Noise, smells, smoke and garbage

Most types of pollution, whether industrial or domestic, can be experienced in a neighbourhood setting. The main legislation that deals with pollution in NSW is the Protection of the Environment Operations Act 1997, called the POEO Act. Administered by the Environment Protection Authority (EPA), the Act and its associated regulations create various offences and provide a range of remedies, depending on the type of pollution and the type of activity that is causing it.

The Act also provides a licensing system for particular pollution-prone activities. These activities are scheduled under the Act and include many types of industrial operations like printing and packaging, concrete works, ceramic and glass works, irrigated agriculture, boat repairs and chemical production as well as waste disposal, sewage treatment, electricity generation and road construction activities (POEO Act, Schedule 1).

Under the licensing system, such an activity cannot be carried out without an environmental protection licence. The licence can contain specific and detailed conditions to monitor, control or prevent pollution and if the licence-holder breaches a condition, there are hefty fines and the licence may be suspended or revoked (POEO Act, Chapter 3, Environment Protection Licences).

There is also a duty under section 148 of the Act for polluters to report a pollution incident to the appropriate authority. For an incident involving a licensed activity the appropriate authority is the EPA and for non-licensed activities it is generally the local council.

Whether the pollution is from domestic or industrial sources, the POEO Act and its regulations give police, local councils, the EPA and other regulatory authorities the power to issue various directions and notices as well as the power to institute court proceedings for offences.

General environmental protection notices such as prevention notices, clean up notices, prohibition notices and compliance cost notices can be issued as well as specific notices for particular types of pollution (POEO Act, Chapter 4, Environment Protection Notices). The Act also provides powers of entry, search and seizure in certain circumstances, powers of investigation and the power to recover associated costs and administrative fees (POEO Act, Chapter 7, Investigation).

Under the Act, any person may apply to the Land and Environment Court for an order to restrain or remedy a breach of the Act or its regulations regardless of whether proceedings for an offence have been instituted (POEO Act, Part 8.4, Civil Proceedings, sections 252-253A). With the court’s permission, a person may also institute proceedings for an offence (POEO Act, section 219).

Many of the environment protection offences under the Act are dealt with by way of a penalty notice requiring payment of a fine, often within 28 days. The notice can be given personally, by post or left on a vehicle. If the fine is not paid within the specified time the matter then proceeds to court (POEO Act, Part 8.2 Division 3, Penalty notices sections 222-229).

The Local Court and the Land and Environment Court deal with the minor environmental offences, while the Land and Environment Court or the Supreme Court deal with the most serious offences, such as wilful or negligent disposal of waste or leaks or spills (POEO Act, Chapter 5 Environmental Protection Offences, sections 115-119, Tier 1 offences and Chapter 8 Criminal Offences). In connection with the offences, the court can also order an offender take action to prevent, control, abate or mitigate the harm caused by the pollution and to make good any environmental damage that has resulted (POEO Act, Part 8.3 Court Orders in Connection with Offences).

Case study - Club House Noise

For over twenty years the Culture Association had its club-room in the small hall at the local park. With modest kitchen facilities, an outdoor area and some parking available at the front of the hall, the Association’s members had enjoyed many card and bingo nights without much disruption to the quiet leafy neighbourhood.

Eighteen months ago this had all changed. With a kitchen upgrade and a new music system installed the Association now attracted younger patrons and membership had almost doubled.

Before long, several neighbours were complaining to the police and local council. Noise from music and the new exhaust fan in the kitchen together with laughing and the outside dancing, was continuing until well after midnight on a regular basis. At times it was so loud that neighbours were finding it hard to hold a conversation inside their own homes. Noise from the car park was also an issue, as revellers were carrying on as they were leaving, sometimes at 5am, or even 7am after a particularly fun night. The extra rubbish collections that were needed were noisy too and were disturbing what little sleep the neighbours could get.

A council officer visited the complaining neighbours and collected particulars and attended the premises to speak to the president. The president wouldn’t acknowledge any problem with noise. He was more than pleased with the club’s recent success and was quick to point out to the officer that the club had been around before development consent laws put restrictions on the use of premises such as this.

Satisfied with the evidence from the neighbours, the council officer decided to issue the president with a prevention notice pursuant to section 96 of the POEO Act, requiring the following:

  • no use of the premises after 10pm on Sundays to Thursdays
  • on Fridays and Saturdays, no amplified music after 10.30pm, no kitchen fan operation after 10.30pm and the premises be closed and vacated by 12.30pm
  • a designated member to patrol and supervise the car-park after 10pm to minimise the noise
  • a sign be erected in a prominent position near the club exit asking the patrons to leave quietly and respect the amenity of the neighbours after 10pm
  • rubbish collection be limited to the hours between 7am and 7pm.

The notice required these changes be fully implemented within 28 days of the date of the notice. A compliance cost notice was also issued to cover the costs of monitoring the club’s compliance with the prevention notice.

For people living in strata title, community and neighbourhood schemes there may also be specific by-laws relating to noise, smells and other offending conduct. Similarly, tenants in residential parks must obey park rules that cover these issues and tenants in residential tenancies must comply with terms that restrict these aspects of the tenancy. See Property rights and neighbours for more information.

If you are experiencing a problem with your neighbour that concerns noise, smells, smoke or garbage, often the simplest and best option is to first contact your neighbour and talk the matter over. Suitable arrangements are often easily reached between neighbours without the need for outside or legal intervention. If you do not feel comfortable dealing directly with your neighbour, you can contact the Community Justice Centre for help to mediate with your neighbour to solve the problem.

To make a complaint about noise, smells, smoke or garbage, the appropriate authority to contact in most cases will be the police, your local council or the EPA.

In addition to general pollution offences and the remedies already outlined, the following applies to particular types of pollution.

Noise

There are special provisions relating to noise in the POEO Act and the Protection of the Environment Operations (Noise Control) Regulation 2008. Specific noise pollution offences include the selling of noisy articles or equipment, failing to properly use or maintain noise control equipment and failing to handle or deal with materials in a proper and efficient manner (POEO Act, Part 5.5 Noise Pollution). There are also extensive noise provisions that relate to the sale and use of motor vehicles and accessories (POEO Act, Part 5.8 Motor Vehicles).

Apart from these offences there are also specific noise remedies. Under section 276 of the POEO Act, a police officer or other authorised person can issue a warning or a written or verbal noise abatement direction requiring a person to cease making offensive noise. This direction cannot be appealed and will remain in force for 28 days. A breach of the direction is an offence and attracts a fine of up to $3300. Where necessary, in relation to offensive noise, police can also apply for a warrant to enter premises to give a noise abatement direction or to investigate a breach of the direction. After a warning is given, the police may seize the offending noise emitting equipment (sections 275-283).

Under the POEO Act, an appropriate regulatory authority can issue a noise control notice. This notice can restrict the use of a particular noisy article or an activity to certain times of the day, or certain days, or certain noise levels. It attracts a fee and compliance costs. A breach of the notice is an offence and can result in a fine of up to $30,000 for individuals ($60,000 for corporations) and an extra $600 per day ($6000 for a corporation) for a continuing offence (sections 264-267).

An occupier affected by a neighbour’s offensive noise can apply directly to the Local Court for a noise abatement order. This can order that the offensive noise stop within a specified time and not recur. A breach of this order attracts a fine of up to $3300 (sections 268-274).

The POEO Act defines offensive noise as:

  • noise that is harmful or likely to be harmful, due to its level, nature, character, quality or time it is emitted, to a person outside the premises where it is being emitted, or
  • noise that interferes unreasonably with the rest or comfort of a person outside those premises, or
  • noise, as prescribed by the regulations (POEO Act, Dictionary).

The Protection of the Environment Operations (Noise Control) Regulation 2008 sets restrictions on specific noises, as follows:

Noise Source
Restrictions
Relevant clause

Power tools or swimming pool pumps

Includes:

  • lawn mowers
  • lawn trimmers
  • blower/sweepers
  • garden mulchers
  • edge-cutters and chipper/shredders
  • electric power tools (including battery-operated power tools)
  • pneumatic power tools
  • chainsaws
  • circular saws
  • gas or air compressors
  • spa pumps

8pm - 7am on weekdays and Saturdays

8pm - 8am on Sundays and public holidays

cl 50

Musical instruments and sound equipment

Includes electrically amplified sound equipment such as:

  • computers
  • radios
  • televisions
  • tape recorders
  • record players
  • compact disc players
  • digital video disc (DVD) players
  • pulic address systems

12 midnight - 8am on Fridays, Saturdays or a day immediately before a public holiday

10pm - 8am all other days

cl 51
Air conditioners

10pm - 7am on weekdays

10pm - 8am on weekends and public holidays

cl 52

Motor vehicles on residential premises

(except when entering or exiting residential premises)

8pm - 7am on weekdays

8pm - 8am on weekends and public holidays

cl 14

The Regulation also restricts how long a car alarm or house alarm is allowed to sound, unless, in the case of a car alarm, the car has been involved in an accident, a window has been broken, or the car has been broken into.

Type of intruder alarm Restrictions Relevant clause
Motor vehicle manufactured before 1 September 1997 Not more than 90 seconds after the alarm first sounds cl 24
Motor vehicle manufactured on or after 1 September 1997 Not more than 45 seconds after the alarm first sounds cl 24
Building intruder alarm installed before 1 December 1997 Not more than 10 minutes after it is activated cl 53
Building intruder alarm installed on or after 1 December 1997 Not more than 5 minutes after it is activated cl 53

The choice of remedy for a noise problem often depends on the circumstances. For example, a prevention notice issued by local council is more suitable where there is a range of different problems to be addressed. The notice will set out the actions required and a time period for completing them. For urgent noise problems like late night noise and burglar alarms, police can issue a noise abatement direction. For activities such as sporting or outdoor concerts a noise control notice can set acceptable noise levels and be given in advance of the event. These remedies do not affect your right to apply directly to the Local Court for a noise abatement order.

​Smells

Part 5.4 of the POEO Act and the Protection of the Environment Operations (Clean Air) Regulation 2010 apply specifically to air pollution. This includes odours (POEO Act, Dictionary).

Generally, under the POEO Act, it is an offence for any person in non­-residential premises to operate machinery or deal with materials in such an improper or inefficient manner that it causes air pollution (sections 124-132). The maximum penalty for an air pollution offence is $1,000,000 for a corporation plus an extra $120,000 per day for a continuing offence and for an individual it is $250,000 plus an extra $60,000 per day (section 132).

Case study - odour complaints

This case concerned a company operating a livestock slaughter and rendering plant. There was a history of complaints regarding odour being emitted from the plant into the surrounding area. The Environment Protection Authority (EPA) took ‘odour measurements’ over several days to measure the intensity of the odour escaping from the plant at varying distances from the premises.

The offensive odour was caused by the failure of old plant equipment to adequately capture all odour produced in the rendering process and prevent the odour being released into the atmosphere.

The EPA charged the company with an offence under the Protection of the Environment Operations Act 1979 (POEO Act) of causing the emission of an offensive odour which interfered unreasonably with the comfort of a person outside the premises (section 129). The company pleaded guilty to the offence and was fined $32,000 in the Land and Environment Court.

Since the date of the offence, the company had carried out a number of works aimed at improving the odour-control abilities of the premises. The Court also considered whether to make an ‘environmental enhancement order’ under section 250 of the POEO Act. Such an order requires an environmental offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit. In this case, the company proposed donating land to the local council and putting the penalty money towards landscaping and amenities within the park.

Environment Protection Authority v Cargill Australia Ltd [2004] NSWLEC 334

The duty of polluters under the Act to report a pollution incident to the EPA or appropriate regulatory authority now extends to odours (section 148. The exclusion of odours was removed in 2015 by the Protection of the Environment Legislation Amendment Act 2014.). It is also an offence for licensed activities to emit an offensive odour that is not covered in their license conditions (section 129).

The Act (Dictionary) defines ‘offensive odour’ as an odour that, due to its strength, nature, duration, character, quality, time of emission or some other circumstance,

  • is harmful or likely to be harmful to a person who is outside the premises from which it is emitted
  • interferes or is likely to interfere unreasonably with the comfort or rest of a person who is outside the premises from which it is emitted, or
  • is prescribed by the regulations.

Smoke

Air pollution provisions of the POEO Act and the Protection of the Environment Operations (Clean Air) Regulation 2010 also apply to smoke. Under the Act it is an offence to deal with machinery or materials on non­residential premises in an improper or inefficient way such that it causes air pollution (POEO Act, sections 124-132). The POEO Act defines air pollution as the emission of air impurities. This includes smoke, dust, (including fly ash) cinders, and solid particles of any kind, gases, fumes, mists, odours and radioactive substances (POEO Act, Dictionary).

Under section 135B of the Act, a local council or other local authority can issue a smoke abatement notice to the occupier of residential premises. This notice gives the occupier 21 days to stop emitting excessive smoke from the chimney of the premises and it generally lasts for up to six months. Breach of this notice can result in a fine of up to $3300 (POEO Act, Chapter 5, Part 5.4 Air Pollution, Division 3 Domestic Air Pollution, sections 135A-135D).

Where burning takes place in the open or in an incinerator, the regulations require the person to use practical means to prevent or minimise air pollution. The regulations also prohibit the burning of certain articles in this way. They include tyres, coated wire, paint and solvent containers and certain treated timbers. A breach of these regulations can attract a fine of up to $11,000 for a corporation or $5500 for an individual (Protection of the Environment Operations (Clean Air) Regulation 2010, clauses 10-11).

There are also provisions for motor vehicles. Under clause 16 of the Protection of the Environment Operations (Clean Air) Regulation 2010 it is an offence for a motor vehicle to emit excessive air impurities. The owner of the vehicle can be fined up to $44,000 (for a corporation) and $22,000 for an individual.

Garbage

Recycling, waste facilities and the collection, storage, management, transportation and disposal of waste are regulated by Part 5.6 of the POEO Act and the Waste Avoidance and Resource Recovery Act 2001 together with the Protection of the Environment Operations (Waste) Regulation 2014. Polluting land is an offence under section 142A of the POEO Act. This offence attracts a maximum penalty for a corporation of $1,000,000 together with an extra $120,000 per day for a continuing offence. The maximum penalty for an individual is $250,000 and an extra $60,000 per day for a continuing offence. Where a corporation is involved, liability may also extend to the director or other executive of the corporation (POEO Act, section 169).

Wilful or negligent disposal of waste, in a manner that harms, or is likely to harm the environment is an offence under section 115 of the POEO Act. The offence applies to both the person disposing of the waste and the owner of the waste and attracts heavy penalties. For wilful disposal, a corporation can be fined up to $5,000,000 and an individual can face a fine of up to $1,000,000 and/or up to seven years imprisonment. If the disposal is negligent, the fine can be up to $2,000,000 for a corporation and $500,000 for an individual. Again, where the offence is committed by a corporation, liability may extend to a relevant corporate executive (POEO Act, section 169).

There are also various offences under the POEO Act for unlawfully transporting or depositing waste or using land as a waste facility without lawful authority. This means, where a landowner accepts landfill that is actually waste material, the landowner, transporter, owner of the waste and the relevant corporate executive can be prosecuted (POEO Act, sections 143-144 and section 169).

‘Waste’ is defined widely under the POEO Act to include any substance that alters the environment or any discarded, rejected, surplus, unwanted or abandoned substance. It can apply, for example to large articles dumped in bushland and to unwanted household items left on the street (POEO Act, Dictionary).

There are also various obligations under the Protection of the Environment (Waste) Regulation 2014 concerning waste storage and transportation generally and the transportation, storage, disposal, management and handling of special waste such as asbestos. Breach of these obligations can result in a fine of up to $44,000.

The POEO Act also contains littering offences.