Commentary on Sections Part 9 – Environmental Matters Section 70 – Control of noise: Control of Pollution Act 1974
224.The carrying out of the Forth Crossing works will inevitably cause a high level of noise and vibration. The regulation of construction noise is dealt with by the Control of Pollution Act 1974 (c.40) and the Environmental Protection Act 1990 (c.43). The regime for control of construction noise under the 1974 Act is operated by local authorities. The Forth Crossing works will affect more than one local authority area.
225.Under section 60 of the 1974 Act a local authority can serve a notice on persons responsible for construction in order to impose requirements on the way that the construction is carried out. An appeal can be made against such a notice and the existing grounds of appeal include provision that the local authority did not have regard to some or all of the provisions in section 60(4) of the 1974 Act, including the provision that before serving a notice the local authority shall have regard to the need for ensuring best practicable means were employed to minimise noise.
226.Section 70(1) applies section 60 of the 1974 Act and allows under paragraph (a) an additional ground of appeal for the Scottish Ministers’ contractor for the Forth Crossing works to any notice served by a local authority to control noise or vibration on a construction site under section 60. The section provides that the grounds of appeal could also include that the works were, or were going to be, carried out in accordance with the Scottish Ministers’ duties in relation to noise in the Code of Construction Practice. Accordingly, the provision introduces a ground of appeal that the works to which a notice served under section 60 of the 1974 Act were, or were going to be, carried out in accordance with authorisation at section 67 of the Act to carry out the works in accordance with Code of Construction Practice.
227.Subsection (1)(b) sets out further matters where such an appeal is made. The notice is suspended until the appeal is determined or abandoned. The sheriff must recall the notice if he or she determines that the grounds of the appeal are met
228.Subsection (2) disapplies subsection 61(9) of the 1974 Act which has the effect that if a consent is granted under section 61 in respect of any Forth Crossing work, that consent will not contain a statement that the consent is not a defence to any proceedings under section 82 of the 1990 Act.