it is not held by us and we
are not required to reproduce it to you under EIR and FOI.

In Birmingham we use personal visits by officers; we have a rapid response
team who can be called-out out of office hours (up to 2am); we use
calibrated tape recorders to capture more intermittent nuisances the
officers can’t witness. These are the “tools and techniques”.  The best
evidence is what is experienced by the Officer and that given by the
affected person as to how they are adversely affected by the noise.  With
reference to the word Criteria that you have used, I would advise the
Environmental Health Officers have a recognised legal competence through
their training and their reference base is case law, training, experience
and professional texts.  Again we would advise we are not required to
reproduce what is in the public domain.

Here is a work guidance note used by our EHOs, Although it is currently
under review under a programme of revising these documents.

There is 169 notices on here we can not get the computer to tally the 170
from last time.  We don't know why but the system is live and it could be
a miss recorded notice.

I am sorry but don’t understand what you mean in the last paragraph of
question 3 in your email and I am unable to respond unless you have a
specific request for information.

Question 4
This has been covered in my response the text for which came from
Birmingham’s Legal Services.  In essence under FOI there is a cut off of
18 hrs and EIR there is a reasonability test for how long the information
would take to gather and that is what I understand is in that letter.

Case Law
As stated above it is part of the officers training and use of
professional texts. We don’t have a “handbook” to release.  If decisions
are appealed then the matter is referred to Legal Services, and usually a
Barrister would be appointed, to consider the appeal.  The case law is in
the public domain and we like others retrieve it from the internet or the
professional texts.  Often the Barristers advise on this too.  I would
however emphasise with Domestic noise nuisance (we don’t get many
complaints re speech) the emphasis is very much around what has been
witnessed and how the individual is affected by it.

Request for a review
This is a standard phrase that is attached to all FOI or EIR requests.

I trust this responds to all of your points.  If there is any specific
references/premises I am more than happy to try and assist and we can
release this information.  Due to the size of Birmingham, generalised
inquiries do become very difficult for us to respond to, but do feel free
to call me if we can assist further.

Thank you for what you wrote on the EIR and FOI and I have looked at this.
 Firstly let me say I am not trying to not release info, it's more around
the interpretation.  

I've had a look at what environmental information is and I "struggle" to
see that statutory noise nuisance falls within the definition that is
provided under Reg 2 of the EIR.  

In this it states that in Reg 2(1)(a) that Environmental Information is
information on the environment, atmosphere, water, soil, land, biological
diversity etc and in Reg 2(1)(b) it states that it is such substances as
energy, noise, radiation etc, that affect Reg 2(1)(a).  My reading is that
the noise must affect the environment, atmosphere, water, soil, land,
biological diversity etc ie this is referring to noise that affects the
natural landscape, wetlands, etc, so for Birmingham this would be for
example a new relief road, bypass or an extension to the airport and a
noise assessment of current levels against the predicted increase.  It
would also include a noise assessment for a development such as
residential properties being developed adjacent to a heavy industrial
site.  It would potentially also be around public nuisance arising from
noise which is so indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings on his own to put a
stop to it., ie it affects the community.    

The difference with Statutory Nuisance is it doesn't exist in the
environment.  It is all about how an individual is affected. If someone
plays their music loudly at night but the only neighbour is a night worker
no nuisance would exist.  The same levels affecting an occupied house
preventing sleep would almost certainly be a statutory nuisance.  The
noise levels are the same, the effect on the environment is the same, but
equally if a noisy neighbour left an area, the environment is unchanged
but there is no nuisance now.  Not quite the same as noise from wind
farms, factories or roads which are relatively predictable.

I'm not saying I'm right, I will be directed by our legal services but
also I note from the information you have given and references to the ICO
cases, it appears they do want it covered by EIR.   I hope I have covered
your request fully.

Yours faithfully

Mark
Mark Croxford
Head of Environmental Health (North)

Tel:0121 303 6350
Fax: 0121 303 6994
Regulatory Services, P O Box 15908, Birmingham, B2 2UD (Sat Nav Postcode
address is B5 5BL Number 27)

Fair Regulation for all - achieving a safe, clean, green and fair trading
city for residents, business and visitors

"If you wish to make a donation to the Lord Mayor's Charity Appeal please
visit
[1]http://www.justgiving.com/lordmayorbirmi...

Mr Akhtar To Mark Croxford
<[FOI #78852 email]> <[email address]>
cc
04/10/2011 16:54 Subject Re: Response to FOI 5770

Dear Mr Croxford,
Thank you for your reply to my request your reference number FOI
5770. This reply takes into account my request, your initial reply,
the review and your last response.

In replying to your responses to date information has been sought
from the Information Commissioners Office and it is understood that
The Information commissioners Office in April 2011 expressed
particular concerns about the manner with which Birmingham City
Council has treated FOI requests. Given the manner with which you
have treated my request to date it would appear that nothing much
has changed. It is of particular concern that your own internal
review has concluded that the requested information falls within
EIR, yet you persist in treating my request under the FOI. This is
covered in Para 1, page 2 of the appeal response.

Further information was sought on the appropriate regime for my
request and this is taken into account. Recent notice decisions
reflect that a complaint made and investigated under the EPA 1990
would fall within the EIR. The requested information is reported
and investigated under section 79 of the Environmental Protection
Act (or as amended) and any noise abatement notice issued or
breaches prosecuted as a result of an investigation are also
covered under the EPA 1990. The EIR 2004 confirms that noise is
environmental (emissions) in nature and falls within these
regulations. This is covered at Regulation 2(1) of the EIR. This is
covered at:

[2]http://www.ico.gov.uk/for_organisations/...
On this page there is a link to .pdf file which more fully outlines
the scope of the EIR.

Numerous decisions have been made by the Information Commissioners
Office and The Information Rights Tribunal on such matters and the
ICO has held ‘The Commissioner considers that the phrase ‘any
information…on’ should be interpreted widely in line with the
purpose expressed in the first recital of the Council Directive
2003/4/EC, which the EIR enact.’

Further guidance is available from the ICO on charging for
environmental information, the different formats of held
information and redaction.

In light of the above I am of the opinion that none of the FOI
exemptions would apply, however I would urge you to contact the ICO
and seek verification that information arising from a complaint
made and investigated under the EPA 1990 is environmental
information prior to confirming whether you will meet the scope of
my request.

Your review made a point of seeing if a reduction could be made in
the scope of the request. In the spirit of mutual co-operation I am
happy to reduce the scope to cover to one aspect – Complaints for
amplified music & speech.

Moving on to the points arising in your email, I make the following
non exhaustive comments:

Question 1
I sought information on the number of noise abatement notices
served. It is likely that since you have been able to identify 10
noise abatement notices were served for a total of 160 complaints
made for alarms in the year 2010/2011, that you would equally be
able to identify those served for amplified music. Please provide
the number of noise abatement notices served. The information
provided suggests to me that the information is readily
retrievable.

Question 3
The panel accepted that whilst a judgement is made by officers when
assessing noise abatement, the response could have provided an
explanation of the tools used by officers to determine the level of
noise abatement. The panel concluded that this question be referred
back to the service area to provide an explanation of how noise is
measured and what criteria is used.

In providing your reply you have may have mistakenly omitted some
criteria as in the case of amplified music& speech; loudness could
perhaps be considered to be the first and main criteria.

You are requested to provide all of the criteria used, how such
criteria are measured and how the level of noise abatement is
determined. It may be that you do not hold a de-facto document but
the request was for information held on the criteria applied and
you are asked to provide the held information.

To provide assistance in this matter your attention is drawn to
decisions made to serve a noise abatement notice or breaches
prosecuted. On the balance of probabilities further information is
likely to be held where noise abatement notices have been served in
the Digbeth area.

Question 4
The panel considered the information sought and the service area’s
interpretation in their application of the fees notice. The panel
determined that the service area’s application of the FOIA Fees
Regulations was incorrect. Regulation 8(4) of the EIR allows a
public authority to require advance payment of a reasonable charge
for making environmental information available to recover for
example, the cost of paper, photocopying, printing and postage fee.
The cost of staff time in identifying, locating and retrieving the
information is an irrelevant factor and cannot be included.
Further, the panel concluded the service area should have gone back
and clarified with the requestor about what specific information he
wanted to determine whether the information could have been
provided at a reasonable charge.

I would again draw your attention that the information sought is
environmental in nature and you are respectfully requested to
clarify that it falls within EIR 2004 with the Information
Commissioners office and meet the scope of my request in line with
the regulations and decisions on information covered, costs, and
use of redaction as appropriate.

Case law
Thank you providing information on the Statutory Nuisance book,
however my request was for information held by your authority. I
would be surprised if the book in question made reference to the
use of the relevant court case by Birmingham City council in its
issuing of noise abatement notices, subsequent appeals and
prosecution of breaches. I would be pleased to receive information
on the appropriate court case used for each of the factors used in
cases of a statutory nuisance arising from amplified music &
speech.

Request a review
Your last email suggests that I may appeal your decision. This is
contrary to the guidance from the Information Commissioners Office
since my FOI request has already been appealed and to my mind you
have not addressed all of the points from your own appeal decision.
This may result in a never ending circle of withheld information,
appeals, withheld information, appeals, etc.

Should you require additional information, advice or guidance in
bringing this matter to a successful conclusion, please do contact
me.

Finally, please accept my apologies for the delay in coming back to
you and you are respectfully requested to address all aspects of my
request in the context of your review and these further
representations.

Yours sincerely,
Mr Akhtar

show quoted sections

Dear Mr Croxford,

Thank you for your reply and for attaching the internal guidance which seems to confirm at least one of the criteria (duration) as being 10 minutes and supports the comments made at Digbeth.

Having read your reply several times, taking into account your comments, answers and your own internal review, I remain of the opinion that my request remains unfulfilled and the quality of the information provided appears to be contradictory.

Given that your latest reply took between 5 and 6 weeks, I think further correspondence will only delay the evitable and as there are time limits in which a complaint can be made, it would perhaps be more suitable to raise this with Information Commissionairre.

I find this to be disappointing in the case of Birmingham as I had perhaps mistakenly understood Birmingham Council to be one of the better performing councils with regards to EPA 1990.

Yours faithfully,

Mr Akhtar

Birmingham City Council

Dear Mr Akhtar,

I have attempted to extract and produce the additional matter requested but
am disappointed that we have met your request. Would it be possible to
discuss by phone or meeting? I thought this release exactly what you have
requested and apologise if it is not right. I hope a conversation may prove
more fruitful as we are clearly working at odds to your request.

Yours sincerely,
Mark

Mark Croxford
Head of Environmental Health
0121 303 6350
BCC, PO Box 15908, Birmingham B2 2UD
Sent from Blackberry.

show quoted sections

Dear Mr Croxford,

Thank you for your reply. Please accept my apologies for the delay in coming back to you but I wished to fully consider my response and subsequent actions.

I regret that despite the release of the internal guidance, I still do not deem the authority to have met the scope of the request.

Having considered your offer of a telephone conversation, a meeting or discussion of an invidual case, I comment as follows:

It appears there is some difficulty with meeting my request potentially due to the authorities misunderstanding of the request.

Whilst the manner of my request may be unclear, your own independent review determined what course of action needed to be considered by the authority to fulfill its obligations under the relevant information regime and was crystal clear and easily understood by the 'average person' and to my mind the authority has still not met its own determinations.

In light of this my opinion is that the options offered would not add to your understanding of my request and under the circumstances it would be more appropriate for the Information Commissioner to provide the clarity you need.

Regards

Mr Akhtar

Mark Croxford, Birmingham City Council

Dear Mr Akhtar,

I believe we have released the information we hold as described by
yourself and the review. The review officers work centrally on FOI and do
not know of the Env Health team and work.  I am trying to make sure that
we have met your request as they required esp' in the light of your
comment on "Digbeth" which I don't understand.

With regard to the training, assessments etc I have released and described
what we do, what we hold and the references used.  If you have something
specific in mind, maybe something from another Local Authority, I am
always willing to assist. It is difficult when a generic question comes in
and I don't know what is required.

The offer remains, if you wish to speak to me, I am willing to assist in
clarity or with more information.

Best Regards

Marlk

Mark Croxford
Head of Environmental Health (North)

Tel:0121 303 6350
Fax: 0121 303 6994
Regulatory Services, P O Box 15908, Birmingham, B2 2UD (Sat Nav Postcode
address is B5 5BL Number 27)

Fair Regulation for all - achieving a safe, clean, green and fair trading
city for residents, business and visitors

"If you wish to make a donation to the Lord Mayor's Charity Appeal please
visit
[1]http://www.justgiving.com/lordmayorbirmi...

Mr Akhtar To [email address]
<[FOI #78852 email]> cc
Subject Re: Response to FOI 5770
01/12/2011 14:21

Dear Mr Croxford,
Thank you for your reply. Please accept my apologies for the delay
in coming back to you but I wished to fully consider my response
and subsequent actions.

I regret that despite the release of the internal guidance, I still
do not deem the authority to have met the scope of the request.

Having considered your offer of a telephone conversation, a meeting
or discussion of an invidual case, I comment as follows:

It appears there is some difficulty with meeting my request
potentially due to the authorities misunderstanding of the request.

Whilst the manner of my request may be unclear, your own
independent review determined what course of action needed to be
considered by the authority to fulfill its obligations under the
relevant information regime and was crystal clear and easily
understood by the 'average person' and to my mind the authority has
still not met its own determinations.

In light of this my opinion is that the options offered would not
add to your understanding of my request and under the circumstances
it would be more appropriate for the Information Commissioner to
provide the clarity you need.

Regards
Mr Akhtar

show quoted sections