When is the noise too much to bear?

NUISANCE might seem to be the natural legal territory for the acoustics expert.

The incidence of complaints continues to soar and local authorities are obliged to take intransigent cases to Magistrates’ Courts under the Environmental Pollution Act (EPA).

Their EPA powers are augmented with various others introduced to help them to seize noisy equipment, to address street noise at night and so on.

But in fact noise experts are rarely called in domestic cases. The Legal Services Commission is reluctant to pay for defence experts.

In routine EPA cases the courts are willing and perhaps prefer only to hear witness evidence of fact.

Experts become involved when the financial stakes are higher. A commercial defendant with an asset to protect is in a position to mount a technical defence.

While an industrial noise nuisance case will probably be brought under the EPA, other tracks are open for other facets of nuisance.

Private nuisance actions are much less common than statutory cases but are much more likely to involve experts. The financial stakes are high for both parties in an action and the bar to success is set high by the judiciary.

For example, the conflict between property developers and their neighbours can be intense.

During construction booms in the City of London and elsewhere over the past 30 years the use of injunctions to remedy such conflict has been explored tentatively, perhaps because of the height of the bar and the potential costs involved.

The insurer Hiscox obtained an injunction against the developer of The Pinnacle in the City of London in January 2008 limiting vibration from the adjacent site that had caused considerable concern and distress to its staff. The court was very reluctant to grant it and the demands on experts (including, for Hiscox, this writer) and legal teams on both sides through two hearings were considerable.

The entertainments sector is subject to a relatively new licensing regime (The Licensing Act 2003) and actions for breach of conditions such as noise limits imposed on openair events will be heard as licensing matters. Of course, acoustics specialists will be called to assist on both sides in licence application and appeal hearings, as well as when things go wrong.

Vanguardia is a well-known specialists in that field.

While acoustics is a court matter surprisingly often, the majority of the work involving acousticians as expert witnesses is not judicial.

Most major development and certainly any that involves material changes to transport systems or to traffic flows will be judged on noise grounds, among others. All new road, rail or airport schemes will be supported and opposed by parties retaining noise experts.

It is equally likely that noise will feature in the environmental assessment of any major retail, distribution, energy, industrial or ‘destination’ development, such as a sports facility or entertainment venue. Expertly witnessing at planning inquiries is a source of considerable job satisfaction for many acoustics consultants.

Acoustics also lies at the heart of the noise-at-work regulations and an acoustics specialist will usually be called, perhaps alongside an audiologist, to assist in any claim against an employer for breach of the law protecting workers from harm. The two specialisms are associated but crucially different. The audiologist is a clinician concerned with the physiological effect of noise on a subject; the acoustician’s role is to determine what their exposure to it might have been.

Along with specialists from across the huge spectrum of disciplines called upon to help in judicial and quasi-judicial processes, acousticians are under pressure from those who would professionalise expertly witnessing. That pressure is profoundly misplaced.

The primary responsibility of an expert witness is to be expert in their subject.

Knowing about court procedure is important, of course – especially when a failure to comply with the Civil Procedure Rules can lose a case.

Understanding their duties and responsibilities to the court, tribunal or inquiry is a crucial part of the expert’s duty to their client; but that knowledge is essentially superficial. Justice would not be served if knowledge of the CPR, for example, was to become more important in the choice of an expert witness than their knowledge of their own subject.

Instructing solicitors have a duty to assist their witnesses.

It is what the witness knows that they don’t know that matters!

Vanguardia Consulting, South Bank Technopark, 90 London Road, London SE1 6LN; tel 020 7922 8861; mob 07885 348702; or visit www.vanguardiaconsulting.co.uk.