Noisy Neighbour Beware: What the Law States about Night Clubs in Residential Areas

By Ian Njathi

( LLM,LL.B, Dip in Law, Cert EIAA )

People, in their very nature are unique individuals, it is for this reason that not everyone has preference to the same sounds and thus a noise nuisance is bound to happen when nightclubs are allowed to operate in residential areas. Nightclubs are known to play loud music particularly at night time hours.

It is during these hours that hardworking citizens having spent an entire day working retire to their various residences and expect some peace, comfort and repose. However, establishments located in residential areas tend to deny the residents of such areas the comfort and repose they need.

The Constitution of Kenya under Article 42 provides that every person has a right to a clean and healthy environment and this includes the right to have the environment protected for the benefit of present and future generations.

The prevention of noise and vibration pollution is recognised as a component of a clean and healthy environment.[1] With this in mind, when nightclubs are allowed to operate in a manner that causes excessive noise and vibration, that might lead to injury of the body and disruption of peace and comfort enjoyed by the residents of a particular residential area. It is for this reason that there is a need to regulate the levels of noise and vibrations.

Through Legal Notice No. 61 of 2009, The Environmental Management and Co-ordination (Noise and Excessive Vibrations Pollution) (Control) Regulations were enacted to regulate the prevention of noise and vibration pollution.
The Regulations define noise pollution as the emission of uncontrolled noise that is likely to cause danger to human health and damage to the environment.[2]

Excessive vibration on the other hand is defined as the presence of vibrations that are of an intensity, duration or character that causes an annoyance or tends to cause adverse psychological or physiological effects to people and damage to personal or real property.[3]

Additionally, it is important to determine the factors that exacerbate noise pollution for instance, the time of day, proximity to residential areas, the recurrent nature of the noise, intensity of the noise and whether the noise has been enhanced by any electronic or mechanical means such as an amplifier as well as whether the noise can be controlled without effort or expense to the person making the noise.[4]

Those found to be in contravention of the laid down regulations with regard to noise pollution and excessive vibrations will be committing an offence.
It is important to determine what composes a residential area in order to fully ascertain whether an offence of noise pollution or excessive vibration has taken place as the regulations provide for maximum permissible noise levels in different areas.

The Physical Planning Act refers to residential areas as areas restricted for use exclusively for residential purposes and includes land reserved for open spaces, sport grounds or land reserved for public purposes.

When a nightclub sets up shop in a residential area, it has a responsibility to ensure that they conduct their business in a manner that does not violate the right of the residents of that area.[5] The Rights and freedoms of club owners must be balanced with those of the residents and any claim by the residents that noise emanating from the clubs as loud and offensive as well as interferes with comfort, repose, health and safety of the residents amounts to offensive under the EMCA noise Pollution Regulations.

The Environmental Management and Co-ordination Act sets out the framework for establishing noise standards and prohibiting excessive noise. This is with a view to ensuring that the health and public safety of citizens is protected from the harmful effects of noise and excessive vibrations.[6] What happens in a situation where nightclubs in residential areas emit excessive noise and vibration pollution? The best example in how residents have addressed this concern lies in the case of the Kilimani Project Foundation V B Concept Limited T/A B-Club and 7 others[7]. In this case, the residents of Kilimani through the Kilimani Project Foundation brought a motion in the Environment and Lands Court after being aggrieved by the conduct of four clubs in the Kilimani Area, namely B-Club, Kiza Lounge, Explorer Tavern and Space Lounge (the respondents) who played loud music daily and hosted rowdy drunken revelers thereby depriving the residents sleep and security. This was a violation of the residents’ right to a clean and healthy environment as well as a contravention to the EMCA Noise Regulations.

In responding to the motion, the respondents admitted to have conducted noise audits and noise survey reports to establish that noise levels were within the permitted levels and some had taken further steps to ensure that their areas were sound proof and noise was not being emitted.

The Assistant Director of Environment in Nairobi County stated that their office had received numerous complaints from different entities and persons on perceived noise and disruptions occasioned by the clubs. Their office had convened meetings between the residents and the club owners, sent out compliance notices to the establishments to lower amplified sound to the required decibel levels and made arrests of noise pollution regulation offenders.
Among the main reliefs that the residents prayed for in the court were:

a) A declaration that the respondents continued operation of business within the petitioners’ area of residence was a violation of the residents’ right to life and a clean and healthy environment.

b) A declaration that the issuance of the business permits and liquor licences to the respondents was unlawful/illegal

c) A mandatory injunction against the relevant authorities to issue and enforce closure notices against the respondents.

In making a determination, the Court found that the petitioners right to a clean and healthy environment had been infringed by the activities of the respondents and the relevant authorities that is, Nairobi City County Government, National Environmental Management Authority and Chairperson Nairobi City County Alcoholic Drinks and Licensing board had been reluctant to exercise their mandate under the Constitution and EMCA despite the numerous complaints from the petitioners to curb the respondents nuisance.

The Court further added that by stating the measures undertaken by the respondents to not have excessive noise levels beyond the statutory limits is in itself an admission that excessive noise emanates from the premises.
Following the determination, the court ruled that the licenses and business permits issued to the respondents were unlawful owing to the fact that they had infringed on the residents right to life and clean and healthy environment and further ordered for the issuances of closure notices by the relevant authorities to the respondents’ night club businesses.

Regulation of Noise under The Environmental Management and Co-ordination (Noise and Excessive Vibrations Pollution) (Control) Regulations.

The EMCA Noise Regulation provides for the prohibition of sound producing and sound amplifying equipment that are loud and annoying or offensive in a manner that interferes with the comfort, repose, health or safety of the members of the public, creates a risk within or outside any building and at a distance of 30 meters or more from the source of the sound.

Additionally, the regulation also prohibits equipment that emits noise which interferes with the conversation of members of the public 30 meters or more from the source of the sound and this includes moving sources such as matatus and cars.[8]

The Regulations further calls for any person in charge of party or social event, to ensure that the party or event does not produce noise in a loud, annoying or offensive manner such that the noise interferes with the repose, comfort, health or safety of members of the public.[9] Additionally, the law prohibits the use of any sound amplifying equipment that is likely to be heard outside any building between the hours of 9PM and 7.30 AM without a valid licence.[10]

The Regulations further set out permissible noise levels in its first schedule for example the maximum permissible noise level for residential areas indoors is 45 decibels during the day and 35 at night, whereas for outdoors the maximum level is 50 decibels during the day and 35 at night. The schedule also sets out maximum permissible levels of vibration for residential areas indoors is 35 decibels during the day and 25 at night, whereas for outdoors the maximum level is 40 decibels during the day and 35 at night. Any limit above the allowed maximum levels is considered an offence.

Exemptions

However, the Regulations envision a situation where emission of noise is permitted such situations include:

1) For the purpose of alerting persons to the existence of an emergency
2) For the performance of an emergency response
3) For the protection of health and safety of residents or property during emergency conditions
5) Necessary protection of public safety such as police, fire and ambulance sirens and train horns
6) Parades and celebrations

It is only during these situations that the emission of noise and excessive vibration is permissible any other time amounts to an offence.

[1] Pastor James Jessee Gitahi & 2 Others V AG Petition No. 683 of 2009 D. S. Majanja J.

[2] Section 2 The Environmental Management and Co-ordination (Noise and Excessive Vibrations Pollution) (Control) Regulations

[3] Ibid

[4] Section 3 (2) Ibid

[5] R v Nairobi City County Alcoholic Drinks Control and Licensing Board and Another Ex parte Space Lounge Bar and Grill, JR Misc Application No. 613 of 2016, Odunga J

[6] Section 101- 104, Environmental Management and Co-ordination Act

[7] ELC Constitutional Petition No 5 of 2018

[8] Section 8, The Environmental Management and Co-ordination (Noise and Excessive Vibrations Pollution) (Control) Regulations

[9] Section 9, Ibid

[10] Section 16, Ibid