Discuss about the Memorandum for Civil Legal Aid System Ireland.
Memorandum
To: Mr. Dan (Client)
From: Lawyer
Date: January 12, 2017
File no: 200045-3
Re: Civil legal Aid System in Ireland for playing of loud music by the neighbors causing annoyance to Mr.Dan.
Facts : An individual is seeking advice while taking action in a civil litigation matter against his neighbors who played loud music and cause nuisance all night causing disturbance to others.
Our client is Mr. Dan who is seeking legal aid against his neighbors who created nuisance playing loud music all night.
Mr. Dan, our client is the originator of the lawsuit, plaintiff.
Issue: Mr. Dan wants to file a civil litigation matter as against his neighbours for playing loud music all night and creating a nuisance. What are the legal aid services available to him?
Discussion: Lawsuit is taken in action in case where there is a nuisance. Action is taken under law of nuisance. Lawsuits, which invoke law of nuisance, involve neighbors suing their neighbors for creating a nuisance, which causes harm or disturbance to the neighbors. When the plaintiff brings a n action against his neighbor he clearly clarifies that the neighbor should stop interfering with his enjoyment and thus the action must be stopped. Nuisance is categorized under two heads: private nuisance and public nuisance.[1] In our case, it is a public nuisance, which caused disturbance to Mr. Dan. Public nuisance is anything that causes damage to the health, welfare, safety and comfort of the public.[2]
The main regulation that deals with noise pollution comes under the Environmental Protection Ac t, 1992(EPA).[3] There are vast variances of noise pollution in Ireland and which the EPA regulates. Under the law, noise pollution means various things, like noise:
The Department of the Environmental, Community and Local Government in 1994 looked into the matter of noise pollution and made regulations under the EPA, 1992( Noise) Regulations 1994.[4] Under these regulations, a person can make a complaint to a District Court seeking Order to deal with noise, which causes disturbance or annoyance to him. Under the second stage debate in Dail, a Private Members Bill was passed on November 2006, which clearly states the noise, which causes disturbance, or annoyance to neighbors is regarded to be anti-social kind of noise pollution.[5] Section 108 of the EPA, 1992 states that noise that is so loud as to create disturbance or continuing annoyance to the neighbors is classified as nuisance and an action can be brought against it. Ireland does not set out the maximum level of noise in its legislation. The complaints looked into by the District Court. The District Court hears both the sides and then gives his decision telling the person creating the nuisance to lower the sound to certain level.[6] As mentioned under the law when a a complaint brought against the neighbor is unsuccessful then the case is brought to the District Court. The Clerk in the District Court advices how to make a complaint in relation to noise. The clerk provides an application form called a “Notice of Intention to make a complaint”. The applicable charge is €22, which is served to the neighbor.[7]
In the case of Kennaway v Thompson [1981] QB 88 Court of Appeal , the defendant in this case is a member of the Cotswold Motor Boat Racing Club who carried out motor boat racing. Since 1960’s the boat racing took place.[8] The claimant moved into house built on a land, which is 390 yards from the motor racing club’s starting line. The club’s water was often used for national and international races, which increased over the period. The claimant bought an action against the club against nuisance of noise and disturbance caused by the club. The claimant was successful in her claims and awarded damages by the Court from the Motor Racing club. However, the judge refused to give injunction.[9]
Christie v Davey (1893) 1 Ch 316, the claimant in this case was a music teacher who gave private lessons of music at her home. She also taught music to her family members and loved playing loud music. She stayed in a semi-attached house with the defendant. The defendant raised a complaint against the claimant for noise on many occasions and banged the walls of the claimant. The defendant’s action regarded as malice by the Court and did not amount to nuisance. The Court gave injunction to stop the acts of the defendant.[10]
In Murdoch & Murdoch v Glacier Metal Company Limited [1998] Env.L.R.732 it was held by the Court of Appeal that noise which is set up by the World Health Organization does not amount to actionable nuisance per se. It was not really the case that there was a customary law annoyance if rest in a house in a zone of blended uses was exasperates by clamor. In spite of the fact that the topic of rest unsettling influence was a critical matter to consider, it was important to consider the general circumstance.[11] In considering the measures of the normal individual and the character of the area when choosing whether the clamor was adequately genuine to add up to an aggravation, the trial judge had connected the correct test. The absence of objections by other nearby occupants, the nearness of a by-go in closeness to Murdoch home and proof from the neighborhood natural wellbeing officer that there was no statutory annoyance were applicable contemplations, and the judges choice would in this way be maintained.[12]
Application: Public nuisance under the Act is defined as a nuisance, which cause unreasonable discomfort to the public in general. An act, which affects the well-being of the neighbors, regarded to be as nuisance. Under Section 108 of the EPA, 1992 defines the term public nuisance. The main elements has to public nuisance are; unreasonableness harm caused by the defendant, continuing the act of the nuisance over a period. Under Section 108 of the EPA, 1992 a noise that is loud enough to cause continuous and repeated harm or disturbance, or annoyance to a person who is residing in the nearby locality or to a person who uses the public place, such person or Agency can make a complaint against the person creating the nuisance.[13] The complaint is made to the District Court and the Court then can pass an order as against the person causing the nuisance to take measures to reduce the noise to a certain level. Such person must comply with such order. In order to overcome the damages the defendant has to prove good defense that the noise he made wasn’t unreasonable and he took enough care to cause any harm to the neighborhood. Remedies include damages and injunction to continue with such act and comply with the order of the Court. Public nuisance is termed as anything that causes harm to the safety, health and welfare of the public in general. When the rules laid down under the law is applied in the case of Mr. Dan, the client we see that he has faced reasonable harm by his neighbors while they played loud music in their premises.[14]The loud music played by his neighbors caused annoyance and nuisance, which affected the well-being and comfort of Mr.Dan. Again in the case of Kennaway v Thompson [1981] QB 88 Court of Appeal the court held that the motor racing club is liable to pay damages for the noise caused by them in the nearby neighborhood. The noise caused by the motor racing club caused reasonable annoyance to the claimant. The claimant was liable to damages but injunction was not put on the motor racing club. When we apply the scenario of this case in the case of Mr.Dan we can say that Mr.Dan is liable to get damages for the nuisance caused to him by the neighbors.[15] In the Christie v Davey the claimant was not liable to get damages because the defendant’s act was regarded as malice and thus injunction was issued on the defendant. The noise caused did not cause annoyance to the neighbor.[16]
Summary and Conclusion
When read altogether and analyzed the effect of the rules laid down under the EPA and the case laws referred are as follows. Any person who does not abide by the rulings of the Court is guilty of an offence. The playing of loud music by the neighbors all night so the neighbors were liable to pay damages disturbed the client Mr. Dan. A compensatory damage is applied to the damage caused by the defendant’s nuisance. Punitive damages are charged when the damages caused is intentional.
Looked at The EPA at 40: An Historical Perspective By Andrews, Richard N. L Duke Environmental Law & Policy Forum, Vol. 21, No. 2, Spring 2011
Found information laid down in Section 108 of the Environmental Protection Act, 1992.
Westlaw
Manupatra
Hard copy readings
Irish current law statutes- Section 108 of the Environmental Protection Act 1992.
Bishop, Charlotte. “Rule that proof of domestic violence for legal aid purposes must be less than 24 months old declared invalid.” Journal of Social Welfare and Family Law 38.3 (2016): 330-332.
King, E. A., et al. “A combined assessment of air and noise pollution on the High Line, New York City.” Transportation Research Part D: Transport and Environment 42 (2016): 91-103.
Books
Angelo, Tony, Geoff McLay, and Bevan Marten. “Bill Atkin: Colleague, mentor, teacher, friend.” Victoria University of Wellington Law Review 46.3 (2015): 575.
Austin, Graeme W. “Guts of a Torts Class, The.” Victoria U. Wellington L. Rev. 46 (2015): 769.
Bugliarello, George, Ariel Alexandre, and John Barnes. The Impact of Noise Pollution: A Socio-Technological Introduction. Elsevier, 2014.
Can, Arnaud, Gwenaël Guillaume, and Benoît Gauvreau. “Noise indicators to diagnose urban sound environments at multiple spatial scales.” Acta Acustica united with Acustica 101.5 (2015): 964-974.
Charles Palmer, Robert. “Common law environmental protection: the future of private nuisance, Part II.” International Journal of Law in the Built Environment 6.1/2 (2014): 106-128.
Cornford, Tom. Towards a public law of tort. Routledge, 2016
Stech, Radoslaw. “Carrot and Stick Approach: An Analysis of the UK Government’s Proposals on Environmental Judicial Review, A.” Envtl. L. Rev. 15 (2013): 139.
Vago, Steven. Law and society. Routledge, 2015.
Votsi, Nefta-Eleftheria P., Athanasios S. Kallimanis, and Ioannis D. Pantis. “An environmental index of noise and light pollution at EU by spatial correlation of quiet and unlit areas.” Environmental Pollution (2016).
References
Angelo, Tony, Geoff McLay, and Bevan Marten. “Bill Atkin: Colleague, mentor, teacher, friend.” Victoria University of Wellington Law Review 46.3 (2015): 575.
Austin, Graeme W. “Guts of a Torts Class, The.” Victoria U. Wellington L. Rev. 46 (2015): 769.
Bugliarello, George, Ariel Alexandre, and John Barnes. The Impact of Noise Pollution: A Socio-Technological Introduction. Elsevier, 2014.
Can, Arnaud, Gwenaël Guillaume, and Benoît Gauvreau. “Noise indicators to diagnose urban sound environments at multiple spatial scales.” Acta Acustica united with Acustica 101.5 (2015): 964-974.
Charles Palmer, Robert. “Common law environmental protection: the future of private nuisance, Part II.” International Journal of Law in the Built Environment 6.1/2 (2014): 106-128.
Cornford, Tom. Towards a public law of tort. Routledge, 2016.
Davis, Rickie. “Long-term noise exposures: A brief review.” Hearing Research (2016).
Gillespie, Alisdair. The English legal system. Oxford University Press, 2013.
Lee, Maria. “The Intersection between Environmental Law and Tort Law.” Glicksman and Paddock, Environmental Decision Making (Edward Elgar), Forthcoming (2015).
Morrow, Karen. “II. 3 The courts, nuisance and environmental pollution—a matter of will?.” Decision Making in Environmental Law (2016): 52.
Murphy, Enda, and Eoin King. Environmental Noise Pollution: Noise Mapping, Public Health, and Policy. Newnes, 2014.
Palmer, Robert Charles. “Common law environmental protection: the future of private nuisance, Part II.” International Journal of Law in the Built Environment 6.1/2 (2014): 106.
Portney, Paul R., ed. Public policies for environmental protection. Routledge, 2016.
Stech, Radoslaw. “Carrot and Stick Approach: An Analysis of the UK Government’s Proposals on Environmental Judicial Review, A.” Envtl. L. Rev. 15 (2013): 139.
Vago, Steven. Law and society. Routledge, 2015.
Votsi, Nefta-Eleftheria P., Athanasios S. Kallimanis, and Ioannis D. Pantis. “An environmental index of noise and light pollution at EU by spatial correlation of quiet and unlit areas.” Environmental Pollution (2016).
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