In the United Kingdom, before the introduction of the various town and country planning acts and associated regulations, landowners were free to use their land in any way they wished, subject only to limitations imposed by lease or covenant and the avoidance of nuisance or trespass against neighbours. Any disputes arising would be resolved by negotiation or via a court of law. Under current planning laws and regulations, local authorities are empowered to impose special conditions or even to refuse development to prevent excessive nuisance, but the resulting noise management solutions are not always optimum from either the noise maker's or the noise exposed's points of view. In addition, the planning system has almost no effect on existing noise.
Public inquiries provide a useful mechanism for the investigation of appeals against local authority decisions, or where the government has decided that issues of strategic or national importance need to be fully explored in a public forum. In practice, and largely because of individual disagreement, public inquiries can result in excessive delays while all interested parties are allowed to have their say. There seems to be an increasing consensus that the general inadequacy of existing methods of assessing noise impact is at least partly to blame.
The new European Environmental Noise Directive represents a step change towards the imposition of one-size-fits-all regulatory or administrative procedures which should eventually contribute towards the reduction of public inquiry delays, but on the other hand, any weakening of the general principle of basing decisions on 'informed flexibility' will probably have significant negative consequences over the longer term.
Keywords: Noise control, public inquiry, planning laws, environmental noise
|How to cite this article:|
Flindell I H. Do public inquiries for noise control serve a useful purpose?--An acoustic consultant's view. Noise Health 2003;5:31-8
| Introduction|| |
Public inquiries are an essential component of the current planning system in the UK. The planning system has evolved over the past 150 years to regulate or manage the development of land while, at first, promoting public health and more recently, by promoting amenity values and by avoiding conflicting land uses as far as possible. Under the current planning system the two main mechanisms for avoiding excessive nuisance caused by noise associated with new development are a) the separation of incompatible land uses and b), noise management through the imposition of appropriate planning conditions. Local planning authorities are responsible for determining planning applications for proposed development in their own areas, with the possibility of large scale applications of national or strategic importance being 'called in' for an eventual decision by the Secretary of State.
Local planning authorities are required to apply set procedures laid down by Acts of Parliament and associated statutory instruments and in addition, by following non-statutory guidance set out in various guidance notes. The main responsibility for planning decisions rests with democratically elected councillors serving on designated planning committees, but these committees are in turn permitted to delegate responsibilities for routine applications to planning officers employed by each authority. There is a very large volume of relevant case law arising where disappointed or aggrieved applicants or objectors attempt to obtain redress through the courts against any decisions made (Moore, 2000).
Mainly because there is a finite limit to the amount of land available for development (particularly in the UK), most planning decisions represent some form of compromise between a range of conflicting interests. If noise conditions are too onerous, then developer's costs could be pushed up above the limits of economic feasibility, while insufficient attention to noise control could be equally problematical for nearby residents. Local public inquiries can be held to consider appeals against decisions by local planning authorities and the Secretary of State will normally order a full scale public inquiry in the case of all applications 'called in' for central decision making. Public inquiries can be considered as a less formal alternative to litigation through courts of law, although the huge volume of planning case law suggests that public inquiries are not always completely effective as a true alternative.
It is important to understand that before the current planning system was introduced, landowners were free to develop land in any way they wished, subject only to the threat of possible legal action for non-compliance with restrictive leases or covenants, etc. or for nuisance, trespass, etc. It is unlikely that actions would ever be brought by any persons not directly affected by the development. In theory, developers of major infrastructure projects such as canals or railway lines could have separately negotiated with each landowner en route, but instead, developers almost invariably sought separate Acts of Parliament to acquire the land required for the development by force of law. Amenity issues could be and were raised in parliamentary committees, but there was no consistency in the way that this was done and competing commercial interests often opposed each other's Acts to attempt to preserve monopolies by avoiding duplication of routes.
| Why do conflicts of opinion occur?|| |
Noise management rarely comes free. Mostly there are additional costs or inconvenience to the developer which must then be recouped from somewhere, even if it is only a reduction in anticipated profits or commercial viability. Any developer which voluntarily embraces high standards of environmental management may thereby earn 'brownie' points with the public in general and with environmentalists in particular, but may also lose commercial advantage to competitors who are less interested in environmental management.
The noise exposed often have high expectations of noise control and why not? While there are a number of arguments both for and against whether it is necessary or even desirable to protect people from building houses or other noise-sensitive development in areas with existing high levels of community and environmental noise (see PPG 24, Planning and Noise, Dept. of Env. 1994), there seems to be a general consensus that existing residents should not be exposed to additional noise over which they have no control unless there is some strong or over-riding national interest being served.
For example, the current debate over new airport capacity in the South East of England to cater for continually increasing demand will necessarily introduce new aircraft noise over existing residential areas (Carr-Brown, 2002). Noise management is often a matter of balancing how much money to spend on noise control or how much inconvenience to expect against noise nuisance or loss or amenity. In the case of new airport capacity, this involves balancing ease of access from nearby centres of population against overall noise impact on those same populations.
In this context, it is important to note that the planning system can only be applied to new development. Within the current planning system it is rarely possible to do anything at all about existing noise. This should not be considered to be a defect of the planning system per se, since it would generally be considered unreasonable to revoke planning permission after development had already taken place and considerable sums of money spent. For example, the continued existence of Heathrow Airport in close proximity to heavily populated parts of West London was not a material issue at the recent Heathrow Terminal 5 public inquiry, although not all objectors would have agreed with this position (Vandermeer, 2001).
| Benefits of the public inquiry system|| |
The main benefit of the public inquiry system is that all available evidence can be considered in a public forum to inform rational decision making, with the basis of any decision made plain to all. All proceedings can be recorded and are then available for subsequent review. Inspectors at public inquiries are (or should be) completely independent and impartial and will often go out of their way to make sure that all parties with something to contribute can be heard. In theory at least, it should not be too difficult for all interested parties to contribute to the proceedings. All witnesses presenting evidence can be cross-examined and all parties can be made to feel that they have been given a proper opportunity to have their say. And in principle at least, participants costs can be much lower than if cases were heard in civil courts because the rules regarding procedures and the admissibility of evidence can be much more flexible.
| Problems with the public inquiry system|| |
At first sight, it is easy to assume that the main problem with the public inquiry system is the 'adversarial system' which seems to have transferred over from courts of law. The adversarial system involves counsel or other qualified advocates taking turns to guide witnesses through their evidence and then to cross-examine witnesses for the opposing side. The adversarial system can be confrontational and can take a long time to resolve issues because the whole procedure is both verbal and serial, everyone has to wait their turn to speak. The adversarial system has evolved over many hundreds of years and probably helps rather than hinders the establishment of facts when these are in dispute. The extent to which the adversarial system can help to resolve differences of opinion is much less clear. Noise issues often involve matters of both fact and opinion.
In addition, noise issues can become technically very complex and may have to be simplified so that non-experts can grasp the key elements. What is a key element and what is not can be a matter of opinion, even where the facts are not in dispute, and it is arguable to what extent the adversarial system really helps to resolve such matters. There may be opportunities for parties to exaggerate issues either intentionally as a preliminary bargaining position, or unintentionally through genuine misunderstanding. If one party feels that the other side has exaggerated something, then they might feel under some pressure to do the same (in the other direction of course). However, where an issue is simply a difference of opinion, then opposing personal opinions can be equally valid, depending on an individual's point of view. It can sometimes be almost impossible for a generalist public inquiry inspector to get to the bottom of such issues where personal opinions can masquerade as facts and this can easily lead to general obfuscation and delay. Sometimes (and regrettably), delay is even used as a tactic.
The recent Heathrow Airport Terminal 5 public inquiry is the most extreme example of the amount of time required for a comprehensive examination of a major development proposal in a public inquiry format where all issues are considered separately and serially in a logical sequence. The T5 inquiry sat for 524 days. There were over 750 witnesses, 5,400 inquiry documents and 25,000 written representations and the overall decision process took around ten years from the date of the original planning application up until the Secretary of State's decision letter, which, incidentally, left a number of minor issues still unresolved. Of course, there were many other issues discussed additional to noise, but noise was certainly one of the key issues of interest to the general public and the media. It is interesting to note that during the course of the inquiry the passenger throughput of the existing four terminal airport increased to beyond what had been proposed as the ultimate capacity of the four terminal airport (i.e. if permission for Terminal 5 were to be refused) in 2016. For noise, and to reflect this uncertainty, the eventual planning permission imposed conditions limiting not only the area of defined aircraft noise exposure contours, but also the maximum permissible number of air traffic movements.
It is impossible to go back in time and determine what might have happened under any alternative procedure, but at least in theory, the new Terminal could have been completed and fully operational for some time by now. The estimated overall cost of the inquiry of around £100,000,000 could have been spent on environmental mitigation instead. It is understood that the government is actively considering more streamlined alternatives to deal with major applications of this kind in the future.
| Divisions of responsibilities in local authorities|| |
With regard to the best way to deal with noise issues within local planning authorities, there is some evidence of a structural problem within standard local authority organisational structures. Local authority planning officers are mainly concerned with conservation and amenity issues, and rarely have any specialist expertise in noise. The elected planning committees, while they are likely to know their areas very well, are not required to have any special expertise or qualifications in either planning or environmental protection. For specific advice on noise matters, local authority planning departments generally call on specialist expertise from the environmental health departments. Environmental Health Officers, of course, are mainly concerned with public health issues and the great bulk of environmental health legislation has exactly the same focus. Amenity issues such as noise nuisance are not the main focus of environmental health.
Under existing legislation, one of the main weapons available to local authority Environmental Health Officers against excessive noise is the concept of 'statutory nuisance' whereby a nuisance can be defined as 'statutory' by a court of law according to the Environmental Protection Act 1990, Section 79 (HMSO, 1990). This act defines statutory nuisance in terms of 'noise emitted from premises so as to be prejudicial to health or a nuisance', and then sets out possible remedies available for use by the courts. The particular emphasis on 'prejudicial to health' is very important in this context. There is an implication that mere annoyance without some significant health effect also being present (annoyance is not itself a health effect per se) is not sufficient to justify a finding of statutory nuisance. Possibly for this reason, there is an increasing demand in some quarters for the concept of statutory nuisance to be 'better' defined, but it is difficult to see how this could actually be done. A big problem is that existing standards and guidance on noise are not really up to the task.
| Existing standards and guidance|| |
Without putting too fine a point on it, existing standards and guidance are in a mess. There are different solutions for different problems, different regulations in different countries and regions, and different standards for and unequal attention given to different noise sources (Van den Berg, Flindell et al, 1999, Flindell and McKenzie, 2000). Many noise standards represent attempts to devise objective rules based on purely physical measurement methods to cover what are essentially subjective attitudes and opinions, which can clearly differ between different individuals in different situations.
The current European Directive on the Assessment and Management of Environmental Noise (European Union, 2002) is an attempt to harmonise on a single scheme of strategic noise indicators, noise calculation methods and eventually, noise targets or limit values across the whole of Europe. This Directive has been perceived by many as a sensible move in the right direction, but it has also been seen as an attempt to harmonise the unharmonisable.
At public inquiries, there is often so much technical information potentially available on the possible effects of noise on people and how those effects might be measured that it could be considered unreasonable to expect participants without specialist acoustical expertise (and this generally includes inspectors as well) to be able to understand and critically evaluate it all.
| What are the effects of noise on people?|| |
Can specific guideline values or procedures (Berglund et al, 2000) be justified based on the available scientific evidence? The strength of the evidence varies across the different types of noise effect that might be considered (Berry et al, 1998). The amount of real progress that has been made since the Wilson Report of 1963 (HMSO, 1963) is debatable.
| Masking effects - auditory thresholds|| |
Auditory masking phenomena have been extensively studied in psycho-acoustic laboratories and can be considered as well understood, at least in empirical terms. This means that the auditory masked threshold of any desired signal within a masking background noise can usually be predicted from the relative frequency spectra and time histories of the signal and noise. The actual measurement can become quite complicated, and actual audibility may vary significantly over time and over different measurement points, but the principle that (assuming a listener with normal hearing) the auditory thresholds of specific signals can be estimated from physical measurements holds reasonably well. The auditory threshold of a specific signal is not usually the main issue at public inquiries, although the sensation level, the amount by which a specific sound exceeds its masked threshold level, could be relevant for many applications if it was more widely understood (Porter et al, 1993).
| Activity interference|| |
Direct interference with particular activities such as rest, relaxation, work or concentration is often claimed as a particular consequence of excessive noise, but there is considerable variability regarding the actual noise levels at which these effects are likely to occur. There is no consistent data to support reliable guideline values.
| Sleep disturbance|| |
Most people have personal experience of sleep disturbance caused by unwanted or unfamiliar noise. On the other hand, there is also considerable evidence that sleep disturbance effects can be subject to significant adaptation and habituation. Relatively modest acoustic signals in the unfamiliar surroundings of a sleep laboratory can cause transient disturbances in EEG signals whilst asleep, whilst significant but familiar events at home sometimes cause no response at all (Robertson et al, 2000). Measured sleep disturbances can range from minor transient disturbances, premature changes in sleep stage, behavioural awakening, or even objectively measurable next day sleepiness or fatigue. Transient disturbances are not necessarily of any significance in a whole night context, while objectively measurable next day sleepiness has not yet been demonstrated in the context of typical levels of environmental or community noise. There is also a possibility of perceived or reported sleep disturbance which may or may not be correlated with any objectively measurable disturbance. Given these uncertainties, it is difficult to arrive at any consensus as to which specific sleep disturbance effect or outcome measure should be the focus of future standards and guideline values (Porter et al, 2000).
| Reported annoyance|| |
Reported noise annoyance at least has an appearance of being directly meaningful, but it can be highly context dependent and it is not always clear how it can be related to perceived quality of life. The concept of 'percentage highly annoyed' has been promoted as a relatively stable indicator of average community annoyance (see for example, Meidema, 2001), but even this concept can be hard to pin down. There are large individual differences which are clearly dependent on both individual attitudes and opinions and on the context in which the noise is heard (Flindell and Stallen, 1999).
| Non-auditory health|| |
To the general public, the generic concept that excessive community or environmental noise may have adverse effects on non-auditory health seems plausible enough, but the underlying noise-stress hypothesis on which the concept is based is hard to prove on a statistical basis, and not very well specified in terms of possible causative mechanisms. There is no consensus on which any specific standards or guideline values might be based (Berry et al, 1998).
| Hearing loss|| |
The scientific evidence showing the long term effects of high levels of excessive noise on hearing is well founded, but even here the precise biological mechanisms responsible are uncertain. Typical exposure to community and environmental noise is rarely sufficient for there to be any significant risk of noise induced hearing loss (Berry et al, 1998).
| Practical possibilities|| |
The range of possible guideline values has to allow for the following practical possibilities;
just audible - mere audibility is a necessary but NOT a sufficient condition for nuisance to occur.
sometimes a significant problem and sometimes not - depends both on the individuals concerned and on the specific situation in which the noise occurs.
completely intolerable - 'intolerable' could be defined where people suffer identifiable and significant physical or mental harm - small reductions of amenity or perceived quality of life need not necessarily be judged as completely intolerable - who should decide?
It is well-known that different kinds of health risk are perceived differently by the public at large. Neighbour noise has been directly implicated as a contributory factor in numerous disputes leading to actual violence, but most of these cases are relatively isolated and mainly concern individuals rather than the general public as a whole. For aircraft noise, the available evidence suggests that many people, while they do not believe that their own health or quality of life is affected, report that they believe that other people in their neighbourhood have their health or quality of life affected (Diamond et al, 2000). The extent to which noise management is becoming a general priority for the public (or not) could be taken as an indication of the overall level of noise acceptance by the public as a whole.
While in theory at least, noise guideline values should be based on the severity of adverse effects caused by the noise, they must in practice be based on physical measurements of the noise on the assumption that meaningful relationships between noise exposure and noise effects exist. When the amount of noise has been described in numeric terms, three generic types of numeric comparison may be applicable (Flindell et al, 1997), and there is no theoretical reason why all three comparisons should agree;
change - is the situation better or worse after development as compared to before? (i.e. have noise levels gone up or down?)
context - specific noise levels can be compared to ambient, residual, or background noise levels.
benchmarks - specific noise levels can be compared against fixed noise limits laid down in standards and regulations.
Each of these numeric comparisons could use a whole range of different sound level indicators to reflect the relative importance in each particular case of different factors such as the time of day or night, any special characteristics of either the noise itself or of the residual, ambient, or background noise sources present, the number of specific events compared against the average sound levels of those events, etc. Current standardisation on noise indicators based on Aweighted maximum sound levels and long term averages such as L Aeq tends to be more a matter of convenience than any reflection on the strength of any assumed underlying dose-effect relationships.
It is also important to consider the precise reasons why any particular noise assessment is being done. In practice, decisions can only take one of three generic forms as follows;
refuse planning application
permit with conditions attached
permit with no conditions
To be of any use at all, any noise assessment method has to be able to inform between these three alternatives. It is relatively easy to set fixed but essentially arbitrary benchmark levels above which all planning applications should be refused because of intolerable risks to health and below which all planning applications should be allowed without conditions because it is unlikely that anyone would even be able to hear the noise, but there is a very wide range of noise levels in between where there might be no reason to refuse an application providing that appropriate conditions are imposed in mitigation. It is in this middle range that the greatest problems arise, where it is important to balance noise effects against other aspects of the development, both positive and negative. For example, some developments might increase both noise and employment. How far should noise effects be balanced against economic benefits?
| Practical solutions|| |
A public inquiry can help to identify, measure, and balance all the relative advantages and disadvantages of any proposal. In many cases the best compromise solution may be a matter of opinion, which can in turn be very much dependent on individual weightings of the relative importance of all contributory information. Where there are complex issues present, a fully informed opinion may require considerable background knowledge and experience, and should not be based on any simplified overviews. But on the other hand, such matters as these should not be dealt with only by experts working behind closed doors. There seems to be a number of arguments in favour of retaining the concept of public inquiries but at the same time, improving the procedures to overcome the current deficiencies of the system. Improvements may be required to overcome the problems caused by applying the adversarial system to differences of opinion and by the generally disjointed and contradictory nature of much of the available standards and guidelines in this area.
On the assumption that everyone would be assisted by 'better' standards and guidelines, BSI sub-committee EH/1/3, 'Residential and Industrial Noise' is working towards a new standard entitled 'British Standard Guidelines for Environmental Noise Management'. This new standard will follow on from a range of initiatives prepared by others (for example, see Turner et al, 2002) and may substantially replace the existing BS 4142: 1997 'Method for rating industrial noise affecting mixed residential and industrial areas' (BSI, 1997). BS 4142 lies within the purview of subcommittee EH/1/3 as do a number of other standards and guidelines documents.
The consultant's brief now under consideration by the BSI administration sets out the following requirements;
- the guidelines should provide clear guidance as to which existing standards and regulations should apply (if any) in any particular situation. where existing standards conflict, the guidelines
- shall provide clear guidance regarding ways of presenting information (and which information) to allow decision makers to reach the best compromise solutions.
- the guidelines should assist in defending UK best practice based on informed flexibility against possibly unwelcome innovations arriving via ISO and CEN standards routes.
It remains to be seen to what extent it is in fact possible to write an authoritative guidelines for environmental noise document which can define effective 'rules' for noise assessment without unduly restricting informed flexibility.
| Conclusions|| |
None of the above is intended as a direct criticism of the adversarial system of presenting and assessing evidence which has evolved over many years and is probably one of the best ways of deciding between alternative versions of the facts as based on the available concrete evidence. The main problem at public inquiries is that an inspector and/or assessors may be called upon to decide between expert opinions and not just upon the facts of the matter without having authoritative guidance or standards available to assist. The fault does not necessarily lie with the public inquiry process or even with the adversarial legal system on which it is based, but rather on the general failure of the noise management and assessment industry to come up with any truly comprehensive written guidance which fully recognises the importance of 'informed flexibility' when arriving at the best compromise solutions in each case. There are a number of initiatives in place which are attempting to remedy this deficiency, but their eventual success or otherwise remains to be seen.
| References|| |
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|3.||BS 4142 (1997) Method for rating industrial noise affecting mixed residential and industrial areas, British Standards Institution, London. |
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|11.||HMSO, (1963) Committee on the problem of noise - Final Report, HMSO, London. |
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|19.||van den Berg M, Flindell I.H, et al. (1999) Position Paper on EU Noise Indicators, European Commission, Brussels, August 1999. |
|20.||Vandermeer R. (2001) The Heathrow Terminal Five and Associated Public Inquiries, Inspectors Report, Government Office for London. |
I H Flindell
Institute of Sound and Vibration Research, University of Southampton, Highfield, Southampton, SO17 1BJ
Source of Support: None, Conflict of Interest: None