Victorian Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. related to the environment
Currently, the principal legislation that deals with the environment in Victoria – including noise – is the Environment Protection A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1970 (Vic). This Act is scheduled to be repealed by the Environment Protection A change made to a legal document or Act of parliament. Act 2018 (Vic). The updated Environment Protection Act 2017 (Vic) A document that sets out what a person wants to happen to their money and other property after they die. become Victoria’s principal legislation for the environment. The new environment protection laws include significant changes that are intended to come into effect in July 2021.
When noise is an issue
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. Again, it may be helpful to get a third A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. or mediator involved to help sort out a solution to the problem (see ‘Resolving problems’, above).
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 Doing something that stops another person fully using and enjoying land they own or occupy. For example, someone burning off smelly rubbish in their backyard might ruin a neighbour’s enjoyment of their garden. See also private nuisance; public 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.
Private nuisances at common law
Noise may amount to what the (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. regards as a nuisance, entitling a person to take proceedings in the courts. If the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. is satisfied that the noise complained of constitutes a nuisance, it can order the A person who makes decisions about medical treatment for a person who cannot give informed consent to it themselves. See also informed consent. 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
A law made by parliament, either state or Commonwealth. Also called an Act, and Act of parliament or legislation. 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 A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). 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 A safety notice that bans some activity that could be a risk to workers or others at a workplace. 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 The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity 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 A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant. (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 Causing trouble without good legal reason. A vexatious litigant repeatedly starts court cases that have no chance of succeeding. Vexatious litigation is a court action that is unnecessary or undertaken only to cause trouble, embarrassment or inconvenience for the other party. 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 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 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 48A of the EP Act 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 Victoria (EPA) (for contact details, see ‘Contacts’ at the end of this chapter). An EPA officer has no The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. to investigate a complaint. The police or council officer will attempt to resolve the problem and, if this fails and they are satisfied the noise is unreasonable, they may proceed in the Magistrates’ Court.
A complainant who is not satisfied with the attempts to resolve the dispute may take their own court action.
The court (as the final arbiter) can take into account a wide range of factors when determining whether noise is unreasonable, including:
- the volume of the noise;
- its intensity or duration; and
- the time, place and other circumstances of the noise.
The Environment Protection (Residential Noise) Regulations 2018 (Vic) (‘EPRN 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 EPRN Regulations, the officer can issue an on-the-spot fine.
Council Laws made and enforced by municipal councils within their boundaries. Previously called by-laws. See delegated legislation.
Municipal councils may have local laws (previously called Former name of local 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.
Noise from industrial and commercial premises
Environmental Protection Act
Section 31A of the EP Act empowers the EPA to serve a pollution abatement notice upon the occupier of any premises that 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. A notice can also be served where the proposed use of premises is likely to result in noise that exceeds specified limits or which the EPA considers unreasonable. 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. The first SEPP applies to industrial, commercial and trade premises and contains the criteria and measurement procedures by which noise from industry is assessed.
The policy is essentially aimed at protecting domestic and recreational activities from intrusive noise. It does not cover noise from construction or demolition activities on building sites, entertainment noises, noise from sporting events (excluding events at racetracks where vehicles are hired for use) and noise from emergency or safety alarms, etc.
Once served, a notice may require the occupier to do a number of things to reduce noise levels to within the limits specified in the policy. Breach of a requirement specified in the notice incurs a maximum penalty of 2400 pu and, for a continuing breach, a penalty of up to 1200 pu per day (s 31A(7)). A person affected by a notice may lodge an application for review with VCAT against any requirement, and this has the effect of delaying the operation of the notice until the review has been determined. On receiving a complaint, the EPA may try to resolve the noise problem by calling a meeting between the complainant and the occupier of the premises.
Under section 31B, provision is also made for the EPA to serve a In Victoria, a child or young person under 18. See also infant. works pollution abatement notice when urgent action is required and the cost of compliance with such a notice will not exceed $50 000. There is no right of review against this type of notice and it can come into effect, if appropriate, on the day it is served. It can only be served in the same circumstances as the section 31A pollution abatement notice, and it can contain the same requirements.
Failure to comply with a minor works pollution abatement notice may result in a fine of not more than 300 pu, and not more than 50 pu per day for a continuing offence (s 31B(6)).
Zoning controls and planning permits may be used by the relevant planning authorities as a means to regulate the emission of noise from new developments. Where a noisy development is proposed, it is wise to register concern for a potential noise problem at the earliest possible stage in the planning process. Where a condition in a planning permit is breached, various avenues are open to the responsible planning authority and the complainant.
For remedies available to workers affected at their workplace by the presence of excessive noise, see Chapter 10.3: Work injuries, and Chapter 11.7: Occupational health and safety.
Noise from entertainment venues
Music from pubs, discos, reception centres, cabarets, community halls, open-air venues and clubs may be far from entertaining for nearby residents.
Section 48AB of the EP Act gives the police powers to deal with noise complaints from entertainment venues. Entertainment venue is defined in subsection (1) as ‘any premises or place where music is performed or played but does not include residential premises within the meaning of section 48A(1) or a church’.
Provision is also made as to the length of time the A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. given by the police is to remain in force.
A contravention of a direction is an offence and may result in a penalty of not more than 600 pu.
Environment Protection Act
Noise from entertainment venues is controlled by the SEPP Control of Music Noise from Public Premises. The policy aims to protect people from the effects of noise in noise-sensitive areas such as residential buildings, hospital wards and motels. The policy sets out the criteria and measurement proceedings by which entertainment noise from public premises is assessed.
The policy essentially aims to strike a balance between the interests of the patrons and those of the nearby residents. Different standards are applied according to the time and length of exposure to the noise. Notices under sections 31A and 31B of the EP Act (see ‘Noise from industrial and commercial premises’, above) can be used to To make people obey a law or the terms of an agreement, using police powers or court orders. the criteria contained in the policy.
The EP Act also provides for action to be taken in cases where immediate relief is necessary. Again, complaints should be directed to the local police station because the EP Act empowers a police officer to act on a complaint from a person who is disturbed by noise from an ‘entertainment venue’.
Under section 48AB, upon receiving the complaint, the police officer may direct any person who is in (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. to take such action as the officer considers necessary to To reduce, remove or minimise harm to a property, or stop something that prevents the owner of renter using the property fully. To abate a nuisance is to remove or reduce it without violence or unnecessary damage. Abatement is a self-help alternative to bringing a court action. the noise. A direction can only take effect at midnight and once given stays in force until 8 am. Any person who fails to comply with a direction is guilty of an offence and can be fined up to 600 pu (s 48AB(4)).
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 The pleasantness, benefits and enjoyableness of an environment. While individual features such as a toilet block are called ‘amenities’, amenity in planning law is a quality, not a location or a thing. For example, building a toilet block will add to the number of public amenities in the area, but it may also decrease the amenity of the near neighbours. 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).
Council local laws and planning controls may also provide avenues for redress. Make inquiries at the planning department of your local council.
Noise from motor vehicles
Environment Protection Act
Section 48B makes it an offence for a person to own or drive a motor car that 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 section also covers motorcycles.
The procedure for enforcing this section is typically as follows. An EPA inspector will take down the registration number of a ‘noisy vehicle’. A notice will be served on the owner requiring them to either present the vehicle at a testing station on a nominated date or obtain a certificate of compliance from an approved tester before a certain date. If it is thought that the vehicle is emitting unreasonable noise, the owner should take the opportunity to remedy the defect before presenting it for testing. If the vehicle passes the test, that will be the end of the matter and there will be no The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown.. Failure to comply with the notice attracts a penalty.
If a person has received a notice to take the car to an approved tester, the car cannot be sold or offered for sale until the notice of compliance has been obtained and forwarded to the EPA, unless the EPA has consented to the car being sold. Also, the car cannot be used after the time for obtaining the certificate has elapsed, except for the purpose of taking it to the tester.
The level of permissible noise that can be emitted from a motor vehicle is set out in the Environment Protection (Vehicle Emissions) Regulations 2013 (Vic). 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 Part 3 of the regulations.
The regulations also make it an offence for any person to remove or make ineffective any noise reduction equipment fitted to a vehicle. The regulations also impose a duty on the owner to ensure that any such equipment is kept in place and in good order and condition.
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.
Noise from recreational vehicles
The legislation detailed below in relation to mini-bikes and trail bikes is also relevant to noise from recreational vehicles on public land. For example, the legislation would apply to go-carts.
If bikes are being ridden on residential premises or on a road, sections 48A and 48B of the EP Act are relevant.
More often, however, the bikes are ridden on public land and the following pieces of legislation are relevant.
Land Conservation (Vehicle Control) Act 1972 (Vic)
The Land Conservation (Vehicle Control) Regulations 2013 (Vic) issued under the Land Conservation (Vehicle Control) Act 1972 (Vic) prohibit the use of motorised vehicles on public land – except for on roads, parking areas or free access areas. The Act defines public land to be:
- any unalienated land of the (1) A common term for the legal power and authority of the Commonwealth, state and territory governments. (2) Another name for the prosecution in a criminal trial., including land temporarily or permanently reserved under the Crown Land (Reserves) Act 1978 (Vic);
- state forest within the meaning of the Forests Act 1958 (Vic);
- park within the meaning of the National Parks Act 1975 (Vic);
- land vested in any public authority, other than a municipal council.
Proceedings for a breach of these regulations may be taken by a police officer or by the land manager.
The Transport (Compliance and Miscellaneous) Act 1983 (Vic) specifies the design, construction, equipment and registration procedures for recreation vehicles, and conditions for their use in a public place.