2.1 The bush and wide open spaces may be central to Australian popular culture, but the reality for most Australians is life in a concentrated, urban environment. Metropolitan Sydney contains many of the most densely populated municipalities in the nation. One of the major problems of urban existence is excessive noise, with irritants including barking dogs, all-night parties, traffic noise, pneumatic drills and other construction noises, car alarms and lawnmowers. Complaints about noise are among the most common problems referred to Community Justice Centres¹ and a survey conducted by the Australian Environmental Council found that noise was the most serious form of environmental pollution perceived by residents in their homes. The most common complaints related to noise from barking dogs, parties, air conditioners and alarms.²

2.2 The concept of “neighbours” goes beyond those who live in adjoining private homes. Increasingly, noise problems in cities are between neighbours within blocks of flats or units. According to the NSW Strata Title Association, noise is the second most common complaint (after parking) among unit owners.

2.3 Noise has been variously defined as: “an unwanted sound”;³ “a sound without agreeable musical quality”;⁴ “loud outcry, clamour or shouting; din or disturbance ... a loud or harsh sound of any kind”.⁵ However as Richardson J of the New South Wales Supreme Court has noted “There is no precise or exact definition of the word noise”⁶ (A statutory definition is provided under the Noise Control Act 1975, however. See para 2.9, below.)

2.4 Although defining noise in a universally acceptable manner is a hard task it is beyond question that noise, and in particular neighbourhood noise, is a common problem to most people. Such noise may be a one-off disturbance, such as the noisy late night party; or it may be an occasional or semi-regular noise such as the neighbour who practices an instrument late at night or frequently plays the stereo too loud; or it can be the persistent noise from a neighbour’s workshop. In any case the nuisance and annoyance caused cannot be underestimated. As the times have changed, so have the particular noises. However, what has remained consistent is that neighbourhood noise still creates enormous frustration for those affected and causes much communal tension.

2.5 As Gifford has stated, “The difficulty lies, not in recognising that the problem exists - as indeed it does - but in finding adequate means of dealing with it.”⁷ This Chapter highlights some of the specific problems caused by excessive noise, outlines the existing legal regimes, and calls for submissions addressed to dealing with this community problem.

APPLICABLE LEGISLATION

2.6 Noise control is primarily dealt with under the Noise Control Act 1975 and Regulations although there are parts of other Acts and the common law that can also be resorted to.

Noise Control Act 1975

2.7 The Noise Control Act which came into effect on 16 April 1975 (as amended) and the Regulations made thereunder represent the first attempt by the New South Wales Government to introduce legislation directed exclusively at the control of noise in the community. The preamble to the Act states that it is “an Act relating to the prevention, minimising and abatement of noise and vibrations”.

Structure of Noise Control Act

2.8 Crucial to the operation of the Noise Control Act are the definitions of “noise” and “offensive noise”.

2.9 Section 4 provides that “noise” includes sound and vibration. Thus both audible and inaudible nuisances may invoke the application of the Act. However, such noise must be unreasonable or offensive. “Offensive noise” is defined as:

Noise that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances, is likely:

(a) to be harmful to;

(b) to be offensive to; or

(c) to interfere unreasonably with the comfort or repose of,

a person who is

(d) if the noise is made in premises that are not a public place - outside those premises; or

(e) if the noise is made in premises that are a public place - within or outside those premises.

2.10 Introducing the Bill, the Government said that the “major regulatory provisions of the Bill provide a five-pronged attack on the problem of noise” ⁸ These are:

(1) Scheduling and licensing of certain premises.

(2) Regulating the maximum permissible level of noise for certain items offered for sale.

(3) Issuing of noise control notices.

(4) Issuing of noise control directions.

(5) Issuing of noise abatement orders.

2.11 The Noise Control Act is divided into parts that deal with each of these categories.

2.12 Scheduled premises. Scheduled premises dealt with in Part 3 of the Act are those most likely to emit a large volume of noise and are scheduled by reference to the activity carried on at the premises. For example, it includes premises used for: canning or bottling; the manufacture and processing of cement, ceramics, textile and scrap metal; quarrying and ship building. By virtue of s36 of the Act, the noise control provisions apply more strictly to scheduled premises than to non-scheduled premises. Section 40 provides that the provisions only serve as a warning in the latter case.

2.13 Sale of noisy articles. Part 4 of the Act prohibits the sale of articles which do not comply with noise emission specifications. The intention of this part is to ensure that new products have an acceptable noise emission level prior to entry into the market. Section 28 provides that manufacturers of prescribed items will have to ensure that their product does not exceed the set noise level for that class, or if it does that it must be fitted with a specific noise control device. Substantial additions over the years, particularly to the Regulations, reflect the Government’s intention to keep the legislation up to date in reacting to different noise nuisances as they occur. For example, special provisions have progressively been inserted in the Regulations for chainsaws (1978), motor vehicles (1979), noisy dogs (1981), grass cutting machines (1982), air conditioners (1986) and car alarms (1988).

2.14 Noise Control Notices. Noise Control Notices are dealt with in Part 5 of the Act. They are intended to control unreasonable noise from scheduled or non-scheduled premises, and from articles which are already in use. The Notices also regulate the times of operation for trade or industry creating offensive noise. Notices may be issued by the State Pollution Control Commission, a local authority or the Maritime Services Board depending upon the circumstances.

2.15 Noise Abatement Orders and Noise Abatement Directions. Part 6 of the Act, which deals with Noise Abatement Orders, and Part 7, which deals with Noise Abatement Directions, apply specifically to noise as it relates to residential life. Magistrate W M Sherley in Azpenes v O’Connell and O’Connell saw “the enactment particularly of Parts VI and VII as creating a streamlined inexpensive way of having noise nuisance issues determined in a speedy manner.”⁹

2.16 Manufacturing standards and the issuing of noise control notices do not cover many of the common noises in suburbia, however: the noisy party, the home handyman, the rowdy family. If a noise creates a civil disturbance the police may deal with the problem. Most often persistent noises do not amount to a civil disorder but rather are “offensive” in terms of the Act. At common law noises of this type are termed “nuisance”, but s51 of the Act widens the common law to give “nuisance” the statutory meaning of “offensive noise”. The definition of “offensive noise” was meant to be of particular importance in the control of neighbourhood noise via noise abatement orders.

2.17 Section 52 of the Act provides that if the occupier of premises makes a complaint alleging that occupation is being affected by offensive noise and the court is satisfied that the alleged nuisance exists, the court may order that the offensive noise be abated immediately or within a specific time or the court may direct that there be no recurrence of the noise.

2.18 Section 59 provides a procedure for the issue of noise abatement directions aimed at achieving prompt effective action. A complaint may be made to a police officer, an authorised officer of the State Pollution Control Commission, the local council or the Maritime Services Board. The officer, on going to the premises, assesses whether there is offensive noise either by hearing it on arrival or upon evidence that the noise was emitted from the premises within 30 minutes prior to arrival. If so satisfied, the officer may make a direction verbally or in writing. Section 60 provides that the effect of the direction is to render each of the persons responsible for the noise liable to prosecution if the noise does not cease promptly.

Impact of the Environmental Offences and Penalties (Amendment) Act 1990 on the Noise Control Act

2.19 The Environmental Offences and Penalties (Amendment) Act 1990 was enacted to “fine tune” aspects of the structure of the Environmental Offences and Penalties Act 1989. The Amendment Act also affects other environmental legislation, including the Noise Control Act.¹⁰

2.20 The framework of the legislation is essentially three-tiered. The first tier created by the Environmental Offences and Penalties Act 1989 deals with serious offences which require the prosecution to meet the traditional common law tests of culpability (intention or recklessness).

2.21 The second tier in the amending legislation is the importation into a single environmental offences and penalties statute of those provisions concerning the protection of the environment which are currently dealt with in other pieces of environmental legislation, such as the Clean Air Act 1961, the Clean Waters Act 1970, the Noise Control Act 1975 and the State Pollution Control Commission Act 1970. These provisions create offences which do not require proof of criminal intention. The amending legislation also provides for a uniform scale of penalties within the Environmental Offences and Penalties Act 1989 and revises the penalties both for corporations and individuals. An offence under the Noise Control Act previously attracted a penalty not exceeding $10,000 if committed by a corporation and a further penalty not exceeding $1000 for each day in the case of a continuing offence, or a penalty not exceeding $5000 if committed by a person and a further penalty not exceeding $100 for each day in the case of a continuing offence. The amending legislation increases those penalties to a maximum of $30,000 for a corporation and $15,000 for an individual and in the case of a continuing offence to $3,000 and $300 per day, respectively.

2.22 The penalties that may be imposed under the Noise Control Regulations have also been increased from $250 to a maximum of $10,000 in the case of an individual, and from $2500 to a maximum of $20,000 in the case of a corporation. The Regulations may insert a maximum penalty of $600 for offences to which penalty notices may be issued.

2.23 The third tier of the amending legislation relates to the introduction for the first time in New South Wales of an on-the-spot penalty notice system for dealing with relatively minor environmental law enforcement issues.¹¹ As is the case with traffic infringement notices, the person to whom the notice was issued can elect to have the matter dealt with by a court, but runs the risk of facing a much larger penalty as well as the inconvenience of attending the court. If for instance a person contravenes clause 12(2) of the Noise Control Regulation which prohibits a person from using certain articles (such as lawn mowers, chainsaws, power tools etc) during specified times, and having been informed of the contravention, continues, clause 12(3) makes the person liable to a maximum penalty of $250. Under the new scheme the penalty for the same offence if a penalty notice is issued is $150. The person could either opt to pay the $150 penalty or if the matter is dealt with by a court could be liable to a penalty of $250.

2.24 There is an obvious incentive to pay the penalty under the penalty notice scheme rather than take the matter to court. If the offender opts to pay under the penalty notice system it must be done within 28 days from the date on which the notice was served.

2.25 The new system also provides power for local council employees and other authorised officers to act as co-enforcers of these neighbourhood noise pollution problems. Authorised officers for most noise pollution offences are employees of the State Pollution Control Commission, Maritime Services Board and police officers. It is understood that the first point of response for noise pollution and anti-social noise behaviour in breach of the noise control regulation is usually the local police station.¹² Giving the police the power to issue on-the-spot penalty notices for such breaches could be a step towards a more realistic and effective enforcement mechanism.

Noise Control Regulation 1975

2.26 Part 8 of the Noise Control Act provides for the making of Regulations for a range of related matters. While the overall aim of the Regulation is to complement the enabling legislation, clause 12 is particularly crucial to the alleviation of neighbourhood noise. Clause 12 specifies the times during which certain articles may not be used on any residential premises if they are audible in a neighbour’s residence. The purpose is to minimise noise in the residential neighbourhood during the hours when most people are sleeping or resting. Offensive noise does not need to be proved during the prescribed hours of restriction but other control measures, such as the issue of a noise control notice, may be taken when use of the article causes offensive noise during the periods of permitted use under the clause.

Other Noise-Control Laws

Local Government Act 1919

2.27 Section 289(c) and (d) of the Local Government Act 1919 empowers councils to control and regulate the use of premises so as to prevent unreasonable noise or noises on the premises at unreasonable hours and to control and regulate noise in or near any public place.

Environmental Planning and Assessment Act 1979

2.28 The Environmental Planning and Assessment Act 1979 provides substantial responsibility and opportunity for controlling environmental noise through the planning process. The formulation of State Environmental Planning Policies, Regional Environmental Plans and Local Environmental Plans establishes the framework within which other noise-control measures can be applied.

Liquor Act 1982

2.29 Objection to the granting of a liquor licence may be taken under the Liquor Act 1982 on the grounds that the quiet and good order of the neighbourhood in which the premises are situated will be disturbed. The court may also revoke or vary the conditions of a liquor licence following complaints from the licensing inspector, the council of the area or any person authorised in writing by three or or more persons who reside in the vicinity of the licensed premises, on the grounds that the quiet and good order of the neighbourhood of the licensed premises are frequently unduly disturbed.

Registered Clubs Act 1976

2.30 Objections along similar lines to the granting of a certificate of registration of a club may be made by the licensing inspector, council, or any person owning or leasing land in the vicinity of the club or any person who would be adversely affected if the certificate were granted.

Strata Titles Act 1973

2.31 By-laws 12 and 19 (contained in Schedule 1 of the Strata Titles Act 1973) state that a proprietor or occupier shall not create such noise and shall take all reasonable steps to ensure that his/her visitors do not behave in such manner, that is likely to interfere with the peaceful enjoyment of another proprietor or occupier or of any person lawfully using common property.

2.32 By-law 25 requires the proprietor of a lot to ensure that all floor space (except kitchen, laundry, lavatory and bathroom) is covered or treated to prevent the transmission of noise likely to disturb the peaceful enjoyment of another proprietor or occupier.

Other Statutory Provisions

2.33 Traffic Regulation 106 made under the Traffic Act 1909 prohibits the use of vehicles which make undue noise because of disrepair, loading or operation. Provision is also made to ensure that any noise control equipment is kept in serviceable condition.

2.34 The Mining Act 1973 and the Occupational Health and Safety Act 1983 also make provision regarding noise. However, these provisions relate to industrial settings and do not have any particular bearing on neighbourhood noise as narrowly defined for our purposes.

THE COMMON LAW

2.35 Apart from the legislation, an action in nuisance is also available to a person affected by a neighbour’s noise. At common law noise may constitute a public or private nuisance. A public nuisance is an act that interferes with the enjoyment of a right to which all members of the community are entitled. A private nuisance consists of a wrongful disturbance or interference with a person’s use of land, and can include the escape of deleterious things, including noise and vibrations, from the land. However, in order to be actionable:

there must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant and dainty habits of living but according to plain and sober notions among our people. ¹³

As with any nuisance dispute, this course of action would necessitate proceedings in the Supreme Court. This is a particularly expensive and lengthy process and one which could potentially exacerbate already tense relations between neighbours. It also assumes that there is a clear defendant to sue, which is not always the case.

ADEQUACY OF THE NOISE CONTROL ACT

2.36 There is no doubt that with the enactment of the Noise Control Act and Regulations the Government has made a positive effort towards minimising noise offence. More recently the amendments introduced by the Environmental Offences and Penalties (Amendment) Act 1990 have attempted to refine the existing mechanisms of combating noise pollution. However, there is still much to be desired in terms of effective and realistically enforceable noise control legislation.

SUGGESTIONS FOR REFORM

General Concerns

2.37 Sound may be described by reference to three variables: intensity, frequency and duration¹⁴ which should be taken into account in formulating more effective measures to abate such noise. Thus the one-off noise from the late night party probably needs to be treated differently (by perhaps retaining the warning procedure) from the continuous persistent noise from the neighbour who operates a workshop.

The Need for Immediate Relief

2.38 The principal criticism of the existing legislation is that although it adopts methods of reducing the offensiveness of environmental noise by prescribing acceptable noise levels and attempting to reduce noise levels at the source, it does not provide any immediate redress to the aggrieved neighbours. For instance, if a motor vehicle alarm is activated at 2.00 am for a period exceeding 90 seconds the Noise Control Regulation imposes a penalty and a penalty notice could now be issued pursuant to the Environmental Offences and Penalties (Amendment) Act 1990 by a council employee, an officer of the State Pollution Control Commission or a police officer. However, there is no power to enter the vehicle and stop the alarm, even if it has been sounding for hours.

2.39 In the case of a burglar alarm the police do have powers of entry to stop the alarm from sounding although this power is rarely utilised in practice. It is anomalous that the Act does not prevent unattended noise unless it is from a burglar alarm.¹⁵ For instance, it is possible that the offensive noise from a car alarm may occur while the vehicle owner is away. In such a situation all that an officer can do is to issue a direction, but this would be of little comfort to the neighbours who are distressed by the noise. There is clearly a need to routinise procedures - currently a person may ring the police, the council, the State Pollution Control Commission without getting any relief. There should be clear responsibilities for action, and then clear mechanisms for dispute settlement in persistent cases.

2.40 The increasing of penalties for offensive noise and the introduction of the infringement notice scheme indicate an increasing awaremess of the problems caused by excessive noise. However, these approaches are only effective in reducing noise problems to the extent that they deter persons from producing this noise. Deterrance is only effective where there is a high risk of apprehension and punishment. A more direct solution would be to empower authorised officers to take the necessary steps to abate the noise immediately in order that it ceases to be a nuisance to neighbours.

New definition of “Offensive Noise”

2.41 Even where a noise abatement order has been issued there are difficulties in securing a prosecution as a result of the ambiguity of the definition of offensive noise. Section 51 links offensive noise and the common law concept of nuisance but it has not had the effect of avoiding the complexity involved in proving noise as a nuisance. A solution could be to define the term “offensive noise” more clearly to make explicit the considerations available to a court. At present difficulty in proving the concept of “unreasonableness” has cast the courts back upon the common law - a result the legislature might have hoped to avoid.

Strict Liability Offences

2.42 Another matter worth considering is whether there is merit in the philosopy of converting all noise offences to strict liability offences as well as removing the present practice of issuing warnings in the first instance. The State Pollution Control Commission, which administers the Noise Control Act, is currently considering this approach. Analternative option would be to reverse the onus of proof.

Education Programs

2.43 Another important matter to be considered is the development of community education and awareness programs centred on noise as an important environmental issue. The Environmental Noise Control Manual points out a number of matters which should be considered in order to reduce noise problems, including:

• the sensitive choice of place within the home, in relation to neighbours, for noisy activities (loud music, power tools etc);
• the careful selection of site in relation to neighbours for the installation of noisy equipment (pool pumps, air conditioners, exhaust fans);
• the sensitive choice of times for doing those things which are necessary but inherently noisy (lawn mowing); and
• paying attention to noise levels in the selection of products and equipment (air conditioners).¹⁶

2.44 More effective policing strategies and education programs are only part of the answer to the question of noise. As with other persistent community problems, a general strategy of locally-based dispute resolution is required. This is dealt with more extensively in Chapter 7.

QUESTIONS FOR DISCUSSION

• Is the Noise Control Act effective in reducing excessive noise in the community? If not, why not?
• Should authorised officers be given extensive powers of entry and the authority to take steps to abate “offensive noise”?
• Should the definition of “offensive noise” be clarified? If so, to what extent and how?
• Are the remedies prescribed under the Noise Control Act adequate?
• If not, what other remedies should be available?
• Should the remedies sought for noise depend on the intensity, frequency and duration of sound? Are there other variables that should be taken into account?
• Is there a need for issuing warnings?
• Should all noise offences be strict liability offences or should the onus of proof be reversed?
• Who should police noise? Should the policing agencies be expanded or restricted?
• Would community awareness programs be a useful mechanism in reducing the problem of neighbourhood noise?

1. NSW Community Justice Centres Annual Report1989/90, Appendix 1 at 31.

2. A Made, D Meagher and D Watkins-National Noise Survey 1986.

3. Stuart Hart, Director of Planning and Chairman of the State Planning Authority of South Australia in a Paper presented to the sixteenth Australian Legal Convention in 1971.

4. A Bell -”Noise - an occupational hazard and public nuisance” as quoted in Testro G “Noise - a strategy for attack” (1983) 57 Law Institute Journal 431.

5. Shorter Oxford Dictionary.

6. William v Storey (1957) 2 LGRA 226 at 232.

7. (1980)54 Australian Law Journal 408.

8. NSW Parliamentary Debates (Hansard), Legislative Assembly, 13 March 1975 at 4661.

9. 7 July 1977, Petty Session Chronicle, Nov/Dec 1977, 1650.

10. In 1989, when the Environmental Offences and Penalties Bill was first introduced, the Minister for the Environment indicated that at the end of a 12 month period a review of the operation of the Act would be undertaken and that amendments would be made to “fine tune” aspects of the structure of that legislation. NSW Parliamentary Debates (Hansard), Legislative Assembly 20 November 1990 at 10037.

11. That Part of the Act (Sch 1(12) had not yet been proclaimed to commence as at 10 April 1991.

12. NSW Parliamentary Debates (Hansard), Legislative Assembly, 20 November 1990 at 10038.

13. J G Fleming, The Law of Torts, Law Book Co, Sydney (7th ed, 1987), 389 See also Walter v Selfe [1851] 4 DCG and SM 315 at 322, 64 ER 849 at 851; Don Brass Foundry v Stead (1948) 48 S R (NSW) 482 at 486-487; Madden v Lynch [1911] VLR 230 at 231; Ruthning v Ferguson [1930] QSR 325 at 326.

14. G Testro: “Noise - A strategy for attack” (1983) 57 Law Institute Journal 431.

15. Noise Control Act 1975 s73.

16. Environmental Noise Control Manual published by the State Pollution Control Commission.