Loud noise can cause neighbours to act strangely. In Mr Ammon‘s case, he threw tomatoes and water bottles from his balcony at the noise-making equipment in the beer garden of the Raffles Hotel in Perth. This did not stop the noise.

Mr Ammon took legal action.

In Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 (17 October 2019), the Court of Appeal, Supreme Court of Western Australia, considered whether Mr Ammon should be protected by the common law tort of private nuisance and be granted an injunction to prevent the Raffles Hotel from playing music in the beer garden and in the Riverside Room after 9:00 pm.

The facts

The Raffles Hotel has been trading as a hotel since 1896 at Applecross near the Canning Bridge. It has views over the Canning River.

In or about 2005, the Raffles Hotel (Apartments) consisting of 116 residential strata lots was constructed as part of the same strata complex as the hotel.

In May 2009, Mr Ammon purchased and moved into apartment E501, on the fifth floor. It is a luxury 3 bedroom apartment which overlooks the Raffles Hotel beer garden to the north and is nearby the upstairs bar of the hotel known as the Riverside Room.

The Kwinana Freeway is located to the east and the Canning Highway is located to the south.

In 2014, a refurbishment of the hotel was approved by the strata owners and the City of Melville. The Raffles Hotel was closed for a short time for the refurbishment, which included noise abatement measures to comply with the ‘Assigned Noise Levels’ condition of approval.

In 2016, in response to complaints received from the strata owners and the City of Melville about the noise caused by music and crowds, the Raffles Hotel took steps to limit the noise including: moving the DJs away from the apartments and inside the bar, limiting the time to 10:00 pm, turning off some speakers and turning away others, and keeping the Riverside Room balcony doors facing the apartments closed. This appeared to satisfy the City of Melville.

Mr Ammon contended that the noise emanating from the Raffles Hotel was a private nuisance which interfered with his enjoyment of his apartment.

Mr Ammon’s case was heavily reliant upon expert evidence concerning the exceedance of assigned emission levels under the Environmental Protection (Noise) Regulations 1997 (WA).

Specifically, between 7:00 pm and 10:00 pm on all days except Sundays and public holidays, the assigned LA10 level for Mr Ammon’s premises is 48 decibels. Measured noise levels averaged 65 decibels, including 10 decibels because the noise emission was music. Therefore, the noise levels significantly exceeded the assigned noise levels.

The Court’s disposition

The Court made the following general observations:

The essential purpose of an action for private nuisance is to protect an owner or occupier's use and enjoyment of land, or of a right in relation to it. To constitute a nuisance, the interference with the plaintiff's use or enjoyment must be both substantial and unreasonable.

The test of unreasonableness is objective. The reasonableness enquiry involves a balancing exercise between the defendant's right to use his or her land freely, and the right of the plaintiff to enjoy his or her land without interference. The reasonableness requirement thus reflects the need for give and take between neighbours living within a community.

The fundamental question [to be decided] is whether the emission of noise from the hotel substantially and unreasonably interferes with Mr Ammon's beneficial use of his apartment.

(paragraphs 119, 120 & 122, judgment)

Having decided that the ‘correctness standard’ applied to the appellate review of the primary facts agreed or found by the trial court, the Court examined the facts and found that:

The master was correct to conclude that Mr Ammon had not established that the emission of noise from the hotel substantially and unreasonably interfered with the beneficial use of his apartment … for the following reasons.

Firstly … Exceeding noise levels assigned by the Regulations, while relevant, is not to be equated with a substantial and unreasonable interference under the law of nuisance [because the common law provides its own standard].

Where, as here, the statutory scheme permits assigned levels to be exceeded when ministerial approval is granted, the exceeding of the assigned levels carries less weight for the nuisance evaluation than it would in the context of a statutory scheme involving an absolute prohibition.

Secondly … the test is an objective one. [Mr Ammon’s] evidence was not supported by any evidence from other persons staying in or visiting his apartment. Nor was it supported by residents in other apartments after the remedial steps undertaken by Colonial in 2016. … [which] suggests that Mr Ammon's subjective experience of the noise (as preventing him from reading, watching television and sleeping) may be peculiar to him.

Thirdly … [Mr Ammon] purchased an apartment near the intersection of two extremely busy highways next to a hotel. Whilst it is not a defence to say that a plaintiff came to the nuisance, the character of the locality, as having high ambient noise, is relevant to what constitutes a substantial and unreasonable interference. Here … the long term and consistent use of the Raffles as a hotel gave the locality a character that was a relevant circumstance for the reasonableness enquiry.

Fourthly … it was always the case that crowd noise and music would be associated with the common and ordinary use of a hotel. … The redevelopment involving the beer

garden and the upstairs bar, completed in late 2014, did not materially change the uses of the hotel or the nature of the locality.

Fifthly … [relevant to the character of the locality in the context of the noise complained about, the] expert evidence indicates that on the balcony, the traffic noise generally exceeds the assigned noise levels under the Regulations in any event. Also, the ambient light music and crowd noise on Wednesdays, Fridays and Sundays were not materially higher than the traffic noise otherwise generally experienced on the balcony. [Mr Ammon did not describe how he would have used the balcony but for the noise]

Sixthly … the measured noise levels inside the apartment with the balcony doors closed ranged from 35 decibels [a ‘quiet countryside] and 45 decibels [a quiet suburban area].

Seventhly … while Colonial has taken steps to reduce the level of noise generated by crowds and music, the expert opinion appears to be that the hotel cannot reasonably comply with assigned noise levels in adjacent apartments, even without any music, as crowd levels alone would, in all probability, exceed the prescribed noise levels. There appears to be little to be done to prevent the hotel's operations causing or significantly contributing to a level of noise that exceeds the assigned levels under the Regulations, short of stopping the hotel operating as such, where the ordinary operation of the hotel involves attracting patrons and playing music.

Eighthly … Mr Ammon [did not give evidence of] any noise attenuation measures he had taken at his apartment.

(paragraphs 130 to 143, judgment)

The Court (Murphy JA, Mitchell JA & Beech JA, unanimously) concluded that Mr Ammon’s appeal be dismissed.

Conclusions

If a breach of the tort of private nuisance is established, the remedies can be powerful. In this case, had Mr Ammon succeeded, he would have prevented the Raffles Hotel from using the beer garden and the Riverside Room after 9:00 pm.

But it is not easy to prove a ‘substantial and unreasonable interference’ with enjoyment of land caused by noise pollution, because many factors are taken into account. In Ammon’s case, two factors stood out, first the high ambient traffic noise, the second the renovations did not materially change the use.

The lesson from Ammon’s case is that it is better to focus on the conditions of consent the public authority imposes when approving a development to ensure that appropriate conditions of consent imposed to protect the peace and quiet of a neighbourhood.

In this case, Raffles Hotel should have insisted on double-glazing and re-orienting the balconies away from the beer garden when approval was given to build the Raffles Hotel Apartments. Mr Ammon should have insisted on restricting the hours of operation of the beer garden and Riverside room to 9:00 pm when approval was given to renovate the Raffles Hotel.