Appeal Court calls for legislative changes for noise pollution

THERE are laws that enable the police to provide “immediate relief” when there is a threat or actual convention of the law by noisy neighbours or any event that results in loud and excessive noise.

In a ruling on Monday, Justices of Appeal Allan Mendonca, Prakash Moosai and Gillian Lucky also said it was now apparent that the issue of noise pollution was “ripe” for legislative intervention.

“It may not be a simple matter of hitting violators of the statutory requirements in their pockets by way of increased fines as a means of ensuring compliance.

“...We do not imagine that an increase in the fine will by itself suddenly inspire changed attitudes.

“...The legislature should, therefore, contemplate a clearly expressed path to compliance and immediate enforcement in circumstances where such is justified.”

The judges' comments came as they upheld an appeal of the Environmental Management Authority (EMA) of the June 2021 ruling of Justice Margaret Mohammed in the judicial review claim of fete promoter Wild Goose Ltd against the EMA and Snr Supt Garth Nelson for shutting down its Tailgate Carnival event at the Queen’s Park Savannah on February 26, 2019, two hours early for breaches to noise levels.

While the judges held that the decision to shut down the Tailgate event was ultra vires since the Environmental Management Act did not permit them to, they allowed the EMA’s appeal and set aside Mohammed’s orders.

They said the officers of the EMA’s environmental police unit could have turned off the music under other legislation to “abate the crime of public nuisance” created by Wild Goose on the night. For this reason, they declined to award the promoter any damages.

In their ruling, Moosai and Lucky agreed there was need for legislative changes since the act itself did not create a public nuisance or provide the power to abate it. They said the appeal highlighted the “inadequacy” of the act since, for the EMA to act, it had to first look at the common law.

“This court imagines that it would be both desirable and convenient for the EMA to possess the power to abate a public nuisance arising out of a violation of an environmental requirement.

“Fulfilling its mandate will undoubtedly be made easier if the power was vested in it to take similar action even where a public nuisance has not occurred, but there is an appreciable risk to the environment through an unwarranted act,” Moosai said.

Moosai also said while cognisant of the interests of promoters and patrons of an event, even at Carnival, the public interest would not be served by allowing the laws of the land to be “flaunted indiscriminately and without real consequences.”

While they noted that their judgment could not be used as establishing a precedent that a breach of a noise variation was equal to a public nuisance, it was, for this reason, they said there was a need for legislative changes.

“It is pellucidly clear that the ordinary avenues of redress provided for in the act cannot be easily tailored for rapid deployment in such circumstances…

“This court cannot begin to speculate as to why, in a society in which fetes and revelry are such common features, particularly around Carnival time, such practical considerations were overlooked when the potential for noise pollution looms so large.”

Moosai also said the case exposed concern for the Emperor Valley Zoo. “The potential exposure of the denizens of the zoo to serious distress, arguably without recourse, can hardly be countenanced in what we dare to assume is a progressive society.

“Serious consideration should therefore be given by the EMA to its express power to designate a defined area as an ‘environmentally sensitive area’ under section 41 of the Act,” was his suggestion.

Lucky also noted that noise pollution was a global challenge with medical evidence to support the deleterious effect it can have on people.

“While it is recognised that individuals should enjoy themselves through the use of music in all its forms and genres, such enjoyment should not be to the detriment of others.”

The judge suggested preventative measures such as early intervention, proper education and effective communication.

Lucky also advised the public that “there are laws” that enable the police to “provide immediate relief when there is a threat or actual contravention of the law.”

The judge also suggested that the devices to record decibel levels should be made readily available to those who enforce the law.

“Citizens should be aware of the zones (as defined in the EMA Act) in which they live and operate so that they can determine the permissible noise levels and attendant rules in their specific areas.”

The police, the judge said, must also ensure they respond to complaints in a timely fashion and make an early determination on the appropriate manner to address the complaint.

The judges’ advice came as they acknowledged the “concern of the wider citizenry as to its rights with respect to noisy neighbours, events and activities which result in loud and excessive noise.”

“It is therefore hoped that this decision will provide clarity with respect to the laws as they relate to noise pollution and give direction as to current deficiencies which can be addressed in order to advance environmental control and the well-being of our citizens.”

On the specific details of the appeal, the judges found that Wild Goose flaunted the terms of the noise variations they were granted for the event.

Mohammed had found that Wild Goose did not cause a public nuisance on the night.

However, in their ruling, the judges said, “With the greatest of respect, it is our view that the judge misdirected herself in addressing the task before her as a matter of law.”

“It cannot be disputed that there was no direct evidence in the form of an actual complaint by any member of the public, but this ought not to have been treated as a fatal flaw by the trial judge.

“...Public nuisance is both a tort and a crime.”

They said in addition to it being a crime at common law, it was also backed by the Summary Offences Act, meaning the police, including the EMA officers - who are precepted as special reserved police officers - had the power to prosecute criminal offences of public nuisance.

“It is uncontested that excessive noise can create a public nuisance if it serves to endanger the life, health, property or comfort of the public.

“The effect of excessive noise or noise pollution primarily relates to human health and comfort, which often manifests itself in the form of discomfort, fatigue, and even pain.”

The EMA had argued that the event was exceeding decibel levels set in a noise variation granted to Wild Goose for the event. The noise variation allowed the promoters to play music at 85 decibels from 6-8 pm and 75 decibels from 8 pm -2 am.

It was alleged that the decibel levels fluctuated during the night, and several warnings were given before the event was shut down.

Mohammed ruled in favour of Wild Goose, holding that the EMA did not have the power to shut down the event since the Environmental Management Act set out the procedure for dealing with noise variation violations, which included issuing a written warning and obtaining an injunction.

However, at the appeal, the EMA’s lead attorney, Kelvin Ramkissoon, contended the act, under section 68(c), gave the EMA wider implied powers “to take steps under any other law.”

He pointed the judges to the relevant sections of the Summary Courts Act, the Police Service Act, public health ordinances and the common law as it deals with breaches of the peace and public nuisances.

Ramkissoon said the judge conflated the shutting down of the sound with the shutting down of the event when the EMA did not stop the fete, but the source of the “noise pollution.”

Wild Goose was represented by Christopher Rodriguez, Rhyjell Ellis and Joash Huggins.