Noise-related disputes: Sound reasoning

One of the oddities of construction dispute work is what is known colloquially as the “London bus” effect. You don’t see a dispute of a certain type for ages and then, all of a sudden, a number of them come along at once. Often it may simply be one individual’s experience, but there does seem to be an increasing number of disputes related to noise.

This shouldn’t be a surprise. We live in an increasingly congested environment and the desire to maximise high-value city centre sites, redevelop existing buildings and use brownfield locations all contribute to the risk of noise ingress having a negative impact on a building’s functionality.

It would be quite an extreme circumstance in which a court would conclude that an implied term in relation to the building’s ability to handle noise ingress had been breached

Noise also has the potential to affect many different levels of the contractual chain - for instance, an employer or developer will want a marketable building that does not have a reputation for problems with noise. A main contractor has to be aware of the risk that it may take on obligations in contract documents that it cannot meet. A consultant needs to be alive to current best practice and the cost associated with applying standards that may be required. Individual supply chain members need to be wary of greater responsibility being placed on their shoulders owing to others not being retained on suitable terms in relation to their performance.

In general, noise will be covered in express provisions in contract documents or specifications. It would be quite an extreme circumstance in which a court would conclude that an implied term in relation to the building’s ability to handle noise ingress had been breached.

That is not to say, however, that there are no guidelines in relation to what does or does not constitute acceptable performance. For instance, there are the British Standards for Sound Insulation and Noise Reduction for Buildings and the World Health Organisation (WHO) has issued its Guidelines for Community Noise. In relation to each of those it is, of course, appropriate to consider whether the building in question is of the type of which the requisite standard of performance could be expected. For instance, the WHO considers whether the level of noise is acceptable for a good night’s sleep and warns against traffic noise impacts. Clearly, this could be relevant to construction of residential dwellings or a hotel.
Another consideration is the risk that noise emanating from a building creates a nuisance. While construction activities themselves during the build process are regulated under the 1974 Control of Pollution Act, noise from, plant or air-conditioning equipment, for instance, may constitute a statutory nuisance.

There is further statutory regulation in the 1993 Noise and Statutory Nuisance Act. Indeed, a public nuisance may arise from an act, including those that, by the creation of noise, endanger the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all. A public nuisance is actionable under what is known as tort law and can also be a criminal offence. For contracting parties, the more likely scenario is that either express terms are incorporated into the contract within a specification document or they are incorporated from other standards by reference.

What needs to happen with noise is, in itself, far from straightforward. For instance, specification documents can provide that internal noise levels will not exceed a certain level or that such a level can only be exceeded if certain circumstances or events occur or if they occur a certain number of times within a set period. An alternative approach is a specification that requires external noise to be reduced by a set amount - one that is principally designed to dampen the impact of external noise sources. Whether either of these or some combination of them meets the end user’s requirements, is cost effective and can be achieved by the contracting party requires careful thought.

Putting right a noise ingress failure once the building has been completed can be costly. As well as issues with external mitigating factors, there are also the complexities generated by noise transmission between different rooms or parts of a building, with the unfortunate tendency that noise does not appear to be coming from outside a room until there is virtual silence inside. The capability of noise to cancel out other noise can be exploited by “pink noise” systems, whereby background noise is used to reduce and negate noise transmission. This is one of the few problems that can be managed or regulated by applying a bit more of the same.

When considering the specification of any building where noise is likely to be a sensitive topic for the end user, the one thing you don’t want to be silent on the issue is the contract.

James Bessey is a partner in the construction department at Cobbetts