This page relates to enforcement of matters under the Public Health and Wellbeing Act 2008. For a more detailed description of nuisances and the law see The Law Handbook Online - Nuisance.
For general information and guidence on dealing with your neighbour see Reaching Agreement - practical advice for communicating with your neighbour
A nuisance is an interference with the public’s right to health, safety, peace and comfort.
Nuisances include dust, noise and smoke from neighbours.
Part 6 Division 1 of the Public Health Act applies to nuisances that are, or are liable to be, dangerous to health or offensive. ‘Offensive’ means noxious or injurious to personal comfort (section 58(4) of Public Health Act) In particular, the Public Health Act applies to nuisances from:
which is, or is liable to be, dangerous to health or offensive (section 58(2)Public Health Act). Common nuisances include smoke, noise, fumes and dust.
It is an offence to cause a nuisance or to knowingly allow or suffer a nuisance to exist on or emanate from any land owned or occupied by or in the charge of that person. The maximum penalty for this offence is 120 penalty units for a natural person and 600 penalty units for a body corporate (section 61 Public Health Act). A person is not guilty of an offence if the person had a lawful excuse for knowingly allowing or suffering a nuisance to exist on or emanate from any land owned or occupied by that person.
In determining whether a nuisance is, or is liable to be, dangerous to health or offensive:
(Section 58(3) of the Public Health Act)
If you believe that a nuisance exists, you should notify the relevant Council (the Council in whose municipal district the alleged nuisance exists) (section 62(1) Public Health Act).
The council must investigate any notice of a nuisance. If, upon investigation, a nuisance is found to exist, the council must:
(Section 62(3) and 62(4) Public Health Act)
If the person on whom the improvement notice or prohibition notice is served does not comply with it; or in the opinion of the Council the nuisance to which the improvement notice or prohibition notice applies, although abated, is likely to recur, The Council may cause a complaint to be made to the Magistrates' Court. The Magistrates’ Court can summon the person to appear before it, and order that person to comply with the notice or carry out works to prevent the reoccurrence of the nuisance. (Section 197 Public Health Act)
If the Council does not investigate the alleged nuisance within a reasonable time of being notified of it, the person who notified the Council may make a complaint to the Magistrates' Court of the existence of the alleged nuisance. The Magistrates' Court may then summon the person alleged to be causing a nuisance to appear before it, and proceed as if the complaint had been made by a Council (see above). If the Magistrates' Court is satisfied that the person making a complaint under this section had reasonable grounds for doing so, it may order the Council to pay any costs and expenses incurred by that person. However, if the Magistrates' Court is satisfied that a complaint under this section is vexatious or frivolous, it may order the person making the complaint to pay the costs and expenses incurred by the person who has answered the complaint. (Section 63 Public Health Act)
Where noise is the issue, and the noise is emanating from residential premises, you may take action under section 48A of the EP Act. The emission of unreasonable noise for a residential property is an offence under this section. What constitutes 'unreasonable noise' depends on the circumstances. The unreasonableness of a particular noise depends on:
In other words, what may be an unreasonable noise at 4am on a Monday night may be a reasonable noise at 1pm on a Saturday afternoon. The EP Act expressly provides that some noises will be taken to be unreasonable if they occur at particular times. Those noises are listed in the //Environment Protection (Residential Noise) Regulations 2008// and can be found in an easy-to-read table format at the EPA website.
Where a person is affected by an unreasonable noise, the EP Act expressly allows them to commence a private prosecution (this is in contrast of other offences under the Environment Protection Act). Alternatively, members of the police and council officers are empowered to enter a property that is emitting unreasonable noise and direct persons inside to take steps to stop the noise.
Under s s 46 of the Environment Protection Act, the emission of noise is required to comply with all relevant State Environment Protection Policies (SEPPs). Two SEPPs exist which apply to noise:
Noise from entertainment venues is regulated by the State Environment Protection Policy (Control of Music Noise from Public Premises) and s 48AB of the Environment Protection Act. SEPP (Control of Music Noise from Public Premises) places limits on the volume and type of noise a venue is allowed to produce and the times at which it is allowed to make noise. Limits vary according to whether the venue is indoor or outdoor. The full policy can be found here. Under s 48AB of the Environment Protection Act, police officers who receive a complaint about noise from an entertainment venue are entitled to enter the venue and direct 'any person apparently in charge' of the venue to take whatever actions the officer thinks necessary to reduce the noise.
Industrial noise in the Melbourne metropolitan area is regulated by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade). As with noise from public venues, the policy sets limits on the volume and timing of noise emissions. Those limits depend, in part, on the nature of the area in which the noise emitter is located. For example, a factory in an industrial area will be allowed to be noisier than one in a residential area. The full policy can be found here.
If you are having serious difficulty with a neighbour emitting smoke onto your property contact your council and report the nuisance under the Public Health and Wellbeing Act 2008 (refer to the commentary above)
Most local councils require you to obtain a permit before you can light a fire outdoors, with the exception of preparing food. Some councils allow you to burn off without a permit, but subject to strict compliance with relevant regulations. In order to determine whether you are permitted to burn off, call your local council.
The Country Fire Authority can inform you whether there are any fire bans in place.