Neighbour disputes

The principal legislation that deals with the environment in Victoria – including noise – is the Environment Protection Act 2017 (Vic) (‘EP Act’). The EP Act came into effect on 1 July 2021 and repealed the Environment Act 1970 (Vic). The EP Act has overhauled environmental protection laws in Victoria; this Act affects businesses and individuals.

A key component of the new EP Act is the general environmental duty (GED). The GED requires you to reduce the risk of your activities harming the environment and/or human health.  This duty applies to all Victorians. If you conduct activities that pose a risk to human health and/or to the environment, it is important that you understand those risks and you take reasonably practicable steps to eliminate or minimise them.

There are many ways you can comply with the GED. For example:

•        consider the impact of noise or wood smoke on your neighbours; 

•        keep your wastewater or septic system in good working order; 

•        manage risks when excavating if you think your land might be contaminated.  

Under the EP Act, the Environment Protection Authority Victoria (EPA) now has increased powers to prevent harm to public health and the environment from pollution and waste.

The EP Act increases maximum penalties for serious offences and distinguishes between corporate entities and individuals. Penalties for body corporates are now much higher, with an upper level of $1.6 million to $3.2 million. Individuals who commit aggravated EP Act offences can be imprisoned for up to five years.

Other significant reforms that have been introduced by the EP Act include:

•        a new duty to notify the EPA of land contaminated with ‘notifiable contamination’;

•        a new duty to notify the EPA of notifiable pollution incidents;

•        an overhaul of the waste regime;

•        a new duty to actively manage contaminated land;

•        a new three-tiered permissions regime; and

•        new obligations in relation to the prevention of unreasonable noise.

For more information about the new EP Act, see Chapter 11.3: Environment and planning law.

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. I may be helpful to get a third party or mediator involved to help sort out a solution to the problem (see ‘Resolving problems with your neighbour’).

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. The Dispute Settlement Centre of Victoria’s website provides simple and effective strategies for talking to 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.

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. (See ‘Nuisance’.)

Statute law also deals with nuisances. The Public Health and Wellbeing Act 2008 (Vic) (‘PHW Act’) 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 PHW Act 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 penalty unit (s 61).

If a noise problem amounts to a nuisance within the terms of the PHW 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 PHW Act 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.

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) (‘EP Act’) 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.

Environmental Protection Act

Section 167 of the EP Act makes it an offence for a person to cause or allow unreasonable noise to be emitted from residential premises.

Noise complaints should be directed to a police officer or to the local council’s residential noise enforcement officer, not to the EPA.

In considering whether the noise is unreasonable, a police officer of council officer will consider:

• volume;
• source and intensity;
• time and place;
• circumstances;
• how long the noise continues;
• whether the noise repeats or reoccurs.

The council officer may issue a residential noise improvement notice, which requires to the person to stop the noise or do any other thing that the council reasonably considers is necessary to prevent or minimise the noise. If this fails and the council officer is satisfied the noise is unreasonable, the matter may proceed to court (s 174 EP Act).

The Environment Protection Regulations 2021 (Vic) (‘EPR Regulations’) prohibit the use of certain items during specified hours. They include motor vehicles, lawn mowers, power tools, domestic air conditioners, musical instruments and electrical amplified sound-reproducing equipment.

Sometimes, noise can be so disturbing that immed­iate action is required. In such cases, ring the police. 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 EPR Regulations, the officer can issue an on-the-spot fine.

Council local laws

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.

Music from pubs, discos, reception centres, cabarets, community halls, open-air venues and clubs may be far from entertaining for nearby residents.

Environment Protection Act

Section 169 of the EP Act gives police officers the power to deal with noise complaints from entertainment venues. An ‘entertainment venue’ is defined as ‘any premises or place where music is performed or played but does not include residential premises or a place of worship’.

Upon receiving a noise complaint, a police officer may direct any person who is in charge at the entertainment venue to take such action as the officer considers to be necessary to abate the noise. Any person who fails to comply with such a direction is guilty of an offence and can be fined up to 600 pu (s 169(3) EP Act).

Liquor licensing Victoria

Hotels, licensed or bring-your-own restaurants, and 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 Victorian Commission for Gambling and Liquor Regulation. This commission 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 (s 95 Liquor Control Reform Act 1998 (Vic) (‘LCR Act’)).

An application for a new licence or permit, or an application to vary or transfer a licence or permit, provides 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 LCR Act).

Other remedies

Council local laws and planning controls may also provide avenues for redress. Make inquiries at the planning department of your local council.

Noise and pollution from motor vehicles can be sources of complaints and concern, particularly in big cities. The legislation that applies to noise from motor vehicles is outlined below.

Road Safety Rules

The Road Safety Road Rules 2017 (Vic) states that ‘a person must not start a vehicle or drive a vehicle, in a way that makes unnecessary noise or smoke’ (reg 291).

Environment Protection Regulations

Under the Environment Protection Regulations 2021 (Vic), motor vehicles must meet noise standards when travelling on roads. These regulations also set out the level of permissible noise that can be emitted.

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 Division 3 of Part 5.6 of the regulations.

The regulations also make it an offence for any person to sell or supply a motor vehicle that is capable of exceeding a prescribed standard for the emission of noise (reg 148).

Local Government Act

Division 2 of Part 9 of the Local Government Act 1989 (Vic) (‘LG Act’) gives councils powers about 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 limits placed on traffic in their area.