(30) Environmental Law

Some good news on China’s air pollution fight, but it comes with a warning

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AIR POLLUTION, NOISE POLLUTION AND TOXIC TORTS

Air pollution

Relevant definitions

The definition of air pollution is found at s 4 of the Air Pollution Act 1987 (the 1987 Act), which states as follows:

‘Air pollution’ in this Act means a condition of the atmosphere in which a pollutant is present in such a quantity as to be liable to:

(i) Be injurious to public health; or

(ii) Have a deleterious effect on flora or fauna or damage property; or

(iii) Impair or interfere with amenities or with the environment.

The definition of air pollution in the 1987 Act was imported into the definition of ‘environmental pollution’ by virtue of the Environmental Protection Agency Act 1992, s 4(2)(a). In addition, environmental pollution is also defined in s 4(2)(d) of the Environmental Protection Agency Act 1992 to mean:

The noise which is a nuisance, or would endanger human health or damage property or harm the environment.

Statutory noise nuisance

For the first time under the Environmental Protection Agency Act 1992 (the EPA Act) a statutory remedy was created which is set out at s 108 of the EPA Act, which is misleadingly entitled in the margin as ‘Noise as a Nuisance’. This is not a nuisance in the sense of the common law tort of nuisance but rather represents a new statutory nuisance provision.

Section 108 provides as follows: 108(1). Where any noise which is so loud, so continuous, so repeated, of such duration or pitch or occurring at such times as to give reasonable cause for annoyance to a person in any premises in the neighborhood or to a person lawfully using any public place, a local authority, the Agency or any such person may complain to the District Court and the court may order the person or body making, causing or responsible for the noise to take the measures necessary to reduce the noise to a specified level or to take specified measures for the prevention or limitation of the noise and the person or body concerned shall comply with such order.

This provision also provides for a statutory defence as follows: 108(2). It shall be a good defence, in the case of proceedings under subsection

(1) Or in a prosecution for a contravention of this section, in the case of noise caused in the course of a trade or business, for the accused to prove that:

(a) He took all reasonable care to prevent or limit the noise to which the complaint relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that, having regard to all the circumstances, were suitable for the purposes of such prevention or limitation; or

(b) The noise is in accordance with

(i) The terms of a licence under this Act, or

(ii) Regulations under s 106.

The section also provides for exceptions so that it shall not apply to noise caused by aircraft or statutory undertakers or local authorities in the exercise of the powers conferred on them by or under any enactment (s 108(4)(a) and

(b) Of the Environmental Protection Agency Act 1992).

The general obligation not to cause harmful emissions

The Air Pollution Act 1987 imposes a statutory prohibition on creating environmental pollution as follows:

(a) The occupier of any premises other than a private dwelling shall use the best practicable means to limit and, if possible, to prevent an emission from such premises (s 24(1) of the Air Pollution Act 1987).

(b) The occupier of any premises shall not cause or permit an emission from such premises in such a quantity or in such a manner, as to be a nuisance (s 24(2) of the Air Pollution Act 1987).

(c) Under both the 1987 Act and the EPA Act there are specific provisions which make it an offence to contravene any provision of either Act or any regulations made under them or of any notice served under the Act.

Statutory penalty

Specifically, in relation to air pollution, the statutory penalty is set out in s 11(1)–(3) inclusive of the Air Pollution Act 1987:

(1) Any person who contravenes any provision of this Act or of any regulation made under this Act or of any notice served under this Act shall be guilty of an offence.

(2) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other official of such body, such person shall also be guilty of an offence.

(3) In this section, a reference to the contravention of the provision includes, where appropriate, a reference to a refusal, or a failure, to comply with that provision.

 Air pollution case law

The best known and most detailed air emissions case in Ireland is that of Hanrahan v Merck, Sharp & Dohme Ltd [1988] ILRM 629, which was a case decided ultimately in favour of the plaintiffs, not on the grounds of negligence, which was not proven, but on the grounds of (malodorous) nuisance, which is a strict liability tort. In that particular case, the Hanrahan family claimed not only in respect of property damage but also damage to their cattle and to themselves individually in terms of personal injuries. The evidence was painstakingly gone through by each court, including the Supreme Court, which ultimately remitted the case to the High Court. It did so on the basis that, although negligence had not been proven, no amount of scientific or theoretical evidence, no matter how expert and learned the witnesses, could displace the empirical evidence on oath of the numerous witnesses who gave evidence on oath of their physical discomfort and medical conditions arising at times when sharp, chemical-type smells were noted in the air in the vicinity of the defendants’ factory.

On the facts, causation was found and therefore, nuisance being a strict liability tort, the Supreme Court ultimately found in favour - at least in part-of the plaintiffs.

Noise

Noise as a pollutant

The definition of noise as a nuisance in the EPA Act is the most practical guide available to the ordinary person on the type of noise which one can successfully prosecute. However, it should be noted that compensation does not arise as a remedy under this statutory provision. In addition there are other specific reference and guidance documents on what is or is not acceptable noise and, in particular, the EPA has issued Guidance Notes for Noise in relation to its IPPC licensed activities as well as Environmental Noise Survey Guidance documents, created to assist IPPC licensed facilities in complying with the atmospheric emissions and noise conditions of their licences. Typically, noise sensitive locations are agreed/stipulated by the EPA. These locations become the monitoring points for compliance by the IPPC licence holder with its noise emissions conditions. As with other emission monitoring data, the information gathered is publicly available both at the EPA’s offices and at the IPPC licensed site premises.

In the Environmental Noise Survey Guidance Document most recently issued by the EPA (ISBN 1-84095-113-3) the definition of noise is:

Any sound that has the potential to cause disturbance, discomfort or psychological stress to a subject exposed to it, or any sound that could cause actual physiological harm to a subject exposed to it, or physical damage to any structure exposed to it, is known as noise.

For all IPPC licence holders, noise sensitive locations are defined as:

Any dwelling house, hotel or hostel, health building, educational establishment, place of worship or entertainment, or any other facility or other areas of high amenity which affords proper enjoyment requires the absence of noise at nuisance levels.

How noisy can it get?

The EPA accepts that in a modern world, noise is almost ubiquitous. Most normal everyday activities lead to the production of noise. Noise from traffic, lawnmowers, household appliances, concerts, industrial activities and so on, are considered commonplace, particularly in the urban setting. In most cases, the majority of people scarcely notice these noises and if they do, they are not bothered by them, but in some cases, people can perceive the same noise as a nuisance. Such people may have more sensitive ears than others or maybe less reasonable than others. Some may be annoyed by noise because they have a personal particular need to sleep at a particular time or relax in a quiet atmosphere. In some cases, noise may present such a nuisance as to cause harmful effect on the health of those exposed to it. It inevitably depends on all the circumstances whether noise is a nuisance, and both subjective and objective criteria must be used when considering this question.

Noise measuring

In the Guidance Notes the EPA explains that, in order to assess whether intervention is needed to prevent, control or minimise noise, it is necessary to be able to quantify it, and ascribe a scale of measurement to it. This is not as simple or straightforward a science as one might think. Noise is usually measured on the decibel scale, which is a logarithmic scale of sound intensity. For human noise response, the decibel scale is adjusted slightly to compensate for slight aberrations in the way the human ear ‘hears’ sound along the scale. This adjusted scale is known as the A-weighted decibel scale, and the units of the scale are dBa. The EPA Guidance Notes include a table, set out below, which illustrates examples of everyday sound levels: As a general rule, the sensitivity to noise is usually greater at nighttime than it is during the day and this has been worked out as by about ten decibels A weighted dBa. Audible tones and impulsive tones at sensitive locations should be avoided irrespective of the noise level. In addition, it should be noted that noise includes vibration, under s 3 of the EPA Act.

Recent noise nuisance case law

A recent decision of the High Court is useful, if not salutary: Sheeran and Another v Meehan and Another (High Court Appeal No 2001/202CA, judgment of Mr Justice Herbert, delivered 6 February 2003). This case concerns a long-running dispute between the neighbouring occupiers of numbers 20 and 21 Belleview Park Avenue, Blackrock, County Dublin.

In this case the definition of nuisance approved by the Supreme Court in the case of Hanrahan v Merck, Sharp & Dohme referred to above was adopted. The test is found in the following excerpt (Henchy J in Hanrahan v Merck, Sharp & Dohme [1988] ILRM 629 at p 640): As I have pointed out earlier in this judgment, by reference to the cited passage from the judgment of Gannon J in Halpin & Others v Tara Mines Ltd, where the conduct relied on as constituting a nuisance is said to be an interference with the plaintiff’s comfort in the enjoyment of his property, the test is whether the interference is beyond what an objectively reasonable person should have to put up with in the circumstances of the case. The plaintiff is not entitled to insist that his personal nicety of taste or fastidiousness of requirements should be treated as inviolable. The case for damages and nuisance - we are not concerned here with the question of an injunction - is made out if the interference is so pronounced and prolonged or repeated that a person of normal or average sensibilities should not be expected to put up with it.

Essentially the case concerned the Meehans using their hi-fi radio stereo system to interfere with the Sheerans’ comfort and the enjoyment of their home. The extent of personal evidence was copious, including Mrs Meehan accepting in cross-examination that her response to Mr Sheeran’s complaint about the noise (when she had the radio playing from the kitchen of her house while she cleaned her car from 20 or more feet away from where she was working outside the house) was that Mr Sheeran ‘should turn up his own radio and then he would not be so conscious of theirs’. Acoustic engineers on both sides carried out detailed technical tests. Both experts considered that when the Meehans’ radio was played at a particular sound setting, it was non-intrusive and could not be heard in the Sheerans’ kitchen and master bedroom. It was ultimately accepted that the Meehans did not keep their hi-fi stereo radio system at the agreed limited sound setting (despite the placing of a physical limiter on their stereo). It would appear that from time to time the radio was turned up full blast and the family would leave the house and let it play all day or early in the morning at weekends.

The High Court judge, in describing this case as tragic, remarked that there were many aspects which were extremely distasteful. In a 19-page judgment, the High Court exercised its discretion to make no order for costs in favour of the extraordinary and unjustifiably belligerent defendants/appellants, having regard to what the court found to have been the altogether unsatisfactory manner in which they acted throughout the matter. The plaintiffs/respondents were found to have successfully established their claim as to approximately one-half only of the period of alleged nuisance and were accordingly limited in their costs recovery.

European law

Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relates to the assessment and management of environmental noise. It is due to be implemented in Ireland by 18 July 2004. It sets out in its recitals those categories of products already controlled by Community legislation on their noise emission limits. These include permissible sound levels for motor vehicles and their exhaust systems, the noise levels of tractors from the driver’s perception, subsonic aircraft, two and three-wheel motor vehicles and noise emissions in the environment from equipment for use outdoors. The key driver of the legislation is that the Community intends to achieve a high level of health protection and environmental protection from noise. The stated aim of the Directive at Art 1 is to avoid, prevent or reduce on a prioritized basis the harmful effects, including annoyance, due to exposure to environmental noise. In this piece of legislation, the decision has been made to establish a common assessment method throughout the EU for environmental noise and a definition for limit values. This will undoubtedly assist those in the future who wish to bring claims arising from noise pollution. European-wide common noise indicators are to be put in place: Lden which will assess annoyance, and Lnight which will assess sleep disturbance, amongst other things. Competent authorities in each Member State are required to draw up action plans addressing priorities for noise reduction in areas of interest. For the purposes of the Directive, Art 3 defines environmental noise as: Unwanted or harmful outdoor sound created by human activities, including noise emitted by means of transport, road traffic, rail traffic, air traffic, and from sites of industrial activity such as those defined in Annex I to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control.

Harmful effects are defined as ‘negative effects on human health’. It is envisaged under Art 4 that each Member State will designate the competent authority to make and approve noise maps and action plans for agglomerations, major roads, major railways and major airports, all of which are defined; and for collecting noise maps and action plans. Annexe I sets out the noise indicators which shall be applied and commonly assessed throughout the EU. The remaining five Annexes set out minimum requirements for strategic noise mapping and for action plans, detail the assessment methods for harmful effects and for the noise indicators and list the data to be sent to the Commission.

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