Turning down the noise: best practice for developers

Mark Lawrence shares advice for best practice for developers when it comes to construction site noise   Key points Restrictions on construction works are often imposed by planning permissions and party wall awards Local authorities are increasingly using their powers under section 60 of the Control of Pollution Act 1974 to impose further conditions on developers Codes of practice issued by local authorities often provide detailed guidance on when they might be prepared to use their powers under section 60 Developers can reduce the risk of receiving a section 60 notice by seeking prior consent for particularly noisy or disruptive works Local authorities usually act following complaints from disgruntled neighbours – so looking after neighbours and keeping appropriate records is important Property development is a good indicator of the health of the economy. The number, size and complexity of construction sites across the country reflect investment in housing, commercial buildings, retail, factories and infrastructure. However, such development is not always welcomed by those living or working in the immediate vicinity of the cranes, diggers and dumper trucks. Control of noise Developers are used to complying with restrictions and guidelines in order to minimise the disruption caused to neighbouring landowners. Planning permissions and party wall awards, for example, commonly prescribe working hours and set other limits relating to work on site. In addition, local authorities appear to be increasingly willing to use their powers under the Control of Pollution Act 1974 (the Act) to further restrict how and when construction works are carried out – particularly when prompted to act by the complaints of disgruntled neighbours. Section 60 of the Act expressly recognises the need to protect neighbours from the effects of construction noise – and to ensure “best practicable means” are employed to minimise such noise. As a result, local authorities can serve notices on developers, imposing potentially wide-ranging constraints on construction works. A notice could, for example, specify: which sort of plant or machinery should or should not be used; hours of operation of that plant or machinery; and the overall level of noise which can emanate from the site. Failure to comply with these requirements can be a criminal offence. Codes of practice A number of local authorities have produced codes of practice, which provide practical guidance on the conduct expected of those undertaking construction works and the circumstances in which it may be advisable for a developer to seek prior consent for works. Importantly, a local authority will have regard to its code of practice when considering whether or not to serve a notice under section 60 of the Act. A code of practice might, for example, set out: acceptable levels of noise on construction sites; acceptable hours of operation for noisy machinery; and other measures that should be taken to minimise noise. Codes of practice are not, in themselves, legally binding on developers. Given their direct relationship with a local authority’s powers under section 60 of the Act, however, they are important and cannot be ignored. Preventative medicine Complying with a section 60 notice will inevitably lead to delays on site and additional costs. It is, therefore, in a developer’s best interests to take reasonable steps to avoid being served with such a notice. Where particularly noisy or disruptive works are envisaged, developers can (and should) seek prior consent from the local authority under section 61 of the Act. Where prior consent is given, it is unlikely that the local authority will later serve a section 60 notice – and if it does, the prior consent is likely to trump the notice. Appeals Given the nature and consequences of a section 60 notice, there is an appeal process. Once a notice is served, a developer has 21 days to appeal – for example, on the basis that the requirements are unreasonable. While an appeal is ongoing, the notice is likely to be suspended and construction works can proceed as planned. Love thy neighbour It is often only when a developer’s neighbour complains that a local authority will examine any alleged non-compliance with its code of practice and consider whether or not to serve a section 60 notice. For a neighbour, complaining to the local authority is a relatively quick and straightforward process. It is certainly less expensive and less risky than threatening the developer with claims for injunctions – and yet the outcome may be similar. As a result, developers should think very carefully about how they look after their neighbours – as well as the local authority – both before and during a construction project. It may seem obvious (perhaps with the benefit of hindsight), but it can pay dividends for a developer to: liaise with neighbours in advance of noisy or disruptive works; and accommodate neighbours’ reasonable requests (for example, regarding the timing of noisy works), wherever possible. The alternative could well be an unexpected and unwelcome section 60 notice, delaying the works and making them more expensive. Records, records, records Most developers will know that the best insurance against costly disputes is to maintain detailed and accurate records of what is happening on site. Developers should, therefore, keep a record of all the practical, positive steps taken to: minimise the level of noise on site; minimise the impact of noisy works on neighbours; and accommodate neighbours’ concerns. Such records may well be decisive when a local authority is considering whether or not a developer has complied with its code of practice – and whether or not to issue a section 60 notice. Finally, it is important to ensure that everyone working on site is aware of any restrictions that have been either imposed or agreed and, more generally, to be mindful of the impact of noisy or disruptive works on neighbours. No amount of goodwill or good intentions will save a developer if these steps are not being put in to practice on site. Mark Lawrence is a senior counsel at Macfarlanes LLP