NOISE

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.

Noise may amount to what the common law regards as a nuisance, and entitle 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.

Statute law also deals with nuisances. The Health Act 1958 (Vic) ("Health Act") expressly provides that a nuisance includes any noise which is or is liable to be dangerous to health or noxious, annoying or injurious to personal comfort. See the Law Handbook Chapter 10.2 for further details.

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.

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). A complainant who is not satisfied with the attempts made to resolve the dispute may take their own court action.

Statute law also deals with nuisances. The Public Health and Wellbeing Act 2008 (Vic) ("PHWA") expressly provides that a nuisance includes any noise which 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 to create a nuisance, with a maximum penalty of 120 pu.

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 197 of the PHWA requires it to serve an abatement 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 Reaching Agreement website at www.disputes.vic.gov.au/reachingagreement.

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.

Municipal councils may have local laws. Local laws 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 which 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 which 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. 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.

Music from pubs, discos, reception centres, cabarets, community halls, open air venues and clubs may be far from entertaining for nearby residents. Noise from entertainment venues is controlled by the SEPP Control of Music Noise from Public Premises. Section 48AB of the EPA gives the police powers to deal with noise complaints from entertainment venues.

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. 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 local area. The Director may apply to VCAT for an order cancelling the licence (s.94 Liquor Control Reform Act 1998 (Vic). Council local laws and planning controls may also provide avenues for redress.

Section 48B makes it an offence for a person to own or drive a motor car or motor cycle which 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 level of permissible noise which can be emitted from a motor vehicle is set out in the Environment Protection (Vehicle Emissions) Regulations 2003 (Vic). Noise standards for trucks, buses and motor cycles are also set out in Part 4 of the Regulations.

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.

For more information about “Noise” see the Law Handbook Chapter 10.2.

For more information refer to The Law Handbook chapter 10.2 Noise

Reaching Agreement

For hints on the best ways to manage a neighbourhood dispute refer to Reaching Agreement. This is a video based website produced by the Dispute Settlement Centre Victoria.Go to http://www.disputes.vic.gov.au/reachingagreement/

The Dispute Settlement Centre Victoria (DSCV)

The DSCV is a free service and can help with negotiating and resolving neighbourhood disputes. The DSCV also offers multilingual services in many community languages.

Level 4, 456 Lonsdale Street

Melbourne, Vic 3000

Tel: 9603 8370 or 1800 658 528

Web: www.disputes.vic.gov.au/dscv/

Contact your local community legal centre

Community legal centres can provide legal information or advice on neighbourhood disputes. Legal services vary between centres so contact your local centre to find out how they can help.You may find your local community legal centre using the directory in Law4community  or refer to The Law Handbook Advice Directory