Residential Noise: Legislative Framework and Evidence Gathering

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1 Environmental Health Professionals Australia Noise Management Workshop Residential Noise: Legislative Framework and Evidence Gathering Presented by: Louisa Dicker, Associate, M+K Lawyers

2 Some noise complaints M+K has advised on: Air conditioners Generators Roosters + birds Sport parks Party houses Licensed venues Bird scaring devices Scatter guns Farm and business machinery/equipment Vehicle noise (industrial and residential)

3 Legislative Frameworks Public Health and Wellbeing Act Environment Protection Act

4 Public Health and Wellbeing Act - Council s duty to investigate Council has a general duty to remedy as far as is reasonably possible, all nuisances in its district Council must investigate an alleged nuisance if they receive a complaint

5 If Council fails to investigate nuisance within a reasonable time of notification Person who notified Council may make a complaint to Magistrates Court about the nuisance Need evidence of investigation ready to defend Costs and reputation risks Affected person cannot apply to Court if unhappy with decision arising from the investigation

6 What is a Nuisance? (cont) Defined in the Act S 58 of Public Health & Wellbeing Act 2008 (Vic) Liable to be, dangerous to health or offensive Offensive noxious or injurious to a personal comfort In assessing whether something is a nuisance Regard must be had as to the degree of offensiveness, but not to the number of persons affected or that may be affected. Removal of annoying

7 Gathering evidence: Council should collect as much evidence as soon as possible: Samples (send for analysis) Photographs speak a thousand words Noise loggers Medical evidence from complainants

8 Evidence gathering (cont) Log books should be maintained by anyone who is affected by the nuisance. Include dates/times the nuisance occurred & how it affected them. Sound or fumes measuring equipment Diagrams Inspection Notes Witness/Victim Statements Expert Reports

9 Council s duty if a nuisance is found to exist If a nuisance is found to exist, Council must either: A. Exercise powers for unoccupied/unknown land B. Issue an improvement notice or prohibition notice OR D. If Council believes that the matter is better settled privately, advise the person who made a nuisance complaint, of any available methods to settle privately C. Prosecute

10 Prosecution Causing or knowingly allow a nuisance to exist Failure to comply with an Improvement or Prohibition Notice

11 Prosecution If satisfied nuisance exists or is likely to recur, Court must order person to: Comply with the improvement or prohibition notice; or Carry out works to prevent the recurrence of the nuisance. If the person fails to comply or carry out works, Council may: Enter the land and abate nuisance and do anything necessary to execute the order; and Recover costs/expenses incurred by Council.

12 Prosecution Penalties for causing/allowing a nuisance and/or for failing to comply with a court order 120 penalty units for an individual ($17,323.20) 600 penalty units for a body corporate ($86,616.00)

13 Injunction Seeks urgent Court orders for compliance if Improvement Notice or Prohibition Notice breached Not a prosecution, e.g. no fines/penalty awarded Can seek costs If ongoing breach contempt of Court

14 Settling matter privately If Council believes that the matter is better settled privately, advise the person who notified Council of the nuisance, of any available methods to settle privately Ombudsman involved for complaints on decisions

15 Environment Protection Act Unreasonable noise from residential premises A person who emits or causes or suffers to be emitted unreasonable noise from any residential premises is guilty of an offence Noise is to be taken to be unreasonable if it is unreasonable having regard to its volume, intensity or duration; and the time, place and other circumstances in which it is emitted.

16 Environment Protection Act Any noise from a prescribed item which is emitted from residential premises at any time which is prescribed as a prohibited time in respect of that prescribed item; and can be heard in a habitable room in any other residential premises, regardless of whether any door or window giving access to that room is open is deemed to be unreasonable noise unless it is emitted in the case of an emergency

17 State Environment Protection Policy (Control of Music Noise from Public Premises) State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) Environment Protection (Residential Noise) Regulations 2008

18 Environment Protection Act If a member of the police force or a council officer reasonably suspects that an offence against this section is being, or has been, committed, that member or officer may direct any person suspected of committing the offence; or any person apparently in charge of the premises on which the offence is occurring or is suspected to have to take such action as the member or officer considers necessary to abate the noise or to prevent the noise from recurring.

19 Environment Protection Act A direction remains in force for up to 72 hours after the direction is given It is an offence to contravene a direction Infringements

20 Environment Protection Act Police have greater powers Resources & OHS Issues Develop relationship with Police

21 Public Health and Wellbeing Act and Environment Protection Act Can use powers under both acts but don't double dip A breach of the guidelines does not constitute a nuisance: must show injury to personal comfort Consider what you want to achieve and which tool is best suited for your goal

22 Minimising Liability Actioning and recording all complaints/reports Establish good rapport and skills between all Council departments Early interventionist investigations Manage expectations Council publication of enforcement/regulation

23 Disclaimer Whilst all reasonable efforts have been made to substantiate the information contained in this presentation it is of a general nature only. Comments do not represent the specific advice therefore you should not try to act on this information. If you require personal advice you should contact M+K Lawyers. No responsibility can be accepted if the information is incorrect or inaccurate

24 CONTACT M+K SERVICES VICTORIA Dandenong Scott St Dandenong VIC 3175 Tel: Melbourne Level 22, 114 William St Melbourne VIC 3000 Tel: NEW SOUTH WALES Sydney Level 11, 56 Pitt St Sydney NSW 2000 Tel: TASMANIA Hobart Dobson Mitchell & Allport Lawyers 59 Harrington St Hobart TAS 7000 Tel: QUEENSLAND Brisbane Level 3, 67 Astor Terrace Spring Hill QLD 4000 Tel: info@mk.com.au Commercial Commercial Litigation Property Workplace Relations Private Clients mk.com.au