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’
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 email@example.com
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.
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.
Stirling Council’s new Petition Panel, chaired by Councilor Steven Paterson were presented with a petition asking the council to take action on the noise and vibration from trains that is afflicting residents in the Council’s area. Archie McIver and Zara Kitson, who presented the petition, outlined the many promises and assurances that had been made then ignored by the promoters of the Stirling Alloa Kincardine rail line, SAK. It was described how Transport Scotland’s approach to the public had been not only duplicitous, but highly inconsistent and that they displayed complete disregard for health-based standards and the well-being of residents. The case was put that right across Stirling, not just on SAK, many residents were being exposed to noise levels that far exceed any modern standards and that vibration levels that were causing serious distress had not been adequately measured or addressed.
There was a good deal of pertinent questioning and support from the councilors present. Jim Thompson spoke about his involvement in Causewayhead Community Council at the time, their objections to Parliament and the manner in which they had been deceived. Mark Russel expressed disappointment at the situation; he had been involved in the process of approval of the SAK line whilst an MSP in Scottish Parliament.
Valid points were made by other Councilors. Corrie McChord asked as to whether advice on the Council taking legal action had been provided by a QC. Apparently it had not.
The Councilors agreed to a proposal that a working group be set up to address this issue. This will be put to to the Council’s Planning and Regulation Panel for consideration on 29th Feb 2013.
Link to Stirling Council website:
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.
PRESS RELEASE by Thompson’s Solicitors
For immediate release: 10:00hrs, 23rd November 2012
Families hopes of peace and quiet dashed by Transport Minister
No further testing for night noise and vibration to be carried out on Stirling-Alloa-Kincardine line
Families who live close to the Stirling-Alloa-Kincardine railway line whose lives are being blighted by noise and vibration caused by overnight freight have had hopes for a solution dashed.
A series of Parliamentary questions tabled by Dr Richard Simpson, the MSP for Mid Scotland and Fife, probed the Scottish Government on the situation following the introduction of night freight on the line which residents had been led to believe wouldn’t happen. The questions asked for details of testing for noise and vibration at residential properties along the line and about standards used to decide on mitigation measures.
Among the answers the Transport Minister Keith Brown MSP stated that vibration measurements had been concluded and that following repeated noise testing no additional properties would be tested for the first time. He also admitted that in reaching it’s conclusion regarding mitigation for properties along the line only four properties had actually been tested for vibration and just 11 for noise levels.
Campaigners claim the Scottish Government is refusing to protect them from the health risks associated with noise and that the Government has based this refusal on a 20 year old report which was commissioned to look at noise as a nuisance. They also claim that two decades of medical research that warn of chronic ill-health, sleep deprivation and stress are being ignored.
Chairman of the Noise Vibration Action Group Archie McIver has accused the Scottish Government of digging its heels in on the issue and said: “By using a defunct, 20 year-old standard called the Mitchell Report, the Scottish Government is refusing to protect line-side families from the harmful impact of night-time train noise.
“There has been a total disregard for the health of people like myself and others who have to deal with interrupted sleep night after night, and the constant daily stress of being bombarded by noise. The financial loss of value to our property is tens of thousands of pounds but this is nothing compared to the struggle to work and to function in a sleep-deprived state. Driving is something we increasingly avoid because of the high risk.”
Thompsons Partner Patrick McGuire said: “The Scottish Government’s latest position on addressing the issue of overnight noise and vibration on the Stirling-Alloa-Kincardine line is frankly not good enough. These families were told that the line would not be used for night freight and not only was this complete nonsense but there seems to be no appetite whatsoever to resolve the problem which is causing sleep deprivation and knock on health issues as a result for a large number of people”.
Commenting on the Ministers responses Dr Simpson MSP for Mid Scotland and Fife, a former GP and Psychiatrist said: “The fact that this SNP Government and the Minister who is also a local MSP choose to ignore the suffering of many of my constituents shows a complacency which is uncaring in the extreme.
The designation threshold for night time noise nuisance of 82db noise level and occurring more than once per hour means that these night coal trains can never be deemed a disturbance as they are always less frequent than hourly. The Minister and Transport Scotland officials should try sleeping at night in the affected households. It is a shameful disregard for the health and well being of those affected.”
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Keith Brown claimed in a Parliamentary response about a Scottish rail line, that the government were dealing with noise and vibration in accordance with the standards presented to Public and Parliament. [The standard being referred to were in the 2003 Stirling-Alloa-Kincardine Railway Environmental Statement].
Strange! The Minster was asked last week, in person, to keep that promise, to actually apply those very same standards. He didn’t respond with a resounding ‘yes’. In fact, his response was to the effect that it depends on how one interprets those standards.
Huh? The standards are there, WHO Guidelines, BS8233, modern, health-based standards that are fully explained in public documents for anyone who cares to read them. What’s to interpret?
A clue comes later in a second Parliamentary response he made about the basis for the criteria being applied. He advised that they were using a defunct, 20 year-old DGB Mitchell Report [but didn’t use the term ‘defunct’ or 20 yr-old]. This he advised, was the basis for the criteria they were using.
None of this ties up. The Mitchell Report is out of date, doesn’t address health issues is ignorant of two decades of medical research and has nothing to do with the modern standards in the ES statement that he said was being applied. The Mitchell Report doesn’t even merit a mention in long appendix of reference reports compiled at the back. So we have modern, WHO and BS8233 health-based standards for night noise and vibration, right there in the Environmental Statement, black and white, standards Mr Brown and Transport Scotland gloss over or simply can’t find . . . yet, strangely, Mr Brown had no trouble finding a standard that wasn’t in the Environmental Statement. How bizarre!! .
The truth? Transport Scotland, with Keith Brown’s approval, has been avidly applying an outdated, health-damaging, 82dB Lamax night noise standard from the old Mitchell Report to a raft of new infrastructure projects across the country. It saves money for Transport Scotland because they don’t have to fund night noise mitigation and it give carte blanche to any company who has no qualms about emitting noise pollution but has qualms about cleaning it up. Unfortunately the public, get the dirty side of the deal: chronic sleep deprivation, high levels of stress, ischemic heart disease, physical, psychological and social deterioration and poor and delayed development in children.
What now? Keith Brown needs to take a hard look at what he means by interpreting standards. If that means ignoring what was clearly presented to Parliament, was vowed to be upheld, was used as evidence in order to win approval for the bill, then that’s not ‘interpreting’. If it means drafting in a standard that wasn’t presented, a standard that comes from other projects, a standard that stretches back into the mists of time, then, no, that’s not interpreting. It’s something else, something rather odious and somewhat less palatable,
This is a real issue, not only for those who suffer the relentless day and night impact of noise and vibration on this line, but for the whole country. When the printed, documented standards in an official report are being ignored, ‘interpreted’, swapped for something completely different, we have to ask —what does that say about the standards of the organization applying them?
This article and all views and opinions contained, are those of Archie McIver, Chairperson of NVAG. 7 Nov 2012