In a recent noise enforcement forum questions were raised over the use of unqualified and inexperienced personnel to investigate and make determinations of statutory nuisance on behalf of local authorities. In particular, concerns centred around the possibility of legal challenges on appeal of a notice or during criminal proceedings. This article provides some discussion on some of the issues involved (By the Noise Nuisance Association).
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INTRODUCTION
Over the past few decades there was an increase in noise officers in enforcement roles; this was largely due to the increase in the profile of noise as a social problem and increase in noise complaints to local authorities. The early adoption of the Noise Act by some authorities (which, at the time, required the provision of a 24 hour response service) brought about further increases in staffing at that time. However, in recent years, services have started to reduce staff numbers as a response to public spending cuts. This could, perhaps, involve reducing salaries by eliminating the need for professionally qualified or highly skilled personell.
It is not uncommon for local authorities to use officers without professional status to assess routine neighbour noise issues; the situation in some local authorities has become the norm and is well established. Often they will investigate cases alongside, or under the supervision of, an Environmental Health Officer. In other cases they may have a lesser or greater degree of autonomy over enforcment activity.
Schemes of delegation are maintained under the Local Government Act and are usually administered at Director or Service Manager level and specific functions, such as the service of abatement notices under the Environmental Protection Act 1990, are delegated down at officer level. They allow a local authority to authorise any officer to enforce the provisions of the Environmental Protection Act 1990, regardless of qualification or experience.
QUALIFICATIONS
EHORB registration is the recognised professional qualification for environmental health officers. Those awarded EHORB registration today will have successfully passed a degree (commonly a 3 year undergraduate or 2 year postgraduate programme) in environmental health, undertaken a minimum period of practical training (usually a year) and passed a professional interview and examination.
Apart from the more specific courses that relate to the study of acoustics there are few other options open to potential enforcers wishing to ‘qualify’. The post-graduate diploma (or masters degree) in acoustics would, undoubtedly, indicate higher level of understanding of the field of acoustics. However, along with the shorter undergraduate courses, such as the 2 day or week long environmental noise control programmes (which provide some basic tutition in sound and acoustic measurement) they may not provide sufficient understanding and working knowledge of regulatory environment and enforcement regimes. The availability of suitable programmes of formal study below degree level are therefore limited.
EXPERTISE
When it comes to the provision of evidence in court, whether a witness is qualified to give expert evidence is a matter for the court to decide upon and that ‘qualification’ may stem from formal study, qualification, experience or both (R v Robb [1991] 93 Cr App R 161). The expertise of environmental health officers is recognised by the courts. ‘Expertise’ in this context depends upon some form of technical or special knowledge enabling that person to give opinions in their area of expertise. It follows that the situation relating to unqualified officers may be more difficult to establish where it is through experience alone.
Where the opinion of an expert is not disputed the court will not substitute their own view. However, this is not to say that their opinion may not be challenged or be accepted by the court. With cases involving nuisance the court will expect opinions to be accompanied by a sufficient amount of factual evidence. It is then for the court to to decide on the whole of the evidence put before them to determine whether an offence has been made out. Even highly qualified officers may therefore encounter difficulties.
In the case of Rottenberg v Hackney [2007] EWHC 166 (Admin) the submisson of the Council was that the court was not entitled to reject the opinion of the Environmental Health Officers. Applying a previous authority the court held that they were not bound by the opinion of the witness (see R v Stockwell [1993] 97 Cr App R 260). Furthermore, to be accepted as expert evidence it was asserted that the officer must be in a position to provide assistance that the court would otherwise lack. In Rottenberg v Hackney the evidence provided by the professionals was, in effect, limited to factual evidence of their own observations.
Does this mean that the status of the ‘skilled officer’ no better than the ‘unskilled’ one (or, indeed, the layman) in noise cases? The answer must be “no”. They may still be regarded as an expert (or ‘skilled witness’) but, in order for their evidence to be appreciated as ‘expert evidence’, there is a need to qualify evidence by providing information that the court is unable to gleen by itself. This will usually involve some form of analysis, survey, interpretation of facts or information. Such evidence might, for example, be based on any or combination of the following:
- Information given relating to the nature of the character of the area
- The status and history of any structural development in the area
- Knowledge of the building and any acoustic factors relating to that specific case
- Any acoustic measurements made and their interpretation
- Their opinion on the adequacy of any means employed to minimise nuisance
One of the difficulties of assessing nuisance by ‘unqualified’ officers is that the opinions of those not regarded as ‘experts’ should be disregarded in court. They are limited to providing factual evidence of their observations alone. However, as one of the key tenants of nuisance legislation relates to the formation of an ‘opinion’ by the local authority decisions on enforcement may be being made by personel who may not be regarded themselves as having the necessary skills (or ‘expertise’) to perform this task.
COMPETENCE
Whilst the authority may authorise whomever they wish to undertake noise investigations the question for the local authority must be whether they are able to satisfy themselves that the officer carrying out this task (whether they be EHORB registered or not) is (a) qualified to make enforcement decisions; and (b) competent to make those decisions. Whilst professional qualifcations may demonstrate a high level of competence at the time of the award is issued this competence can fade over time. Furthermore, new legislation is regularly introduced and case law is constantly evolving. The issue of competence in regulatory compliance has therefore been addressed recently through the Local Better Regulation Office through the Regulators Developmental Needs Anaylsis tool. The tool provides a basis to identify and prioritise developmental needs for all enforcement personell. Whilst RDNA may have not yet be applied to noise enforcement roles it serves as an example of internal control necessary to manage competence; and a similar approach may be adopted by authorities. It may also form part of the Authority’s wider quality procedures that might also involve monitoring and scrutiny of enforcement activity and officer caseloads.
CONCLUSION
As explained, there is a lot more to the authorisation of noise enforcement officers than certificates, training and box ticking. Consideration of the extent of responsibility afforded to officers, the qualifications they must posess and their ongoing competence must be considered within the individual authority’s quality framework; and, in that sense, it’s just as much about the management competence of the Authority itself.
