The Public Health and Wellbeing Act regulates noise which is likely to be a risk to health. Residents can complain of noise to their local council, which may issue a prohibition notice. The use of lawn mowers, power tools, record players and musical instruments may be banned at certain times. Regulations on the music from pubs, cabarets, community halls and entertainment venues seek to balance the interests of all parties. Liquor licences are likely to carry a noise condition. Noise standards also cover cars, motor cycles, mini bikes, go karts and trail bikes.
Loud or persistent noise may be irritating, disturbing or unbearable; it may disturb sleep and cause stress. The law offers a variety of remedies; however, it is best to try talking first, particularly if neighbours are involved. Talking offers the best chance of a speedy and amicable resolution of a noise problem. Again, it may be helpful to get a third party or mediator involved to help sort out a solution to the problem (see “Resolving problems”).
Sometime dealing with a neighbour about noise coming from their property can make you anxious or uncomfortable and it can be difficult to discuss the problem you’re having. In other cases you may feel that your neighbour’s complaints are unwarranted. Visit the DSCV website for some simple and effective strategies for talking to difficult neighbours and tips about what to do when being approached by a neighbour.
The selection of the appropriate legal remedy will often depend on the nature and source of the noise. For some noise problems, more than one legal course of action may be available.
This section briefly outlines the general remedies that the law provides to deal with noise problems that can be shown to be a nuisance. It also deals with the special controls that apply to noise from residential premises, industrial or commercial premises, entertainment venues, burglar alarms, motor vehicles and trail bikes.
Private nuisances at common law
Noise may amount to what the common law regards as a nuisance, entitling a person to take proceedings in the courts. If the court is satisfied that the noise complained of constitutes a nuisance, it can order the person responsible to stop or remove the nuisance. It can also order compensation to be paid. Each case will be judged on its particular circumstances.
The notion of “reasonableness” is the guiding principle in a nuisance action: the courts have stressed that this involves a delicate balancing of the competing rights of neighbours. In considering what is reasonable, the law does not take account of abnormal sensitivity. (Also see “Nuisance”.)
Nuisance provisions of the Public Health and Wellbeing Act
Statute law also deals with nuisances. The Public Health and Wellbeing Act 2008 (Vic) (“PHWA”) applies to any nuisances that are, or may be, dangerous to health or expressly provides that a nuisance includes any noise that is or is liable to be dangerous to health or noxious, annoying or injurious to personal comfort.
The PHWA places a duty on a local council to deal with, as far as possible, all nuisances within its municipal district. It is an offence for a person to create a nuisance, with a maximum penalty of 120 pu (s 61).
If a noise problem amounts to a nuisance within the terms of this Act, residents should lodge a complaint with the council. A council must investigate the complaint and either take action itself or, if it believes that the matter is best settled privately, inform the resident of any methods of settling the matter privately.
If the council is satisfied that a nuisance exists, section 194 of the PHWA allows it to issue an improvement or prohibition notice on the person causing the nuisance. This notice identifies the nuisance and requires that steps be taken by the person causing the notice to stop the nuisance from occurring. If the notice is not complied with, the council may seek court orders to direct the responsible person to comply with the notice or otherwise take such measures as specified in the order. The court may also order the person causing the nuisance to pay costs of the council in taking court action, and impose a penalty for non-compliance with the notice. Non-compliance with the court order will attract a further penalty.
A complainant (person making a complaint about the noise) who believes that the council has failed to investigate the nuisance within “a reasonable time” may use section 63 and approach the Magistrates’ Court directly. If the court is satisfied that the complaint is reasonable it can order the council to pay any costs or expenses incurred by the complainant. However, if it considers the complaint to be vexatious or frivolous it may order the complainant to pay the costs and expenses of the person against whom the complaint is made.
Remember, taking your neighbour to court can be expensive and complicated and should always be a last resort. Learn about the simpler, quicker and cheaper alternatives to court at the DSCV website. (Also see “Nuisance”).
Noise from residential premises
The use of lawn mowers, power tools and musical instruments, the barking of dogs, loud and constant arguments, air conditioning units, amplified music, all are common noise problems that affect people in neighbouring premises. When efforts to talk to the person responsible for the noise have failed, the provisions of the Environment Protection Act 1970 (Vic) (“EPA”) may provide relief.
Keeping a diary of when and how long the particular noise occurs is a practical and useful record to support any complaint you make.
Section 48A of the EPA makes it an offence for a person to cause or allow unreasonable noise to be emitted from residential premises. This section also covers unreasonable noise arising from the construction of residential premises.
Complaints should be directed to a member of the police force or to a municipal officer, not to the Environment Protection Authority of Victoria (EPA Victoria). An EPA Victoria officer has no jurisdiction to investigate a complaint. The police or council officer will attempt to resolve the problem and, if this fails and they are satisfied the noise is unreasonable, they may proceed in the Magistrates’ Court.
A complainant who is not satisfied with the attempts made to resolve the dispute may take their own court action.
The court (as the final arbiter) can take into account a wide range of factors when determining whether noise is unreasonable, including:
•the volume of the noise;
•its intensity or duration; and
•the time, place and other circumstances in which it is emitted.
The Environment Protection (Residential Noise) Regulations 2008 (Vic) prohibit the use of a range of items during specified hours. They include the use of motor vehicles, lawn mowers, power tools, domestic air conditioners, record players and musical instruments.
In some cases, noise can be so disturbing that immediate action is required. In such a case ring the local police station. A police officer who is satisfied, after investigating the complaint, that the noise is unreasonable can enter the premises from which the noise is emitted and direct a person to stop or reduce the noise.
Where a prescribed item is in use during a period that is prohibited for that item under the Regulations, the officer can issue an on-the-spot fine.
Municipal councils may have local laws (previously called by-laws under the Local Government Act 1989 (Vic)) to control and prohibit noise. Those local laws in force are diverse and it will be necessary to check with the local council to determine whether a particular noise problem is covered in your area. Some councils have local laws that deal, for example, with barking dogs and raised voices.
Any complaints about noise should be directed to the officer responsible for local laws or the Environmental Health Officer of the council.
Section 31A of the EPA empowers EPA Victoria to serve a pollution abatement notice upon the occupier of any premises that emits or is likely to emit unreasonable noise.
A notice may be served when a complaint has been made and is considered justified or where the noise emitted exceeds specified limits. A notice can also be served where the proposed use of premises is likely to result in noise that exceeds specified limits or which EPA Victoria considers unreasonable. Limits may be specified in Regulations or in State Environment Protection Policies (SEPPs).
To date, two SEPPs have been declared on the control of noise emissions. These are the Control of Noise from Commerce, Industry and Trade, and the Control of Music Noise from Public Premises. The first SEPP applies to industrial, commercial and trade premises and contains the criteria and measurement procedures by which noise from industry is assessed.
The policy is essentially aimed at protecting domestic and recreational activities from intrusive noise. It does not cover noise from construction or demolition activities on building sites, entertainment noises, noise from sporting events (excluding events at race tracks where vehicles are hired for use) and noise from emergency or safety alarms, etc.
Once served, a notice may require the occupier to do a number of things to reduce noise levels to within the limits specified in the policy. Breach of a requirement specified in the notice incurs a maximum penalty of 2,400 pu and, for a continuing breach, a penalty of up to 1,200 pu per day (s 31A(7)). A person affected by a notice may lodge an application for review with VCAT against any requirement, and this has the effect of delaying the operation of the notice until the review has been determined.
On receiving a complaint, EPA Victoria may try to resolve the noise problem by calling a meeting between the complainant and the occupier of the premises.
Under section 31B, provision is also made for EPA Victoria to serve a minor-works pollution abatement notice when urgent action is required and the cost of compliance with such a notice will not exceed $50,000. There is no right of review against this type of notice and it can come into effect, if appropriate, on the day it is served. It can only be served in the same circumstances as the section 31A pollution abatement notice, and it can contain the same requirements.
Failure to comply with a minor-works pollution abatement notice may result in a fine of not more than 300 pu, and not more than 50 pu per day for a continuing offence (s 31B(6)).
Zoning controls and planning permits may be used by the relevant planning authorities as a means to regulate the emission of noise from new developments. Where a noisy development is proposed, it is wise to register concern for a potential noise problem at the earliest possible stage in the planning process. Where a condition in a planning permit is breached, various avenues are open to the responsible planning authority and the complainant.
Noise from entertainment venues
Music from pubs, discos, reception centres, cabarets, community halls, open-air venues and clubs may be far from entertaining for nearby residents.
Section 48AB of the EPA gives the police powers to deal with noise complaints from entertainment venues. Entertainment venue is defined in subsection (1) as: “any premises or place where music is performed or played but does not include residential premises within the meaning of section 48(1) or a church”.
Provision is also made as to the length of time the direction given by the police is to remain in force.
A contravention of a direction is an offence and may result in a penalty of not more than 600 pu.
Noise from entertainment venues is controlled by the SEPP Control of Music Noise from Public Premises. The policy aims to protect people from the effects of noise in noise-sensitive areas such as residential buildings, hospital wards and motels. The policy sets out the criteria and measurement proceedings by which entertainment noise from public premises is assessed.
The policy essentially aims to strike a balance between the interests of the patrons and those of the nearby residents. Different standards are applied according to the time and length of exposure to the noise. Notices under sections 31A and 31B of the EPA (see “Noise from industrial and commercial premises”) can be used to enforce the criteria contained in the policy.
The EPA also provides for action to be taken in cases where immediate relief is necessary. Again, complaints should be directed to the local police station because the Act empowers a police officer to act on a complaint from a person who is disturbed by noise from an “entertainment venue”. Under section 48AB, upon receiving the complaint, the police officer may direct any person who is in charge to take such action as the officer considers necessary to abate the noise. A direction can only take effect at midnight and once given stays in force until 8 am. Any person who fails to comply with a direction is guilty of an offence and can be fined up to 600 pu (s 48AB(4)).
Hotels, licensed or BYO restaurants or any similar premises are required to hold the relevant liquor licence. These licences are likely to contain a noise condition.
In extreme cases, conditions may be imposed on the licence that require the licensee to ensure the escape of noise from the premises is not to be audible in any neighbouring premises.
Any noise complaint involving these premises should be directed to both the local council and the Director of Liquor Licensing. The director has the power to cancel, suspend or vary a licence or a permit on the basis that it would detract from or be detrimental to the amenity of the area in which the premises are situated. The Director may apply to VCAT for an order cancelling the licence (s 94 Liquor Control Reform Act 1998 (Vic) (“LCRA”)).
An application for a new licence or permit or for the variation or transfer of a licence or permit also provides for an opportunity for “any person” to object to the grant, variation or relocation of the licence. Any person may object to the application on the grounds that it would “detract from or be detrimental to the amenity of the area in which the licensed premises or proposed licensed premises are situated” (s 38 LCRA).
Council local laws and planning controls may also provide avenues for redress. Make inquiries at the planning department of your local council.
Section 48B makes it an offence for a person to own or drive a motor car that is used on a public highway and which at the time of use is capable of emitting a noise that does not comply with a prescribed standard. The section also covers motorcycles.
The procedure for enforcing this section is typically as follows. An EPA Victoria inspector will take down the registration number of a “noisy vehicle”. A notice will be served on the owner requiring them to either present the vehicle at a testing station on a nominated date or obtain a certificate of compliance from an approved tester before a certain date. If it is thought that the vehicle is emitting unreasonable noise, the owner should take the opportunity to remedy the defect before presenting it for testing. If the vehicle passes the test, that will be the end of the matter and there will be no prosecution. Failure to comply with the notice attracts a penalty.
If a person has received a notice to take the car to an approved tester, the car cannot be sold or offered for sale until the notice of compliance has been obtained and forwarded to EPA Victoria, unless EPA Victoria has given its consent to the car being sold. Also, the car cannot be used after the time for obtaining the certificate has elapsed, except for the purpose of taking it to the tester.
The level of permissible noise that can be emitted from a motor vehicle is set out in the Environment Protection (Vehicle Emissions) Regulations 2013 (Vic). The Regulations also specify the procedure whereby noise emissions are to be tested. Noise standards for trucks, buses and motorcycles are also set out in part 3 of the Regulations.
The Regulations also make it an offence for any person to remove or make ineffective any noise reduction equipment fitted to a vehicle, and impose a duty on the owner to ensure that any such equipment is kept in place and in good order and condition.
Division 2 of part 9 of the Local Government Act 1989 (Vic) (“LG Act”) provides powers to councils with regard to roads, public highways and traffic regulations. Section 207 of the LG Act gives powers to councils over traffic in its municipal district. Section 207 refers to schedule 11, which deals specifically with the particular powers councils have over traffic.
Provided there is an alternative route and certain other conditions are met, clause 12 of schedule 11 of the LG Act empowers a council to restrict the use of a road or street by vehicles over a specified size or weight. This power may be used by a council to regulate traffic flow and thereby reduce noise in residential streets. If this is an appropriate solution residents affected by the noise should approach the council with a petition to have such limits placed on traffic in their area.
Noise from recreational vehicles
The legislation detailed below in relation to mini-bikes and trail bikes is also relevant to noise from recreational vehicles on public land. For example, the legislation would apply to go-carts.
If bikes are being ridden on residential premises or on a road, sections 48A and 48B of the EPA are relevant. More often, however, the bikes are ridden on public land and the following pieces of legislation are relevant.
The Land Conservation (Vehicle Control) Regulations 2013 issued under the Land Conservation (Vehicle Control) Act 1972 (Vic) prohibit the use of motorised vehicles on public land with the exception of roads, parking areas or free access areas. The Act defines public land to mean:
a any unalienated land of the Crown, including land temporarily or permanently reserved under the Crown Land (Reserves) Act 1978 (Vic);
b state forest within the meaning of the Forests Act 1958 (Vic);
c park within the meaning of the National Parks Act 1975 (Vic);
d land under the management and control of Melbourne Parks and Waterways, established under the Water Industry Act 1994 (Vic);
e land vested in any public authority, other than a municipal council or an authority under the Water Act 1989 (Vic), to the extent that the land vested in the authority is within a sewerage district listed in column 3 of schedule 12 of the Act.
Proceedings for a breach of these Regulations may be taken by a police officer or by the land manager.
The Transport (Compliance and Miscellaneous) Act 1983 (Vic) specifies the design, construction, equipment and registration procedures for recreation vehicles, and conditions for their use in a public place.