NOISE LEGISLATION AND REGULATION PAPERS MAY NOT BE REPRODUCED IN WHOLE OR IN PART WITHOUT PRIOR PERMISSION OF THE AUSTRALIAN ACOUSTICAL SOCI ETY c/o GENERAL SECRETARY, 60 DENMARK STREET KEW, VI CTORIA 3101 ---------------------------------"". I THE CONFERENCE WAS ORGANISED BY THE N.S.W. DIVISION OF THE AUSTRALIAN ACOUSTICAL SOCIETY. Dr. V. MASON (Convenor) Mr. R. G. GREEN Mrs. A. B. LAWRENCE Mr. J. ROSE Mr. E. T. WESTON Mr. H. WESTON GENERAL SECRETARY 60 DENMARK STREET KEW, VICTORIA 3101 N.S.W. DIVISION VICTORIA DIVISION W.A. DIVISION P.O. BOX 80 480 CLAYTON ROAD 48 NORTH LAKE ROAD CROW'S NEST, N.S.W. 2065 CLA YTON, VICTORIA 3169 ALFRED COVE, W.A. 6154 Paper Number NOISE CONTROL AND THE LAW Hip Hon, M~o Justice R. Else-Mitchell, Judge of the N.S.W. Suppeme Coupt. NOISE MEASUREMENT TECHNIQUES P. Mart-£n, Petep R. Knowland, Martin and Associates, Sydney, THE PHYSIOLOGICAL, PSYCHOLOGICAL AND SOCIOLOGICAL EFFECTS OF NOISE ON MAN R. N. Reilly, Consultant Otologist, Adelaide. NOYS N~D NOISE ANNOYANCE - AND OTHER NOISE UNITS TI. Mason, School of Mecham~cal and Industrial Engineer 1>lg, Um~versity of New South Wales, Sydney. COMPLAINTS, THEIR CAUSE AND ASSESSMENT T-i. Westen, Sden.tif1:c Officer, Division of Occupational YeaZth and P07Zution ContpoZ, N.S, W, Department of Heal th, SOME COMMENTS ON DR 72084: DRAFT AUSTRALIAN STANDARD S3B CODE OF PRACTICE FOR HEARING CONSERVATION S,F, McCullagh, Fede~aZ Medical Officep, James Hardie & Co pty, Ltd, yip Hon, Judge J.S. Ferpari, Workep's Compensation Commission of New South WaZes. IDEALISED ACOUSTIC LEGISLATION, OR AN ANARCHISTIC APPROACH TO DEALING WITH NOISE OVERSEAS NOISE LEGISLATION - SUCCESS OR FAILURE R SmJley, King, Sowley and Associates pty, Ltd" Ade701:de Paper Number OVERSEAS NOISE LEGISLATION - BUILDINGS AND THEIR EQUIPMENT C. Mather~ Archit~ctural Division~ Public WorKs Depaptment~ West Perth. SESSION FIVE - AUSTRALIAN REQUIREMENTS FOR NOISE CONTROL I LIMITATION OF NOISE FROM THE APPLIANCE MANUFACTURER'S POINT OF VIEW W.H, SteeZe~ Chief Engineer - Engines~ Victa Ltd.~ Sydney. SESSION SIX - AUSTRALIAN REQUIREMENTS FOR NOISE CONTROL II MORE ANTI-NOISE LAW - A NEED OR A NOTION V.A. Moore~ Ch 7:ef Health Officer~ Newcastle City Cmmc1:Z. THE NEEDS AND INTENTIONS FOR BETTER NOISE CONTROL IN BUILDINGS K,E. Cottier~ AlZan~ Jack and Cottier~ Architects~ Sydney, SESSION SEVEN - LEGAL AND ADMINISTRATIVE PROBLEMS THE ROLE OF 'STANDARDS' IN LEGAL AND ADMINISTRATIVE ASPECTS OF NOISE CONTROL c- JohnsJn~ Assistant Technical Director~ Standards Assoc'aticn of Australia. NOISE CONTROL AND THE LAW. by The Bon. Mr. Justice R. Else-Mitchell In earlier times, when man did not have the means of generating power at will by artificial means, society had little need for a code of legal remedies to protect the individual against noise. The law recognised the right of a householder to the free and peaceful enjoyment of the land and premises he occupied and it conferred a right of action at law to enforce such enjoyment. An occupier could either bring an action for damages to compensate him for any loss or injury sustained by excessive noise or seek an injunction restraining the continuance of repetition of the noise. In each instance the cause of action was nuisance (a word derived from French - nuire, to hurt) which connotes any conduct or act which, without direct physical interference, materially impairs the use and enjoyment by another of his property or prejudicially affects his health, comfort or convenience. Until the industrial revolution, the occasions on which such a right had to be exercised by legal proceedings were rare. The only machine power available was provided by wind or water and was relatively quiet in operation; street noises seldom exceeded the occasional rattle of a coach over cobbles or the stamping of horses' hooves and the worst domestic noises were probably made by the howling of dogs, the crowing of cocks or the nagging of unhappy couples. Even so, the law books record instances of injunctions being granted to restrain other noises, such as the use of firearms in rifle practice, the ringing of church bells, whistling for horses and coaches late at night, and other noises of a non-industrial character. Actions in the courts for nuisance, whether to recover damages or to restrain the continuance of repetition of noise, could be a cumbersome process and early in the nineteenth century some noises were regarded as warranting special legislative treatment so as to provide a simple means of control through the police forces. In illustration, the English Metropolitan Police Act, 1839, which was copied by the New South Wales Legislature in 1853, gave power to any householder to require a street musician to depart from the neighbourhood "on account of the illness of any inmate .•• or for other reasonable cause" and provided that the failure to do so would be a punishable offence; that Act also authorised the arrest and fining on conviction of any person, except a guard or post- man of Her Majesty's Post Office, who should blow any horn or use any other noisy instrument for the purpose of announcing any show or entertain- ment or for hawking or selling any article or obtaining money or alms: another provision of the same legislation made it an offence to wilfully and wantonly disturb any inhabitant by pulling or ringing any doorbell or knocking at a door without lawful excuse. Such provisions no doubt assisted in achieving some quietness in city and suburban environments, but they were of limited scope as in due time became evident. With the growth of cities and the widespread use of steam power for industrial purposes a greater need was found for legal means of protecting a householder against the invasion of his privacy by noise. Actions in the courts for damages for nuisance were of little value because financial loss could seldom be proved and an award of nominal damages would be no deterrent. Suits for an injunction had to be instituted in the Equity Court and were both an expensive and protracted method of obtaining relief; they also might entail a single householder of limited means challenging a large industrial enterprise with unlimited financial and legal resources at its disposal. Various powers to control noises, additional to those conferred by the various police Acts, were granted to local authorities under local government legislation as local government developed and other categories of noise, such as those produced by internal combustion engines and noisy trades, became the subject of special legislative provisions now incor- porated in road traffic and local government Acts. In the late 19th and early 20th centuries the major noises of concern to the ordinary householder were caused by industrial activities. Indeed, these activities also gave rise to other sorts of nuisance such as the emission of smoke and fumes, whilst the conduct of quarrying and mining operations also caused pollution in various ways. In the course of time people seeking a quiet environment exercised a measure of self help against the intrusion of industrial activities by isolating their residences from industrial centres, although workers living in industrial villages had little option to do likewise. Two separate modes of ensuring the isolation of residential areas from industrial intrusions were the creation in new residential estates of covenants restricting the conduct of trades, industries and businesses, and the proclamation under local government legislation or residential areas in which trade and industry were forbidden. These processes of isolation, however, have also become ineffective to provide protection because in the last fifty years new sources of nuisance by noise of a mobile character have emerged. The chief of these are the internal combustion engine and the electronic amplifier. Sources of major noise are no longer localised in industrial or non-residential precincts but have complete mobility. Aircraft flying at heights diffuse engine noises over wide areas; motor vehicles of all sorts use public streets in choice residential areas as main thoroughfares; portable appliances powered by small internal combustion engines are in daily use by tradesmen, handymen and home owners, whilst in the domestic sphere, radios, amplifiers and instruments like electric guitars reproduce speech and music at noise levels never before possible, This element of mobility has largely destroyed the protection which was once given by restrictive covenants and residential area proclamations under local government legislation and it seems also, in spite of the precautionary provisions which are incorporated in modern town planning legislation and schemes, that little protection can be provided from those sources. There are in most of the Australian States legislative prov~s~ons enabling public or local authorities or councils to control noise of nuisances resulting from noise. For the most part they provide for the abatement or regulation of nuisances and of objectionable noises at unreasonable times, but the sanction for breach of such provisions or of by-laws made or directions given by such authorities or councils is merely a penalty exacted by prosecution before a Magistrate, Court of Petty Sessions or local court. It must at once be conceded that there are shortcomings in statutory provisions which seek to minimise noise or achieve compliance with by-laws prohibiting or regulating noise by the imposition of penalties in criminal or penal proceedings. Such provisions are not only inconsistent with the conception that prevention is to be preferred to penalty, but they have other major disabilities, not the least of which is the fact that the imposition of a penalty carries with it a commercial implication that the penalty is the price for violating the proscription or, in other words, the cost of conducting a noisy enterprise; they entail also difficulties of enforcement because of the principle enshrined in the law that criminal or penal offences must be proved beyond a reasonable doubt and not on a mere balance of probability.