Saturday, March 6, 2010
Environmental Defender Act
Pollution in the World is regulated by the Environment Protection Act 1997 , 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.
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.
Any noises that are not expressly excluded by the Act (see below) are considered to cause ‘environmental harm’ if they exceed certain limits.
These limits are set out, 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 neighbors’ living spaces are set out below
Residential areas
(A) Mon-Sat 7 am-10 pm 45 dB(A)
(B) Mon-Sat10 pm-7 am 35dB(A)
(C) Sun & public holidays8 am-10 pm 45dB(A)
(D) Sun &public holidays10 pm-8 am 35dB(A)
A unit in a block
(A) Mon-Sat 7 am-10 pm 40 dB(A)
(D) Sun &public holidays10 pm-8 am 30 dB(A)
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 favors 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.
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