Colbourn v Wilson

[1991] TASSC 127

Serial No B13/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:               Colbourn v Wilson [1991] TASSC 127; B13/1991

PARTIES:  COULBOURN, Elizabeth
  COULBOURN, Donald
  v
  WILSON, John
  WILSON, Wendy

FILE NO/S:  186/1991
DELIVERED ON:  12 April 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B13/1991
Number of paragraphs:  13

Serial No B13/1991
List "B"
File No 186/1991

ELIZABETH AND DONALD COLBOURN
v JOHN AND WENDY WILSON

REASONS FOR JUDGMENT  ZEEMAN J

12 April 1991

1. This is an application by the plaintiffs for an interlocutory injunction to restrain the respondents from operating certain equipment associated with the respondents' enclosed swimming pool at their residence at 22 Earl Street, Sandy Bay so as to constitute a nuisance to the plaintiffs or so as to produce a noise greater than a specified level. In determining this application, I will apply the principles laid down by the High Court in Beecham Group Ltd. v Bristol Laboratories Pty Ltd (1967) 118 CLR 618 at pp622–623, as explained in Magna Alloys and Research Pty Ltd v Ten–haaf [1978] Tas SR 136.

1. The applicants are the owners and occupiers of residential premises at 24 Earl Street, Sandy Bay. The respondents are the owners and occupiers of adjoining residential premises at 22 Earl Street. Prior to February last the respondents caused to be constructed an enclosed swimming pool as an extension to the rear of their house. Associated with that swimming pool is certain equipment. This equipment is located in a position to the exterior of the house and close to the common boundary of the two properties. At that boundary the ground level of the applicants' property is significantly higher than the ground level of the respondents' property. There is a retaining wall on that boundary from the ground level of the respondents' property to the ground level of the applicants' property. A wooden paling fence has been constructed along the boundary running along the top of the retaining wall.

1. The equipment consists of a pool pump and filter, a spa pool pump and a spa pool heater (all contained within a concrete room fitted with an insulated door), a dehumidifier (fitted with sound insulation beneath the outer cladding), a swimming pool heater and a spa blower. The spa blower operates intermittently for quite short periods of time only. The other equipment operates for three periods of two hours each during the day time.

1. Earl Street is a relatively quiet residential street in Sandy Bay. It runs between Sandy Bay Road and an entrance to the University of Tasmania. Along the southern side of the street are constructed a number of dwelling houses. On the northern side are playing fields associated with the University. The houses do not give the appearance of being put to other than normal residential uses.

1. It is undoubted that noise may constitute a nuisance. I would adopt as the appropriate test the matters referred to by Harris J in Oldham v Lawson (No 1) [1976] VR 654 at p655, in the following terms:

"To establish a nuisance, the plaintiffs must show that there has been a substantial degree of interference with their enjoyment of their use of the house ... What constitutes such a substantial degree of interference must be decided according to what are reasonable standards for the enjoyment of those premises. What are reasonable standards must be determined by common sense, taking into account relevant factors, including what the Court considers to be the ideas of reasonable people, the general nature of the neighbourhood and the nature of the location at which the alleged nuisance has taken place, and the character, duration and time of occurrence of any noise emitted, and the effect of the noise."

1. Each of the parties called an expert witness. The applicants called Mr Pearu Terts and the respondents called Mr James Stephens. Each of those witnesses had engineering qualifications and further qualifications and particular experience in the area of noise management. Mr Terts deposed to having conducted measurements of noise levels upon the applicants' property on 19 and 21 February 1991 and 14 March 1991. Mr Stephens deposed to having carried out such measurements on 21 March 1991. The results of Mr Terts' measurements in February 1991 are of little relevance, as it is common ground that, since those measurements were taken, the respondents have had various modifications carried out to the pool equipment with a resultant reduction in the level of noise output. In his affidavit sworn 19 March 1991 (referring to his measurements carried out on 14 March 1991), Mr Terts deposed to the noise emanating from the equipment as being "still excessive". He went on to say:

"There is a difference at the boundary fence of approximately 19 dB between the level when the machinery is off (42 dB) and when the machinery is on (61 dB). This difference of 19 dB is excessive."

A consideration of the report exhibited to that affidavit and answers given by Mr Terts in cross–examination makes it plain that the level of 61 dB was measured at a point 300 millimetres above the boundary fence. Senior counsel for the respondents put to Mr Terts that measuring the sound at this point was "the worst possible scenario measurement you could get", to which the witness assented. In my view, to measure the level of noise at that point was neither appropriate nor relevant. It may be that the noise produced at that point was "excessive" (whatever that might mean in the context of the present case), but I do not consider that the level of noise at that point is a directly relevant consideration in the present case. Of much greater significance is the measurement taken by the witness upon the applicants' land at a point 2 metres from the fence, that being a point within a courtyard where the applicants might reasonably be expected to seek to enjoy their property. At that point, the increase in the noise level when the machinery was operating was 9 dB and not 19 dB. I observe that the only measurement taken by Mr Terts when none of the equipment was operating was at a point 2 metres from the fence so that his calculation of a difference of 19 dB at a point 300 millimetres above the fence proceeds upon the assumption that whilst the equipment was turned off, the noise level 2 metres from the fence was the same as that 300 millimetres above the fence. I do not know whether that is an appropriate assumption to make. In the same affidavit Mr Terts deposed to the noise levels in the sunroom of the applicants' house having increased by 8 dB with the window open and by 7 dB with the window closed when the equipment operated. In his earlier affidavit of 13 March 1991, the witness deposed to the following:

"As a result of my experience, studies and expertise in the area of noise control I state that in my opinion a noise of 5 dB or more above the background level, is beyond what is reasonably acceptable in the circumstances of the home at 24 Earl Street, Sandy Bay."

No real basis for that expression of opinion emerged from Mr Terts' evidence, and in any event, it does not necessarily follow that a noise level which is not "reasonably acceptable" constitutes a nuisance. It may be that that opinion found its source in one of the Australian Standards which were used by both experts as having some relevance. In a report of Mr Stephens, exhibited to his affidavit, the following appears:

"While AS 1055 is not especially helpful for the assessment of the potential for noise annoyance, most consultants adopt, as a guide, Note 1 of Appendix A of AS 1055. 2 – 1984, which states that 'differences (between the assessed background level in dB(A) and the adjusted sound level in dB(A) of 5 dB or less may be of marginal significance with respect to annoyance'."

Mr Stephens' measurements indicated that the operation of a pool filter pump, spa heater and spa pump would not result in the difference between the assessed background level and adjusted sound level to be greater than 5 dB. That was not so as to other equipment. In particular the spa blower was found to be relatively noisy during the brief periods of its operation, when it dominated the acoustic environment in the courtyard.

1. I have not derived a great deal of assistance from the expert evidence. It does little more than establish that certain of the items of equipment create a level of noise significantly in excess of a level which can be described as only having marginal significance with respect to annoyance. Something more is required for such noise to constitute an actionable nuisance.

1. The parties agreed that I take a view and that during the course of the view I listen to the operation of various items of equipment. Both parties were agreed that what I saw and heard at the view ought to be taken as evidence. That was a sensible course to adopt. This is a classic case where listening to the actual noise complained of is better than a thousand descriptive words. During the course of the view, I was asked to listen to the following noise levels:

1Ambient noise level without any pool or spa equipment operating.

2The pool filter pump and pool heater operating.

3The pool filter pump only operating.

4The pool filter pump, pool heater and dehumidifier operating.

5The pool filter pump, pool heater, dehumidifier, spa heater and spa pump operating.

6The pool filter pump, pool heater, dehumidifier, spa heater, spa pump and spa blower operating.

7Spa heater and spa pump only operating.

1. I was requested to listen to the various noise levels from each of 5 positions:

1         The courtyard.

2         The rear bedroom with the windows closed.

3         The rear bedroom with the windows open.

4         The sunroom with the windows closed.

5         The sunroom with the windows open.

1. As it transpired, I only listened to the spa heater and spa pump operating from the courtyard. The parties abandoned the request that I listen to these items operating from the other positions, no doubt because standing in the courtyard they could not hear that that equipment was operating. Certainly I could not.

1. The only levels of noise which I found to be of any significance were those numbered 4, 5 and 6 from positions 1, 3 and 5. I do not consider that any of the other noise levels from other positions could possibly constitute a nuisance. The question remains whether it can be said that the applicants have made out a sufficient case that the significant noise constitutes a nuisance. Certainly I do not exclude the possibility that a tribunal of fact might ultimately conclude that the relevant noise constituted a nuisance. I do not overlook the fact that I listened to the noise for relatively brief periods of time, whereas, with the exception of the spa blower, the evidence is that the sound continues for periods of two hours. Nevertheless, I have concluded that the applicants have not made out a sufficiently strong case for the grant of interlocutory relief. I do not consider that the applicants have a strong possibility of ultimate success in the action (other than as to damages referable to the period before the respondents carried out modifications as to which I say nothing).

1. It is perhaps not inappropriate that I mention to the parties the desirability of their attempting to come to terms. The respondents have displayed a willingness to modify the output of noise by steps taken by them prior to the making of the present application and after the applicants first complained. Some aspects of the applicants' behaviour have not been reasonable. Reasonable negotiations before embarking upon litigation might have been productive. The applicants' initial refusal to permit the respondents' expert to enter upon the applicants' land was not reasonable. The suggestion made by the applicants to Mr Stephens that even a reduction of noise levels so that they were within the standards prescribed by the relevant Australian Standard would not be acceptable is not indicative of a reasonable attitude. Litigation of this type has the capacity of becoming an obsession. The end result is unlikely to be satisfactory to either side.

1. The application is dismissed.