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Construction Noise and Vibration Legislation

Construction noise (which as a term is generally also taken to include vibration from construction) is a frequent cause of complaints, which can impact the health and quality of life of residents near the works.

 

There are three branches of primary legislation that are relevant in respect of construction noise, as set out below. This article will consider each in turn:

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Statutory Nuisance Legislation

Statutory Nuisance concerns matters which are ‘a nuisance or prejudicial to health’ and is intended to protect public health. Noise from construction sites may be considered a statutory nuisance, subject to:

  • its location and nature (“what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” Sturges v Bridgeman [1879])

  • the time, duration and frequency of the noise [pertaining to how often it occurs, although in a polysemous coincidence the frequency ‘tone’ of a noise of may also have some bearing on the impact it causes] (for example, noise that is acceptable during the daytime may not be at night)

  • the utility of the activity causing the noise (e.g. noise caused when responding to an emergency, such as the operation of a diesel pump through the night to alleviate flooding of a site, might not amount to a nuisance even though it disturbs neighbours). 

 

Section 79 of the Environmental Protection Act 1990 places a duty on the local authority to inspect its area and detect any statutory nuisances. Specifically regarding noise from construction works, Section 60 of the Control of Pollution Act 1974 enables the local authority to serve a notice stipulating how construction work is undertaken (i.e. the methods of working, the types of plant and equipment, and times the work may be undertaken) to stop a statutory nuisance or prevent a statutory nuisance from occurring. When serving a notice, the local authority must consider Codes of Practice under section 71 of the CoPA 1974 (such as those  set out in BS 5228 part 1 and part 2) and the use of Best Practical Means of noise and vibration control by the person responsible for the nuisance.

 

Best Practical Means is defined in s.72 of the Control of Pollution Act 1974 and s.79(9) of the Environmental Protection Act 1990. It includes the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and acoustic structures. “Practicable” means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications. Although not explicit in this definition, in our experience both the technical knowledge and the financial implications scale with the size of a construction project; exemplar infrastructure projects of national significance might be expected to utilise techniques necessitating a very high level of technical expertise at considerable cost to achieve maximum control over noise and vibration emissions, whilst smaller scale construction projects may be expected to implement a more modest set of controls and more affordable techniques/equipment. In terms of practical advice, BS 5228 part 1 (noise) and part 2 (vibration) set out a range of control measures for different types of activity and plant; not all of these will be practical in a given situation, but this Code of Practice remains the single most useful resource for construction professionals and local authorities alike. 

 

If a local authority considers that the noise emanating from a construction site constitutes a statutory nuisance they may serve a s.60 notice to any person who appears to the local authority to be carrying out, or going to carry out, the works, and on such other persons appearing to the local authority to be responsible for, or to have control over, the carrying out of the works as the local authority thinks fit. Within a construction company, this could be anyone with direct control over the works, or potentially someone with a higher office such as construction director or managing director. The local authority may also serve a notice on the company. The notice may prohibit certain items of equipment from use, or require the works to be undertaken during particular times, or stipulate completely different methods of working. If the person on whom a notice is served contravenes any requirement of the notice without reasonable excuse, they would be guilty of a criminal offence. Appeals against a s.60 notice can be made to a magistrates’ court (or in the case of some major projects facilitated by hybrid bills that have modified the original Act, to the Secretary of State). Demonstrating that Best Practical Means of noise and vibration control has been implemented by those responsible for the works is a valid defence at appeal; therefore a process for evaluating what control measures are practicable, and documenting their implementation, should be considered a vital part of a construction environmental management system. 

 

If all this sounds a bit risky, then a contractor has the option under s.61 of the Control of Pollution Act 1974 to apply to the local authority for prior consent to undertake construction works. The Act states that the application should contain particulars of: 

(a)the works, and the method by which they are to be carried out; and

(b)the steps proposed to be taken to minimise noise resulting from the works.

 

However, in practice, the bar has been raised in respect of s.61 applications and most local authorities will also expect the application to include details of nearby receptors, a table setting out the noise emitted by each item of equipment to be used (for each activity), the results of noise predictions at nearby buildings, and details of any noise and vibration monitoring systems that the contractor will operate.  

 

Once the local authority is satisfied that the works as presented in the s. 61 application would not constitute a nuisance and that the proposed control measures represent BPM in the situation, they should issue consent. Provided that the contractor follows the method of working set out in the application (and any additional conditions the local authority has imposed in the consent) then the consent becomes a defence against a future statutory nuisance action by the local authority, giving the contractor surety. 

 

In terms of timescales, the local authority has a statutory period of 28 days from the date of the s.61 application submission to decide whether or not to issue consent. Resubmission of the application resets the counter on this 28 day period, and therefore many contractors find it beneficial to consult closely with the local authority before submitting an application to maximise the likelihood that the local authority will grant consent in a timely manner. There is an appeal  process should a contractor consider that an application has been denied unreasonably, but typically the appeal process will take six-months to complete. If the noise or vibration to which it relates is considered damaging to health then the s.60 notice may not be suspended during this period; this might be an unacceptable delay for a contractor. 

 

Planning legislation

Planning consents may contain conditions relating to construction noise or vibration if they are necessary to mitigate potential adverse effects from the development that would otherwise occur. These conditions are enabled by sections 70, 72, 73, 73A, and Schedule 5 of the Town and Country Planning Act 1990. Planning conditions are a powerful tool that can allow development to proceed in situations where  it would otherwise have been necessary to refuse planning permission. However, they can lead to detrimental outcomes if not used properly. Paragraph 55 of the National Planning Policy Framework makes it clear that planning conditions should be kept to a minimum, and only used where they are:

  • necessary;

  • relevant to planning;

  • relevant to the development to be permitted;

  • enforceable;

  • precise; and

  • reasonable in all other respects.

 

Given the extensive powers conferred by s.60 of the Control of Pollution Act 1974 and s.79 of the Environmental Protection Act 1990 to local authorities to prevent and/or stop noise from construction causing a statutory nuisance, the necessity of planning conditions setting construction noise limits or otherwise placing constraints on construction activities is not always obvious. However, in recent times it has become commonplace for some local authorities to attach (relatively generic) construction noise conditions to planning consents.

 

Whilst it is unwise to generalise, in our experience many of these conditions set out noise limits (usually dependent on the time of day and day of the week), often in combination with monitoring/reporting requirements, and stipulate hours when no noise from construction is allowed. In some cases, conditions place complete embargos on certain activities, such as percussive piling. These conditions are typically quite short, a few paragraphs in length, and few appear to be drafted by acoustics professionals. While this is by no means universal, this can lead to issues such as confusing terminology, lack of precision, or performance requirements that are either unachievable or not possible to measure (and are therefore unenforceable). 

 

Despite this, planning conditions on noise are potent. Unlike Statutory Nuisance, the concept of Best Practical Means has no bearing on compliance with planning construction noise limits; the contractor must simply do whatever is necessary to achieve the limits no matter the practicality or financial implicaitons of doing so. Failure to comply with a condition may result in the local planning authority issuing a breach of condition notice; in turn, failure to comply with a breach of condition notice may result in prosecution and fines.

 

For these reasons, we would always recommend that developers seek expert advice and work closely with the local planning authority in the drafting of such conditions where the situation allows. In our view, the starting point for such discussions should always be identifying the specific noise impact that the local planning authority wishes to prevent through the use of a condition, and then exploring why the local authority does not consider their existing Statutory Nuisance powers to be a suitable control. Justifications along the lines of ‘our colleagues in Environmental Health are too busy to investigate construction noise complaints and so we wish to impose a construction noise condition as well’ would be unlikely to pass the six tests set out earlier in this section. It is therefore important that the necessity of the planning condition(s) be well defined, and that the resulting condition addresses the specific impact in a way that is precise, enforceable and reasonable (i.e. not incurring excessive cost or techniques that are not practicable in the situation). If the need for, or wording of, the condition(s) cannot be agreed during the drafting phase, or if construction noise conditions are unexpectedly attached to a planning consent, then we would recommend that they be thoroughly reviewed by a specialist and if necessary, appealed.

 

Notably different situations arise from Development Consent Orders and Hybrid Bills which are means of obtaining planning permission designed to deliver major infrastructure. The noise conditions and/or commitments that result from the expert advice and extensive scrutiny that such projects are subject to tend to be well considered, and often represent a balance between the scheme promoter and petitioners. These are usually bespoke to the project, although there are common themes such as implementing noise insulation and temporary rehousing schemes (forms of off-site noise mitigation), commitments to ensure the project is constructed without exceeding the environmental noise impacts set out in the corresponding Environmental Statement, codes of construction conduct, and commitments to implement a standardised list of noise control measures as a minimum (provided it is practicable to do so).

 

Health & Safety Legislation

 

Noise

The Control of Noise at Work Regulations 2005 (the ‘Regulations’) place legal duties on both employers and employees with the aim of preventing or reducing Noise Induced Hearing Loss from exposure to noise at work.

 

The Regulations set out lower exposure action values, upper exposure action values, and exposure limit values for daily or weekly personal noise exposure and for peak sound pressure. Companies are prohibited from exposing staff to levels of noise greater than the exposure limit values in any circumstances. The Regulations require organisations to undertake a risk assessment of noise exposure for staff, and to systematically eliminate sources of noise or, where elimination is not reasonably practicable, to reduce staff exposure to noise to as low a level as is reasonably practicable. Typical measures taken by companies to eliminate or reduce noise include substituting equipment with quieter models, placing equipment in noise enclosures, or providing noise barriers to provide quieter areas for staff.

 

The regulations require companies to provide personal hearing protectors upon request at the lower exposure action values, and compulsorily at the upper exposure action values, but the Regulations are clear that companies are first obligated to eliminate or reduce noise in the work area; provision of personal hearing protection is a last resort not the first tool for a company to reach for.

 

Other provisions in the Regulations include the designation of Hearing Protection Zones  in the workplace, both employers'; and employees' duties concerning the use of equipment, the implementation of a programme of worker health surveillance (e.g. hearing tests for new staff and periodic repeat hearing tests so that any unexpected degradation in hearing can be detected), making available information on the risks of noise exposure, instruction and training.

 

The Regulations also grant exemptions from certain clauses in specific situations, such as in respect of emergency services, but these exemptions are not likely to be relevant in the context of a construction project.

 

In our experience, it is common for major contractors that employ health and safety professionals to have a good understanding of the Regulations, and how to undertake risk assessments. However, one of the more frequent questions that we are asked is whether the provisions of the Control of Noise at Work Regulations 2005 extend to the public in places close to construction sites where they may be subject to higher levels of construction noise. The direct answer is that the Regulations only govern the relationships and duties between employer and employee, and do not extend to the public. Provided that noise levels at the position of the public do not exceed the second action level, and members of the public are only exposed for short periods of time as they pass by (i.e. in a transitory situation), the risk of hearing damage is very low as duration of exposure plays a large part in hearing damage. However, this is not to say that a company does not have an obligation to the public; in situations where the public might be exposed to noise approaching or above the first action level, it is quite possible that the company may be causing a statutory nuisance and the provisions of the Control of Pollution Act 1974 and the Environmental Protect Act 1990 will apply. 

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Vibration

The Control of Vibration at Work Regulations 2005 is the vibration equivalent of the Control of Noise at Work Regulations 2005 and the intent of these Regulations is to reduce the incidence of Hand-Arm Vibration Syndrome (HAVS) and Whole Body Vibration (WBV).

 

Exposure of the fingers, hands and arms to vibration, for example through the use of vibratory or rotary construction tools, can cause physical damage to tendons, muscles, bones and joints, and can affect the nervous system. Like noise induced hearing loss, HAVS is a progressive syndrome and it usually starts as a pain, tingling or numbness after periods of using vibratory or rotary equipment. As the vibration exposure continues, the pain may develop into an injury or disease. Worsening symptoms include reduced grip strength, progressing to attacks of whitening of one or more fingers when exposed to cold (“vibration white finger” which is caused by changes to blood circulation), periods of pain between white finger attacks, and the development of bone cysts in fingers and wrists. HAVS is painful, disabling and it can take several years before the symptoms become clinically noticeable. 

 

Whole-body vibration is usually associated with being exposed to shocks, jolts and vibration while seated, for instance when seated in the cab of a heavy construction machine, and often manifests as low back pain and/or injuries.

 

The provisions set out by the Control of Vibration at Work Regulations 2005 are similar to those in the Control of Noise at Work Regulations 2005, and place duties on employers to assess the vibration risk to employees, put in place appropriate control measures to mitigate the risks, provide health surveillance where risk remains (HAVS only) and provide information and training to employees on health risks and the actions being taken to control those risks.

 

In summary, while at first glance construction noise may appear a relatively simple topic, it can become complex quickly as the different requirements and controls of these three branches of legislation are considered. Should your organisation need any assistance with any of the topics covered in this article, then please do not hesitate to contact us and discuss your situation in strict confidence.  

 

For examples of projects where Sine Environmental Limited provided construction noise and vibration advice please see our Cleveland Clinic London and Wylfa Newydd project showcases.

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© 2023 by Sine Environmental Ltd

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