Statutory nuisance

Contributed by Harriet Ketley and current to 1 September 2005

The Health Act 1911 (WA) deems certain matters to be nuisances in the interest of public health (s.182). The general position is that no one can do anything on his or her premises if it could cause a nuisance which may be dangerous to health or offensive.

The local council has a duty to maintain cleanliness and prevent nuisances. It also has an obligation to investigate complaints, take steps to remove nuisances and take action against the person responsible.

If the council is satisfied that a nuisance exists, it serves a notice on the person causing it, demanding that the nuisance be removed or stopped. The notice must be complied with within a certain time and there is a penalty for failure to comply.

If the notice is not complied with, the council may issue a summons and a magistrate may order the person to comply with the notice or make other appropriate orders.

When a court order has been made the council may enter premises and do whatever is necessary to carry out the court order and recover the costs from the person responsible.

Where a person believes a nuisance exists he or she can notify the local council which is then required to send an inspector to inquire into and report on the matter.

NOISE

Noise is one of the main areas in which disputes between neighbours arise.

The first step in dealing with a noise problem is to speak directly to the neighbour and try to resolve the issue informally. If the noise is from a loud party, and a direct approach to the neighbours fails, the police may be contacted. If they believe the noise is unreasonable, they can take action. If the noise is an on-going one, such as barking dogs or use of machinery, a person has the right to make a written complaint to their local council.

The Noise Regulations made under s.123(2) and Schedule 2 of the Environmental Protection Act 1986 (WA) set different “assigned noise levels” which are the highest noise levels that can be received at a premises for different categories of premises, depending upon whether they are noise sensitive (such as residences), commercial or industrial premises (such as factories and mines).

Local Governments can prosecute anyone exceeding these levels or breaching a Local Government Direction or Notice. If a complaint to Local Government is not acted upon, complaining to the Department of Environment is advisable.

COMPLAINT PROCEDURE

Once a written complaint has been received the usual process will be as follows:
• The Council (through its Environmental Health Officer) makes contact with the noise producer.
• If the noise problem is resolved then no further action is taken.
• If the noise problem is not resolved then noise measurements are taken from the location where the noise is being received by the complainant.
• Results of the noise level determination are sent to both parties. If the noise is considered excessive under the relevant noise regulations (see above) the person responsible for the noise will be asked to bring the noise level down to prescribed limits. If the noise is already considered to be at or below the prescribed noise limits then no further action can be taken.
• If the noise has been considered to be excessive and the person responsible for the noise does not, within a set time period, reduce the noise to the acceptable limits, a Pollution Abatement Notice (PAN) may be served on the owner or occupier of the premises concerned. A PAN is a legal document registered on the title of the land that has set conditions. If these conditions are not met substantial financial penalties can be incurred. Maximum daily penalties also exist. There is a right of appeal against the issue of a PAN to the Minister for the Environment.

See further ENVIRONMENT AND PLANNING.

There is also a common law right of action by an occupier of premises for nuisance caused by unreasonable noise (see, for example Painter v Reed [1930] SAStRp 50; [1930] SASR 295).

A third means of redress is via a private prosecution against the noise producer brought in the Magistrates Court under section 79(3) of the Environment Protection Act 1986 (WA). Such action must, however, be brought by at least three people, each of whom is the occupier of premises and claims to be directly affected by the offence.