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’
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.
At a full Stirling Council meeting on 28th Feb 2013, the council approved a noise and vibration working group as one of the items on a busy agenda. An amendment was approved that changed both the timescale of the working group to 6 months and revised the membership. The working group now consists of the environment portfolio holder, Councillor Danny Gibson, and the three Councillors of the Castle Ward: Councillor Johanna Boyd, Councillor Jim Thompson and Councillor John Hendry. The remit focuses mostly on the problem of the SAK line although it will also look at the wider issues of rail noise and vibration.
Thanks goes to Councillor Mark Russel who suggested the formation of a working group as a way forwards during the Petition Panel consideration stage. Although not on the working group he is interested in its progress and has asked to be kept informed
NVAG welcome the creation of this group and are keen that the Councillors take on board the views of residents impacted by the noise and vibration and take measures to find an effective resolution to this five year old problem. Indications are that the group will call on locals, NVAG, Forth Valley Health Board and other bodies such as the rail operators and government agencies.
NVAG would like to thank those residents who went to the trouble of collecting signatures that made this petition viable and also to Zara Kitson, who, although not a line side resident, suggested the petition at one of NVAG’s first meetings in 2012, and who spoke on its behalf at the petition panel hearing last month.
This is a positive step by Stirling Council for both democracy and accountability. When will Clackmannanshire Council follow this example and introduce a petition system so that hard-hit residents under its care have a voice in the democratic process?
A McIver, 5th Mar 2013
The Dec 7th meeting of the core group and area reps with conference call from Sarah Smith of Thompsons solicitors proved to be very productive. Key issues:
- Legal action likely to start in mid 2013
- Confirmation that legal action is on a no win -no fee basis
- Action will be on human rights breach
- Letters are being processed by Thompsons at the moment for issue to the various bodies against whom claims will be made
- Residents not already participating should be wary as they may run out of time. A one year time bar runs from the cessation of the cause of the problem.
- An event at the entrance to the Scottish Parliament was suggested so that MSPs and media can find out more about the case. Members would be urged to attend and MSPs would get to hear recordings of 82dB train noise recordings. Although the suggestion was that Thursday 20th Dec would be a good day, a survey of members found that many still had work commitments till the Friday and that another date/time would be more viable.
We look forwards to NVAG members finding a solution to this four year old problem in 2013.
A legal advice and railway noise and vibration information session has been set up. Anyone suffering from the impact of the trains, concerned about their health or the devaluation of their property may find it useful to find out:
- what the new Noise Vibration Action Group are doing
- why the government and private companies have not yet acted
- the legal position from an award winning firm of lawyers.
This is open to the public, there’s no fee, no commitment, and you do not need to be a NVAG member. The meetings will include a question and answer session. To ensure you have a seat, it’s advisable to contact us using the contact details in our contact page. The venue is the Raploch Community Campus (new, large glass-fronted building). Meeting times: 7pm, Fri the 29th of June.
[The 7pm time was a near unanimous request, but anyone coming for proposed 8.15pm slot, come in, stay on and we will cover key issues] .
Parking is behind the Campus building and is accessed via the Stirling City or east side of the building. Come along. We are sure you’ll find it interesting. Location
NVAG launch, Stirling, May 18th 2012.
The Noise Vibration Action Group was founded in response to failed attempts by bodies such as Network Rail, Transport Scotland, AECOM, DB Shenker, Scottish Power, Scottish Coal, Clackmannanshire Council and the Scottish Parliament’s petitions committee to make any significant progress with the noise and vibration impact from coal freight trains.
After nearly four years of letters and meetings, during a day of torrential rain and flooding in late November 2011, petition PE1273 was closed down. The Scottish Parliament announced that neither itself nor Network Rail had the power to control freight trains on Scotland’s Railways. Apparently no one has.
Environmental problems such as noise and vibration, come under the jurisdiction of local council environmental health departments. Stirling Council sought legal advice from a professor of environmental law and was informed that it would be unlikely to win if it took the issue to court. The same professor advised that residents did have legal avenues, one of these being human rights legislation.
Since the Scottish Government and the regulatory bodies and a host of private companies had, over a period of four years, declared themselve either unable or unwilling to protect citizens from harmful levels of noise and vibration, it remained for the residents to protect themselves. NVAG was formed.