Appendix B


re Athol Brown

Michael R. Bland, LL.B. BARRISTER-AT-LAW

Ref: Mr. I. Hillhouse

Messrs Q.D. George, Hillhouse & Co
Solicitors & Attorneys
DX 303

I am briefed to advise upon Mr. Brown’s prospects of obtaining relief by way of injunction or damages in respect of his neighbor's operation of a swimming-pool filter pump near to his house property.

The facts relevant to this question are that pumps located on at least two of Mr. Brown’s neighbors’ properties emit sufficient noise to be audible on his land. One of these is said to be merely an “annoyance” and the other is described as a “major problem”. It is clear from Mr. Brown’s correspondence that these machines have caused him intense irritation for many years.

In 1988, regulations were enacted pursuant to Division 1A of the Noise Abatement Act 1978-1988 conferring power upon local authorities to compel persons using such equipment to abate noise which is found to be excessive if it is audible in any habitable room of the complainant’s house between 10:00 PM and 8.00 AM or if it is measured to exceed the background noise by 5 dB(A) at the boundary adjacent to the equipment between 8.00 AM and 10.00 PM. Regulation 6 also requires the measured level of noise to be adjusted by up to 5 dB(A) according to the presence of “tonality”.

Mr. Brown has sought to enforce these regulations against his neighbor but has been dissatisfied with the outcome. As I understand the position, the noise from the pump was measured to be at or above the 5 dB(A) limit prescribed by the regulations on 23 March and 4th May 1989. However, Mr. Brown’s neighbors then placed various loose materials around the pump which had the effect of reducing the measurement taken on 19th June 1989 to only 2.5 dB(A) above background but which only marginally affected the amount of noise audible in other parts of Mr. Brown’s property.

Mr. Brown contends that the noise could be sufficiently reduced by the installation of an acoustic enclosure around the pump at a cost of about $1,000.

In order to be actionable in nuisance, the defendant’s interference with the plaintiff’s enjoyment of his land must constitute “an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to the plain, sober and simple notions obtaining among the Australian people”: per Macrossan S.P.J. in Ruthning -V- Ferguson (1930) St.R.Qd 325 at page 326; Kidman -v- Page (1959) Qd R. 53 at pages 56-7.

It follows from this principle that to succeed in nuisance against his neighbor, Mr. Brown would need to prove not merely that he has been distressed by the noise emanating from his neighbor’s property but that his reaction to the noise is a normal one. The material presently available to me does not enable me to determine whether that is so although it does appear from that material that a large number of people share his attitude.

In my opinion, it is essential that Mr. Brown’s case be supported by expert evidence from at least one behavioral psychologist to the effect that a noise of the character and duration of that experienced by Mr. Brown would be likely to result in significant irritation to the average person. On the other hand, it is not necessary that the psychologist be prepared to say that the degree of Mr. Brown’s reaction is normal or that an average person would be irritated to a similar degree.

Without any evidence of this kind, I am unable to make any reliable assessment of Mr. Brown’s prospects of success. Nevertheless, there are several other matters I should mention.

Firstly, it is true that most of the reported cases of nuisance constituted by noise concern loud noise. For example, Spencer -V- Silva (1942) S.A.S.R. 213 involved the noise of circular saws and Kidman -V- Page involved noise trucks. However, I see no reason why a more insidious sound might not be equally annoying and therefore similarly actionable in nuisance.

Secondly, to be actionable, a nuisance must not only be substantial, it must also be unreasonable: cf: per Stanley J. in Kidman -V- Page at page 55. A substantial interference with a person’s enjoyment of his property will generally be regarded as unreasonable if the interference might easily be avoided: Halsbury, Laws of England, 4th Ed, Vol. 43, para.318. Accordingly, I consider that Mr. Brown’s case would be greatly assisted if it was established that the noise complained of by him might be effectively eliminated by the installation of an enclosure at relatively little cost.

Thirdly, in determining the reasonableness of an activity, the character of the neighborhood is given considerable importance: Fleming, Law of Torts, 7th Ed, pages 389-90. Therefore, the fact that Mr. Brown’s property is in a residential district will also assist with his case.

With compliments,

8th February 1990

Return to Swimming-pool Filter-motor Noise Pollution: Domestic Noise Pollution--An Australian Experience

Top of Appendix B
Appendix A: Case Histories
Appendix C: Human Reactions to Low Levels of Intruding Noise
Appendix D: The “Solutions” Approach Versus the “Standards” Approach

NPC Menu Bar NPC Home Page Support NPC Ask NPC Search the NPC Home Page NPC QuietNet NPC Resources NPC Hearing Loss and Occupational Noise Library NPC Noise News NPC Law Library NPC Library