Information regarding statutory nuisance

The request was partially successful.

Dear Lambeth Borough 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

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.

I understand that originally Lambeth Council served a noise abatement notice on All Saints Church and the legal representative for the council is quoted as saying "the council is duty bound to serve a noise abatement notice on first witness. Please could you provide the relevant sections from the guidance, legislation or court case used as the basis of this comment which led to the notice being served. It is appreciated that in this instance the notice was rescinded but not I understand on the basis that the original notice was defective.

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

FoI, Lambeth Borough Council

FOI Acknowledgement

Thank you for your FOI Request reference 146866.

Please quote this reference in any further correspondence pertaining to
this request. The Council anticipates responding within the statutory
period of 20 working days following the date of receipt; in this case the
due date is 02/08/11.

Please note that our preferred email address to receive Freedom of
Information requests is [1][Lambeth Borough Council request email]

Thank you for your interest in Lambeth Council.

Tracy Phillips

Information Compliance Advisor

Governance & Democracy (F&R Dept)

Phone - 0207 926 7717

Mobile - 07908 839 933

Email - [email address]

Address - Room 205, Lambeth Town Hall, Brixton Hill, SW1 1RW

Email - Information Requests / Coordinated Draft Responses to
[email address]

"This email (and/or attachment) may contain information that is legally
privileged. If you have received this in error please notify the sender
immediately"

Making a Difference

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Lewars,Ralph, Lambeth Borough Council

2 Attachments

Dear Mr Akhtar,

Further to your FOI request, please see attached Excel spreadsheet showing
complaints and actions for 2010. Regrettably, we are unable to match the
actions taken with specific complaint types.

When considering statutory nuisance Environmental Health Officers will
have regard to legal precedence built up over many years and professional
best practice. This will include, on a case by case basis:

Level of noise and its frequency characteristics

Acoustic properties

Time of day

Duration of noise

Frequency of occurrence

Distance between complainant and source

Character of the neighbourhood

Surrounding noise climate

Impact on residents

Relationship & motive of both complainant and source

Sensitivity of the complainant

Type of premises involved

Prevailing legislation

Exemptions under legislation or any statutory defence

Whether activities are authorized eg planning permission or licenses in
place

Test of `average reasonable person'

Court rulings

The principle legislation governing statutory nuisance is the
Environmental Protection Act 1990, sections 79 and 80.

I have also attached a copy of our enforcement policy for your
information.

I am unable to provide a copy of the notice served on ANC church but
confirm that a notice was served.

Please let me know if you require further explanation or information and I
will do my best to respond accordingly.

Should you have a complaint about the way your request for information
under the Freedom of Information Act has been dealt with, please contact
the Corporate Complaints Unit, Lambeth Town Hall, SW2 1RW or e-mail
[1][email address]

If you remain dissatisfied with the outcome of your complaint you may
contact the Information Commissioner, who can be reached at:

Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Tel: 01625 545 700

Fax: 01625 545 510

Further information on the Freedom of Information Act can be found on the
Information Commissioner's website www.informationcommissioner.gov.uk

Regards

Ralph Lewars

Noise & Pollution Manager

Environmental Services & Highways

[email address]

www.lambeth.gov.uk

185-205 Shakespeare Road

London SE24 0PZ

Switchboard: 0207 926 6111

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Dear Ralph Lewars,

Thank you for your reply to my request. I do not consider my request to have been met by your reply and would ask you to have a look at my request in its entirety again and provide all of the information requested.

You have refused to provide a copy of the noise abatement notice but have failed to provide the relevant part of the FOI or EIR used for the refusal. Redaction may be used if appropriate although details are in the public domain and have been mentioned in the courts.

You were asked to provide detailed information on the factors used and the application of those factors but have failed to provide these.

The council touches on court cases but has failed to provide details for the court cases including the ones used by your legal officer in the courts in the case of ASC.

Whilst this does not consitute a formal complaint you are requested to review my request and your reply in the context of FOI Act, EIR, Durant case, Decision notices and guidance issued by the ICO, court cases, EC legilsaltion and EC court cases. If you deem it to be more appropriate for this to dealt with under your complaints procedure, then please do so.

I look forward to receiving the missing information.

Yours sincerely,

Mr Akhtar

Dear Mr Lewars,

In the absence of a reply to my previous response to your email, this is a formal complaint made under your
complaints policy regarding the handling of my my request for information made under the FOI Act and EIR.

I do not consider my original request to have been met by your reply and the failure by the council to acknowledge and informal request to meet the scope of my request.

For example:

You have refused to provide a copy of the noise abatement notice but have failed to provide the relevant part of the FOI or EIR used for the refusal. Redaction may be used if appropriate although
details are in the public domain and have been mentioned in the courts.

You were asked to provide detailed information on the factors used and the application of those factors but have failed to provide these.

The council touches on court cases but has failed to provide details for the court cases including the ones used by your legal officer in the courts in the case of ASC.

You are requested to review my request and your reply in the context of FOI Act, EIR, Durant case, Decision notices and guidance issued by the ICO, court cases, EC legilsaltion and EC court cases.

I look forward to receiving all of the the missing information.

Yours sincerely,

Mr Akhtar

Lewars,Ralph, Lambeth Borough Council

Dear Mr Akhtar,

We are still searching our archive records for the information you
requested and will attempt to provide it as soon as possible.

For your information we have recently relocated to a new office which
has contributed to the delay in responding.

Regards

Ralph Lewars
Manager Noise & Pollution
Environmental Services & Highways
London Borough of Lambeth

Service Team House
185-205 Shakespeare Road
London SE24 0PZ
www.lambeth.gov.uk
Switchboard 0207 926 6111

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Dear Mr Lewars,

Thank you for your reply. I am not unsymphathetic to the issues of moving offices and the resulting problems that may arise.

I am happy to extend the further period to Friday 2nd August 2011 for you to provide the missing information.

Yours sincerely,

Mr Akhtar

Lewars,Ralph, Lambeth Borough Council

Dear Mr Akhtar,

To help us locate the correct information regarding the Abatement Notice,
can you confirm the full name and address, if possible, of the church in
question?

Is the church.....All Saints Church or All Nations Church?

Regards

Ralph Lewars

Noise & Pollution Manager

Environmental Services & Highways

[email address]

www.lambeth.gov.uk

185-205 Shakespeare Road

London SE24 0PZ

Switchboard: 0207 926 6111

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Dear Mr Lewars,

Further to your request for clarification I am able to confirm the church in question was Immanuel International Christian Centre and the details can be found here:

http://www.guardian-series.co.uk/news/wf...

Please do contact me should you need any additional information or clarification.

Yours sincerely,

Mr Akhtar

Lewars,Ralph, Lambeth Borough Council

Dear Mr Akhtar,

Thank you for confirming the church details.

I note that the church (Immanuel International Christian Centre) in
located in the London Borough of Waltham Forrest and not in Lambeth.
Therefore, we would not have served the Abatement Notice nor have a copy
of it.

Please contact the London Borough of Waltham Forrest for a copy of their
Abatement Notice.

If there is any other information you require from Lambeth/me please do
let me know and I will do my best to provide it.

Regards

Ralph Lewars

Noise & Pollution Manager

Environmental Services & Highways

[email address]

www.lambeth.gov.uk

185-205 Shakespeare Road

London SE24 0PZ

Switchboard: 0207 926 6111

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Dear Mr Lewars,

Apologies for having got that wrong. It was the Immanuel Centre that was of interest.

Thank you for the information provided; I will consider the request to have been completed if you are able to provide the information on the the levels of the criteria used.

Yours sincerely,

Mr Akhtar

Lewars,Ralph, Lambeth Borough Council

No problem.

Can you clarify what you mean by 'levels of the criteria'?

Regards

Ralph Lewars
Noise & Pollution Manager
Environmental Services & Highways
[email address]
www.lambeth.gov.uk

185-205 Shakespeare Road
London SE24 0PZ
Switchboard: 0207 926 6111

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Dear Mr Lewars,

In your original response you have cited the following as the basis of determining a statutory nuisance:

Level of noise and its frequency characteristics - How do you judge the loudness and how loud does the noise have to be for this criteria to have been met?

Acoustic properties - how is this is assessed

Time of day - is there a time of day when a statutory nuisance cannot occur?

Duration of noise - how long does a noise have to go on for before this criteria is consider to have been met?

Frequency of occurrence - how often does something have to occur before this aspect has been met?

Distance between complainant and source - is there a croteria for distance and what is this?

Character of the neighbourhood - no explanation needed

Surrounding noise climate - please explain and provide levels of assessment

Impact on residents - in the case of amplified music the impact can only be disturbance irrespective of whether there are different effects ie sleep deprivation or unable to watch tv.

Relationship & motive of both complainant and source - How is this assessed?

Sensitivity of the complainant - How is sensitivty measured?

Type of premises involved - no response needed

Prevailing legislation - please provide relevant legislation

Exemptions under legislation or any statutory defence - best defence for commercial - no explanation needed

Whether activities are authorized eg planning permission or licenses in place - irrelevant consideration in light of Douglas v Cambridge Council

Test of `average reasonable person' - how is this assessed?

Court rulings - what court rulings are used?

I appreciate that my request only provides for recorded information and not the creation of new information but I hope that somewhere you would recorded information on the crieria and application of same.

Yours sincerely,

Mr Akhtar

Lewars,Ralph, Lambeth Borough Council

Please see below in RED....

Regards

Ralph Lewars

Noise & Pollution Manager

Environmental Services & Highways

[email address]

www.lambeth.gov.uk

185-205 Shakespeare Road

London SE24 0PZ

Switchboard: 0207 926 6111

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Dear Mr Lewars,

Apologies for this. Sorry there appears to be some bits missing from your last email.

Yours sincerely,

Mr Akhtar

Lewars,Ralph, Lambeth Borough Council

[Subject only] RE: Internal review of Freedom of Information request - Information regarding statutory nuisance

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Dear Mr Lewars,

Please pass this request to the appropriate person or department for a formal review of my request for information made under the Freedom of Information Act and Environmental Information Regulations. I do not consider the response to have met the scope of my request.

In line with the guidance from the Information Commissioners Office you are requested to carry out an internal review and meet the full scope of my request within the guidelines issued by the ICO.

Yours sincerely,

Mr Akhtar

Complaints, Lambeth Borough Council

11 Attachments

  • Attachment

    UNIform NOISE Complaints Actions by TYPE of complaint 2010.xls

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  • Attachment

    Enforcement Policy Regulatory Code of Practice updated 6 1 09.pdf

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  • Attachment

    attachment.txt

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  • Attachment

    RE Internal review of Freedom of Information request Information regarding statutory nuisance.txt

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    RE Internal review of Freedom of Information request Information regarding statutory nuisance.txt

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  • Attachment

    RE Internal review of Freedom of Information request Information regarding statutory nuisance.txt

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  • Attachment

    RE Internal review of Freedom of Information request Information regarding statutory nuisance.txt

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  • Attachment

    RE Internal review of Freedom of Information request Information regarding statutory nuisance.txt

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  • Attachment

    RE Internal review of Freedom of Information request Information regarding statutory nuisance.txt

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  • Attachment

    RE FOI REFERRAL ref 146866 Information regarding statutory nuisance DUE DATE 29 7 11.txt

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  • Attachment

    FW FOI REFERRAL ref 146866 Information regarding statutory nuisance DUE DATE 29 7 11.txt

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Dear Mr Akhtar

Acknowledgement - Freedom of Information - 146866

Thank you for your email requesting an Internal Review of the resoponse
to your Freedom of Information request.

I appreciate that you do not consider the response to your Freedom of
Information request to have met the scope of your request. To enable a
review to be undertaken, please specify which element of the responses,
which were provided by the Environment Department, you are dissatisfied
with.

Your request has been escalated to Ian Goodwin, Information Governance
Manager. The council anticipates responding to your review within 20
working days, following receipt of your email detailing the elements of
the responses you remain dissatisfied with.

Please forward your response to: [email address] to avoid any delays
in processing your review.

Yours sincerely

Deborah Ellis
Corporate Complaints Officer
Corporate Complaints Unit
Finance and Resources
London Borough of Lambeth
Tel: 020 7926 0348
Email: [email address]
Website: www.lambeth.gov.uk

Room 210
Lambeth Town Hall
London, SW2 1RW

Making a Difference

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Dear Complaints,

Thank you for your email of 18th August 2011 requesting clarification of my views on outstanding information.

Your client department forwarded 2 emails dated 16th August 2011 and 17th August 2011 respectively, the contents of which were not received so I am unable to confirm whether any additional information was actually provided within those emails.

The emails may be viewed at the following link:

http://www.whatdotheyknow.com/request/in...

Before I respond more fully to your request, please can you forward those emails to me so that I am able to take those into account and reply fully.

Yours sincerely,

Mr Akhtar

Dear Complaints,

Further to my email of 18th August 2011, I have yet to receive a reply.

In the absence of any communication from you, please carry out a formal review of my complaint based on my original request and the information provided by your client department.

My complaint should be handled in line with the guidance provided by the Information Commissioners Office and take into account the applicable legislation, decisions in the courts and decision notices issued by the Information Commissioners Office.

Yours sincerely,

Mr Akhtar

Phillips,Tracy, Lambeth Borough Council

1 Attachment

Dear Mr Akhtar,

 

Please find attached the Council’s Internal Review response.

 

Best wishes,

 

Tracy Phillips

Information Compliance Advisor (Solicitor)

Governance & Democracy

 

Phone -  0207 926 7717

Mobile - 07908 839 933

Email -  [1][email address]

Address - Room 205, Lambeth Town Hall, Brixton Hill, SW2 1RW

 

Email - Information Requests / Draft Responses to       
[2][email address]

 

"This email (and/or attachment) may contain information that is legally
privileged.  If you have received this in error please notify the sender
immediately"

 

Making a Difference

 

Disclaimers apply for full details see
http://www.lambeth.gov.uk/EmailDisclaime...

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Dear Tracy,

Thank for carrying out the review and providing the missing information.

This is a formal request for Lambeth Council to retain all of my original emails together with all of the councils replies as I intend to make a formal complaint to the Information Commissioners Office.

The basis of my complaint will be that some aspects of my request remain outstanding and the council have failed to follow the required procedures.

The guidance from the Information Commissioners Office can be found here:

http://www.ico.gov.uk/upload/documents/l...

I am mindful that in the current time of austerity much time will be taken up by all parties including the ICO should a complaint be made. I am also guided by the fact that you have carried out a review as you are required to do and as such the council is not obliged to act further unless it wishes to do so in the interest of any party including its own interests.

My request is that should a number of points be raised, would the council consider answering those in the spirit of the FOI & EIR?

Yours sincerely,

Mr Akhtar

Phillips,Tracy, Lambeth Borough Council

Dear Mr Akhtar.

 

Thank you for your email below.

 

From our internal review response ‘extracts below’ I cannot see what
information remains outstanding, you stated if the levels of criteria were
provided your request would be considered completed, the levels of
criteria were provided to you on the 16 Aug 2011:

 

On 16 August you sent the follow email:

 

“Dear Mr Lewars,

 

Apologies for having got that wrong. It was the Immanuel Centre that was
of interest.

    

Thank you for the information provided; I will consider the request to
have been completed if you are able to provide the information on the the
levels of the criteria used.”

 

 

 

On 16 August our Council’s Noise and Pollution Manager responded as
follows:

 

Please see below in RED....

 

Level of noise and its frequency characteristics - How do you judge the
loudness and how loud does the noise have to be for this criteria to have
been met? We normally assess the noise subjectively and draw conclusions
on what impact the noise would have on the average reasonable person. Eg
would it wake them up or prevent them from going to sleep.

 

Acoustic properties - how is this is assessed. This relates to acoustic
sound waves/frequency. Ie high pitched sound or low freq bass. Assessed
subjectively by listening and feeling any vibrations etc.

    

Time of day - is there a time of day when a statutory nuisance cannot
occur? No. nuisance can occur at any time…day or night.

 

Duration of noise - how long does a noise have to go on for before this
criteria is consider to have been met? It depends. Short durations may not
necessarily cause unreasonable interference. It would have to be assessed.

    

Frequency of occurrence - how often does something have to occur before
this aspect has been met? Same as above. It depends.  A view will have to
be reached in light of all the criteria.

    

Distance between complainant and source - is there a criteria for distance
and what is this? No set prescribed distance. But the bigger the distance
between complainant and source, the more likely the noise will diminish,
depending on loudness and frequency.

    

Character of the neighbourhood - no explanation needed

    

Surrounding noise climate - please explain and provide levels of
Assessment. This could include other noise source influences eg trains,
main roads, aeroplanes etc. Or it could include quiet areas.

 

Impact on residents - in the case of amplified music the impact can only
be disturbance irrespective of whether there are different effects ie
sleep deprivation or unable to watch tv.

    

Relationship & motive of both complainant and source - How is this
assessed? By questioning and interviewing parties, witnesses etc.

    

Sensitivity of the complainant - How is sensitivty measured? By
interviewing complainant to see if they are particularly sensitive to
noise, over and above the average reasonable person.

    

Type of premises involved - no response needed

    

Prevailing legislation - please provide relevant legislation. This would
normally include primary legislation eg Environmental Protection Act 1990
and any amendments from other enactments which may follow.

    

Exemptions under legislation or any statutory defence – best defence for
commercial - no explanation needed

    

Whether activities are authorized eg planning permission or licenses in
place - irrelevant consideration in light of Douglas v Cambridge Council

    

Test of `average reasonable person' - how is this assessed? By considering
all of the above in relation to the complaint and the reaction to the
noise in question.

    

Court rulings - what court rulings are used? There are too many to cite,
but as an example, Camden v Baxter, Southwark v Mills, or Lambeth v Vella.

 

 

Please clarify what information you believe remains outstanding.

 

Best wishes,

 

 

Tracy Phillips

Information Compliance Advisor (Solicitor)

Governance & Democracy

 

Phone -  0207 926 7717

Mobile - 07908 839 933

Email -  [email address]

Address - Room 205, Lambeth Town Hall, Brixton Hill, SW2 1RW

 

Email - Information Requests / Draft Responses to       
[email address]

 

"This email (and/or attachment) may contain information that is legally
privileged.  If you have received this in error please notify the sender
immediately"

 

Making a Difference

 

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Dear Tracy Phillips,

Apologies for the delay in coming back to you. Whilst you have not made clear whether you would provide additional information, It is good of the authority to consider this after the appeal.

My original request made under the FOI & EIR sought information and an understanding of the factors used and the application of those factors in determining a statutory nuisance arising from amplified music and speech.

Whilst a list of the factors used has been provided no information has been provided on how each factor is assessed and the levels that need to be exceeded.

It is my opinion that where an investigation from a complainant has been made, an investigation would normally be undertaken and an assessment made on balance of probability as to whether a statutory nuisance exists. Further investigation including the use of witness visits and/or monitoring equipment is also probably carried out.

In the reaching of a decision of whether a statutory nuisance exists, one factor used - loudness may for example be determined by switching a TV on in a neighbouring property.

Two of the factors mentioned give rise to concern and I would be grateful if you could confirm the accuracy of these aspects:

License - I understand that having a license (for example entertainment license) does not provide a means for the creation of a nuisance.

Time of day - This was concerning since the authority has itself issued a noise abatement notice for daytime activities ie in the case of All Nations Church for amplified music and speech (sermon).

If in the case of time of day clearly this cannot be a factor since the authority itself has decided and issued an abatement notice for an activity that took place through the day.

It can be seen from the above that when an investigation has taken place and/or a noise abatement notice has been served, information is clearly held as to what factors where used and what were deemed to have been exceeded for any conclusion to have been reached in anoise complaint.

This is further illustrated in cases where a noise abatement notice has been appealed. The authrity in defending the decision would clearly have had to present a case based on what factors were taken into account and how those were exceeded.

My request also required a response on the court cases used in support of the factors and your reply

'Court rulings - what court rulings are used? There are too many to cite, but as an example, Camden v Baxter, Southwark v Mills, or Lambeth v Vella.'

does not fully provide the information requested.

Yours sincerely,

Mr Akhtar