Fact Sheet 12
Noise Pollution Law in the ACT

Activities generating noise pollution are regulated by the Environment Protection Act 1997.

Note that there is no stand-alone "Noise Control Act" in the ACT, because noise controls are integrated within the EP Act 1997 and the EP Regulations 2005.

This fact sheet also discusses common law remedies particularly the civil wrong (ie tort) of nuisance.

Index

Introduction

The Environment Protection Act 1997 (ACT)

What are the restrictions on noise?

Exclusions and exceptions

What about building work?

What happens if restrictions are ignored?

Motor Sports Noise

Contacts

Other Fact Sheet Titles

Introduction

Pollution in the ACT is regulated by the Environment Protection Act 1997 (ACT) (“the Act”), its accompanying Environment Protection Regulations 2005.

These instruments are enforced by the Environment Protection Authority (EPA), a statutory office located within Environment ACT. Also relevant is the common law - including the civil wrong (tort) of nuisance.

[Top]

Environment Protection Act 1997

The Environment Protection Act 1997 (the Act), the Environment Protection Regulation 2005 (the Regulations) provide the legislative framework for pollution control in the ACT (see Fact Sheet on Pollution).

The Act sets up the machinery required for environmental protection and the Regulations contain the rules and standards.

Environment Protection Policies

The Act and regulations are supplemented by Environment Protection Policies. These are not legally binding and are not of legislative character (EP Act s.30), but are intended to provide certainty and transparency by providing guidance. There are three EPPs which deal with noise: noise, motor sport noise (see below), and outdoor concert noise.

[Top]

What are the restrictions on noise?

Any noises that are not expressly excluded by the Act (see below) are considered to cause ‘environmental harm’ under s 5(a) (Reg 27(1)) if they exceed certain limits.

These limits are set out in Table 2.1, Schedule 2 of the Regulations and are different for each of the seven zones. In residential areas (which account for only one of the zones), the maximum noise levels reaching neighbours’ living spaces are set out below.

Where the noise is being emitted from a non-residential zone (with higher noise limits), the limit set at a border with a residential zone is the average of the two limits at the relevant time (Reg 27 ).

There are a number of activities which are allowed to exceed these levels, if the given requirements are complied with. These activities and conditions are found in table 2.2 of schedule 2 of the Regulations . Garden work, maintenance or repair work and work on non-arterial roads is allowed between 7am and 8pm, except on Sundays and Public holidays, when it can not start until 8am. On new year’s eve, music for a party can be up to 60 dB(A). Building work (so long as it is complies with the noise reduction requirements of Australian Standard 2436 ) can exceed noise limits within specified working hours (set out in table 2.3, schedule 2 of the Regulations ).

Zone noise standards from EP Regulations

[Top]

Exclusions and Exceptions

The EP Act specifies that it does not cover some noise producers. These are set out in s 8 and include: trains, aeroplanes, animals and motor vehicles. The Regulations also exclude the construction and maintenance of arterial roads from noise restrictions. (Reg 28(c) ) Security alarms are regulated by the NSW Noise Control Act (table 2.2 schedule 2 of the Regulations ).

Over and above the exceptions set out specifically in the legislation, there are also the ‘environmental authorisations’, dealt with in Part 8 of the Act . The holder of an authorisation is allowed to emit noise within the terms of the authorisation they have been granted. Schedule 1 of the Act lists all the activities for which environmental authorisations are automatically required (s 42(1) ). The list includes: outdoor concerts and motor racing.

[Top]

What about building work ?

From Table 2.2 Noise Conditions (Schedule 2 of the Noise Regulations)

Table 2.3 Time Periods

Where noise complies with conditions there is no offence committed.

Where noise being emitted during the conduct of an activity specified in schedule 2, table 2.2 is not taken to cause environmental harm if the activity is conducted in accordance with the conditions specified in the table for the activity. (s.27 of Regulations).

What happens if restrictions are ignored?

Where noise limits have been exceeded and there is no relevant exception that has been complied with then there has been a breach of the legislation. For the breach to be an offence, an affected person must make a complaint to the EPA (Reg 31 ). The EPA may then issue an infringement notice with an on-the-spot fine (s 116 ) up to a maximum of $100 (schedule 5, item 10 of the Regulations ). If the fine is not paid after a final notice is given, the EPA may take the offender to court to be prosecuted. If such action is taken, the maximum penalty is $1 000 for an individual offender and $5 000 for an offending corporation (Reg 35 and s 133 of the Legislation Act 2001 ). A complete defence to this action is made out where a person has complied with the general environmental duty in s 22 (Reg 39(b)(i) ).

Where there is an offence, the EPA or an individual (if it is deemed in the public interest s 127(2)(b) and the EPA has not responded, within reasonable time, to a request for action s 127 (2)(a) ) may apply to the Supreme Court for an injunctive order. Noise pollution is defined in Reg 38 as a ‘minor environmental offence’ for the purposes of injunctive orders. This means it is unlikely to reach the threshold of ‘serious or material’ harm required to satisfy s 128 of the Act , which is a prerequisite for an order to be made. There are also the significant associated costs and financial risks (eg s 132 compensation for the respondent) to deter this type of action, particularly for an individual.

[Top]

Motor Sports Noise: Environment Protection Policy

This EPP is an easy to read, 12 page document [Click: Word document]. It deals with how environmental authorisations are granted to the organisers of motor sport events.

The aim of the policy (Item 1) is; ‘to balance the need to provide adequate protection to neighbouring residents from the noise with the rights of motor sports enthusiasts to participate in their sport in accordance with the objects of the Environment Protection Act 1997 (the Act).’ To this end, the Policy recognises that noise in excess of the limits set out in the Act is inevitable.

The main method of the Policy is to set out a number of methods which limit the adverse environmental impact, while allowing motor sports to continue (Item 4).

The Policy limits noise pollution by regulating the: volume, time, regularity, frequency and prior notification of events:
• Volume (Item 4.1): No event is allowed to exceed 65dB(A) where the noise is being produced.

• Frequency (Item 4.2): Event organizers are allowed to exceed noise zone standards by 2.5dB(A) for each 0.5 event credit they forego. (Fairbain Park Cluster is supplied with 27 event credits each year and Stromlo Forest (including Pipeline) 7 credits.) However, event credits can only be used up to 65dB(A).

• Time (Item 4.3): Events can be held between 9am and 10pm. But, if an event is running at 5pm and is longer than 5 hours, it is deemed to be two events, and hence event credits have to be used for both the events.

• Regularity (Item 4.4): The Policy encourages event organisers to hold more than one event at a time by limiting the regularity of events. Events are only allowed on: two weekends of any month, two consecutive weekends and two consecutive days.

• Prior Notification (Item 4.5): The final method is prior notification. Event organisers must give the EPA 10 weeks notice of an event and 8 weeks prior to the event the EPA will advertise the date and event credits used for the event in a relevant newspaper. There are allowances made for poor weather. Also, if an event is cancelled due to uncontrollable factors, event credits can be retained if there is one week’s notice, in a relevant newspaper.

[Top]

The Common Law:

An individual has the option, totally separate to the Act (s 9 ), to take action in the Small Claims Court for the common law tort of nuisance. The Court will apply a balancing act with the reasons for the noise against the detriment suffered by the individual.

A nuisance is an indirect interference with another person’s land or enjoyment of it. To succeed in nuisance it is not necessary to prove that the respondent was under a legal duty to take care. However it must be proven that the nuisance would have been reasonably foreseeable by a reasonable property owner. There will be no liability unless the nuisance creates ‘material’ injury or affects the reasonable enjoyment of property. The case law suggests that courts will not remedy trivial nuisances but will nevertheless interpret that concept in favour of affected landholders. The key factor in determining liability is the “reasonableness” of the activity causing the nuisance complained of. This will depend on factors such as timing, duration, intensity, intent of noise producer (there is case law to suggest that where the noise is being made with the intent to annoy it can be nuisance where it would not otherwise have been) etc.

[Top]

Civil Law

Civil law involves disputes between two or more parties. Individual persons, corporations or governments may be parties to a civil dispute. The successful party may obtain an award of money (damages) or some other type of court order (injunction) or declaration. An injunction can be a useful remedy in environmental cases because it can prevent environmental damage being done, or ensure that action is taken to remedy a problem. A lower standard of proof, “on the balance of probabilities” applies in civil cases.

Two areas of civil law that may be relevant to environmental protection are nuisance and negligence. Both these areas of the law are known as ‘torts’ (civil wrongs) and are mainly governed by the common law rather than by legislation.

The law of nuisance broadly concerns the protection of a person’s land from damage or from activities that interfere with the enjoyment of that land. Nuisance can involve, for example, water escaping from a dam, pollutants escaping from a mining operation, fumes escaping from an industrial process, or noxious weeds spreading from one property to another. However, nuisance is of limited use in protecting the environment because it only protects an individual’s interest in land and many of these situations are now dealt with more comprehensively by legislation dealing with pollution and other environmental harms (see Fact Sheet 11: Pollution Control Law in the ACT)

In an action for negligence, it is necessary to show that the defendant owed you a duty of care, that he or she breached that duty, and that you suffered damage as a result. It is possible that the law of negligence could apply in some situations where there has been environmental damage. In some circumstances, governments can also be sued for breach of statutory duties. A disadvantage of bringing a legal action for negligence or nuisance is that, as with most court action, it will often be complex, expensive and financially risky. That said, it is possible to bring minor matters before the Small Claims Court in the ACT at relatively low risk.

[Top]

More Information and Contacts

Environmental Defender’s Office
Public Trustee House
Level 1, 4 Mort Street
(In the Bus Interchange)
Canberra ACT 2601
Ph: (02) 6247 9420
www.edo.org.au/edoact

Environment Protection Authority (ACT)
Environment ACT
www.environment.act.gov.au
Helpline: (02) 6207 9777

ACTPLA Planning and Land Authority
Ground Floor, Dame Pattie Menzies House
16 Challis Street
Dickson ACT 2602
Ph: (02) 62071923
www.actpla.act.gov.au

ACT Administrative Appeals Tribunal
ACT Magistrate’s Court Building
4 Knowles Place
Canberra ACT 2601
Tel 6217 4444
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
www.courts.act.gov.au/magistrates/aat/aat.html

ACT Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au

Further Information and Disclaimer


The law described in this Fact Sheet is current at November 2005.

The ACT EDO Fact Sheets have been designed to give readers plain English background knowledge to planning and environmental decision making in the ACT. The ACT EDO Fact Sheets cannot replace the need for professional legal advice in individual cases. The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible. These Fact Sheets cannot replace the need for professional legal advice in individual cases.

Duplication and reproduction of the information provided in any ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO as source.

The ACT EDO Fact Sheets Project was carried out with the assistance of funds made available by the ACT Government under the ACT Environment Grants Program.

Important: Readers are advised to seek professional legal advice in relation to specific legal questions.
These fact sheets provide a summary of the law and are not intended to be comprehensive or to cover the specifics of any given situation. While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work.

Other Fact Sheet Titles

Note: The other fact sheet titles are unavailable at this time as they are being updated following legislative amendments and administrative changes. These fact sheets will be added as soon as possible.

Fact Sheet 1 Environmental and Planning Law in the ACT

Fact Sheet 2 National Capital Plan and the Territory Plan

Fact Sheet 3 The Development Approval Process

Fact Sheet 4 EIA Law in the ACT

Fact Sheet 5 Management of Public Lands

Fact Sheet 6 Heritage Law

Fact Sheet 7 Biodiversity Protection Law in the ACT

Fact Sheet 8 Tree Protection

Fact Sheet 9 Investigating Decision Making about the Environment

Fact Sheet 10 Challenging Decision Making about the Environment

Fact Sheet 11 Pollution Control Law in the ACT

Fact Sheet 12 Noise Pollution Control in the ACT

Fact Sheet 13 Freedom of Information Law in the ACT

Fact Sheet 14 Freedom of Information Law (Commonwealth)

Fact Sheet 15 Incorporating an Environmental Group in the ACT

For information about State environmental legislation, visit the national EDO website.

[Top]

HOME