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Personal Finance

You have a right to a quiet environment

serene environment
A walk through a cool, quiet and serene environment, away from smell and noise pollution. FILE PHOTO | NMG 

Q “ I LIVE IN A QUIET AND SERENE NEIGHBOURHOOD IN KAREN. MY NEXT DOOR NEIGHBOUR OFTEN HAS MUSIC FESTIVALS IN HIS HOUSE ONCE A MONTH FOR THREE DAYS. THE FESTIVAL INVOLVES LIVE PERFORMANCES OF MUSIC FROM VARIOUS BANDS AND A LOT OF REVELLING. WHEN THE FESTIVALS HAPPEN WE ARE UNABLE TO SLEEP AS IT IS VERY NOISY. DO I HAVE ANY RECOURSE AGAINST HIM?”

You do have a recourse against him that is found in the environmental laws and the tort of nuisance. Article 42 of the Constitution provides that every person has the right to a clean and healthy environment. Section 3 of the Environmental Co-ordination Act gives the same right.

Public complaints on environmental degradation are handled at the public complaints committee. The public complaints committee can investigate complaints on environmental degradation.

The environment laws also establish a noise (Standards & Enforcement Review Committee) which is the body that sets the allowable noise levels. It also measures noise levels. It is an offence to exceed this for a particular area.

Therefore the first thing to do is to formally lodge a complaint with the relevant committee.

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The second remedy is to file a case on noise pollution at the High Court. Under Article 70 of the Constitution, one can apply to the court to issue orders stopping any actions of pollution and also orders to compensate a victim from any damages suffered as a result of pollution.

It is not necessary for an applicant to establish to the court that he has suffered direct damages as a result of pollution, that there has been pollution is enough cause to warrant compensation.

Environmental cases are usually filed at the High Court Level (The ELC Court). The precautionary principle applies and it is a principle which states that if there is a strong suspicion that the environment may be harmed by a certain activity, the approach is to stop the potentially harmful activity immediately rather than later.

The environmental laws contain sets of regulation on each type of pollution. The Environmental Management & Coordination ( Noise & Excessive Vibration Pollution, Control) Regulations 2009 give the regulation concerning noise pollution.

This is emission of uncontrolled noise likely to endanger human health/environment. It also includes excessive vibrations which is an intense vibration so as to disturb persons or exceeds 0.5 centimetres per second beyond any property.

While determining the level of noise pollution the court will consider the time of day that this is happening, proximity to residential area, recurrence of noise, level of noise and whether or not the noise can be controlled. Section 6 (2) prescribes that NEMA measures the level of noise pollution.

A further claim can be made for damages under the tort of nuiance. A nuisance is where one unreasonably uses their land to the detriment of their neighbour as was help in Miller v Jackson (1977).

The actions by the infringer in this case can be considered to be a nuisance which includes smell and noise pollution. In considering whether or not to award damages for a nuisance, the court looks at the locality of the menace. In the case of Sturges V Bridgman (1879) noise from a factory located in an area that primarily had doctors’ consulting clinics was found to be a nuisance. The court also considers the time during which the alleged nuisance takes place, for example if it takes place over a long period of time.

The right to environment includes the right to a quiet surroundings which in this case has been breached.

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