EWJ Dec 2023 - Journal - Page 84
Fig. 2 (opposite below) Note to expert – that’s a big drop, not
some bottles wrapped in a bin liner
(6) errors and misrepresentations within the report
There are many errors/misstatements in the report
including a mathematical error in the BS4142 rating
assessment at mp1 (clause 5.3.5, Table4), misrepresenting the monitoring period (clause 1.3.6), miscounting the number of bins (clause 4.5.8), misleading
statement on the force at which bottles were dropped
(clause 5.9), bin occupancy and various others.
A few days prior to the hearing I found out by chance
that NCC intended to have the acoustic expert give
evidence in person. This was in total contravention of
the agreed protocols, a fact confirmed by the Clerk of
the Court who presided at the case management hearing. This aroused my suspicions - what was NCC's
agenda? Perhaps they knew I would pick apart the expert's written report so they disregarded the agreed
protocols to enable the expert to give evidence in
person to try and defend its shortcomings.
(7) context
BS4142 states that the initial estimate of the impact
should be modified due to the context. The expert
fails to fully address the context in which the sound
occurs. He fails to mention that the recycling site is
highly visible when approaching the village from the
North, is situated within the village conservation area,
lies within the boundary of an Area of Outstanding
Natural Beauty (Northumberland AONB) and directly abuts a nature reserve (Local Wildlife Site). He
mentions the usefulness of the facility to the local community but in terms of the most recent applicable case
law this should not be relevant - "the public utility and
usefulness of the facility producing the noise is no defence" (Barr v Biffa [2012]) and "a defendant cannot
rely upon his own wrong to change the nature of the
locality" (Lawrence v Fen Tigers [2014]). The expert
also failed to mention, or was not informed of the fact
by NCC, that in 2017 the Council accepted that the
layby location had become untenable. Representatives from NCC, the PC Chairman and Ward County
Councillor scoured the village looking for alternative locations - there are no suitable sites in the village
and that includes the layby in question.
The date of the hearing arrived on 2nd September
2021 for a 10 am start - except it did not start at 10 am
as the expert had deemed it unnecessary to turn up in
person and the video link was down. I argued that this
was irrelevant anyway as the expert's presence in
Court was in contravention of the agreed protocols
and the whole proceedings should be conducted in
his absence. NCC's barrister (yes, they engaged a top
barrister) argued against this and the Judge gave my
request short shrift - so much for Court processes! The
proceedings were delayed by over an hour and half
and thereafter felt hurried.
Being as brief as possible, I presented my evidence
(including noise recordings) and was given the opportunity to cross-examine the expert via video-link.
I confronted him with most of the above issues with his
report but he defended every aspect, including its
methodology, noise character penalties and even
brazenly claimed that the monitoring times allocated
to the measurement of the specific sound source and
background sound level were adequate and compliant
with BS4142! In his closing summary the Judge cited
the expert's report and evidence as the determinant
factor in reaching his judgement - he even called the
expert's evidence "compelling". He dismissed my
application and found in favour of NCC.
There is something wrong when you fully comply
with Court directives, the defence ignores them, and
a verdict is arrived at on the back of an unreliable and
inadequate expert's report. I figured that I could
lodge a complaint with the Institute of Acoustics and
having got acknowledgement that the report was inadequate and non-compliant with BS4142 that would
give me grounds for appealing the verdict. Unfortunately, I didn't realise that dealing with the IOA would
prove to be a protracted and futile exercise.
Fig. 1 Bottle bank with nearest receptor mp1 arrowed in the
background.
On 20th September 2021 I submitted a formal
complaint to the Institute of Acoustics in respect of the
expert's report based on the issues referred to above.
They took over 11 weeks to appoint a lead investigator and demanded to know if it was true I had approached another IOA member for an opinion, as
their Code of Conduct precludes one member from
commenting on another's work without informing
them. I politely informed them that I was not bound
by their Code of Conduct and I could approach
whomever I saw fit. As it happens none of the IOA
members I approached was willing to comment on the
EXPERT WITNESS JOURNAL
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DECEMBER 2023