COHEN -v- CITY OF PERTH [2000] WASC 306

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 306
Case No:	CIV:1205/1999	Heard:	7-9 NOVEMBER 2000
Coram:	ROBERTS-SMITH J	Delivered:	15/12/00
No of pages:	55	Judgment Part:	1 of 1
Result:	Injunction granted Award of damages made
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Parties:	BRUCE COHEN CITY OF PERTH
Catchwords:	Nuisance Noise Whether breach of statutory maximum noise levels creates a private right of action Nuisance Private nuisance Noise emitted by garbage trucks Material interference with convenience and comfort Nuisance Public nuisance Unreasonable interference with right common to all Whether injunction should go Injunction Discretion Whether grant should be suspended pending determination of exemption from statutory requirements
Legislation:	Environmental Protection Act 1986 (WA), s 79 Environmental Protection (Noise) Regulations 1997, reg 5, reg 6, reg 17(1)
Case References:	Abela v Giew (1964) 65 SR (NSW) 485 Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd & Anor (1998) 194 CLR 247 Benjamin v Storr (1874) LR 9 CP 400 Boyce v Paddington Borough Council (1903) 1 Ch 109 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Commonwealth v John Fairfax & Sons Limited (1980) 147 CLR 39 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 Haddon v Lynch [1911] VLR 5 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Kent v Johnson (1973) 21 FLR 177 Manchester City Council v Farnworth [1930] AC 171 Metropolitan Asylum District v Hill (1881) 6 App Cas 193 Miller v Jackson [1977] QB 966 Munro v Southern Dairies [1955] VLR 332 Neville Nitschke Caravans (Main North Road) Pty Ltd v McEntee (1976) 15 SASR 330 O'Connor v S P Bray Limited (1936-37) 56 CLR 464 Onus v Alcoa of Australia Limited (1981) 149 CLR 27 Painter v Reed [1930] SASR 295 Patrick Stevedores Operations (No 2) Pty Ltd v The Maritime Union of Australia (1998) 195 CLR 1 Ramsay v Aberfoyle Manufacturing Company (Australia) Pty Ltd (1935) 54 CLR 230 Salford City Council v McNally [1976] AC 379 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 Sibly v Kais (1967) 118 CLR 424 Spencer v Silva [1942] SR (SA) 213 Tucker v McCann [1948] VLR 222 Walsh v Ervin (1952) VLR 361 Wood v Sutcliffe (1851) 2 SIM (NS) 163 American Cyanamid Co V Ethicon Ltd [1975] AC 396 Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 Beswicke v Alner [1926] VLR 72 Council of the Shire of Hornsby v Dangdale (1929) 29 SR (NSW) 118 Kennaway v Thompson [1981] QB 88 Roberts v Gwyrfai District Council [1899] 2 Ch 608 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 Sovar v Henry Lane Pty Limited (1967) 116 CLR 397 Swan Brewery Co Ltd v Shire of Belmont [1974] WAR 196 Vanderpant v Mayfair Hotel Co [1930] 1 Ch 138 Walter v Selfe (1851) 4 De G & Sm 332 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : COHEN -v- CITY OF PERTH [2000] WASC 306 CORAM : ROBERTS-SMITH J HEARD : 7-9 NOVEMBER 2000 DELIVERED : 15 DECEMBER 2000 FILE NO/S : CIV 1205 of 1999 BETWEEN : BRUCE COHEN

Plaintiff

AND

CITY OF PERTH

Defendant

Catchwords:

Nuisance - Noise - Whether breach of statutory maximum noise levels creates a private right of action

Nuisance - Private nuisance - Noise emitted by garbage trucks - Material interference with convenience and comfort

Nuisance - Public nuisance - Unreasonable interference with right common to all - Whether injunction should go

Injunction - Discretion - Whether grant should be suspended pending determination of exemption from statutory requirements

Legislation:

Environmental Protection Act 1986 (WA), s 79

Environmental Protection (Noise) Regulations 1997, reg 5, reg 6, reg 17(1)

(Page 2)

Result:

Injunction granted

Award of damages made

Representation:

Counsel:

Plaintiff : In person

Defendant : Mr C G Colvin

Solicitors:

Plaintiff : In person

Defendant : Clayton Utz

Case(s) referred to in judgment(s):

Abela v Giew (1964) 65 SR (NSW) 485
Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd & Anor (1998) 194 CLR 247
Benjamin v Storr (1874) LR 9 CP 400
Boyce v Paddington Borough Council (1903) 1 Ch 109
Byrne v Australian Airlines Limited (1995) 185 CLR 410
Commonwealth v John Fairfax & Sons Limited (1980) 147 CLR 39
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Haddon v Lynch [1911] VLR 5
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Kent v Johnson (1973) 21 FLR 177
Manchester City Council v Farnworth [1930] AC 171
Metropolitan Asylum District v Hill (1881) 6 App Cas 193
Miller v Jackson [1977] QB 966
Munro v Southern Dairies [1955] VLR 332
Neville Nitschke Caravans (Main North Road) Pty Ltd v McEntee (1976) 15 SASR 330
O'Connor v S P Bray Limited (1936-37) 56 CLR 464
Onus v Alcoa of Australia Limited (1981) 149 CLR 27
Painter v Reed [1930] SASR 295
Patrick Stevedores Operations (No 2) Pty Ltd v The Maritime Union of Australia (1998) 195 CLR 1

(Page 3)

Ramsay v Aberfoyle Manufacturing Company (Australia) Pty Ltd (1935) 54 CLR 230
Salford City Council v McNally [1976] AC 379
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552
Sibly v Kais (1967) 118 CLR 424
Sovar v Henry Lane Pty Limited (1967) 116 CLR 39
Spencer v Silva [1942] SR (SA) 213
Tucker v McCann [1948] VLR 222
Walsh v Ervin (1952) VLR 361
Wood v Sutcliffe (1851) 2 SIM (NS) 163

Case(s) also cited:

American Cyanamid Co V Ethicon Ltd [1975] AC 396
Andreae v Selfridge & Co Ltd [1937] 3 All ER 255
Beswicke v Alner [1926] VLR 72
Council of the Shire of Hornsby v Dangdale (1929) 29 SR (NSW) 118
Kennaway v Thompson [1981] QB 88
Roberts v Gwyrfai District Council [1899] 2 Ch 608
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
Sovar v Henry Lane Pty Limited (1967) 116 CLR 397
Swan Brewery Co Ltd v Shire of Belmont [1974] WAR 196
Vanderpant v Mayfair Hotel Co [1930] 1 Ch 138
Walter v Selfe (1851) 4 De G & Sm 332
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

(Page 4)

1 ROBERTS-SMITH J: There is in Australia a growing push for the revival of inner city living. That is particularly evident in the City of Perth. One of the advantages often urged is the vibrant activity generated during day and night time hours from the close juxtaposition of high density residential accommodation, restaurants, social venues and office and commercial activities. However, all of these require the support of and servicing by public utilities and local authorities and there can be tensions between residential amenity or commercial needs and the practical provision of services by public utilities or local authorities.

2 This case arises out of such tensions.

3 The plaintiff, Mr Cohen, lives in an apartment on the second floor of mixed residential and commercial premises at 313 Murray Street, Perth. The defendant, the City of Perth ("the Council") is responsible for waste collection from those and other premises in the locality: s 112(1) of the Local Government Act 1995 (WA).

4 The building at 313 Murray Street, Perth extends back to a laneway described variously as Murray Mews or Metro Lane. For consistency, I shall refer to it in these reasons as Metro Lane. The building itself is called Murray Gardens. Murray Street itself runs roughly East/West. Wellington Street is the next parallel major roadway to the North, Hay Street is the next parallel major roadway to the South and William Street is the next major roadway to the East - although there is no direct access to that from Metro Lane.

5 Metro Lane itself runs into King Street to the West. Approximately 200 metres East from King Street, Metro lane turns 90 degrees to the North and runs into Murray Street. Approximately 100 metres from King Street there is further access to Metro Lane by a smaller laneway running into it from Murray Street, through a building. Traffic in that smaller laneway is one way, North to South. Traffic in Metro Lane is one way, but in different directions from the laneway. From the point at which the laneway and Metro Lane meet the traffic direction is West to East towards William Street and East to West towards King Street.

6 There are five designated garbage truck stopping points along Metro Lane. One of those (which is also the one closest to Mr Cohen's unit) is directly opposite the point at which the laneway runs into Metro Lane. This is probably about 5 to 10 metres from the rear wall of Mr Cohen's unit, which overlooks it. There is another stopping point some 25 metres

(Page 5)

to the West and one approximately 70 metres to the East, at the point where Metro Lane turns towards Murray Street.

7 The laneway and either end of Metro Lane are only wide enough for one vehicle, although for most of Metro Lane's East/West distance it is wide enough for two vehicles.

8 I am satisfied on the evidence, and find, that the whole of Metro Lane is subject to "no parking" and "no standing" signs. There is some parking but that is tenant parking abutting but not intruding into Metro Lane itself.

9 Mr Cohen moved to Unit 10, 313 Murray Street, Perth in July 1997. In his evidence he explained that he spent the Saturday and Sunday physically moving in and by Sunday was very tired and went to bed. At approximately 11.30 that Sunday night he was awoken by what he described as a horrendous crashing, crunching loud noise. This came from two garbage trucks operating, as he described it, right outside his window.

10 At the first opportunity he complained to the Council.

11 From that time onwards there was continuing and increasingly acerbic communication between Mr Cohen and Council officers virtually until the date of hearing. The Council made certain changes to the collection of waste and recyclable materials in the vicinity of Mr Cohen's unit but to date none of these has been satisfactory to him.

12 In July 1997 the Council's sanitation workers were scheduled to collect waste and recyclable materials from Metro Lane before 11pm every Sunday to Thursday. From 27 November 1997 as a result of Mr Cohen's complaints the Council changed the schedule to collections between 9.30 to 10.00pm Sunday to Thursday and after 6.30am on Saturday with no collection being made on Fridays. In December 1997 modifications were made to sanitation trucks in an attempt to reduce the level of noise emanating from them.

13 In March 1998 Mr Cohen consulted his general practitioner, Dr Papaelias and was prescribed anti-depressant medication.

14 On 4 April 1998 the Council applied to the Minister for the Environment for an exemption from the provisions of reg 17 of the Environmental Protection (Noise) Regulations 1997. This was done because acoustic tests conducted by or on behalf of the Council had

(Page 6)

demonstrated that notwithstanding the modifications to the trucks the noise levels being generated were still in excess of those permitted under the regulations.

15 On 26 February 1999 Mr Cohen filed a writ of summons and statement of claim against the Council claiming an injunction and damages. He also sought an interlocutory injunction pending the hearing of the action.

16 On 4 May 1999 Templeman J dismissed Mr Cohen's application for an interlocutory injunction. His Honour had no doubt that there was a serious question to be tried and indeed made the observation that -

"It seems to me quite likely that if the matter went to trial on facts which were no different from those referred to in the affidavits that there would be a strong prospect of the plaintiff obtaining a permanent injunction." (at 10)

17 However, his Honour was not satisfied that on a consideration of the balance of convenience he ought to exercise his discretion such as to grant the interlocutory injunction. His Honour suggested that the defendant investigate further the means of overcoming the problem and complying with the law. He noted that there was then an application for exemption before the Minister but declined to adjourn the application pending the outcome of that application, deciding instead to dismiss the application on the basis that if the noise problem was not rectified nor resolved by the time the action came to trial there would, in his Honour's view, be:

" … a very strong possibility of final relief being granted along the lines sought by the plaintiff today or in some different terms but having the same effect."

18 No doubt in response to his Honour's exhortations the Council, on 30 August 1999, changed its schedule for collection of waste to be between 7 to 7.30pm Mondays to Fridays, after 7am on Saturdays with no collection on Sundays. The schedule for collection of recyclable materials was changed to after 7am Tuesdays and Thursdays.

19 On 30 August 1999 the Council changed the primary sanitation truck used for the collection of waste materials in Metro Lane to a newer and quieter model albeit one which still generated noise in excess of the prescribed levels.

(Page 7)

20 Mr Cohen's statement of claim is quite short and may be conveniently set out in full -

"1. Since July 1997 the plaintiff has resided at Apartment 10, Murray Gardens, 313 Murray Street, Perth, Western Australia ("the premises").

2. The defendant is a local government as defined by the Local Government Act 1995 with the corporate name "City of Perth", capable of suing and being sued pursuant to section 2.5 thereof.

3. The defendant is responsible for waste collection, which expression includes the collection of recyclable material, from the premises and surrounding areas ("the waste collection") and retains contractors for this purpose.

5. Since at least July 1997 the defendants have directed, permitted and suffered its contractors and employees to collect waste products:

5.1 in such a manner so as to create a volume of noise ("the noise"), that is and has consistently been higher than 47 dB as measured from within the premises:

(i) after 10pm and before 7am Mondays to Saturdays;

(ii) after 10pm and before 9am, Sundays and public holidays;

5.2 in such a manner so as to create a volume of noise ("the noise"), that is and has consistently been higher than 52 dB as measured from within the premises:

(i) after 7pm and before 10pm, Mondays to Sundays;

(ii) after 9am and before 7pm, Sundays and public holidays.

5.3 in such a manner so as to create a volume of noise ("the noise"), that is and has consistently been

(Page 8)

higher than 57 dB as measured from within the premises after 7am and before 7pm Mondays to Saturdays.

6. The average duration of the noise is between 11 and 15 minutes.

7. The "assigned level" of noise for the premises for the times pleaded in paragraphs 5.1, 5.2 and 5.3 herein are 47dB, 52dB and 57dB, respectively, pursuant to regulation 8 of the Environmental Protections (Noise) Regulations 1997.

8. The noise is in excess of the "assigned level" and interferes directly with the health, comfort and amenity of the plaintiff. It is "unreasonable noise" as defined by s 3 of the Environmental Protection Act 1987, pursuant to reg 5 and reg 7 of the Environmental Protection (Noise) Regulations 1997.

9. By virtue of matters pleaded above the defendant and the contractor have been and are committing an offence at law pursuant to s 79(1) of the Environmental Protection Act 1986, which Act binds the Crown.

10. As a result of this continued offence the plaintiff has suffered and continues to suffer unreasonable interference to his health, comfort and amenity and has thereby incurred loss and damage.

AND THE PLAINTIFF CLAIMS;

(a) an injunction restraining the defendant from directing, permitting or suffering its contractors and employees from collecting waste products in the manner described in paragraph 5 hereof;

(b) damages;

(d) costs."

21 In its amended defence filed 17 November 1999 the Council pleads as follows:

(Page 9)

"1. The defendant admits paragraphs 1, 2 and 32 of the statement of claim.

2. Save to admit that since at least July 1997 the defendant has directed, permitted and suffered its contractors, servants and employees to collect waste products from the laneway adjacent to the premises and save to admit that on 18 December 1997 during the course of collection of waste products from the laneway the noise levels calculated in accordance with the Environmental Protection (Noise) Regulations 1997 were exceeded for a short period, the defendant denies paragraphs 5, 6 7 and 8.

3. To the extent that the noise exceeded the assigned levels calculated in accordance with the Environmental Protection (Noise) Regulations by reason of the noise of vehicles used in the rubbish collection service, the Regulations do not apply.

4. Since December 1997 the defendant has taken steps to reduce the volume of noise created during the collection of waste products in the laneway adjacent to the premises in that:

(a) the vehicles used in the collection of waste products have been changed to vehicles which have a stationary compaction engine revolution of 1,100 rpm instead of 1,250 rpm and are better insulated around the engine compartment areas;

(b) cushion valves have been fitted to the sweep blade cylinders on the vehicles to reduce the noise of the cylinders at the end of their stroke;

(d) the vehicles are fitted with proximity switches to eliminate noise;

(e) the end of the compaction cycle in the vehicles is controlled electrically instead of by pressure

(Page 10)

switches reducing the noise level at the completion of the cycle;

(f) the operation and wear in the bin lifter and compaction equipment on the vehicles is monitored on a regular basis and is repaired and greased in order to reduce the operational noise; and

(g) the number of bins collected from the laneway had been reduced.

5. The defendant denies paragraphs 9 and 10.

6. The method of collection of waste products used by the defendant is the most practically feasible method in view of the physical constraints and the expense that would be involved to further reduce noise.

7. The plaintiff has delayed unreasonably in his claim

8. The grant of permanent injunction in the terms sought by the plaintiff would cause undue hardship to the defendant, third parties whose rubbish collection service is provided in Murray Mews and the public generally in that:

(a) the injunction would prevent the collection of rubbish from Murray Mews with consequent detriment to rate payers whose rubbish is presently collected in Murray Mews;

(b) alternative methods of collection of rubbish would substantially increase the expense to the City;

(d) more noise would be generated in the collection of the rubbish from other locations."

22 I turn now to a more detailed consideration of the evidence.

23 Mr Cohen testified that just before Christmas 1994 he moved into a residential unit at 601 Wellington Street, which was part of the Railways Institute complex and a Homeswest development comprising some

(Page 11)

70 apartments for Homeswest tenants and six apartments classified as commercial/residential. The apartments were zoned commercial on the ground floor and residential on the next three floors, one of which was occupied by Mr Cohen. According to him, early in January 1995 it became apparent that there was a noise problem with garbage trucks collecting at night time. Mr Cohen complained to Mr Mike Barry, the then Director Business Units of the Council. Eventually, by 10 November 1995 Mr Barry had made arrangements for the rubbish collection to be done by the Council's day shift waste collection crew during normal daylight hours.

24 So it was, when upset by the late night noise of the rubbish collection in Metro Lane in July 1997 Mr Cohen again contacted Mr Barry, who in turn, referred him to the shift supervisor, Mr Neil Woodenberg, who subsequently referred him to Mr Stewart Cameron.

25 The tenor of Mr Cohen's communications with Council officers thereafter was set in a letter from Mr Cohen to Mr Cameron dated 16 July 1997 which commenced in the following way -

"The rudeness displayed by you today in hanging up on me when I was trying to give you some background on the problem is unacceptable of a person in the position that you are.

I have been a resident in the City for almost three years and have operated my business in the City for the same period.

When the problems of the high levels of noise produced by the trucks became evident, Mike Barry, then the director of Business units, listened to the problems and when shown the noise as far above the permissible levels for a residential area as set by the Environmental Protection Act he understood and at very little inconvenience to the City of Perth, had the round altered.

This I am requesting again as my residence above Murray Mews in the complex known as Murray Gardens is directly above the rubbish bin areas and is subject to the full blast of the compacter noise."

26 In that letter Mr Cohen went on to say that he accepted that the maximum allowable noise levels in inner city areas can be higher than those for urban residential areas but considered they must still be controlled at reasonable levels. He referred to the Noise Abatement

(Page 12)

(Neighbourhood Annoyance) Regulations

and to what he said were allowable sound levels prescribed in those regulations. He stated that the Council was breaking the law and asked that it desist.

27 Mr Cameron responded by letter date 23 July 1997 in which he wrote -

"As I tried to explain to you on the telephone, when you continually talked over me, the strategic planning unit are currently looking into developing a policy for the City which specifically addresses such problems as the performance of essential services within the city and the effect on inner city residents.

I am unable to make programming changes to the current night shift waste collection rounds. Many other inner city residents have requested alterations to the city's rubbish pickups for the very same reason you have. We have been able to oblige you on a previous occasion before you moved away from the City. However, to do so again would be to the detriment of other residents.

It has been the experience of other residents in the past that, whilst initially the after dark city noises have been disruptive, with time, the residents have adapted to these conditions …"

28 This response did not satisfy Mr Cohen. He wrote on 24 July 1997 pointing out that the "constant (for up to nine minutes whilst loading in Murray Mews)" noise far exceeded the EPA legal limit and that consequently the Council was breaking the law. He did not accept that programme changes could not be made and suggested the day shift collection from 601 Wellington Street could be extended to collect from Murray Mews before 9.15am, which would be past the morning peak traffic time. He described the garbage truck collection in the quiet of the night as "like an explosion" and an unacceptable intrusion on the residents' peace and quiet.

29 On 4 August 1997 Mr Darren Ponton, who was the Council's Acting Manager Compliance Services, wrote a memorandum to Mr Cameron (exhibit P10, p 17) acknowledging the likelihood that the noise levels were excessive and suggesting that the collection time be altered. He pointed out that Mr Cohen had drawn attention to the Council's lack of compliance with the noise regulations and that his assumptions were generally correct. Mr Ponton wrote that although noise measurements of

(Page 13)

the rubbish trucks had not been taken by Compliance Services, it was highly probable the noise levels were excessive "as have been proven in the past". He went on to observe that Mr Cohen and other residents had previously been involved in longstanding complaints about the Gobbles nightclub and that therefore his knowledge and experience in terms of Council's obligations to comply with legislation on the matter was good. He added that the Council had agreed to change rubbish removal times on another occasion when requested by Mr Cohen who resided at a different inner city location at the time and that accordingly a precedent existed for Council to meet the wishes of residents specifically disturbed by the garbage collection activity.

30 Mr Ponton expressed the view that refusal to change the rubbish collection rounds would likely result in further lobbying by Mr Cohen to State Government, elected members of Council, the CEO and perhaps the media. He noted that Mr Cohen had apparently discussed the possibility of changing the rubbish removal times with operations staff who believed it was possible, and he therefore recommended that the rubbish removal times be altered, noting that Mr Cohen had indicated that after 9am would be acceptable.

31 By memorandum dated 14 August 1997 (exhibit P10, page 19) Mr Cameron pointed out that a system for two pickup locations and times had been reorganised some nine months earlier to accommodate residents in Murray Mews. That had been a satisfactory arrangement with no complaints until Mr Cohen had moved in. In response to Mr Ponton's suggestion Mr Cohen's view was that access for rubbish trucks during day time, (that is 8am to 8pm) was not possible, because of vehicles parked in or using Murray Mews (sic). Previous attempts to collect during day time had resulted in the truck having to reverse against the one way system to exit into Murray Street. He believed that the Council had exhausted alternatives to collecting the rubbish from Murray Mews unless a truck were to be sent in outside the normal operating hours of the day or night shifts which would incur additional expense. He could suggest no alternative until such time as a complete strategy could be developed to cover essential city services operating outside normal business hours and the conflict of interest that may develop with the increasing number of inner city residents. He concluded with the observation that the current programme of rubbish collections had no complainant other than Mr Cohen.

32 Mr Douglas Forster was subsequently appointed to the substantive position of Director Business Units. It is unclear from the evidence

(Page 14)

precisely what communication there was between Mr Forster and Mr Cohen at that initial stage but it resulted in a change to the timing of the rubbish collection to before 10pm on weeknights. It appears to have been that which prompted what was described in evidence as "the complimentary letter" from Mr Cohen to Mr Forster dated 16 October 1997 which began -

"Bloody amazing. You have been at the City of Perth for only five minutes, yet in only ten hours you have achieved what I have taken three months to unsuccessfully arrange. You have displayed a commonsense approach rarely seen and certainly refreshing as opposed the the (

sic

) stubborn obstinate obfuscation indulged in by Messrs Cameron and Wootenberg (

sic

)."

33 He then referred to a confrontation between himself and a Council driver the previous evening.

34 On 17 October 1997 Mr Cohen received by facsimile a letter dated the previous day from Mr Forster in which the latter explained that noise level measurements on the garbage collection vehicles were to be undertaken shortly and the results interpreted by the Compliance Unit of the Council. He wrote that should noise levels exceed environmental protection standards steps would immediately be taken to correct the situation and that in the meantime arrangements had been made for the collection vehicle to service Metro Lane prior to 10pm on weeknights for a trial period of two weeks. That trial would highlight whether any problems existed due to parked cars in particular. Mr Forster pointed out that the trial was being conducted on the basis that in a telephone conversation with Mr Cohen on 15 October the latter had agreed that it would acceptable were the service to be provided prior to 10pm. Similarly, the pickup service on Saturday morning would be changed for the same two week trial to be between 6.30am and 7.00am rather than 5.00am to 5.30am. Mr Forster concluded his letter by pointing out that employees who undertake this service often do so under extremely difficult conditions and under direction from his office so that should there be an enquiry regarding garbage collection or any other business unit service it should be directed accordingly. He pointed out that just as residents are afforded protection from unlawful acts so too are Council employees undertaking essential services in the City. These last comments appear to have been a reference to the confrontation between Mr Cohen and the Council driver on 15 October.

(Page 15)

35 It appears Mr Cohen had been under the impression that the changed schedule for garbage collection to be conducted prior to 10pm weeknights was a permanent arrangement. Mr Forster's letter advising that it was for a two week trial basis only prompted an immediate response from Mr Cohen on 17 October expressing his disappointment and making the comment -

"Two weeks trial and then back to breaking laws again is it?"

36 He said if parked cars cause a problem they should be shifted or infringement notices should be issued as they would be parked illegally.

37 He queried why if the Council could run a "trial" period, it could not make the new schedule permanent, and concluded -

"This is looking like a crock of rocking horse fescennine.

Stop pussy footing around. No more red herrings."

38 On 23 October 1997 Mr Forster requested the Compliance unit to take noise level measurements as deemed appropriate, interpret the results in terms of EPA standards and provide him with a written direction as what needed to be done to comply with them. He added that the matter had some urgency.

39 The noise monitoring was undertaken by Mr Darren Ponton on 10 November 1997 commencing at approximately 9pm. Measurements were conducted from the rear gate of the Murray Mews (ie Murray Gardens) complex. One rubbish truck entered Metro Lane at 9.13pm and left the lane at approximately 9.19pm stopping three times along the lane to collect bins. A rubbish swamper had entered the laneway at 9.11pm to walk up the lane in front of the truck arranging the bins to ease loading them into it.

40 It is necessary at this point to say something of the methods of noise measurement and the standards applied to it.

41 In 1997 the relevant regulations were the Noise Abatement (Neighbourhood Annoyance) Regulations 1979 ("the Noise Abatement Regulations"). With effect from 31 January 1998 they were replaced by the Environmental Protection (Noise) Regulations 1997 ("the Noise Regulations") which were gazetted on 31 October 1997. The Noise Regulations are made under s 123(2) and Sch 2 of the Environmental Protection Act 1986 (WA) ("the Act"). They set different "assigned noise

(Page 16)

levels" which are the highest noise levels that can be received at a premises for different categories of premises depending upon whether they are noise sensitive (such as residences), commercial or industrial premises (such as factories and mines).

42 For noise sensitive premises assigned levels are calculated by formulae which take into account zonings within circles of 100 metres and 450 metres radius from a noise receiver including a proportion of industrial land use zonings, a proportion of commercial zonings and the presence of major roads.

43 Time of day also affects the assigned levels for noise sensitive premises. The lowest levels are set for night time (10pm to 7am any day or to 9am Sundays and public holidays); higher levels are set during the evenings (7pm to 10pm) and on Sundays and public holidays (9am to 7pm). The highest levels permissible are during the day which is defined as 7am to 7pm Monday to Saturday.

44 The calculation of measured noise levels takes into account certain characteristics of particular noises such as whether the noise is impulsive (banging or thumping) tonal (whining or droning) or modulated (such as a siren). A loading of a prescribed number of decibels is added to measured noise levels which have these features; this is referred to as the "Influencing Factor".

45 Regulation 17 of the Noise Regulations authorises the Minister for the Environment to approve a variation to the assigned levels where the applicant can demonstrate that the applicant cannot reasonably or practicably comply with them in the particular circumstances.

46 The assigned levels form "prescribed standards" under various sections and cl 22 of Sch 4 of the Act. Causing or allowing noise emissions which exceed the prescribed standard is an offence and can also be "pollution" or "unreasonable noise" as defined in s 3 of the Act.

47 Regulation 8 defines three types of assigned levels of noise. They are -

· LAmax: This is the noise level which is not to be exceeded at any time;

· LA1: Is the level of noise which is not to be exceeded for more than 1 per cent of the time - that is for more than 1 minute in 100 minutes (more than 1 minute in 1 hour 40 minutes);
·

(Page 17)

· LA10: Is the noise level which is not to be exceeded for more than 10 per cent of the time (that is for more than 10 minutes in 100 minutes).
48 More colloquial descriptions are that the LA10 is the average noise and the LAmax is the maximum noise in the measured period (ex. P10, page 80).

49 The time period over which the noise levels can be assessed must be between 15 minutes and 4 hours.

50 Regulation 19 prescribes the manner in which noise measurement is to be made in relation to buildings. Where a measurement is made inside residential premises the measured level is to be adjusted by adding 15 dB if the external doors and windows are shut or 10 dB if they are open.

51 The noise measurements made by Mr Ponton on 10 November 1997 were made in accordance with the Noise Regulations even though they did not come into effect until January the following year. For the period between 7pm and 10pm the assigned levels (including the influencing factor) were calculated to be LA10 (54 dB), LA1 (64 dB), LAmax (69 dB). The measured noise levels at each of three stops were for (LA10) 65, 68 and 68 dB and (for LAmax) 70 dB, 82 dB and 72 dB; thus both assigned levels were exceeded during the measurement period. Indeed as Mr Ponton pointed out in his memorandum to the Manager Compliance Services dated 10 November 1997, the assigned levels for the day time hours (7am to 7pm) would also have been exceeded based on those measurements. He commented that the LA10 measurement was principally due to the noise from the truck idling and its lifting and compacting mechanism whereas the LAmax measurements were principally due to the impact of objects falling into the truck. He suggested that two courses of action to ensure rubbish collection from Metro Lane complied with the regulations would be to collect the bins between 7am to 7pm Monday to Saturday or not to permit the truck to remain stationary in the areas of Metro Lane adjoining residential premises but instead unload bins away from them, namely, at either of the lane.

52 The Manager Compliance Services, Mr Richard Currie reported to the Director Business Units by memorandum dated 18 November 1997 on the outcome of the noise measurements taken on 10 November. He essentially set out the findings referred to above with the additional observation that -

(Page 18)

"During the measurement period the volume of noise was greatest when the truck stopped immediately behind Murray Mews and considerably less when the truck was stopped at either end of Metro Lane."

53 In other words, the noise level was greatest at the point at which the trucks were closest to Mr Cohen's unit.

54 There was a flurry of correspondence from Mr Cohen to Council officers and others in late November and early December 1997. In the course of that he referred to (amongst other things) the suggestion (which he described as "preposterous") that it would take up to 30 minutes for a rubbish truck to break into the peak hour traffic at 9.15am. He also disagreed that there would be a vehicle parking problem in the lane at the same time. He mentioned that Mr Forster had promised to have the recycling truck through first at 9.15pm with the general waste truck following around 9.30pm and he described that as acceptable, although in fact on 26 November 1997 the situation had reverted to one in which the recycling truck came after the general waste truck at 10.05pm. He also complained of the noise from a compressor under his window the previous Sunday when the lane was being resurfaced.

55 In response to these complaints Mr Forster wrote to Mr Cohen on 27 November reaffirming that the collection system had been put in place as per their discussions whereby the recycling service was to precede the general refuse collection service where practical. There would be times however, due to operational and other circumstances, where that would not occur although Mr Forster assured Mr Cohen that every endeavour would be made to keep those changes to a minimum. He confirmed that he had requested the Compliance Section to undertake noise level readings from inside Mr Cohen's property and that an officer would contact him to gain entry and undertake the necessary readings in Mr Cohen's presence. He also pointed out that means of further reducing noise emanating from the collection vehicles was being pursued and he confirmed earlier discussions that the physical altercation which took place between Mr Cohen and a Council officer had been reported to the police immediately after the incident and that matter was now in their hands.

56 Some satisfactory progress appeared to have been achieved by 19 December 1997. On that date Mr Cohen wrote to Mr Forster in the following terms -

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"The changed procedures (trucks not roaring through the lane, quieter emptying of bins and the waste paper truck preceding the general refuse truck) for Sunday night through Thursday night, both before 10pm are more than acceptable.

Are they going to continue?

Saturday morning is still unacceptable. When will that comply with the EPA law?

Merry Xmas" (emphasis in the original).

57 However by 24 December 1997 Mr Cohen was again writing advising that his letter of 19 December had proved to be a little premature in that on Sunday 21 December the waste paper collection occurred at 10.07pm and the general refuse collection at 10.10pm. He asserted noise levels had been read on Wednesday 17 December and were 60 dB after 10pm which (he said) was 50 per cent above the permissible level.

58 According to internal memoranda of the Council some of the noise reduction measures which had been implemented by 27 November 1997 included the greasing of the compacter/loading mechanism, the padding of bin stops with foam insulation and the relocation of pickup positions in Metro Lane to positions further from Mr Cohen's flat.

59 The noise measurement exercise conducted on 17 December referred to by Mr Cohen had been undertaken by Mr Meyerkort of the Council's Compliance Services Unit. The measurements had been conducted from the lounge room of Mr Cohen's residence. The paper recycling truck had entered the laneway at 9.35pm and exited at 9.38pm, stopping twice. It had been followed six minutes later at 9.46pm by the general rubbish truck which left the lane at approximately 9.55pm having stopped three times to collect bins.

60 The assigned level for noise between 7pm to 10pm all days (including the influencing factor) were 54 dB for LA10, 64 dB for LA1 and 69 dB for LAmax. The actual measurements for the paper recycling truck for LA10 were 65 dB, 60 dB and 59 dB respectively. The LAmax readings were 79 dB, 69 dB and 69 dB. Thus, both the LA10 and the LAmax measurements exceeded the assigned levels between 9.35pm and 9.38pm. Once again, Mr Meyerkort pointed out that the assigned levels for 7am to 7pm (ie "daytime") would be exceeded based on those measurements, although it was likely that due to background noise the rubbish collection would not "significantly contribute" to noise level measurements during the day.

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61 So far as the general refuse truck was concerned the LA10 measurements gave readings of 60, 59, 69 and 60 dB respectively and the LAmax readings were 63 dB, 66 dB, 77 dB, 75 dB, 65 dB and 63 dB respectively. These again generally exceeded the assigned noise levels.

62 In respect of both the recycling and the general refuse collection the LA10 measurements were principally due to the noise from the truck idling and the lifting and compacting mechanism, whereas the LAmax measurements were principally due to the impacts of objects falling into the truck.

63 The assigned levels had been calculated in accordance with the Noise Regulations.

64 Another test was conducted on Tuesday 30 December 1997 commencing at approximately 9.00pm and the results of that were the subject of a memorandum to the Manager, Compliance Services from Mr Ponton dated 31 December.

65 The measurements were again conducted from the rear gate of the Murray Mews complex. The recycling truck entered Metro Lane at 9.32pm and left at approximately 9.36pm stopping once. The general rubbish truck entered Metro Lane at 9.38pm and left the lane at approximately 9.49pm stopping three times along the lane to collect bins.

66 The assigned noise levels were again exceeded by both trucks although there had been a slight reduction in the measurements from 10 November 1997. This was probably due to the locations for the stops having been varied. The greatest reduction was with the general rubbish truck at its first stop which was approximately 30 metres East of the measuring point (the other stops were 15 metres East and 15 metres West). The recycling truck produced higher noise levels which was probably due to the fact that it stopped approximately 10 metres East of the measuring point.

67 In the same memorandum Mr Ponton described an exercise in which the noise of three rubbish trucks (RT 140, RT 78 and RT 126) had been conducted in an open area of the garbage depot grounds away from any building structures. Two of the trucks (RT 140 and RT 126) were then currently and had recently been involved in collections from Metro Lane. RT 140 was a newer truck and had recently replaced RT 126 in Metro Lane in an attempt to reduce noise levels as well as adopt quieter work practices. RT 126 was replaced by RT 140.

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68 It was accepted that the noise levels measured during the simulations were lower than what they may have been in Metro Lane principally because they did not involve the impact of rubbish falling into the trucks and there was greater care being exercised by the operators. Even so, the measurements for both LA10 and LAmax for each of the trucks exceeded (and in some instances substantially) the assigned levels for Metro Lane.

69 Mr Ponton reiterated the recommendations he had made earlier.

70 Mr Cohen wrote to Mr Currie on 6 January 1998 requesting the readings taken on 17 December. By letter of the same date Mr Currie confirmed that the measurements were taken between 9.46 and 9.55pm and an estimated sound level reading of 60 dB(A) (when adjusted for indoors) was experienced during the refuse collection period which lasted nine minutes.

71 On 8 January 1998 Mr Cohen wrote to Dr P Nattrass, the Lord Mayor of the City of Perth, complaining that the garbage collection noise problem still existed with the trucks emitting 60+ dB and complaining in particular that the truck came through at 6.15am on New Years day. That letter was referred to Mr Forster who provided a confidential report to the Lord Mayor in the form of a memorandum dated 12 February 1998. He first summarised the action taken to that date as follows -

1. The recycling and garbage collection services had been changed from 11.30pm on weeknights to before 10.00pm.

2. The pickup service on Saturday morning was changed from 5.00am to 6.30am.

3. Noise measurements had been taken inside Mr Cohen's apartment in his presence.

4. A smaller and quieter vehicle was now being used for the garbage pickup.

5. Sound reducing modifications had been made to the garbage vehicle.

6. The operation of aspect of the vehicles, ie the number of "jerks" of each bin to ensure it is fully emptied had been reduced.

7. The recent introduction of the garbage charge and the rationalisation of bins which had subsequently taken place had effectively reduced the number of bins now picked up in Metro Lane.

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8. The new garbage vehicles shortly to be purchased had been further modified at Mr Forster's request to reduce noise.

72 Despite all of this he acknowledged that the levels of noise attributable to the vehicle operations and measured inside Mr Cohen's apartment were still above those assigned under the regulations by approximately 15 per cent. He pointed out that on average the paper recycling truck was in Metro Lane for some three to five minutes and the garbage vehicle for approximately eight to ten minutes each weeknight and Saturday morning.

73 Mr Forster had assessed the option of providing a service during the day time but there were difficulties with that. The restrictions on entry to and egress from Metro Lane from Murray Street and into King Street for collection vehicles were difficult because of cars parking at either end. In addition, the two vehicles drive the wrong way down the one-way lane due to the manoeuvring difficulties. For all other traffic Metro Lane has dedicated one-way traffic from King Street to Murray Street. In addition there was no garbage service (apart from litter bin pickup) within the city during the major part of the day. The shifts had been structured in that way to minimise conflict between large slow moving garbage vehicles and general commercial and shopping traffic during normal business hours. To service Metro Lane exclusively during the day time would mean either altering those shifts with the obvious traffic flow impacts or alternatively bringing a crew in just for that reason.

74 Mr Forster made the observation that as city living becomes popular so noise associated with service vehicles, street sweeping, nightclubs and other noise generators will become more of an issue. It was his belief that the long term solution to this quandary must be in building design and construction. He had accordingly written to the Manager Approval Services raising the issue of making the sound-proofing of residential developments a necessary and fundamental condition for building approvals.

75 He concluded by accepting that Mr Cohen's claim that the Council was breaking the law with the noise levels emanating from its garbage service vehicles was correct, but Mr Forster asserted that this needed to be placed in perspective. He pointed out the noise is a very short duration (ie three to ten minutes), it occurs once per week night before 10pm and in the morning on a Saturday and significant improvements had been made and would continue to be made in operating procedures and mechanical noise. He wrote -

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"Whilst a special day time service could be provided to Mr Cohen at considerable additional cost, inner city living in the future will generate more noise issues which are unable to be satisfied with a day time service given the traffic conflict and disruption to business and commercial activities."

76 Mr Forster's suggested course of action was that the Council inform Mr Cohen that the current arrangements were on balance the best that could be provided, although Council would continue to seek to reduce noise levels by improving the technology and operational procedures.

77 Between 20 February and 9 April 1998 Mr Cohen wrote a number of letters to Mr Forster still complaining principally about noise levels from garbage trucks collecting rubbish at various times after 10pm (ranging from five to fifteen minutes) but also making various complaints about the collection of recycling material.

78 By letter dated 27 February 1998 Messrs Franconi and Associates, solicitors, wrote to the Council advising that they had been consulted by Mr Cohen in relation to the excessive noise levels and that as a result of the Council's continued breach of the Act they had been instructed to take action against the Council for damages and "penalties". That letter was acknowledged by Messrs Clayton Utz, solicitors for the Council, by letter dated 4 March 1998. But by letter dated 22 April 1998 Mr Cohen wrote to Messrs Clayton Utz advising that Franconi and Associates were no longer acting for him and requesting that all correspondence be directed to him.

79 Mr Forster replied to Mr Cohen's then most recent series of letters by letter dated 14 April 1998 in which he in effect reiterated what he had reported to the Lord Mayor about the action which had been taken in the matter since October 1997. In respect of Mr Cohen's complaint that Mr Forster had not been replying to his letters the latter pointed out first that issues of a substantial nature had been addressed and secondly that the personal abuse with which Mr Cohen continued to persist was not acceptable "by any reasonable human communication standards".

80 It is clear I think that by April 1998 the Council officers had come to the realisation that the noise emanating from the garbage trucks could not be reduced sufficiently to comply with the assigned levels in Metro Lane. Thus, on 21 April 1998 they wrote to the Hon Minister for Environment, Employment and Training making application for a variation under reg 17 of the NoiseRegulations. In that letter the Chief Executive Officer

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Mr Gary Hunt noted that a degree of machinery and operational noise inevitably accompanies the process of providing essential cleansing and refuse collection services within the City of Perth, even though in its services the City uses the latest technology in the way of vehicle design and construction not dissimilar to that used in other large cities within Australia. He wrote that in order to manage noise levels the Council had also varied collection times, collection locations and operational procedures but despite its best efforts the vehicles still exceeded the noise levels as stipulated in the regulations. He said he was writing on the advice of the Department of Environmental Protection to seek a reg 17 variation in relation to a situation whereby the prescribed noise level cannot reasonably nor practically be achieved. He acknowledged that in the longer term as more and more people are attracted to the benefits of inner city living so the issue of noise may escalate and that accordingly the Council's building approvals staff were working towards improved sound proofing and alternative construction materials to attenuate noise in residential building development, but obviously that would need some time to take effect.

81 Mr Cohen's letters of complaint (heavily laced with sarcasm) to the Council continued. His letter to Mr Forster dated 23 June 1998 (exhibit P5, p 38) was typical. In that he complained about the lack of collection of bins, the way in which recycling material was collected and confrontations between him and Council garbage collection staff.

82 The Council was progressing its application to the Minister. Mr Meyerkort had a meeting with Mr Russell Giles from the Department of Environmental Protection ("DEP") who requested further information. In particular, Mr Giles was seeking information on town planning zones, land uses, garbage truck routes and bin pickup spots, details of measures Council had taken or proposed to take to reduce truck noise and a list of complaints about garbage truck noise made over the previous two years. According to Mr Meyerkort, Mr Giles had indicated DEP was sympathetic to the problem and wished to meet the Council half-way in granting the variation, but

" … needed adequate justification and analysis."

83 The measures taken by the Council to reduce noise levels by August 1998 were outlined in a memorandum from Mr Cameron to Mr Meyerkort dated 5 August 1998. They were

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1. Changing the collection pickup points to distance the trucks from residential areas.

2. Manually removing bins from laneways where residences back on to limit the loading done in potentially disturbing situation (sic).

3. Maximising the load in each bin through the introduction of the rubbish rate charge to minimise the actual number of bin lifts.

4. Fitting of rubber cushioned bin stops to dull the noise of the bin hitting the stop at the top position in emptying.

5. Hydraulic rams with a break mechanism at the end of travel had been installed to prevent any metallic thud as the ram reached its travel limit.

6. Electronic as opposed to mechanical switching mechanisms had been fitted to trucks to reduce noise and switching from the loading to the compacting cycle.

7. The night shift collections had commenced an hour earlier at night so that sensitive areas could be accessed before 10pm. This had inconvenienced collections because not all the laneways are accessible because a lot of evening traffic still remains in the City. This practice was continuing.

8. The City had embarked on a plant replacement programme to use the latest technology in quieter and more efficient trucks. Two new trucks had recently joined the City of Perth fleet and would be utilised in problem areas. Additional replacement trucks were to join the fleet later that financial year.

84 On 14 August 1998 Mr Meyerkort conducted noise monitoring of the new garbage collection trucks RT 143 and 292 at the Council depot. As with the previous monitoring the noise measured was only that produced by the operation of the bin collection equipment and not the propulsion system of the vehicles (the latter being exempt from the regulations). Whilst there were some differences from the measurements made on 13 February 1998 the overall result still was that all noise levels measured were in excess of the assigned levels. In a memorandum to Mr George Laird, Supervisor Trades, Operations, dated 19 August 1998 Mr Meyerkort noted the Council's application to the Minister for variation under reg 17 and commented that -

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"If successful the matter will be resolved without the need to operate trucks at perhaps unachievable low noise levels."

85 By October 1998 it seems Mr Cohen had learned of the Council's approach to the Minister for a variation under reg 17. By letter dated 21 October 1998 he wrote -

"Your refusal of my not unreasonable request to have you meet me on the site for you to prove to me how the traffic is so thick at 9.00 to 9.15am is not surprising in the least. It actually proves how unwilling, uncooperative and pigheadingly stubborn you and your staff are.

For you to think you could sneak in an exemption from the Minister shows how much out of touch you are with reality and Rotary's principal (sic) of "is it fair to all concerned". You've got Buckley's.

You seem to have forgotten that I am a rate payer of the City of Perth.

Merry Xmas."

86 The reference to the traffic between 9.00 and 9.15am was a reference to Mr Cohen's proposal to Council that the garbage collection trucks could collect at that time; Mr Forster was of the view that the proposition was untenable because traffic in the area was too heavy.

87 On 27 October 1998 Mr Cohen wrote to Mr Giles registering his strong opposition to the Minister granting any exemption to the Council under reg 17. On the same date he wrote to the Lord Mayor (exhibit P5, page 45) commencing -

"Your letter of 7 July jumps and jives all around the problem. You have changed the emphasis three times in the course of one letter. I thought only Forrster (

sic

) was capable of that …"

88 His first complaint was about the collection of cardboard cartons for recycling. He then referred to his refusal to allow the collection staff to pick up his bins because they were taking recycled material in the general refuse collection and he wrote -

"The inmates have taken over the asylum."

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89 He asserted that the Lord Mayor was being lied to, being given selective information or being "snowed".

90 The Acting Chief Executive Officer Mr Gary Dunn had met with Mr Cohen at 9.15am on Friday 23 October 1998 in the laneway off King Street at the back of Mr Cohen's residence. The purpose of this was to examine Mr Cohen's contention that waste collection should occur in the morning as it did in the Homeswest units in Wellington Street. Mr Cohen's suggestion was that the vehicle run which collected waste from Wellington Street in the morning (which it did because of previous complaints of noise during the night collection) could be extended simply by having the vehicle that comes down Murray Street and normally turns into King Street and then into Wellington Street continue a little further along Murray Street and turn into the laneway at the rear of his premises at Metro Lane, pick up waste along the laneway exiting to King Street, across Murray Street and then down King Street to continue its normal round to taking the Wellington Street units. In a file note dated 28 October 1998 Mr Dunn noted that having regard to the considerable efforts which had been made to minimise the noise and that a request had been made to the DEP seeking special dispensation with regard to the provision of this essential service which must be carried out during the evening because of traffic and safety reasons, it did not seem warranted to reschedule the entire night collection round to accommodate Mr Cohen. Nonetheless, he instructed the Director of Business Units to further examine Mr Cohen's request that the current service provided to the Wellington Street units in the morning be extended to accommodate his present residence.

91 On 5 November 1998 Mr Dunn wrote to the Minister for the Environment referring to the Council's letter of 21 April and enquiring whether the matter had received consideration and what the outcome might be.

92 On 30 November 1998 Messrs Birman and Ride solicitors wrote to the Council advising that they were acting for Mr Cohen and that unless within seven days they received the City's written undertaking not to continue the nuisance and breaches of the regulations and that the Council thereafter complied with such undertaking they were instructed to issue proceedings to obtain an injunction in respect of the nuisance and damages.

93 A writ and statement of claim was filed on 26 February 1999 as was a chamber summons in which Mr Cohen applied for an interim injunction.

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94 Clayton Utz wrote to the Minister for the Environment on 23 March 1999 referring to the Council's application for variation under reg 17 and advising that Mr Cohen's application for an interlocutory injunction was to be heard in April. The Minister's determination of the Council's application was said to potentially have significant bearing on Mr Cohen's injunction application and on the outcome of his action generally. Consequently they were enquiring when the Minister's determination could be expected and indicated that it would be in the best interests of all concerned if that could be prior to the hearing in April.

95 Mr Meyerkort took further measurements in Metro Lane at 9.30pm on 24 March 1999. The results indicated no real improvement in noise reduction. As Mr Meyerkort advised in a memorandum to the Manager, Compliance Services, dated 25 March 1999 the adjusted measured noise levels for LA10, LA1 and LAmax were found to be excessive by 12, 13 and 19 dB respectively "thereby confirming the existence of a noise nuisance". On the advice of Clayton Utz these noise measurements were obtained for rubbish truck operations only within 30 metres of the complainant's premises. One of Mr Meyerkort's recommendations was the further measures be investigated to control the noise. In particular, distancing rubbish truck pickup points 70 to 100 metres from Mr Cohen's residence and out of direct line of sight to take advantage of the shielding effects of other buildings.

96 Mr Cohen made his own arrangements with ERM Mitchell McCotter, a firm of environmental and planning consultants and on Tuesday 13 April 1999 Mr Michael Cake, an acoustic engineer with that firm took noise measurements at Mr Cohen's apartment over a period during which the Council was collecting garbage in the laneway adjacent to it. The trucks arrived at approximately 9.30pm and had departed by 10pm. Maximum noise levels were found to occur during loading, particularly as heavy rubbish, eg glass bottles, impacted upon the truck floor. During the measurement period a maximum A - weighted noise level (LAmax) of 87.9 dB (A) was recorded. This noise level occurred whilst the truck was loading garbage. In accordance with the Noise Regulations 10 dB was added to the measured level to account for the fact that the measurement was taken inside a building with external windows and doors open. The noise emissions from the garbage trucks were also found to be impulsive and so incurred an additional 10 dB penalty under the regulations. Applying those corrections the adjusted LAmax measured noise level was 107.9 dB (A). Based on a 12 dB influencing factor (which information was supplied to them by Mr Cohen) the LAmax assigned level for the noise sensitive premises was 67 dB (A). Thus the

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measurements undertaken by ERM Mitchell McCotter indicated the garbage collection activities exceeded the allowable noise level by more than 40 dB. The L

A10

noise levels received at the residence were 52.6 dB (A).

97 As observed above, Mr Cohen's application for an interim injunction was heard by Templeman J on 4 May 1999. The application was refused. In the course of the hearing counsel for the Council informed Templeman J that the indications at that stage were a further three months would be required before the application for variation under reg 17 would be dealt with.

98 Following the refusal of the application for an interim injunction Mr Dunn wrote again to the Minister for the Environment on 14 May 1999 pointing out that although the application had been refused Templeman J had commented that should the matter proceed to trial there was strong possibility that the injunction sought by Mr Cohen could be granted on a permanent basis. In fact, the Council's service vehicles were exceeding the noise levels prescribed in the regulations and even with their best endeavours the noise levels were not able to be reduced further by technical improvements. He argued that very little more could be done without considerable inconvenience and additional cost to the City and private customers and noted the Council had found the requirements under the Western Australian legislation technically very difficult to achieve and accordingly had sought exemption under reg 17. He concluded -

"Your consideration of a review of the relevant sections of the Environmental Protection Act and accompanying regulations in relation to noise emission levels for emergency and essential services would be appreciated. We believe that a more pragmatic approach in this regard, combined with town planning and building improvements for inner city living related to noise, will provide the solution for what is a growing problem."

99 The Minister responded by letter dated 17 May 1999 in which she observed that she was bound to seek the advice of the EPA as part of the process under reg 17 before determining whether to grant a variation to assign noise levels. As to that the EPA was seeking technical advice from DEP and she understood that the DEP expected its investigation to be concluded within the next three months. The EPA report should follow soon thereafter whereupon she would make her determination.
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100 In mid-July 1999 the Council wrote to users of the garbage collection service in Metro Lane to establish customer reaction to a new proposal. At that time rubbish and recyclable materials were being collected from Metro Lane Sundays to Thursdays at approximately 10pm and Saturdays after 6.30am. The new proposal was for collection to be prior to 7.30pm Sundays to Thursdays and after 7.30am on Saturdays. There was a 60 per cent response rate with (according to Mr Forster - see his memorandum dated 10 August 1999; exhibit P10, page 120) the responses generally ambivalent to the proposed change in collection times.

101 Thus, on 10 August 1999 Mr Forster notified the elected members of Council that it was proposed to introduce the new service times with effect from Sunday 29 August that year for a trial period. The service would involve using a larger collection truck which in turn would generate manoeuvring difficulties at the King Street end. He anticipated it may be that a parking bay would need to be removed, one bollard at least would need to be relocated and sections of footpath would need to be strengthened to enable the truck to exit. The trial would confirm whether those changes were necessary. He noted that the new service times were in accordance with those stated to be acceptable by Mr Cohen.

102 By letter dated 23 August 1999 the Minister for the Environment responded to Mr Hunt's letter to her dated 14 May. She stated that consideration of the Council's case was well advanced and that the DEP was working together with Mr Forster to produce a "best practice" document for inner city garbage collection which would form the basis for establishing "reasonable and practicable" noise limits. The views of the affected community could then be ascertained through appropriate targeted public consultation. She noted the DEP would contact Council directly regarding that matter. She also stated that in view of Council's interest in the parts of the noise regulations relating to noise emissions from emergency and essential services vehicles she had also the DEP to include the Council in the stakeholder consultation list for the compulsory noise regulation review.

103 On 11 October 1999 Mr Dunn wrote again to the Minister for the Environment recalling that the application for variation of assigned noise levels under reg 17 had been made in April 1998 pointing out that a number of changes had been made to the service following negotiations with Mr Cohen over the past 18 months but the matter was no closer to resolution as the changes had not placated Mr Cohen, the matter was proceeding to trial in the Supreme Court and noting further that although in May the Minister had indicated that the DEP would have its

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investigation concluded within three months, no further information had been forthcoming. He referred to the pending trial and said it was most desirable that a determination be sought particularly given the time lapse since the application was first made.

104 There was no substantive response to that letter although its receipt was acknowledged by the Minister's office by letter dated 14 October 1999. It had, however, been referred to Mr Giles of the DEP who sent a facsimile message to Mr Forster on 26 October 1999 in which he set out a synopsis of the reg 17 process and detailed the information which was required from the Council. It was clear the process would not be completed before the case evaluation conference which had been set down for 17 November 1999.

105 As outlined by Mr Giles the reg 17 process involved the following stages -

· On receipt of the application the Minister must seek the advice of the EPA.

· The EPA would then require the DEP to provide technical advice on the matter.
· In advising the EPA the DEP in consultation with the applicant must investigate reasonable and practical, all technical and other means for minimising noise impact on affected noise sensitive premises.
· The DEP must also be able to assure the EPA that the people potentially affected by any change in assigned noise levels had been informed of the probable impact it will have on them. The views of these stakeholders on the suggested changes must also be sought and taken into consideration by the EPA in formulating its advice to the Minister.
106 He observed that the advice which the DEP gives the EPA usually plays a major part in the recommendations the EPA provides in turn to the Minister.

107 Mr Giles confirmed an earlier telephone conversation he had with Mr Forster that two reports from the Council would be fundamental to the DEP's advice to the EPA. These reports were -

1. An outline of the way the Council would run its collection service and modify its equipment so as to minimise the noise impact on people. He suggested this could be called

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Procedure for Operation of Inner-city Service Vehicles

and may include essential street sweeping operations as well as garbage collection activities. The report should fully document the criteria and means by which the Council's conclusions about "best practice" have been reached.

2. The results of a targeted survey of occupants at premises currently affected or likely to be affected in the near future by noise from the activities of these essential services.

108 What he was really seeking from the Council as he then made clear was a "best practice" manual for operation of essential service vehicles in densely populated urban areas. The DEP would be advising on that "best practice" document which would probably form an integral part of any approval which the Minister might grant.

109 He also observed that any possible changes to the noise regulations as they apply to essential services vehicles and gradual improvement in collection equipment would influence the period of time that the DEP would recommend to the EPA that any reg 17 approval remain in force.

110 Mr Forster wrote to Mr Giles by letter dated 27 October 1999 purporting to address the request made by Mr Giles in their telephone conversation the previous Friday. Although that letter was not faxed to Mr Giles until 28 October it plainly did not satisfactorily address the DEP requirements which had been outlined by Mr Giles in that conversation and reiterated in his facsimile of 26 October.

111 It was Mr Giles' view (as he described in evidence) that the Council officers were not "getting the message" and had no real appreciation of what was required from the Council to support the application for variation. This sense of frustration was evident in a letter from the Minister to Mr Dunn dated 1 November 1999 responding to his letter of 11 October. The Minister's letter was drafted with input from Mr Giles. In it, the Minister wrote that she understood the DEP had made direct contact with Council officers with a view to expediting the public consultation process and to the production of "best practice" guidelines, the need for which she had highlighted in her last correspondence on 23 August 1999. She noted that the case evaluation conference had been set down for 17 November and had conveyed Council's concerns about preparing for the conference to the DEP and they had undertaken to release any available relevant documentation from the reg 17 process such as the stakeholder consultation report arising from the targeted

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consultation of occupiers of other potentially affected premises and the DEP technical comment on the Council's "best practice" "Procedure for Operation of Inner-city Service Vehicles" including garbage trucks. She concluded that in the interim she would appreciate any assistance Council could offer the DEP in their survey of stakeholder opinion and in concluding other necessary technical enquiries.

112 A draft "Management of Noise Associated with Waste Management Service Delivery" document describing Council's activities in that regard was finally forwarded to Mr Giles by Mr Forster on 18 November 1999 in support of the Council's application for variation under reg 17.

113 Mr Giles was the DEP officer who had carriage of the Council's application for variation since he joined the DEP in May 1998. By 1 November 1999, he had made it known to Council officers that he wanted specific and detailed information to enable the application to be dealt with. He did later receive a document, but it was inadequate for his purposes. The occasions on which Council officers sought information as to progress of the application for variation seem generally to have been related to developments in this litigation - most notably just prior to the application before Templeman J. Mr Giles' response was to seek to reiterate that more information was required from Council and to again explain what that was. In essence, he needed the Council to show that it had done everything that could reasonably and practicably be done to minimise the noise from rubbish collection, and in that regard, he had sought information about route maps, times of day and the results of noise measurements. Some information was provided on 16 March and 1 April 1999, although still not all Mr Giles required.

114 As late as December 1999 the DEP were still requiring from the Council details of measures taken to reduce disruption and noise to a minimum and to submit a "best practice plan". The draft document "Management of Noise Associated with Waste Management Service Delivery" was returned to Council with annotations and comments and that is apparently where it remains.

115 In January 2000 Mr Giles was asking about a survey to be conducted of inner city residents and requesting that a draft questionnaire be returned to DEP for review, but that was never done.

116 Mr Giles' evidence was that DEP had had no contact with the Council regarding the development of its case for variation since January 2000.

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117 What had happened here was that Council's efforts to deal with the problem at the regulatory level had become diverted from the variation application to be directed instead to the object of securing an amendment to the regulations, which would have the effect of excluding its garbage trucks from the noise limits. Council was putting material to the working party which was responsible for reviewing the regulations and proposing amendments. However, as Mr Giles explained (T 231), whilst the Council may have been providing input to the working party, that did not satisfy the DEP requirements for processing its application for variation under the existing reg 17.

118 The defendant called four other local residents to give evidence of the extent to which the noise of garbage trucks affected them. Mr Jeremy Brennan has lived in Murray Gardens since January 2000. He said the noise did not trouble him. He is generally not home Friday nights, although he has heard them on other nights. It is very rare that he has actually noticed them. His unit is below Mr Cohen's, but his window faces North out to the laneway, whereas the plaintiff's faces East along Metro Lane and is closer to that collection point.

119 Mrs Margaret Haydon also lives on the floor below. Her unit is even further away from that collection point than is Mr Cohen's. She had not really ever taken much notice of the stopping points.

120 Mr James Stephen lives in Murray Gardens and is also part owner and manager of a restaurant in King Street. He was not aware of hearing the trucks on weekdays or weeknights at all, although he is often not there. He said the Council trucks collect rubbish from outside his restaurant about 10.00 pm. They do make noise, but it is very quick. He would not want the trucks moving around King Street during the day because it would be more difficult with busier traffic and the smell is unpleasant. He was not aware of the collection at 7.30 am, so it did not bother him.

121 Mr Philip McAllister lives at 329 Murray Street, which is a building which backs on to Metro Lane. The rubbish collection vehicles do not cause him any concern. His apartment is on the first floor above Murray Mews, which is the access way which runs from 329 Murray Street. There are restaurants in Murray Mews and he lives above one of them. Approximately one third of the block is between his apartment and Metro Lane - he would be about 15 metres from the back of the property. He has no window out to the laneway. There is a building between his apartment and the closest collection point.

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122 Whilst the evidence of these witnesses gave some useful context, it did not in my view detract from Mr Cohen's evidence as to the noise levels experienced at his apartment, nor afford a basis for any conclusion that he is being unduly sensitive or fastidious in his reaction to them.

123 It is apparent from the evidence of Mr Foster that the manoeuvring of Council garbage trucks in and out of Metro Lane during peak traffic is extremely difficult, if not impossible. From his evidence and that of Mr Woodenberg, it must be accepted that cars and delivery vehicles are not infrequently left parked or standing in Metro Lane. However, that is contrary to the Council parking by-laws and ought not to occur.

124 Much of the evidence of both Mr Foster and Mr Woodenberg was concerned with the practical possibilities open to the Council in terms of changing rosters, alternate routes and times, and the costs associated with them. I do not mean to diminish the content nor effect of that evidence by not referring to it in detail. I accept that the Council has done much to attempt to accommodate Mr Cohen's concerns. Whether in the end that has been enough is another question.

125 Mr Foster maintained that most (if not all) of the remaining options open with respect to changing collection times would involve considerable inconvenience and expense. I am not satisfied that is necessarily so or that if it is, it would be unreasonable to require the Council to incur that expense. I found Mr Foster's explanation of additional costs vague and unsatisfactory. He was unable to explain the basis upon which he had arrived at the figures he advanced, ultimately suggesting only that he had relied on Mr Woodenberg - who in turn said those calculations were done by Mr Forster (See eg T 372 - 378).

126 In his evidence-in-chief (statement exhibit D8), Mr Foster asserted that changing the current route and method of collection would result in considerable increased costs to Council. He said (par 9(iii)) that if the service were provided during weekdays between 5.30 am and 3.00 pm, the increased costs would be significant, approximately $40,000 per annum ("being an accumulation of lost time including delay by traffic, having employees monitor and control traffic and so on"). He later referred to the New Schedule introduced between 24 August 1997 to 30 August 1999 being Sunday to Thursday between 9.30 am and 10.00 pm, no collection Friday, and collection after 6.30 am on Saturday. He said by changing the roster and bringing nightshift staff on one and a half hours earlier, the Council paid nightshift staff penalty rates of time and a half - which cost the Council $44,460 per annum. However, he said

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the Second New Schedule introduced from 30 August 1999 (which is the current schedule) involves waste collection between 7.00 and 7.30 pm, Mondays to Fridays, after 7.00 am on Saturday and no collection Sunday, and that has cost the Council (an additional) $29,640 per annum. In cross-examination he said that in his calculations he had allowed 45 minutes for the day time collection and 60 minutes for the night time collection, but was unable to explain how he had arrived at the significant cost differential (T 351). In re-examination (T 363), he said it was due to penalty rates applicable to employees who are required to work outside the hours of their ordinary shift. Nonetheless, none of his calculations were in evidence and it is impossible to know how he actually calculated them or on what basis.

127 As I have already mentioned, the presence of vehicles in Metro Lane creates real difficulty for the Council's large garbage trucks attempting to negotiate their way through. This was confirmed in the evidence of Mr Woodenberg and a diary record (annexure NJW3) maintained by drivers. As Mr Woodenberg conceded, "most of the time" these other vehicles would be illegally parked. It would not be unreasonable, I think, to expect the Council and other relevant authorities to do more to effectively police those parking restrictions (perhaps by making the area a "tow away" zone). Likewise, and more generally in the context of the problem of reconciling the need to maintain essential services with the constraints associated with increased inner city living, it may be that smaller rather than larger trucks will have to be used in some locations. An examination of these and various other possibilities was no doubt part of what DEP was looking to see in the Council's "best practice" document.

128 Section 79 of the Act makes it an offence for any person on any premises to use cause or allow to be used any equipment in such a way as to emit unreasonable noise from those premises. Regulation 6 of the Noise Regulations deals with the emission of noise from public places and stipulates that public places are to be treated as premises to which various sections of the Act including s 79 apply. The person causing or permitting the noise is to be treated as the occupier. By s 6(2) a person who fails to comply with the requirements of reg 6 is subject to a penalty of $5000. For the purposes of the Act noise is to be taken to be unreasonable if it is emitted in contravention of the Act or any subsidiary legislation made under it (s 3(3)(a) and reg 5):

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"It was no part of the plaintiff's case that the use of ordinary Lancashire coal was in itself negligent, but all the same the station causes a nuisance, not because the Legislature has so willed it, but because the Manchester Corporation make their profit by working in this way."

His Lordship made the same point again at 194:

"If, in a plant, to which the Legislature has given a general sanction without prescribing any particular design, coal is burnt so as to emit into the lower strata of the atmosphere sulphur dioxide in such conditions as are likely to cause considerable mischief, I think that, in proportion as the undertakers are free to use such a mischief-working process, their obligation to find some correlative means of protecting their neighbours becomes more exacting. The nature and degree of the plaintiff's suffering and the cost, trouble and inconvenience to the defendant Corporation of saving him from it are elements on the two sides of the case, which must be considered in deciding what is reasonable, but I cannot see that either on principle or on authority it is a sufficient answer to a criticism, otherwise sound, to say that, if so, Manchester's electricity would cost it more."

155 This is not a case in which by imposing upon the Council a responsibility to undertake waste collections in Perth City the legislature must be held to have sanctioned a nuisance (see Metropolitan Asylum District v Hill (1881) 6 App Cas 193, per Lord Watson at 212-3). Thus, whether or not the emission of noise is such as to constitute a private nuisance at common law falls to be decided according to ordinary principles - including whether or not the Council has taken reasonable precautions to avoid excessive noise, considered in the way described by Viscount Sumner.

156 Miller v Jackson (supra), was an illustration of the resolution of competing societal values and interests and is the subject of interesting comment by Heerey J, in an article "Storytelling, Post-modernism and the Law" in (2000) 74 ALJ 681, 687-8. A line of houses had been built adjacent to a small ground which for many years had been used as a village cricket-ground. It was inevitable that so long as cricket was played on the ground balls hit beyond the boundary would fall into the rear gardens or on the roofs of the houses. The plaintiffs sought an injunction and damages for negligence and nuisance. A majority constituted by Geoffrey Lane LJ and Cumming-Bruce LJ in the Court of

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Appeal held the cricket club liable in negligence and nuisance; a differently constituted majority (Lord Denning MR and Cumming-Bruce LJ refused an injunction, holding that the greater interest of the public in the playing of cricket should prevail over the interests of the residents. As Heerey J suggests in his article (at 688):

"If the game was baseball, and balls landed in the plaintiff's garden with exactly the same frequency, it is hard to imagine the litigation having the same outcome."

I do not see

Miller v Jackson

as affording any assistance in the resolution of the instant case.

157 The next contention on behalf of the defendant is that it is not every interference with the use or enjoyment of property which amounts to a private nuisance at common law: the interference must be material and unreasonable, having regard to what is reasonable in the locality, allowing for reasonable "give and take" and disregarding any peculiar delicacies of the plaintiff. Mr Colvin for the defendant referred to Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482. He further submitted that these matters are not established by proof that the Council has engaged in conduct which constitutes an offence under the Act or regulations - which is all that has been pleaded by the plaintiff.

158 In Don Brass Foundry Jordan CJ discussed (at 486-7) the relevant authorities from which he extracted the following propositions, which I respectfully adopt (with some minor reformulation) as reflecting the law:

(1) The test is whether the emanations complained of create "an inconvenience materially interfering with the ordinary comfort physically of human existence, not according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions …".

(2) The law does not indulge mere delicacy or fastidiousness.

(3) A person living in a locality mainly occupied for the conduct of trades which are inevitably noisy or smoke-producing cannot reasonably expect the same standards of immunity from noise or smoke as a person living in a mainly residential area - but even here there must not be an unreasonable increase in the amount of noise or smoke which denies the person reasonable comfort.

(4) In considering whether unreasonable inconvenience has been caused, allowance must be made for reasonable give

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and take (temporary construction or demolition work is an example).

(5) In many cases it is a question of degree.

Applying then what I have described as the ordinary principles, I have come to the view (and find) that the plaintiff's case has been made out on this basis also.

159 Although breach of the prescribed standards does not of itself establish a private nuisance it is relevant evidence of which account can be taken, and I so do. Furthermore, allowing for the fact that the actual noise levels (measured and otherwise) would vary from collection to collection depending on such factors as what was in the rubbish, the quantity of material already in the truck and the manner of operation of the truck, it is clear on the evidence that the noise emitted substantially exceeded the assigned levels. I accept that the noise materially interfered with the convenience and comfort of Mr Cohen and that its effect upon him was not due to any particular delicacy or fastidiousness on his part. I am satisfied on the balance of probabilities that the noise of the Council's garbage trucks affected him to a substantially greater degree than the witnesses Brennan, Haydon, Stephen and McAllister because of the closer proximity and relationship of his unit to the collection point and what he described as the "amphitheatre" effect of the walls and buildings.

160 I acknowledge of course that the Council has the responsibility of collecting rubbish, and that the area is one of mixed commercial and residential premises. Mr Cohen cannot reasonably expect collections to be made at the lesser frequency that they would in a purely residential area, but he has no such expectation; and in assessing whether the Council has done all it reasonably could to prevent excessive noise regard must be had to the effect on commercial uses (particularly restaurants) and other residents in the area as well as the problems associated with traffic both in Metro Lane and in the streets which must be used for access and egress. Certainly the Council has made some effort to accommodate Mr Cohen's complaints but the fact remains that the garbage trucks still generate excessive noise and I am not satisfied on the evidence before me that all reasonable steps have been taken to ensure that collections in fact occur at times when such excessive noise would create the least practicable interference with Mr Cohen's amenity. The DEP repeatedly sought information from the Council for the purpose of progressing its application for variation under reg 17 but that was never sufficiently provided. Much of what was sought would have enabled a proper consideration of the reasonableness of the measures taken by the Council

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to overcome the problem. Although there was obviously some breakdown of communication between the Council and the DEP I am satisfied (particularly on the evidence of Mr Giles and Mr Forster) that the Council officers took the view, subconsciously or otherwise, that the application for variation was all too difficult and the real solution to their problem was to be found in amendment of the

Noise

Regulations

to provide a statutory exception for noise emitted by Council garbage trucks. That, of course, was a longer-term and potentially more uncertain proposition than the application for variation - which was essentially progressed without much enthusiasm in the meantime. The effect was that Mr Cohen was expected to put up with the discomfort and irritation of the Council's admitted breaches of the prescribed noise levels until the Council could (hopefully) have the regulations changed.

161 I do not accept the defendant's contention that the plaintiff has pleaded no more than that the noise from the Council trucks exceeded the prescribed levels. I consider par 8 and par 10 of the statement of claim sufficiently raise claims in private and public nuisance. Paragraph 8 pleads not only that the noise is in excess of the assigned level but that it interferes directly with the health, comfort and amenity of the plaintiff. Paragraph 10 pleads that as a result of the continued offence the plaintiff has suffered and continues to suffer unreasonable interference to his health, comfort and amenity and has thereby incurred loss and damage. Even were I to be wrong about the effect of such pleading I would not see that as fatal to the plaintiff's case here. Mr Cohen represented himself at trial and the case was fought on the basis that the noise emitted not only exceeded the assigned levels but also materially interfered with his health and comfort. There was no surprise nor injustice to the defendant in that. If it be necessary I would be prepared to grant him leave to amend his pleading even at this late stage.

162 I come now to the question of public nuisance.

163 The defendant says there can be a claim based upon public nuisance only if there is an unreasonable interference with a right common to all (Kent v Johnson (1973) 21 FLR 177 at 204) and submits there is not only no relevant public right in this case but that it could not be an unreasonable interference with a public right for the Council to carry out the garbage collection given the precautions which have been taken to reduce or minimise the level of noise. In Kent v Johnson however, insofar as the claim was based upon public nuisance Smithers J held (207) that the interest of the plaintiffs in relation to the public park on Black Mountain in Canberra were a sufficient interest to enable them to act as

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relators in the case. Their interests were as members of the public to have access to and the use of the Black Mountain reserve generally as of right. I think there is a relevant public right in the instant case, namely that not to be subject to unreasonable noise and it seems to me no answer in the present circumstances that despite the Council having made efforts to reduce the noise level it is still both subjectively and statutorily unreasonable.

164 The existence of a general principle that whenever a plaintiff suffers special damage from interference with a public right

" …

including within that concept a violation or intended violation of a statute dealing generally with matters of social or economic regulation

, he can obtain an injunction and damages." (

Wentworth v Woollahra Municipal Council

(1982) 149 CLR 672 per Gibbs CJ, Mason, Murphy and Brennan JJ at 680). (emphasis added)

165 The expression "special damage peculiar to himself" (per Buckley J in Boyce v Paddington Borough Council (1903) 1 Ch 109 at 114) has a meaning equivalent to "having a special interest in the subject matter of the action" (Onus v Alcoa of Australia Limited (1981) 149 CLR 27 at 99). The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest (Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558) and consideration of which requires that regard be had to be exigencies of modern life (Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd & Anor (1998) 194 CLR 247 at 265).

166 The defendant argues that upon the true construction of the subject, scope and purpose of the Act and regulations, the legislation makes comprehensive and exhaustive provision for the remedies that may be sought in respect of noise emissions which exceed the standard prescribed and there is accordingly no public right: Batemans Bay (supra) at 266 and Ramsay v Aberfoyle Manufacturing Company (Australia) Pty Ltd (1935) 54 CLR 230.

167 In BatemansBay Gaudron, Gummow and Kirby JJ said (at 267) -

"The first question is why equity, even at the instance of the Attorney General, would intervene. The answer given for a long period is being the public interest in the observance by such statutory authorities, particularly those with recourse to

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public revenues, of the limitations upon their activities which the legislature has imposed. Where there is a need for urgent interlocutory relief, or where the fiat has been refused as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the

Boyce

principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that

this criterion is to be construed as an enabling, not a restrictive, procedural stipulation

." (emphasis added)

168 The present case is to be distinguished from Aberfoyle in that there while the breach of the law might have impaired the general welfare it did not interfere with the right of the public to the enjoyment of any positive interest or advantage except that which flows from observance of the law (257-8) - here the benefits or advantages the plaintiff complains the defendant is infringing are more akin to the positive characteristics of rights exercisable in relation to definite things such as light and air (McTiernan J ibid at 259) - and in this case freedom from unreasonable noise.

169 In Aberfoyle Latham CJ thought the legislation authorising the by-law and the by-law itself comprised a code of remedies for the enforcement of the by-law which Parliament intended to be exhaustive and the general interest of the public in the observance of the law was not by itself sufficient to justify the court in granting an injunction even at the suit of the Attorney General. Not only did the legislation create offences and impose penalties for continuing offences but also gave the Council power to pull down or remove offending buildings. In the context, his Honour considered that everything that a court of equity could achieve could in substance be attained by the application of the by-law and consequently the application of a remedy by way of injunction was clearly excluded by the statute (240-241).

170 I have already expressed the conclusion above in the context of breach of statutory duty that I do not see the EPA and the NoiseRegulations as importing such narrow restrictions and that conclusion militates in the present context against a finding that there is no public right created which can be enforced by a plaintiff who can demonstrate a relevant special interest and particular damage. In Neville Nitschke

(Page 51)

Caravans (Main North Road) Pty Ltd v McEntee

(1976) 15 SASR 330 Bray CJ referred (at 340) to

Benjamin v Storr

(1874) LR 9 CP 400 as an example of such particular damage being caused by noise and smell -

" … The public nuisance complained of was the loading and unloading of vans in the street outside the defendant's premises which adjoined the plaintiff's shop and dwelling. The plaintiff complained not only of obstruction of access to his shop and of interception of light, but of offensive smells from the activities of the van horses. It was held that he had shown a direct and substantial private and particular damage beyond that suffered by the rest of the public, and the smells were clearly held to be part of that damage. So here, if the plaintiffs had pleaded and proved that by reason of the alleged unlawful construction or the alleged unlawful use of the building they were inconvenienced by noise or other activities emanating from the building to a substantial degree over and above any inconvenience suffered by the public at large, I think they would have made out a case."

171 In Walsh v Ervin (1952) VLR 361 Scholl J noted that "particular damage" is not limited to "special damage" in the sense of actual pecuniary loss. It may consist of proved general damage such as inconvenience and delay provided it is substantial, direct and not consequential and is appreciably greater in degree than any suffered by the general public and that a plaintiff can obtain at least nominal damages if there has been something sufficiently substantial to constitute an interference with his right (364 ibid).

172 It is true as the defendant says that the issue of an injunction to restrain an actual threat and breach of the criminal law is exceptional. Reference was made to Commonwealth v John Fairfax & Sons Limited (1980) 147 CLR 39 but in that case the provision of the criminal law upon which the Commonwealth relevantly relied (in part) as a foundation for an interlocutory injunction to prevent the publication of sensitive government documents was s 79 of the Crimes Act 1914 (Cth). Mason J refused the injunction on that ground (but granted it on another) holding that the use of an injunction to enforce the criminal law is one confined in practice to cases in which an offence is frequently repeated in disregard of a usually inadequate penalty or to cases of emergency. His Honour did not consider s 79 to be one which in addition to creating a criminal offence was designed to provide a civil remedy to protect the government's right to confidential information. The provision appears in the Crimes Act and

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was appropriate to the creation of a criminal offence and to that alone. The penalties which it imposed were substantial and there was nothing to indicate that it was intended in any way to supplement the rights of the Commonwealth to relief by way of injunction.

173 The present case is quite different. Although the legislation does create offences and provide for penalties the legislative scheme is essentially regulatory rather than being primarily concerned to create criminal offences.

174 I turn to the remedies sought the first of which is injunctive relief. Even where a plaintiff has made out a case for such relief the court still has a discretion whether or not an injunction should go. In this regard the defendant submits the grant of the injunction would cause hardship to other members of the public generally and in these circumstances it should be refused. I accept that the rights of a plaintiff and a defendant are not the only rights to be considered in determining where the balance of convenience lies. In Patrick Stevedores Operations (No 2) Pty Ltd v The Maritime Union of Australia (1998) 195 CLR 1 the High Court (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [65] - [66]) recognised that principle as being of long standing having being articulated in Wood v Sutcliffe (1851) 2 SIM (NS) 163 at 165-166 (61 ER 303 at 303-304) and approved by Cumming-Bruce LJ in Miller v Jackson (supra) in the following terms -

"Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the court."

175 Their Honours adopted with approval (at [65]) the following passage from Dr Spry's "Equitable Remedies" 5th ed, (1997) at 402-403 -

"Regard must be had 'not only to the dry strict rights of the plaintiff and defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved'. So it is that where the plaintiff has

prima facie

a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive.

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(Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account)."

And went on to point out that the weight to be given to third party interests varies according to the circumstances (see

Patrick Stevedores

[66]).

176 What does appear clearly from a consideration of the authorities is that it is not every disadvantage nor hardship to others or to the public generally which will suffice to preclude the grant of an injunction - the effect must be to the rights of other persons which are more or less involved and it must be an effect of causing (or being likely to cause) "material" injury to those rights. It follows I think that there must be evidence sufficient to establish a cogent risk of injury to the rights of others, that is to say, a merely speculative apprehension will not weigh much in the balance.

177 In the present case the defendant submits that if the injunction is granted the effect will be to transfer the noise problem to some other time of the day which will cause inconvenience and discomfort to other residents, to business proprietors in the immediate locality and to the public generally. For example, the defendant points to the evidence of Mr Stephen that garbage collections during the day would be likely to injuriously affect the business of his restaurant. Whilst I accept that were garbage collections to be done by these large and noisy trucks in physical proximity to the restaurants and at times they were open for business there might well be such an effect, I do not consider the evidence establishes that that is the only possible nor practicable way the Council could comply with the terms of the injunction sought. Even accepting (as the Council obviously has) that there is little more that can be done mechanically to reduce the noise of the trucks (which Mr Laird's evidence establishes), there are other possible arrangements which can be made about rosters, routes and methods of collection (for example, Mr Forster eventually conceded in cross-examination (T 344) that if the Homeswest collection run was extended to Metro Lane that would necessitate only one other additional garbage run for Metro Lane during the week). It is not for me to propose nor prescribe what might be done in that way; it is sufficient to find as I do that compliance with the terms of the injunction sought would not necessarily have the effect on third parties contended for by the defendant. Indeed, I note that the Council previously agreed with Mr Cohen to reorganise the garbage collection in precisely the way now

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sought by him. His complaint essentially is that the Council failed to abide by that agreement.

178 In my view, Mr Cohen has made out his case for injunctive relief and I see no circumstances here which would properly cause me to refuse it in my discretion. Although the defendant pleaded that the plaintiff had delayed unreasonably in his claim that contention was not strongly pressed and I do not consider any unreasonable delay to have been shown.

179 The defendant submitted that were I to arrive at this point, then I should suspend the grant of such relief pending the outcome of the application by the Council for approval by the Minister under the Noise Regulations. I accept that such a course is possible in principle but in my view this is not a case in which it would be appropriate to do that. When the application for interlocutory relief was before Templeman J he was informed that the expectation then was that the Minister would make a decision within about three months. That obviously did not come to pass. Many more months have now gone by and in his evidence before me Mr Forster indicated an expectation that a decision (whether it be the decision of the Minister or a recommendation for amendment of the regulations) is not expected before mid-2001 (in short, there is no certainty nor even likelihood whatsoever about the outcome of that application nor the possible amendment of the regulations) and in those circumstances it would be entirely inappropriate to suspend the grant of relief to Mr Cohen pending that outcome.

180 I will accordingly grant the injunction. However, it cannot be framed in the manner sought by Mr Cohen. That would be too uncertain and difficult, if not impossible, to enforce. As I understand it, Mr Cohen's objection presently is not so much to the nominated collection times but rather to the occasions on which noise is generated by collections which in fact occur outside those times. Subject to hearing further from the parties on the precise terms of the order, the order will be that the Council be restrained from directing, permitting or suffering its employees or contractors to collect waste from Metro Lane in the City of Perth outside the hours of 7.00pm to 7.30pm Mondays to Fridays and before 7.00am on Saturdays or Sundays.

181 I turn now to the question of damages.

182 There is very little evidence before me about the effect of the noise on Mr Cohen. His testimony, supported by that of Dr Papaelias, does satisfy me that his sleep pattern has been disrupted and he suffered stress

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and depression for which he was prescribed medication. I am satisfied his medical or psychological condition was consequential on the stress, disruption and emotional upset occasioned by the noise of the Council's garbage collections. I consider an award of $1,000 would be an appropriate figure in the circumstances.

183 I will hear from the parties on the precise terms of the injunctive order.

Cohen v City of Perth

[2000] WASC 306

15 DECEMBER 2000

COHEN -v- CITY OF PERTH [2000] WASC 306