An Important Day in Railway Legal History
On the 15th of March 2016, in Stirling Sheriff Court, two rail haulage companies, DB Shenker and Freightliner, will be appealing against an abatement order served by Stirling Council.
Whilst Stirling Council are attempting to protect the health of the general public by stopping noise and vibration at high levels during the night, the freight haulage companies, are expected to argue that UK law and ‘statutory authority’ gives them the right to run their operations (and thus pollute UK residents regardless of impact) without regulation or restriction.
The Lack of Responsibility Within UK Rail.
Following Legal Advice, Stirling Council is to Take Enforcement Action on Rail Noise and Vibration
Stirling Council is to come to the rescue of line side residents who, following the opening of the SAK Railway line in 2008, have been left with broken promises and high levels of noise and vibration.
A report commissioned by the Council in late 2014 found that night time noise levels outside resident’s homes constituted a statutory nuisance and that vibration levels at some properties was excessive. Network Rail and the freight operators have continued to run heavy night freight despite pleas, complaints and even written requests from the Scottish Parliament in attempts find a solution.
Now, thanks to the support of elected politicians, there is hope that enforcement orders will protect the health and well being of those affected by these forms of railway pollution.
Protecting the Heart of Scotland
Stirling, due to its central position and strong transport connections, is considered by many to be ‘the heart of Scotland’
After the Damning Report on Rail Noise & Vibration . . .
Network Rail have been sent a copy of the report that documents the high night rail noise and vibration levels recorded by consultants, Sandy Brown Associates. The report concludes that such exposure constitutes a statutory nuisance.
Network Rail run the UK rail network and claim in their sustainability policy that they manage noise and vibration. Currently their management system has seen night noise one metre outside bedroom windows reach levels eight times louder than the maximum advised by the World Health Organization.
Perhaps change is in the air.
The previous link to the environmental pollution action request form stopped working and has been replaced with the link below. Click on the link at the bottom of this page and your computer will download a UK Environmental Health complaint form in PDF format for you to fill in and send to your local Council.
The form asks the Council to:
• investigate your complaint
.•decide if the pollution is a statutory nuisance
•if so, to serve an abatement order
•to inform you of decisions and outcomes
Please do not worry about filling in all of the areas. They essential parts are to tell the council the type of pollution (noise, vibration etc), the source (trains), and to give your name address. The rest is all optional.
Forms should be sent/handed in to the Council Environmental Health Department.
GETTING A COMPLAINT FORM
Click here to download a complaint form . This will open a new page with a download button. Just click the download button (and direct download option) and it will save a PDF file to your computer. PRINT for yourself and for any neighbours who are affected. The form is 3 pages long, you only fill in the first page which is the essential part (takes about 5 minutes), but you should include page 2 as this is the request for the Council to take action. Page 3 is additional information and is optional. It’s a good idea to keep a copy of what you’ve filled in, then post or hand it in to your own Council at the address below. If you have problems, email firstname.lastname@example.org
Alternatively, phone the Council, tell them you want to make a Formal Complaint about Environmental Pollution and give them the relevant information using the form as a guide. [Posting or handing the form in is probably better].
WHERE TO SEND THE COMPLAINT FORM
COUNCIL ADDRESSES AND PHONE NUMBERS:
CLACKMANNANSHIRE Lynn Parsler, Environmental Health, Clackmannanshire Council, Greenfield, Alloa, Clackmannanshire, FK10 2AD, Tel: 01259 450000
STIRLING Mr B Friel, Environmental Health, Stirling Council, Viewforth, Stirling FK8 2ET, (from landline): 0845 277 7000, Phone (from mobile): 01786 404040, Text: 07717 990 001
STIRLING HAND IN POINT Stirling residents can also hand complaints in at Stirling Council’s Thistle Centre Office: Customer First, 1 – 5 Port Street, Stirling FK8 2EJ (bottom of KIng Street) 9 am – 5.30 pm, Monday to Friday, but make sure it is properly addressed (to Mr B Friel, Environmental Health etc above) for it to reach the correct Council department.
WHAT HAPPENS NEXT
The Council should write to you telling you how they intend to deal with the problem. Keep any correspondence and watch out for announcements on the http://www.nvag.org.uk website or keep checking your email for further developments.
Noise and vibration cause additional health risks as well as being a nuisance so do what you can to minimize exposure, make sure that you monitor your health, especially for blood pressure and cardiovascular issues. Parents should be aware that noise exposure causes cognitive developmental issues in children that may impact on their schooling. NHS Forth Valley have been informed and the Councils are taking steps to investigate the situation.
WHAT’S BEEN HAPPENING:
Anne Massie Sept 2013:
“I had a visit yesterday from Lynn Parsler from Clackmannanshire Environmental Health. She is very sympathetic to what we have suffered over the last five years and will do what she can if she obtains information, but she confirmed what Archie and I have been saying. If you don’t fill in a complaints form and ask her to visit to see your own individual circumstances she can do nothing. She needs to build up an accurate picture of what has been happening and how it has affected our individual lives. The same will apply to other Councils.
She asked me if the trains remained at 10mph past my house would I be able to tolerate that and I said definitely. That may not be the case with other homes – each one will be different. I have mitigation fencing, a tidy garden, much less noise, no vibration – I have little need to complain further (other than possible financial recompense if that is possible) – if I keep going on this it is for YOU!
Lynn has visited four homes in Clackmannanshire, but I am sure there are an awful lot more who should be complaining. Remember you can get used to noise but any levels above 60dba can harm your health. I emphasised that to Lynn. She also looked at the houses in Brucefield Crescent and saw that one had fencing along the line and 5 others did not. She agreed there was no logic in that regardless of any scientific models they prepare.
The noise and vibration is much less where I live in Clackmannan at the moment due to lower speeds while they make track repairs, and also in some other sections along the line; but this will cease very soon and the speeds will be back to normal – 35mph here and 60 to 70mph in some areas. The higher the speed the shorter the time for the train to pass, but the louder the noise and the heavier the vibration.
She is very sympathetic to what we have suffered over the last five years and will do what she can if she obtains information, but she confirmed what Archie and I have been saying. If you don’t fill in a complaints form and ask her to visit to see your own individual circumstances she can do nothing. She needs to build up an accurate picture of what has been happening and how it has affected our individual lives. The same will apply to other Councils.”
Unless you have informed the Council, they take the view that you do not have a problem. The form takes about 5 minutes. Link to the complaint form.
The sixth and last working group meeting was initiated on Tuesday 13th August 2013 (though adjourned) with the main topics of discussion:
freedom of information requests
arrangements for monitoring of noise and vibration levels
legal obligations of the council regarding noise and vibration.
statutory nuisance, standards and guidelines
The meeting was adjourned rather than closed as the Council’s legal advisor was delayed and his input was deemed necessary prior to concluding the meeting. Continuation at the later date would also provide an opportunity for FVHB to provide advice on health aspects.
[Official minutes will be made available by the Council at a later date. Below are some notes taken by NVAG representation on the group and are not intended to represent wider views or full content of the meeting]
MEETING NOTES by NVAG
Preliminaries and approval of minutes.
RAILWAY DEFENCE AGAINST LEGAL ACTION
Discussion towards past events, and possible legal defences such as the Defence of Best Practical Means available to railway operators, were deemed off agenda by the chair, Councillor Danny Gibson, who advised that the group was moving forwards and the focus now was on the Council’s legal obligations towards the public.
CANCELLED PROTECTION FOR RESIDENTS
The issue of freedom of information requests (FOISA requests), was raised with regard to obtaining the SAK Line Project Board minutes. It was agreed that the full set of these should be requested. BACKGROUND: the Project Board, consisting of representatives from Transport Scotland, Network Rail, Clackmannanshire Council, steered the latter part of the construction of the SAK line and is believed to have cancelled the acoustic barriers intended to reduce noise levels for residents. Details of these barriers, with locations were presented to both the public and Parliament in the SAK Environmental Statement. As part of ECHR requirements, vows were made to honor the Environmental Statement and to protect residents. These vows were quickly abandoned once approval had been given by the Scottish Parliament and construction had begun..
Monitoring of nose and vibration levels was considered and issues of possible houses and areas and the number of sample locations. It was agreed that the monitoring be done by an external consultant rather than the Council’s environment team.
Discussion included a hand out listing Local Authority duties regarding environmental protection as required by EPA1990, (environment protection act). This listed Council obligations:
1. monitor the environment and investigate complaints
2 make a judgment of whether or not the pollution constituted a ‘statutory nuisance’
3 serve abatement orders if the pollution was judged to be a statutory nuisance.
PREJUDICIAL TO HEALTH
Statutory nuisance was discussed, it’s definition, from EPA 1990 being any pollutant that is a ‘nuisance’ or, on the balance of probability, ‘prejudicial to health’.
Also discussed were issues such as why World Health Organization guidelines were not being used by Council Environmental Health officers to classify noise levels (measured in 2009) as prejudicial to health and thus a ‘statutory nuisance’.
There was general agreement that it would be better to obtain current noise levels and that vibration levels, in any case, were never properly measured in 2009. There still remains the issue of what levels of noise or standards the Council should use when deciding whether to class the pollution as a nuisance or prejudicial to health.
CONTINUATION OF MEETING
The proposed date for continuing the meeting is 12th September 2013; the aim is to have an interim report submitted for the next meeting of the Council’s Environment Committee.
This record taken by A. McIvor, NVAG chair person.