The "Standards" Approach
Further Dangers In
the Standard Approach
Historical Evaluation
An Enlightened View
The "Solutions-based"
Approach
This paper has been prepared by Peter McMahon and Athol Brown for CAUSE and addresses the adequacy of the current legislation and regulations with respect to long-running pool pump motor pollution. In particular, the concept that legislation intrinsically should be aimed only at the majority of the population requires, in our view, a basic re-think in the light of factors described below.
Firstly, let us examine the concepts behind the reliance by Government on "appropriate standards." Essentially this approach places complete faith in the ability of "authorized officers" to classify any person of any age, sex, race, religion or background into just two categories i.e. those who are reacting "acceptably" and those who are not. In this case we are referring to long-running pool pump motors emitting an audible and annoying or offensive sound to the receiver. The basis of this classification is the use of a machine which does not measure "audibility" but only the highest sound pressure level received by the machine.
This approach has a superficial appeal in that "disputes" can be arbitrated by the authorized officer who can remove his human qualities from any debate and say "you are abnormal because this machine says so." He would say this for example if the pump measured 4.98 dB(A) above the background (at the time of measurement), hence denying the right of the complainant to have the offending noise silenced. If the reading was +5.01dB(A), the machine would, in effect congratulate the complainant as being an 'acceptable' human being. But that is all it would do. The current legislation does not even enforce a cover or any other remedy. It merely wishes him well and trusts that "something" will happen to solve the problem.
The machine is not a human ear. It has a scale of measurement read by reference to an analogue or digital read-out. The needle will register the highest sound pressure level only, not those below that level. Unlike the human ear, which is experiencing the problem, the machine can only record noise at one point on the scale at a time. The human ear, however, can hear and distinguish sounds at a range of levels at the one time. Dr. Lex Brown in his paper commissioned by CAUSE of 1 May 1990 quite clearly supports this view ..."a sound is quite likely to be audible unless its levels are some 5-10 dB below the background level. This means that a noise from a swimming-pool filter, even at levels below 5dB above the background can certainly be audible and have potential to generate annoyance reactions ....."
CAUSE supports Dr. Brown's opinion and rejects the standards approach on the basis of informed opinion by some of the community's most respected behavioral psychologists, upon sheer logic and upon an analytical study of various legal myths that have never been seriously questioned, over nearly one and a half centuries. In the following analysis, CAUSE makes use of legal references compiled by Dr. D.J. Gifford, Law Lecturer, Queensland University in an address to the Darling Downs Institute of Advanced Education, October 1986.
The standards approach is based on the concept of "a reasonable person" or a "normal" person not somebody of a fanciful, delicate, fastidious, elegant or dainty nature but rather a "reasonable" person reflecting the notions of plain and sober English people (Walter V. Selfe, 1851).
Having determined such a "reasonable" person, his or her attributes are set as a standard for all of society in the form of a ruling. If one complies, one is judged "normal," or "reasonable". If not, one is judged "different," "odd," "eccentric", "obsessed", "neurotic" or dispensable. Accordingly that person is discarded by present legislative controls as unworthy of consideration.
Having determined this set of attributes or standards, legislators (using the standards approach) translate these personal attributes into a quantifiable set of standards that (in the case of long-running noise) are not assessed by human beings (whether "normal" or "abnormal") but only by a machine. At present the "normal" person is one who will not complain about noise levels below 5 dB(A) above background (even though background noises are always changing) but who will complain about noise above that level. To complain about noise above 5 dB(A) is regarded as 'normal' because legislation defines noise above 5 dB(A) as being unreasonable even if the hearer is not annoyed.
This approach, of course is fraught with problems. For a start, the dB scale is calculated, upon mathematical. principles (i.e. logarithmic scale) This scale is judged to be the closest mathematical equivalent of the human ears' response to sound, but scientists will readily acknowledge that the human ear complies with no single mathematical model and even if one ear did, then the rest of mankind would be different.
Following on from this, how many other machine measured standards are used to make a judgment whether a person is "normal" or "reasonable" or not? There are thousands of standards used to judge man- made structures e.g. buildings, motor vehicles etc. It would be appropriate perhaps to use a man-made machine to measure or test a man-made item. But how many standards are generally applied to classifying somebody as a "reasonable" human being or not, through the use of a machine? Of course the answer is limited. Why then do noise control legislators assume this right to classify people when other sections of society do not?
It is important that we also think laterally at this point and examine the broader consequences of other contentious neighborhood issues.
The standards approach assumes that the "reasonable" person (however identified) is the same person-type who would apply in all circumstances. The "reasonable" person becomes the standard for those who can obtain relief from an offensive air-conditioner and those who cannot; those who are stressed by roosters, drums or radios and those who are not; those who are stressed by all sorts of avoidable noises and those who are not. The unspoken assumption is that all those who cannot obtain redress are the same consistent, "non-normal" minority who are not worthy of consideration.
..sensitivity to noise is quite a normal behavior pattern. There is a disturbing
tendency to dismiss complaints by the noise-sensitive on the grounds that they not
only complain about noise, but about other factors of their environment and are,
therefore, 'cranks' whose opinions can be justifiably ignored (Bryan and Tempest,
1973 quoted in Dr. Lex Brown's report).
In reality we are all different. A person who cannot bear one type of annoyance may well be a person who can bear other more severe aggravations. As the list of examples is virtually endless, we are faced with the inevitable realization that every individual in society is 'non-standard, 'non-reasonable' or 'abnormal' in one form or another. If the end result is the same i.e. that somebody is being driven out of their mind by some other person's actions then we have created a society where everybody is suffering needlessly because of the ‘standards’ approach.
There is, however, an alternative, there is a solution. But before we identify the solution, we must understand the damage caused by the standards approach.
By its name the standards approach sets a standard from which there is no escape for many people. By maintaining that standard over long periods of time (i.e. decades), that standard becomes the status quo regardless of its suitability in a changed and changing world. If the status quo means that a minority of people are denied a solution for x, and a minority are denied a solution for y and a minority are denied a solution for z etc., then we have a situation of majority neighborhood environmental and social degradation. In effect society, through its legislators, regulators and law courts are perpetrating degradation by defining the standard, operating to the standard and by never questioning that standard. With every new aggravation, every new product for household consumption, society is allowing more degradation to occur. Aggregation of the affected minorities are in fact the majority.
Behind this inadequate line of thought is the unspoken, unchallenged belief that there is no solution available - i.e. one must accept degradation and (forcibly) adjust life accordingly. Why is society denied the right to provide a solution, rather than simply burying its head in the sand and saying "there's the standard, the problem is solved".
We believe the answer is based in history and that history over a period of one or more centuries, has thrown up various vague legal precepts based upon the level of technology familiar to the legal people at the time, whether or not these people were technically qualified or not.
Let us examine the concept of a "reasonable person." This concept goes back to the 1800's and possibly much earlier. It is based upon the experiences of village people during the industrial revolution. As already stated, a "reasonable" person is not fanciful, delicate, fastidious, elegant or dainty but rather a plain, sober, simple representative of the English people. Such a person would be a product of the environment and occurrences experienced by all those in the village at that time. It is important that the reader ponders that statement. It is so obviously true for that epoch and so obviously untrue for our epoch.
Everybody in that bygone epoch would have experienced the rooster or the church bell in virtually the same set of circumstances. In today’s society only tiny minorities (and often only a single individual) at a point in time for a particular aggravation can legitimately claim to experience the aggravation when it occurs. But sadly for an infinite variety of reasons, that individual or small minority is likely to suffer in "silence." A by-product of that silence is stress and stress-related illnesses and a reduced quality of life.
There is such an enormous diversity between human receptors and machine polluters that there is no guarantee of uniformity of any one occurrence. Hence the concept of a representative 'village-person' adjudicating on what must be tolerated and what must not is meaningless. Hence there can be no 'reasonable person' as he/she cannot be transposed across the whole of society for the particular aggravation involved.
History itself does not condone nuisance or the use of machine standards for people assessment. This line of thought is reinforced by an examination of definitions of 'nuisance'. The term 'nuisance' has been defined as 'something noxious or offensive; any unauthorized act, which, without direct physical interference, materially impairs the use and enjoyment by another of his property or prejudicially affects his health, comfort, or convenience' (Jowitt's Dictionary of English Law, 2nd edition 1977) 'as occupier of such land' (Salmond on Torts, 17th Edition, 1977. P 50).
There are two types of nuisance, private and public. Private nuisances are interferences for a substantial length of time with the use or enjoyment of property (Ibid p 51-52).
'That may be a nuisance which is permanent and continued, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell clanging for some domestic purpose, may be a nuisance if unreasonably loud and discordant, of which the jury alone must judge; but although not unreasonably loud, if the owner, from some whim of caprice, made the clock strike the hour every ten minutes, or the bell clang continually, I think that a jury would be justified in considering it to be a very great nuisance' (Bamford V. Turnley (1862).
A person commits the tort of private nuisance when he or she is held to be responsible for an act indirectly ... (i.e. without trespass) substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this... interference is held to be unreasonable (Street on Torts, 7th Ed 1983, p 231).
We believe that these old definitions are more appropriate to sufferers of pool pump pollution than the practical effects of current legislation. Quite clearly all the key elements of that which constitutes a private nuisance are contained within any definition of prolonged pool pump pollution i.e. "noxious, offensive ....impairs the use and enjoyment by another of his property or... affects his/her health, comfort or convenience .... indirectly i.e. without trespass.... interfering with the use or enjoyment of land...." and so on.
Hence there is nothing in history which necessarily enshrines the "standards approach" as being the only approach in today's society. However, what is evident from a study of history is that the legal people tended to assume that society could not solve the source of the problem i.e. noise, but rather could only adapt to the activity causing the noise. The process of adoption was either that it was stopped altogether (with damages and injunctions granted to the complainant) or it was allowed to continue. No significant thought was, or has been given, to technically solving the problem.
Even the legal opinion sought by CAUSE (Michael Bland, 1989) commenced with a preamble (unsought from CAUSE) assuming damages and injunctions as his brief. As a legal practitioner Michael Bland did what any other barrister would have done: he assumed that the only avenue was damages/injunctions. CAUSE has never been interested in this concept. Such concepts again imply that the source of the problem cannot be solved - i.e.-only stopped or not stopped or that the problem be allowed to continue for x hours per day or y hours per day.
CAUSE has always maintained that a pool pump motor (which is always small and with a low noise output) can be silenced by an appropriate enclosure to everybody's satisfaction. Perhaps in the future other remedies will present themselves but the important point is that remedies must be sought, not assumed to be unattainable. The goal is inaudibility. The remedies at hand are not the goal - i.e. an enclosure is only a means to an end.
In Michael Bland's opinion two points are relevant - i.e. the nuisance must be substantial and unreasonable. Firstly, unreasonable, is defined in terms of the cost of a solution - that where the cost is small, it would be unreasonable not to provide the solution to "substantial nuisance." Mr. Bland does not define "substantial" but as far as CAUSE is concerned, the daily annoyance for extended periods of time every day of the year, is clearly and unequivocally "substantial."
Present legislation implicitly agrees that 5 dB(A) and above is substantial while anything below (even say 4.98 dB(A) is inconsequential. This approach relies upon the concept of a "normal" or an "abnormal" Environmental Health Officer using a machine to implement the "standards based" approach. We reject this as untenable, illogical, perpetrating health, social, economic and environmental degradation.
In the analysis so far we have concentrated on logic and a rejection of anachronistic legal precedents dating back to the industrial revolution in England where the nearest thing to a swimming pool was a small bathtub.
We now introduce a more enlightened view from modern behavioral psychology. Dr. Lex Brown made reference in his paper to the possibility of a fictitious complaint - i.e. that a person may complain about an inaudible noise if they were told such a noise was present. CAUSE in its six years of interaction with hundreds of pool pump problems has never come across such a person. CAUSE supports the view that if such a case existed it would, and indeed should, be categorized as frivolous.
Dr. Brown goes on to say, correctly, that there is no "right" or "wrong", no "normal" or "abnormal", no single concept of "reasonable" or "unreasonable" noise nuisance. Quite simply, some people react to low levels of continuous noise adversely while others are able to tune out. It is a fact of the human condition.
To quote Dr. Lex Brown:
A useful conceptual model is that an inaudible noise for a particular receptor population will generate no annoyance (awareness of the existence of an unwanted noise source, even if inaudible, could conceivably generate stress in some). If that noise is audible then there is potential for some in a receptor population to be highly annoyed and as that noise becomes more and more prominent against other ambient sounds heard then one could expect a higher proportion of the receptor population to become annoyed. At levels which completely intrude, a majority would be annoyed.
The application of this model means that some annoyance reactions can be expected to an intruding noise as long as it remains audible. There would not be a situation whereby none were affected until x dB(A) and then everybody became affected after that point. Again this demonstrates the paucity of thought in the 'standards' approach.
CAUSE proposes that legislators take the opportunity to arrest the decline in environmental quality in the suburbs. If that means a small start is taken with pool pumps (the easiest form of motor noise pollution to silence) then at least that is a start. The principles that apply in the circumstances are principles that can universally apply to most sources of neighbourhood aggravation.
Some fundamental assumptions need stating:
a) The Goal
The goal is inaudibility. The goal is not the acoustic canopy or anything else which may be a means to an end. But rather, the goal is inaudibility.
It is proposed that at the time of construction the building authorities ensure that as a minimum:
The pump motor is located as far away from the boundary as possible and, that wherever possible, inside or underneath the dwelling (those who create the pollution should be the ones who live with it);
The pump motor be located on a suitable level, permanent foundation, free of constricting plumbing or other equipment such that an enclosure can easily be fitted (and far more economically and effectively) should it be required. A condition of the building approval should be that if a request is received for enclosure some time in the future, then that owner must oblige without question. In addition, there should be a requirement that, on transfer of that property in the event of sale, then the same condition must be placed on the purchaser.
That pipe-work and other plumbing are located underground to reduce potential noise from pool cleaning devices.
c) The Process
Implicit in the foregoing, is the right of any individual to pool motor inaudibility. There must not be an onus placed on the complainant to establish that he or she is 'normal' or 'reasonable'. It must be simply a 'right’, a basic and fundamental right, that an individual has the right not to share his or her day or night with a long-running pool filter motor that is audible in his/her regularly-used living space.
The goal of inaudibility is far preferable than the goal of an enclosure. With the inaudibility concept, there is scope for manufacturers to develop a product where an enclosure may not be necessary. But if we only opt for enclosure as the goal, then the status quo will become the enclosure which is only a reflection of technology at this point in time.
Paper produced by Peter McMahon and Athol Brown for CAUSE; 1st Ed. Oct 1990; 2nd Ed. May 1996
Return to Swimming-pool Filter-motor Noise
Pollution: Domestic Noise Pollution--An Australian Experience
Top of Appendix D
Appendix A: Case Histories
Appendix B: Memorandum of Advice
Appendix C: Human Reactions to Low Levels of
Intruding Noise