The Law Handbook 2024

590 Section 6: Houses, communities and the road 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 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 as private nuisance 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’, above.) Nuisance provisions of the Public Health and Wellbeing Act 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 pu (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. NOTE: ALTERNATIVES TO COURT 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’, above.) 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