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Drafting from scratch — three versions

by Edward Caldwell, Michèle M Asprey, David Elliott, Eamonn Moran, Joseph Kimble 34 minutes read

Published in The Clarity Journal 54 – 2005

Introduction

As part of the conference on “Clarity and Obscurity in Legal Language” in Boulogne, we organized two panels of expert drafters — two master classes. We thought it would be interesting and instructive to see how different experts approached the same drafting assignment.

In this issue, we report the results from Master Class No. 2. In the next issue, we will report on Master Class No. 1.

For Master Class No. 2, the three panel members were asked to draft a bill from scratch and also to revise part of a rule. For the from-scratch exercise, the process was as follows:

  • Six weeks before the conference, each drafter was given the same drafting instructions for a noise bill.
  • The drafters did not consult with each other (or anyone else) in preparing their initial drafts. They were told to assume the instructions were ‘real’.
  • The drafts were presented at the conference.
  • Edward Caldwell’s comments on his instructions, on pages 7–8, were given to the panelists after they had prepared their drafts.

Noise Bill instructions — prepared by Edward Caldwell

Instructions for a Noise Bill:

  1. These instructions have been prepared by counsel acting on behalf of the Confederation of House Purchasers. The Confederation hopes to be able to persuade a Member of Parliament who is successful in the next ballot for Private Members’ Bills to adopt their Noise Bill.
  2. Counsel is instructed to draft a Bill to provide a remedy where the vendor of a house deliberately conceals from the purchaser a source of troublesome noise.
  3. The policy background to the Bill is that an increasing number of complaints are being made (including complaints to Members of Parliament at constituency surgeries) from people who have moved into new houses and have subsequently found that they are seriously troubled by noise from neighbours, aircraft or nearby roads or commercial installations.
  4. Sometimes these are problems of which the purchaser should, and could, have made himself aware. But very often they are problems which are unlikely to, or which do not, emerge except on prolonged exposure or at particular times (such as during the night).
  5. The law may presently provide redress where an inquiry before exchange of contracts was negligently or dishonestly answered. But the Confederation is not aware of many cases in which existing remedies have proved successful.
  6. Counsel is therefore instructed to provide a civil remedy allowing a purchaser of a property to apply to the court for an award where the vendor has concealed a source of noise.

Edward Caldwell’s comments on the instructions

  • If a local authority environmental health inspector is called to the property by the purchaser to investigate noise, a certificate issued by the inspector as to any findings made by him is to be conclusive evidence of the facts certified unless the contrary is proved.
  • The court should be able to award a sum not exceeding 10% of the value of the property. The court should also be able to award damages against the solicitor who advised the purchaser on the purchase if the court believes that the solicitor was at fault. The court should also be able to award damages against the estate agent who handled the sale if the court believes that he was wholly or partly to blame.
  • Where a property is sold within five years of  a previous sale, the remedy should lie against previous vendors up to a limit of 25 years.
  • Counsel is also asked for concealment of the kind mentioned in paragraph 5 to be an offence punishable with a fine or imprisonment.
  • It should not be possible to obtain a double remedy by proceeding under the new provisions and under the existing law. If the court believes that it can take action of another kind to address the nuisance complained of (such as an order under the Environment Act 1995) it should not take action under the new provisions.
  • Counsel is further instructed that 10% of any award or fine under the new provisions should be paid into an Environmental Enhancement Fund. The fund is to be established under the Bill and administered by local authorities for the purpose of enhancing the local environment of neighbourhoods within their areas and reducing noise generally. In spending money paid to them out of the Fund, local authorities should follow guidelines issued by the appropriate Secretary of State and present separate reports to him on their use of sums so paid to them.
  • An estate agent who contravenes the new provisions should be prevented for 10 years from practising without disclosing that he has contravened the provisions. The same goes for a solicitor.
  • Although these instructions are drafted by reference to houses, the provisions are to apply equally to commercial premises if they are also used for rest and recreation and to leasehold property.

When putting together the instructions for the Noise Bill, I was keen to make it clear that they were not instructions for a serious legislative project. So there are a number of obvious problems. But they should be realistic in demonstrating that the draftsman’s proper role is not to just draft what he is asked to. The notion of deliberately concealing a source of troublesome noise misses the centre of the target. The vendor will not have concealed the source (for example, by burying it). He may have failed to reveal that the property is affected by troublesome noise and that he knows what the source is.

”Deliberately” is a tricky word. It figures in paragraph 2 of the instructions  but  has disappeared by the time you get to paragraph 6. Is paragraph 6 meant to lead to strict liability?

The penalty of up to 10% of the value of the property looks as though it is not linked to how troublesome the noise is. It looks like a punitive penalty rather than damages. But the provision for also going against the solicitor is expressed in terms of damages.

Is the 10% to be calculated by reference to the price paid for the property or its present value?

Is the test of “troublesome” objective or subjective? Do we penalise the vendor when the purchaser finds something troublesome even though a reasonable person would not be troubled by it?

How troublesome is troublesome?

If the solicitor is to be made liable in damages, why not the estate agent? The particulars of the property drawn up by the vendor’s selling agent may well be the point at which the concealment began. Paragraph 13 requires an estate agent to disclose that he has contravened the provisions of the legislation. But it is not clear how an agent could contravene them. The only persons made liable are the vendor and his solicitor.

The provision asked for in paragraph 9 is  arbitrary, and probably unworkable. What does “lie against the previous vendors” mean? What if there were several? Will a previous vendor be liable to be penalised only if he concealed the source? If more than one previous vendor is liable, how is the penalty to be apportioned between them?

Paragraph 10 asks for concealment to be a crime in addition to giving rise to a civil claim. But is it to be a crime of strict liability or must there be some mental element?

Does the 5 year/25 year rule mentioned in paragraph 9 apply in relation to the criminal offence? If so, how?

What does “address the nuisance complained of” mean? Is the idea that there may be a way of getting rid of the noise?

But what about blight? Any property  that  has been the subject of litigation under this legislation would be likely to be much more difficult to sell. Paragraph 11 suggests that there will be no compensation if a way can be found to get rid of the noise.

There seems to be no differentiation between a permanent noise problem and a temporary problem. Just concealing the fact that there is troublesome noise gives rise to liability no matter how short-lived the noise will be.

Paragraph 12 is delightful nonsense. The single fund cannot be administered by “local authorities”. In any jurisdiction there will be numerous different local authorities. Joint administration is a non-starter. What does ”enhancing the local environment of neighbourhoods” mean? What is a local environment and what is a neighbourhood? Does the enhancing have to be noise-related? It seems not.

Paragraph 14 (commercial premises) is just the kind of thing that policy-makers throw in at the last moment. But it is difficult to see how this bit of the jigsaw would work. Does the purchaser have to be buying commercial premises that are already being used for rest and recreation, or can he recover if he buys “ordinary” commercial property and then decides to use it for rest and recreation? What is rest and recreation? Does it cover facilities for factory workers taking restorative time out? Riddled with problems.

Version 1 — by David Elliott

This draft included color features that are not reproduced here. The Part headings, for instance, were in blue, and the Section headings in green.

Introductory  Notes

  1. The following draft is based on written instructions for a Private Member’s Noise Bill.
  2. The instructions are a brilliant example of typically muddled drafting instructions — which usually have to be untangled in too-short a time.
  • In preparing the draft I made the following assumptions:
    • the instructing client is nowhere to be found, so my draft is based on guesses about what the client really wants
    • the draft is prepared for an imaginary jurisdiction that has some form of Canadian-like interpretation act
    • I am free to decide on formatting and section numbering.
  • Some words and phrases have square brackets around them. These indicate a particular uncertainty about their appropriateness or correctness. Additional questions and issues will be discussed at the conference.
  • I have ignored procedural rules about Private Member’s Bills.

PART 1

DISCLOSING STATUTORY TROUBLESOME NOISE

  1. Purpose
    1. What the Act applies to
    1. Non-disclosure of statutory troublesome noise: a remedy
    1. Duties of seller, solicitor, and estate agent
    1. Buyer’s right to make a claim
    1. How to make a claim
    1. What the court can do
    1. Stn reports

PART 2 ENVIRONMENTAL ENHANCEMENT FUND

  • Fund established
    • Board of directors
    • Payments into the EEF
    • Payments out of the EEF
    • Reports and accountability
    • Regulation-making authority

PART 3 OFFENCES AND PENALTIES

3.1    Offences and penalties

PART 4

TRANSITIONAL SECTIONS, AMENDMENTS TO OTHER LEGISLATION, AND COMING INTO FORCE

  • Transitional
    • Amendments to other legislation
    • Coming into force

Appendix

Dictionary of Definitions

1 Definitions

We, the people’s representatives, convened in Boulogne- sur-Mer, France, enact the following:

PART 1 – DISCLOSING STATUTORY TROUBLESOME NOISE

Purpose

1.1(1) The main purpose of this Act is

  • to require disclosure of statutory troublesome noise to prospective purchasers so that they can make informed decisions about acquiring property, and
  • to provide a remedy if troublesome noise is not disclosed.
  • No person can release or waive a right, benefit or obligation under this Act, and any attempt to do so is ineffective.
  • The definitions in the Appendix to this Act (the Dictionary of Definitions) are part of this Act.

What the Act applies to

  1. This Act applies to
    1. the sale of [residential property];
    1. the sale of property used for sport or recreational purposes;
    1. [the lease or assignment of a lease] of property used for [residential?] sport or recreational purposes.

Non-disclosure of statutory troublesome noise: a remedy

1.3(1) This Act establishes a right to damages, in the circumstances described in this Act, for intentional non-disclosure of statutory troublesome noise.

  • Statutory troublesome noise (stn for short) means noise emanating from human endeavour or activity that a reasonable person would find troublesome.

[For example: Statutory troublesome noise could include

  • noisy neighbours
    • noise from aircraft
    • noise from road traffic
    • noise from construction sites
    • noise from commercial, industrial or business undertakings.]

Duties of seller, solicitor, and estate agent

1.4(1) A seller must tell a prospective buyer, in writing, about

  • statutory troublesome noise of which the seller is aware or should have been aware occurring in the [5 years] before [the date the transaction is complete],
  • the source of the noise, and
  • the time or times at which the noise occurred or occurs.

(2) If a solicitor or estate agent, or both, act for the seller, the obligation on the seller is shared jointly and individually among the seller,  the  solicitor, and the estate agent involved, unless the court declares the contrary under section 1.7(6) [What the court can do] or otherwise apportions an award.

Buyer’s right to make a claim

1.5(1) A buyer may make a claim for intentional non-disclosure of statutory troublesome noise if the stn is not disclosed in accordance with section

1.4 [Duties of seller, solicitor and estate agent].

  • Subsection (1) does not apply if a buyer has a right to make a claim for stn or anything akin to it under any other enactment.
  • The claim must be made within [            ] of [       ].

How to make a claim

1.6(1) You, the buyer, may [only] make a claim for an award of damages for intentional non- disclosure of stn by taking the following steps:

  • step 1 — ask an environmental health inspector to prepare a report containing the information required by section 1.8 [Stn reports];
    • step 2 — read the report and only proceed to step 3 if the environmental health inspector confirms there is or was stn;
  • step 3 — if you really want to make a claim, fill out a claim form (available from public libraries, court houses and kimblej@cooley.edu) and file  it  with the court —  the  court  will  want  a filing fee;
    • step 4 — serve the claim on everyone from whom you seek damages (court rules will tell you how to do that (see www.uscourts.gov/rules));
    • step 5 — show up on the court hearing date, (the court will let you know when that is) at the right time and place, with all the documents or witnesses, or both, you need to prove your claim.
  • If you do not ask an environmental health inspector to investigate, you must prove your claim by other means.

What the court can do

1.7(1) After hearing a claim for damages for non- disclosure of stn, the court may award a buyer damages of not more than 10% of the [purchase price of the property, or the value of the lease or assignment] [value of the property] if the court is satisfied that

  • there is or was stn, and
    • the seller, solicitor or estate  agent,  or any 2 or more  of  them,  intentionally did not disclose stn in accordance with section 1.4 [Duties of seller, solicitor and estate agent].
  • In figuring out what award, if any, to make, the court may take into consideration
    • what, if anything, the buyer did to discover or inquire about stn;
    • how much bother the troublesome noise really is;
    • the reason for the non-disclosure of stn — in particular whether the non- disclosure was intentionally undisclosed;
    • the duration of the noise and whether it is, or is likely to be, longstanding, temporary or intermittent.
  • The award may be made against any one or more of the following persons, or the court may apportion the award among the following:
    • the seller;
    • the seller’s solicitor, if any
    • the seller’s estate agent, if any;
  • any of the persons described in subsection (5) in the circumstances described in subsection (4).
  • The court may make the award against any  one or more of the persons described in subsection
  • if the claim is made against one or more of those persons [and the property is sold within 5 years of  a previous sale — weird?] and the court is satisfied that
    • the stn occurred when the person owned the property, and
    • the person intentionally did not disclose the stn when the property was sold.
  • The persons are
    • any person who sold the property in the 25 years [before the buyer making the claim for non-disclosure of stn purchased the property];
    • any solicitor or estate agent who acted for that or those former sellers.
  • If the court finds that a seller, solicitor or estate agent did not know and with reasonable inquiry could not have known about stn,
    • the court must so declare,
    • no award may be made against that person, and
    • section 1.4(2) [Duties of seller, solicitor and estate agent] does not  apply  with respect to that person.
  • No award may be made under this Act if the buyer has obtained a full or partial remedy for the same or similar issue under any other enactment   or under law.

Stn reports

1.8(1) On request and payment of the fee established by the [local authority], an environmental health inspector must

  • investigate a complaint of stn;
    • if stn is identified, prepare a report and make the following factual findings:
      • identify the source of the stn;
      • identify when the stn occurred or occurs, its duration, and the frequency of its occurrence;
      • describe the noise or provide a sound recording of it, or both;
      • if possible, measure the noise inside and outside a building on the property;
  • include any other facts that seem pertinent;
    • whether stn, in the future, is or is likely to be ongoing, temporary, or intermittent;
    • if no stn is identified, make a report of the investigation and of that fact.
  • The inspector may make factual findings on the basis of an opinion if the inspector gives a reason for that opinion.
  • A report of the environmental assessment officer is conclusive evidence of the facts stated in the report, unless the contrary is proved.
  • The inspector’s report is a public document and a copy must be provided by the local authority to anyone requesting it.

PART 2

ENVIRONMENTAL ENHANCEMENT FUND

Fund established

2.1(1) The Environmental Enhancement Fund (EEF for short) is established.

  • The purpose of the EEF is
    • to enhance the environment of neighbourhoods;
    • to ameliorate statutory troublesome noise so that elected officials stop getting complaints and get more votes.

Board of directors

2.2(1) The EEF Corporation is established.

  • The corporation is composed of representatives of local authorities, constituted as a board of directors, appointed by the [Secretary of State] in accordance with the regulations made under  section 2.6 [Regulation-making authority].
  • The purpose of the corporation is to administer the EEF.

Payments into the EEF

2.3(1) There must be paid into the EEF,

  • by the person who receives an award under this Act, 10% of the award received;
    • by the Crown, 10% of any fine imposed under this Act that is received by the Crown.

(2) Non-payment into the EEF by a person who receives an award constitutes a debt due to the EEF Corporation which may be recovered by a civil action for debt.

Payments out of the EEF

  • The EEF board of directors may make payments out of the EEF to [local authorities] in accordance with the regulations.

Reports and accountability

2.5(1) The board of directors must report to the [Secretary of State] on or before March 31 each year and include in the report, for the preceding calendar year,

  • an audited financial statement;
    • a report on the operation of the EEF and the achievement of its purposes;
    • anything else the Secretary of State requests.
  • The recipient of any benefit from the EEF must report on the use made of the benefit to [the Secretary of State] in accordance with the regulations.

Regulation-making authority

  • The Secretary of State may make [regulations] [guidelines]
    • respecting the appointment of the members of the board of directors of the EEF corporation from [local authority councillors];
    • respecting the terms of office, reappointment and termination of appointment of members of the board of directors;
    • prescribing travelling and living expenses for members of the board of directors, but not remuneration;
    • respecting the appointment of a chair and vice chairs;
    • respecting rules of procedure and the internal management and operation of the board of directors;
    • respecting the investment of money held by the EEF, including interest or other money accruing from investments;
    • respecting a scheme for applications to be made by local authorities, to the board of directors, for loans, guarantees, grants or other disbursement of money in the EEF to further the Fund’s purposes;
    • respecting the administration, operation and management of the EEF and reports by recipients of EEF benefits;
  • delegating any one or more of the matters referred to in clauses (a) to (g) to the board of directors.

PART 3 OFFENCES AND PENALTIES

Offences and penalties

3.1(1) A person is guilty of an offence who

  • contravenes section 1.4(1) [Duties of seller, solicitor, and estate agent],
  • gives false, inaccurate, or misleading information about stn to a buyer, a solicitor, estate agent, or environmental health inspector, or
  • gives false, inaccurate, or misleading information about stn to support or defend a claim under this Act.
    • A person guilty of an offence is liable on summary conviction to [a fine of not more than

$             ] or to imprisonment for not more than

       years, [or both?].

  • On conviction, the court may, in addition to or in place of any other penalty imposed, order that the person convicted publicize the conviction in a manner and for a period [of at least 10 years] specified by the court.

PART 4 TRANSITIONAL SECTIONS,

AMENDMENTS TO OTHER LEGISLATION, AND COMING INTO FORCE

Transitional

4.1 [Sections may be needed to deal with “in-process” purchases when the Act comes into force.]

Amendments to other legislation

4.2(1) Possible amendments to other legislation governing solicitors and estate agents to impose professional obligations to disclose stn.

  • Possible amendments to local authority legislation to permit councillors to serve on the board of directors — consider any conflict of interest issues.
  • Possibly amendments to legislation governing environmental health inspectors — for congruence between this Act and their prime legislation.
  • Possible amendments to other legislation to impose financial expenditure controls and auditor general oversight on the EEF.
  • Possible amendment to other legislation to stop double- dipping under that legislation.

Coming into force

4.3(1)   This Act comes into force on                         .

(2) Provisions may be needed to describe how the Act applies to past transactions.

Appendix Dictionary of Definitions

Definitions

1 In this Act

buyer means

  • the purchaser of property, or
  • the leasee or subleasee of property;

court means the High Court of Clarity;

environmental health inspector means a person appointed with that title under the [Environmental Health Act];

property means the property to which this Act applies described in section 1.2 [What the Act applies to];

seller means

  • the seller of property, or
  • the person who leases or assigns a lease of property to another person;

statutory troublesome noise (stn) has the meaning given to it in section 1.3(2) [Non- disclosure of statutory troublesome noise: a remedy].

David Elliott  is a legislative drafter who works on contract  for government and nongovernment organizations.

Clause

Noise Act 2005

TABLE OF PROVISIONS

First Draft 21/6/2005

A BILL

to provide new remedies to purchasers of dwellings affected by undisclosed noise, to make it an offence for a vendor to give false or misleading information about noise in certain circumstances, to establish an Environmental Enhancement Fund and for other purposes.

PART 1—PRELIMINARY

  1. Purposes
  2. Commencement
  3. Definitions

PART 2—CIVIL REMEDIES

  • Purchaser may bring proceeding against vendor
  • Purchaser may bring proceeding against solicitor or estate agent
  • Damages—overall limit and Fund contribution
  • Time limit on proceedings
  • Court must dismiss proceeding if adequate remedy otherwise available

PART 3—MISCELLANEOUS

  • Offence for vendor to give

false or misleading information

  1. Environmental Enhancement Fund
  2. Application of the Fund
  3. Certificate of environmental health inspector
  4. Act applies only to England and Wales
  5. Transitional provision

Noise Act 2005

The Parliament of the United Kingdom enacts as follows:

PART 1—PRELIMINARY

  1. Purposes

The main purposes of this Act are :

  • to enable a purchaser of a dwelling affected by undisclosed noise to seek damages from the vendor, the solicitor or the estate agent; and
    • to make it an offence for a vendor to give false or misleading information when asked by the purchaser about noise; and
    • to establish an Environmental Enhancement Fund to be applied to enhance local neighbourhood environments and generally reduce noise.
  • Commencement

This Act comes into operation on a day to be proclaimed.

  • Definitions

In this Act—

“contract date” means the date on which the purchaser under a contract of sale enters into the contract;

“dwelling” means any building, or part of a building, used or intended to be used as a dwelling and includes any adjoining or nearby land or building used by the purchaser in connection with the dwelling;

“environmental health inspector” means a person employed by a local  authority as an environmental health inspector;

“estate agent” has the meaning given by the Estate Agents Act 1979;

“Fund” means Environmental Enhancement Fund established by section 10;

“local authority”—

  • in relation to England, means the Greater London Authority,  a county council, a district council or a London borough council; and
    • in relation to Wales, means a county council or a county borough council;

“noise” means noise of any kind coming from a source outside a dwelling that may be heard inside the dwelling, regardless of whether any door or window of the dwelling is open;

“solicitor” has the meaning given by the

Solicitors Act 1974.

PART 2—CIVIL REMEDIES

  • Purchaser may bring proceeding against vendor
  • The purchaser of a dwelling under a contract of sale may bring a proceeding in a court of competent jurisdiction against the vendor under that contract claiming damages in respect of noise.
  • A purchaser may only recover damages in respect of noise if—
    • the vendor knew of the existence of the noise before the contract date; and
    • the vendor ought reasonably to have disclosed that noise to the purchaser before the contract date but failed to do so; and
    • the purchaser did not know of the existence of that noise at the contract date and could not reasonably be expected to have found out about that noise before that date; and
    • the noise is such as to interfere with the purchaser’s reasonable enjoyment of the dwelling.
  • Purchaser may bring proceeding against solicitor or estate agent
  • The purchaser of a dwelling under a contract of sale may bring a proceeding in a court of competent jurisdiction against—the solicitor who acted for the purchaser in the matter; or
    • the estate agent in the matter claiming damages in respect of noise.
  • A purchaser may only recover damages against a solicitor or estate agent in a proceeding under this section if—
    • the purchaser did not know of the existence of the noise at the contract date and could not reasonably be expected to have found out about the noise before that date; and
    • the noise is such as to interfere with the purchaser’s reasonable enjoyment of the dwelling; and
    • the solicitor or estate agent caused, or contributed to, the purchaser not knowing of the noise at the contract date.
  • A court that awards damages against a solicitor or estate agent in a proceeding under this section must order the solicitor or estate agent to disclose, in accordance with sub- section (4), the making of the award or cause it to be so disclosed.
  • Disclosure, for the purposes of sub- section (3), is disclosure, in writing, to any client of the solicitor or estate agent before he or she is retained to provide legal services to, or do estate agency work for, the client in any matter.
  • A solicitor or estate agent is retained by a client if any firm of which he or she is a member or by which he or she is employed is retained by the client.
  • An order under sub-section (3) remains in force for the period of 10 years commencing on the day on which it is made.
  • A purchaser may commence a proceeding under this section irrespective of whether the purchaser has commenced a proceeding against the vendor under section 4.
  • Damages—overall limit and Fund contribution
  • The maximum total amount of damages that may be awarded in any proceedings under this Part in respect of any single contract of sale is 10% of the purchase price under that contract.
  • 10% of each award of damages under this Part must be paid into the Fund.
  • Time limit on proceedings
  • A proceeding under this Part may be commenced at any time within 25 years after the date on which the contract of sale was entered into even if the purchaser has since sold the dwelling to another person.
  • Despite sub-section (1), a purchaser who has sold the dwelling to another person may only commence a proceeding under this Part within 5 years after entering into the contract of sale with that other person.
  • Court must dismiss proceeding if adequate remedy otherwise available

A court must dismiss a proceeding commenced under this Part if satisfied that, in the particular circumstances—

  • an adequate and more appropriate remedy is available otherwise than under this Part; or
    • the matter has been adequately dealt with otherwise than by a proceeding under this Part.

PART 3—MISCELLANEOUS

  • Offence for vendor to give false or misleading information
  • A vendor of a dwelling under a contract of sale must not, if asked by the purchaser about noise before the contract date, give information to the purchaser that is false or misleading in a material particular.

Penalty: Level 9 imprisonment (6 months maximum) or level 9 fine (60 penalty units maximum).

  • It is a defence to a charge under sub- section (1) for the vendor to prove that, at the time of giving the information, the vendor believed on reasonable grounds—
    • in the case of false information— that it was true; or
  • in the case of misleading information—that it was not misleading.
  • Despite anything to the contrary in section 59 of the Sentencing Act 1991, 10% of any fine imposed on a vendor under this section must be paid into the Fund.
  • A contract of sale is not void or unenforceable only because the vendor is guilty of an offence against this section.
  • Environmental Enhancement Fund
  • The Environmental Enhancement Fund is established.
  • The Fund is to be administered by the Secretary of State.
  • There must be paid into the Fund all amounts required to be paid into it under section 6(2) or 9(3).
  • There must be paid out of the Fund to a local authority any amount requested by the local authority in accordance with section 11.
  • Application of the Fund
  • Money standing to the credit of the Fund may be applied for the purpose of—
    • enhancing neighbourhood environments; or
    • generally reducing noise.
  • Subject to and in accordance with guidelines issued by the Secretary of State under sub-section (3), each local authority is entitled to—
    • request that there be paid to it out of the Fund any money paid into the Fund in relation to a dwelling situated within the area over which it has jurisdiction; and
    • direct how that money is to be applied within that area for the purposes referred to in sub- section (1).
  • The Secretary of State may, by notice published in the Government Gazette, issue guidelines as to the manner in which—
    • a request may be made by a local authority under sub-section (2)(a)
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A local authority may apply money paid to it out of the Fund.

  • The guidelines—
    • may be of general or limited application; and
    • may differ according to differences in time, place or circumstances.
  • Within 3 months after the end of each financial year, a local authority must submit to the Secretary of State a report for that financial year, in the manner and form determined by the Secretary of State, giving details of—
    • any amounts paid to it out of the Fund during that year; and
    • how any of the money paid to it out of the Fund in that or any preceding financial year has been applied by it during that year.
  • Certificate of environmental health inspector

A certificate purporting to be issued  by an environmental health inspector certifying as to any matter relating to noise that may be heard inside a dwelling is admissible in evidence in any proceeding under this Act and, in the absence of evidence to the  contrary, is proof of the matters stated in it.

  • Transitional provision

This Act only applies in relation to a contract of sale entered into on or after the date of commencement of this Act.

Eamonn Moran is Chief Parliamentary Counsel in Victoria, Australia. He has been a legislative drafter for more than 30 years and has worked as a part-time member of the Law Reform Commission of Victoria on its plain English  references.

The endnotes are not meant for the Bill; they are my explanations of some things. They appear on page 21.

Noise Bill 2005

Chapter 1       Preliminary1

Part 1 – Objects of Act

  1. Objects

The objects of this Act are:

  • to ensure that when people buy a new property2 to live in, or for rest and recreation, they are aware of noise problems that could interfere with their enjoyment of the property; and
    • to create a fund to enhance neighbour- hoods by eliminating noise, out of money paid by persons who disobey this Act.

Part 2 – Key concepts3

  • Offensive Noise

Offensive noise is —

recurring4 noise or vibration coming from aircraft, road traffic or people using or occupying a Property and which, because of its nature, loudness, or the time at  which it is made5, unreasonably interferes with the enjoyment of the Property.

  • Noise Statement

A Noise Statement is —

a written statement signed and dated  by the seller of a Property, in the form set out in the Schedule at the end of this Act, disclosing whether or not any Offensive Noise has been heard or experienced at the Property, in the 6 month period before the date of the statement.

  • Property

Property means —

any premises intended to be used or occupied by a buyer as a residence or for rest and recreation, and whether its title  is freehold or leasehold.6

  • Local Authority

Local Authority means—

the Council7 of a Municipality in which the

Property is located.

  • Inspector

Inspector means—

a person employed by a Local Authority who has power to investigate complaints about Offensive Noise.

Chapter 2 – Disclosing Offensive Noise

Part 1 – Seller’s obligation

  • Seller must give a Noise Statement
  • At least 7 days8 before a buyer enters into a contract to buy the Property, the seller must give a signed and dated Noise Statement about the Property to the buyer or the buyer’s lawyer.
  • The Noise Statement must be true at the time it is signed and dated.
  • The Noise Statement must still be true at the time a buyer enters in a contract to buy the Property.  If it  is not (because something has happened in the meantime), the seller must give to the buyer or their lawyer, another Noise Statement to correct the earlier  one.
  • Missing or untrue Noise Statements
  • If a seller deliberately9 does not do what section 7 requires, then:
    • the Court can order the seller to pay compensation to the buyer; and
    • the seller commits an offence.

Maximum penalty for an offence: a fine of $10,000 or 6 months’ gaol.

  • The amount of the compensation the Court can order is up to 10% of the value of the Property being sold.
  • The Court must not order compensation10 if it considers that the Offensive Noise that was not disclosed in a Noise Statement, can be stopped by some other order,  for example, an order under the Environment Act 1995.

Chapter 3 – The obligations of property

agents and lawyers

Part 1 – Seller

  • Seller’s property agents and lawyers
  • If a seller uses a property agent11 to sell the Property, and the property agent knows that the seller has not done what section 7 requires, the property agent must tell the buyer before the buyer enters into any contract to buy the Property.
  • If a seller uses a lawyer to sell the Property, and the lawyer  knows that the seller has not done what section 8 requires, the lawyer must tell the buyer before the buyer enters into any contract to buy the Property.

Part 2 – Buyer

  1. Buyer’s lawyer

If the buyer uses a lawyer to buy the Property, the lawyer must use reasonable care to make sure that the requirements of this Act are satisfied.

Part 3 – Consequences

  1. Consequences for property agents and lawyers
  2. If a seller’s property agent or seller’s lawyer does not do what section 9 requires, then:
    1. the Court can make it a condi- tion of their right to practice that for 10 years they must tell everyone they deal with in their practice that they have breached their obligations under the Noise Act; and
    1. in the case of the seller’s property agent, the Court can order them to pay damages to the buyer.
  3. If a buyer’s lawyer does not do what section 10 requires, the Court can order them to pay damages to the buyer.

Part 4 – Rights of subsequent buyers

  1. Resales within 5 years

If someone sells the Property within 5 years of an earlier sale, any previous seller who has breached section 8 during the 25 years before the resale, has the same liability under this Act as if the buyer had bought from that seller.

Chapter 4 – Evidence in legal proceedings

  1. Certificates by Inspectors

If an Inspector signs a certificate saying that in their opinion Offensive Noise was heard or experienced at a particular Property on a particular date, the certificate can be used as evidence in any Court, and cannot be challenged.

Chapter 5 – Environmental Enhancement

Fund

  1. Local Authorities must establish an Environmental Enhancement Fund
  2. Every Local Authority must establish a fund with a bank account, called its ‘Environmental Enhancement Fund’.
  3. The fund is only to be used for the purposes of this Act.
  4. Payments to the fund
  5. If anyone receives compensation under section 8 (1)(a) for the purchase of Property12, they must pay 10% of the compensation amount into the Environmental Enhancement Fund of the Local Authority for the Property.
  6. If anyone is fined under section 8(1)(b) concerning the purchase of a Property, the person receiving the fine must pay 10% of its amount into the Environmental Enhancement Fund of the Local Authority for the Property.
  7. Using and administering the fund
  8. A Local Authority can use the money in an Environmental Enhancement Fund only:
    1. to enhance the local environments of their neighbourhoods; or
    1. to reduce noise generally in their neighbourhoods; and
    1. in accordance with the guidelines issued by the Secretary of State.
  9. Every Local Authority must give to the Secretary of State a report every 12 months showing how they have used the money in their Environmental Enhancement Fund.

Schedule

(Form of a Noise Statement)

Noise Act, 2005

Statement about the property ………………………………………………………

[write in the address of the property being sold]

Date of this Statement:         ………………………………………………………

[write in the date this is signed]

What this Statement is about

The Noise Act was brought in because of complaints from people buying properties not knowing that they were affected by ‘Offensive Noise’. Offensive Noise is noise or vibration from aircraft, road traffic or people using or occupying private or commercial property which unreasonably interferes with the enjoyment of any property, because of the nature, loudness, or timing of that noise.

The law now says that before anyone can sell a private or commercial property, they have to tell the buyer whether the property has been affected by that sort of noise in the six months leading up to the sale.

What the seller says about this Property

Question: Has any ‘Offensive Noise’ been heard or experienced during the 6 months before the date of this notice, at the property specified in this Statement?

Seller’s answer:      ……………………………………………………

[write in ‘yes’ or ‘no’]

Notice to the Seller

You can be fined or sent to gaol if your answer to the question is untrue.

Buyer’s rights

The law says:

  • At least seven days before you make any contract to buy a property, the seller has to give this notice to you or your lawyer.
  • If anything happens after this notice is given to you which makes it untrue at the time you are about to sign a contract to buy a property, you have to be given a replacement notice which is true at that time.
  • If the seller does not do these things, the Court can order the seller to pay you compensation.

If you do not understand anything about this notice, speak to your lawyer or contact the Department of Fair Trading on 9999-5555.

………………………….. [Seller must sign here]

1 The Bill is somewhat over-structured into Chapters, Parts and Sections, but I wanted to show a pattern for more complexity if needed.

2 I was originally using the word ‘house’, which I love, but I felt it misleading when it includes apartments. ‘Property’ was the best I could think of to cover both unambiguously, given it covers rental property and certain commercial property where people don’t  actually  have  to live (which cuts out ‘residence’).

3 Key Concepts (Definitions): Because the Act is quite short, and there  aren’t  many  defined terms, I have listed them in my perceived view about how important they are to understanding the Act, rather than alphabetically. I’ve also bold highlighted defined terms within definitions, but not in the text of the Act because I think that is a bit of a distraction there.

4 This is to exclude isolated incidents.

5 I have added these parameters because there needs to be more than simply noise (however slight) from the specified sources. The drafting instruction says that the noise in question is of the kind that ‘seriously troubles’ a purchaser.

6 The drafting instructions, read strictly, could include commercial leasehold property which is not used as a residence or for rest and recreation. I have drafted the definition of ‘Property’ on the assumption that this is not what is intended.

7 ‘Councils’ and ‘Municipalities’ are what we call them in Australia, and are very common terms.

8 This is so that the buyer  can  take  advice  and make enquiries. If this was not considered necessary, you could make the obligation to give the certificate just before a  contract  is  signed, and this would avoid having  to  include  sub section 3.

9 This is to reflect the drafting instruction that focuses on sellers ‘concealing’ noise, and avoids strict liability. If you wanted to cast the onus on the defence rather than the  prosecution,  you could delete this and provide for a ‘reasonable grounds’ defence, the onus of which is on the seller.

10 I assume from the drafting instructions that the seller can still be fined.

11 Or ‘real estate agent’; whatever name people know them to go by.

12 I use ‘Property’ in order to link it to the relevant Local Authority which is to receive the money.

Michèle Asprey is an Australian lawyer, a plain language writing consultant, and the author of Plain Language for Lawyers (3rd ed, 2003, The Federation Press, Sydney).

Edward Caldwell’s commentson the draft Bills

Our three drafters coped remarkably well with their inadequate instructions, and the result is three impressive Bills that may help to throw a little light on the curious, and seemingly rather secretive, craft of the legislative drafter.

What is particularly striking about the three  drafts is that they are so different, both in the language used and in the results that they would produce. In part that can be explained by each drafter’s having had to invent policy where the instructions were defective. In some places the drafter has decided to draft in a way designed to emphasise a problem with the instructions or  to  raise  a question that may have been overlooked by the policy-makers. And of course each drafter will be conditioned to some extent by the rules and practices of their own jurisdiction. But even if the instructions had been perfect and the drafters had been drawn from a single jurisdiction, the three Bills would still have been significantly different. Legislative drafting is not a science. Each drafter brings to the craft a range of skills and a breadth of experience that will inevitably place his or her own stamp on each draft.

We are looking here at first drafts. At this stage the drafter ought to be concentrating on—

  • understanding the purpose of the legislation (which in this case is to do something, though   we are not entirely sure what, about undisclosed troublesome noise in the context of domestic property);
  • identifying the results that the client wishes the legislation to produce (changing the behaviour of sellers and their agents and providing legal remedies);
  • looking for problems with the instructions and spotting where essential elements are missing;
  • raising questions that seem to have been over- looked by the policy-makers; and
  • designing a structure for the legislation that will stand up when it comes under attack in the legislature.

I am afraid that at this stage polishing the lan- guage has to take second or even third place. You must, if you have time, try to maximise the clarity and simplicity of your draft, but that often has to be a distillation process embarked on after the policy has finished fermenting. Your draft may, of course, bubble its way through  the  legislature, and the policy may never stop fermenting.

Each of these drafts has a purpose clause some- where towards the front of the Bill. What strikes me as interesting about these clauses is how different they are. The three Bills seem to have significantly different purposes. But that should  not surprise us. Purpose clauses are inevitably rather subjective and depend heavily for their content on the particular features of the legislation that the drafter and client wish to emphasise.

There is no science to purpose clauses.

The language used in the Bills is relatively simple. But is some of it too simple? To some extent the answer will depend on the legislature for which the Bill is prepared. In the Troublesome Noise Disclosure Act some of the language, while being admirably clear and simple, has a colloquial flavour that would invite criticism in at least one legislature. I can see a mischievous legislator balking at being asked to require a person to “show up” or asking the sponsoring Minister to explain the precise difference between a person who wants to make a claim and one who really wants to make a claim. The drafter tends to have to work within a language register which is slightly more formal than that used on the street.

What about the structure of the three Bills? They differ significantly. To what extent do readers feel that starting a Bill with a raft of preliminary, scene-setting provisions such as purpose clauses, introductory notes and definitions deflects attention away from the core provisions of the legislation? Does it matter, for example, that Part 2 of Version 2 sets about providing remedies before the reader knows what the obligations that give  rise to the remedies amount to? Is the structure of Version 3 better because Part 2 starts by setting out the seller’s obligations?

Questioning the instructions and the policy  that lies behind them is an important aspect of the drafter’s work. In Version 3 the definition of “offensive noise” in clause 2 raises the question whether the boundary between  noise  and vibration is sufficiently clear. Some low frequency noises come with powerful vibrations. Should offensive vibrations be treated in the same way as offensive sounds, particularly where the two cannot be disentangled? But if bad vibrations are  to be covered by the legislation, what about offensive smells?

What the three draft Bills demonstrate, above all, is that drafting legislation is very much an iterative process. First drafts often act as no more than a starting point designed to help both the drafter and the client focus more clearly on the end result and the means of getting there. I think that our three drafters are to be congratulated for making such good progress from such woefully bad instructions.

Master Class No. 2, Boulogne conference:

Revisory drafting — three revisions

Below is part of a current rule from the U.S. Rules of Civil Procedure, which are used in federal courts. Each of the three drafters on the panel was asked to revise it.

  • Signing of Disclosures, Discovery Requests,

Responses, and Objections

  • Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party’s address. The signature of the attorney or party constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
    • Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented party shall sign the request, response, or objection and state the party’s address. The signature of the attorney or party constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
      • consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
  • not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
    • not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at state in the litigation.

If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action  with respect to it until it is signed.

  • If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee.

This draft assumes that the provisions of the original must continue to be contained in one rule.

  • Signing and certification of disclosures, discovery requests, responses, and objections
    • An attorney of record or unrepresented party must sign and certify
      • a disclosure made under subdivision (a)(1) or subdivision (a)(3), and
      • a discovery request, response, or objection.
    • When a disclosure is made under subdivision (a)(1) or subdivision (a)(3), the attorney of record or the unrepresented party must certify the following:
      • the signer made reasonable inquiry before making the disclosure, and
      • to the best of the signer’s knowledge, information and belief the disclosure is complete and correct.
    • When a discovery request, response, or objection is made, the attorney of record or the unrepresented party must certify the following:
      • the signer made reasonable inquiry before making the request, response, or objection, and
      • the request, response, or objection
        • is consistent with these rules and permitted by law, or if it is not, that there is a good faith argument for extension, modification, or reversal of the law,
        • is not made for an improper purpose (subsection (4) gives some examples of what would be an improper purpose),
        • is not unreasonable or unduly burdensome or expensive considering
          • the needs of the case,
          • the discovery already made,
          • the amount in controversy, and
          • the importance of the issues in the litigation.
  • Examples of an improper use of a discovery request, response or objection include requests, responses or objections to harass, cause unnecessary delay,  or needlessly increase the cost of the litigation.
    • If an attorney of record signs the disclosure, discovery request, response, or objection, the attorney must
      • sign his or her individual name, and
      • state their address.
    • If an unrepresented party signs the disclosure, discovery request, response, or objection, the unrepresented party must also state their address.
    • If a discovery request, response, or objection is not signed,
      • the party to whom it is directed need take no action until it is signed, except to bring the lack of a signature to the attention of the person who should have signed it, and
      • the person omitting to sign it must then promptly sign it.
    • [On application] the court must strike out a request, response, or objection that is not promptly signed.
    • If the court finds that a certification under this rule is [untrue, incorrect, inaccurate, or contrary to these rules], the court, on [application] or on its own initiative, must sanction the person responsible, unless the court decides that the person had a substantial justification for making the certification.
    • The sanction may include an order
      • to pay the reasonable expenses of a person because of the [untrue, incorrect, or inaccurate certification or contravention of the rules], and
      • to pay a reasonable attorney’s fee.

Rule 26(g)

  1. Signing of court documents
    1. In this rule “court document” means a document containing—
      1. a disclosure made under subdivision (a)(1) or (a)(3); or
      1. a discovery request, response or objection made by a party to a proceeding.
    1. A court document filed in a proceeding must be signed—
      1. by the filing party; or
      1. if the filing party is legally represented, by a legal representative of the party.
    1. By signing a court document the signer is certifying that, to the best of their knowledge, information or belief formed after making reasonable inquiries—
      1. in the case of a document referred to in sub-rule (1)(a), the disclosure is complete as at the date of signing; and
      1. in the case of a document referred to in sub-rule (1)(b), the request, response or objection—
        1. is made in accordance with these rules and in good faith; and
        1. is not made for an improper purpose; and

Examples

Causing unnecessary costs or delay or harassing a party are improper purposes.

  • is reasonable in all the circumstances.
    • The signer must ensure that their address is stated on the court document.
    • A document referred to in sub-rule (1)(b) that is not signed as required by sub-rule (2) has no effect.
  • A document that has no effect by force of sub-rule (5) may be signed after its filing and, if signed as required by

sub-rule (2) as soon as practicable after the filing party is notified of it not being signed, has effect for the purposes of this rule.

  • Consequence of non-complying court document
    • If the court is satisfied, whether on its own initiative or on the application of a party to a proceeding, that—
      • a court document as defined in rule 1(1) filed in the proceeding does not comply with the certification specified in rule 1(3); and
      • there is no reasonable justification for the non-compliance—

it may make any order that it considers appropriate against the filing party or the party’s legal representative or both.

  • Without limiting sub-rule (1), an order under that sub-rule may order the payment to any other party to the proceeding of any reasonable  costs and expenses incurred by that party because of the non-compliance.
  1. Disclosures, discovery requests, responses and objections must be signed
    1. A disclosure under subdivision (1)(1) or subdivision (a)(3); and
    1. a discovery request, response or objection must be signed.
  2. Who must sign
    1. If a party has an attorney in the case, at least one attorney must sign as an individual, and state their address.
    1. If a party has no attorney in the case, the party must sign and state their address.
  3. What is the effect of signing?
    1. By signing a disclosure, the attorney or party certifies that:
      1. after making reasonable inquiries, and
      1. to the best of their knowledge, [information and belief,]1

the disclosure is complete and correct at that time.2

  • By signing a discovery request, response or objection, the attorney or party certifies that:
    • after making reasonable inquiries, and
    • to the best of their knowledge, [information and belief,]1

the discovery request, response or objection is:

  • consistent with these rules; and
    • justified by existing law, or a genuine argument to change the law; and

3.3.3   not for an improper purpose (for example, to harass, to cause unnecessary delay, or to increase the cost of litigation needlessly); and

  • not unreasonable3 or too difficult or expensive, taking into account:
    • what is necessary in the case,
    • the discovery so far,
    • the amount in dispute,
    • how important the issues of the case are.
  • An attorney or party must not sign unless they are able to certify as stated in rule 3.1 or 3.2 (as the case may be).
    • The court can punish the attorney, the party, or both, if the person who signs disobeys rule 3.3 without a substantial excuse. The punishment can include ordering them to pay reasonable expenses (including a reasonable fee for an attorney).4
    • The court can act under rule 3.4 if a party brings a motion, or on its own initiative.
  • What if there is no signature?5
    • If a discovery request, response or objection is not signed, it has no effect, and the court must reject it.
    • If the party making the discovery request, response or objection learns that it is not signed, and then promptly signs it, it then takes effect, and the court must accept it.6

Endnotes

1 Term of art? It is in Australia.

2 This last phrase is here (which is slightly unsatisfactory) to be parallel with next

paragraph.

3 Unfortunately not the same thing as ‘reasonable’.

4 No such thing as a ‘reasonable attorney’?

5 Gap: this deals only with a discovery request, response or objection. What if a disclosure isn’t signed?

6 This seems fraught with difficulty to me!

  • Signing Disclosures and Discovery Requests, Responses, and Objections.
    • Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name — or by the party personally, if unrepresented — and must state the signer’s address. By signing, an attorney or party certifies that  to  the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
      • with respect to a disclosure, it is complete and correct as of the time it is made; and
      • with respect to a discovery request, response, or objection, it is:
        • consistent with these rules and warranted by existing  law  or by a nonfrivolous argument for extending, modifying, or reversing existing law;
        • not interposed  for  any improper purpose, such as to harass, cause  unnecessary delay, or needlessly increase the litigation costs; and
        • neither unreasonable  nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
  • Failure to Sign. The court must strike an unsigned disclosure, request, response, or objection unless the omission is promptly corrected after being called to the attorney’s or party’s attention. Until the signature is provided,  the  other party has no duty to respond.
    • Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.