Courtney and Jackson v Howell
[2016] VMC 11
•26 JULY 2016
All but is going on all you but Buckner
| IN THE MAGISTRATES COURT OF VICTORIA |
AT BAIRNSDALE
CIVIL DIVISION
Case No.E12961424
| THOMAS JOSEPH COURTNEY & MEGAN JACKSON | Plaintiffs |
| v | |
| PETER MAXWELL HOWELL & SALLY ANNE HOWELL | Defendants |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | BAIRNSDALE |
DATE OF HEARING: | 29 FEBRUARY, 1 – 4 MARCH 2016, (Written Submission Filed by Plaintiffs on 16 May, by the Defendants on 6 June and Plaintiffs Reply on 17 June 2016) |
DATE OF DECISION: | 26 JULY 2016 |
CASE MAY BE CITED AS: | COURTNEY & JACKSON v HOWELL |
MEDIUM NEUTRAL CITATION: | [2016] VMC011 |
REASONS FOR DECISION
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Catchwords: Nuisance: Noise - Acoustic Bird Deterrent Device – claim for injunctive relief and damages for loss of amenity and for personal injury allegedly suffered by Ms Jackson in the form of an Anxiety State/Major Depressive Disorder, distress, insomnia and exacerbation of multiple sclerosis symptoms. Test to be applied: a balancing exercise between the rights of the defendants to do what they like on their land and the rights of the plaintiffs not to have their use or enjoyment of their property interfered with. Proceeding Dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Hancock | COMLAW |
| For the Defendant | Mr Magowan | Macpherson Kelley |
HIS HONOUR:
1 The plaintiffs and defendants live on adjacent 5 acre properties in a semi-rural, tranquil and idyllic setting at Eagle Point near Bairnsdale. Their properties are situated on a hill which overlooks the Mitchell River and Lake King to the north. The plaintiffs allege that their peace, tranquillity and the ability to enjoy their property ended when the defendants installed an acoustic bird scaring device in January 2012.
2 On 5 September 2014, the plaintiffs issued proceedings alleging that noise from the device constitutes a nuisance and they seek injunctive relief and damages for loss of amenity and for the injuries in the form of an anxiety state, depression, distress, insomnia and an exacerbation of multiple sclerosis symptoms allegedly suffered by Ms Jackson as a result of the nuisance.
3 The defendants deny that the acoustic bird deterrent (ABD) causes excessive noise thereby causing a nuisance.
4 The court conducted two ‘views’ of the properties on the first and fifth day of the hearing which involved inspecting the device, the 4 speaker system located on the roof of the defendants machinery shed and listening to the device in operation from the defendants property and various locations on the plaintiffs property which included the lounge room, main bedroom, outdoor patio area and front paddock.
5 The properties are situated in the Shire of East Gippsland on the Gippsland Lakes with the area being well known for its bushland and tourism. There are several other existing residences on properties adjacent to and across the road from the properties in question.
6 Immediately following the initial ‘view’, the defendants made an application to dismiss the proceedings pursuant to S 63 of the Civil Procedure Act 2010. The Court of Appeal has stated that the test: should be construed as one of whether the respondent to the application for summary judgement has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[1] After considering the test laid down by the Court of Appeal, I refused the defendants application to dismiss the proceeding.
[1] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.
7 The law regarding private nuisance is well established and was adequately and thoroughly explained by Preston CJ in the case of Robson v Leischke[2]. The following propositions, relevant to these proceedings, were stated:
[2] [2008] NSWLEC 152.
- Private nuisance involves an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his or her ownership or occupation of land or some easement, profit or right used in connection with the land.
- Nuisance involves an infringement of the claimant’s interest in the property without any direct entry via the defendant and is actionable only on proof of special damage
- Where the defendant created the nuisance, the fault element varies depending on the nature of the defendant’s conduct and his or her state of knowledge.
- The defendant will be liable if, when the nuisance arose, the defendant did not take any reasonable means to bring it to an end when the defendant became aware, or ought to have been aware, of the existence of the nuisance, and damage results.
- Private nuisance involves balancing, on one hand, the right of one owner or occupier of land to do what he or she likes on their land with, on the other hand, a right of a neighbour not to have his or her use or enjoyment of their property interfered with[3]. The tipping point in the balance is where the consequences of the use by the first person of his or her land unduly interferes, in ways recognised by the law as constituting a nuisance, with the use and enjoyment by the neighbour of his or her property.
[3] Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903.
- Nuisance…. arise where there is an excessive use by the defendant of his land resulting in an unreasonable interference with the enjoyment by the plaintiff of his land, having regard to the ordinary usages of humankind living in a particular society. In determining whether there has been such an unreasonable interference, a balance must be maintained between the rights of the occupier to do what he or she likes with his or her own land and the right of the neighbour not to be interfered with.
- Nuisance will generally arise from something emanating from the defendant’s land. Examples of such emanations are: noise, vibrations, dust, sediment from soil erosion, noxious smuts and pollution, smoke, and offensive odours and stenches.
- The essence of the tort of nuisance is that it is a tort against the land or, more accurately, a tort directed against the plaintiffs enjoyment of rights or interests in land.
8 When balancing the rights of the plaintiffs and defendants in this case, regard should be had to what was said by the English Court of Appeal in Kennaway v Thompson & Anor [4]:
Now nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours. Those living in towns may be irritated by their neighbours’ noisy radios or incompetent playing of musical instruments; and they in turn may be inconvenienced by the noise caused by our guests slamming car doors and chattering after a late party. Even in the country the lowing of a sick cow or the early morning crowing of a farmyard cock may interfere with sleep and comfort. Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear. The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.
[4] [1981] 1 QB 88 at 94.
9 When considering these principles, the questions that the court must answer in this case are;
a. Since January 2012, have the defendants caused noise to emanate from their property which has reached the plaintiffs land?
b. Does the noise constitute a substantial interference with the plaintiffs use and enjoyment of their property?
c. If so, does it result in an unreasonable and unacceptable offensive noise impact upon the plaintiffs?
d. Is the defendants conduct unreasonable in all the circumstances?
e. Does the noise constitute a nuisance?
f. Should injunctive relief be granted to restrain the defendants from continuing the nuisance?
g. Has either plaintiff suffered reasonably foreseeable loss and damage as a consequence of the nuisance?
h. If so, what is the quantum of that loss and damage?
10 The evidence revealed that the plaintiffs purchased their land in 1993, built their house and permanently occupied it from 1996. Mr Courtney, aged 76 years, gave evidence that he was formerly employed as an accountant and operated his own business from 1977 to 1995. He said that he is now retired but is still active in land subdivision. He also told the court that he was an elected councillor with the East Gippsland Shire between 2000 and 2003 serving one year as Mayor.
11 Ms Jackson, aged 67 years, gave evidence that she is retired and was previously employed as a graphic designer, artist and art director. She said that she is now involved in numerous activities including training her horses to participate in Riding for the Disabled Association of Australia as well as painting as a hobby. She told the court that she trains, schools, grooms and feeds her horses in the front paddock of her property which is in direct line with the ABD speakers.
12 Mr Howell, aged 72 years, gave evidence that he and his wife purchased their property, which consisted of a Homestead built in the 1880s, in 1996. He said that over a period of 4 years they repaired, renovated and extended the 90 square timber house and moved in permanently in 2000. He told the court that he was formerly employed as an engineer and site project manager and then he established a fire protection and fire sprinkler business which he sold in 1986 before developing an emergency warning system business which he sold in 2003.
The Acoustic Bird Device
13 The Acoustic Bird Device (ABD) is a Super Pro Unit and was supplied to the defendants in January 2012 by Bird Gard Australia at a cost of $1,990. The function of the device is to combine actual bird distress cries and predator calls to ward off pest birds, in this case, Swallows. In theory, the longer the birds are subjected to it, the more it annoys or scares them in addition to overriding the chatter amongst themselves, thereby making communication difficult, adding to the birds stress and fear. The device purchased was recommended as suitable for a 6 acre property and contains 8 bird distress/predator/alarm sounds which include; Tree Swallow, Red Winged Blackbird, European Starling, House Sparrow, Tree Swallow, Peregrine Falcon, Cooper’s Hawk and Sharp Shinned Hawk.
14 The device includes a control unit and four speakers which the defendants mounted on their machinery shed and positioned them so as to create a ‘sound net’ over their house which happened to be in the direction of the plaintiffs property. The device is fully programmable and allows the defendants to adjust volume, specific sound combinations, intervals and operation times.
15 Mr Howell gave evidence that he purchased the ABD because his property was beset by swallows in late 2011 and they were defecating on the glass roof of his atrium, house roof, walls and patio. He told the court that the swallows would also fly under the verandas and perch and roost on the solar panels and veranda frames which required constant cleaning.
16 He told the court that prior to installing the ABD he had tried other methods to deter the swallows which included; the use of plastic humming strips that hum in the wind, fitting plastic/metal spikes on the top of the external architraves all of which, was only mildly successful. He said these measures stopped the swallows perching in most areas but did not prevent them from flying underneath the verandas and overhead and defecating.
17 Mr Howell gave evidence that he initially mounted the ABD speakers on a fence which had a significant effect but it did not completely deter the swallows. He then mounted the speakers on his machinery shed and programmed the device to operate with all 8 bird calls lasting 58 seconds on a setting of between 1 minute and 4 minute 15 second intervals at 75% of maximum volume.
18 He said that in March 2013, he reduced the number of bird calls to 4, being; two tree sparrows, one sparrow distress call and one sharp shinned Hawk as the predator call. He said that he also reduced the volume and changed the range to 5 minute - 10 minute intervals but then reverted to the previous settings in May 2014 because of increased swallow activity.
19 Mr Howell gave evidence that he configured the four speakers to create a ‘sound net’ over his house but due to the issues that developed with the plaintiffs he ‘slightly’ lowered the volume on 30 November 2014, reconfigured the speakers and on 12 December 2014, disconnected two of the speakers leaving only the north and east directional speakers operating. He said that for the most part the ABD operates between the latter of Sunrise or 7 a.m. and the earlier of sunset or 7 p.m.
20 Mr Courtney and Ms Jackson assert that the noise emanating from the ABD since January 2012 has been and is an unreasonable interference with their enjoyment of their property in that the noise is incessant, regular, of a disturbing character and an unreasonable use by the defendants of their property after taking into account the nature of the interference, its duration and the nature of the locality.
21 The evidence revealed that;
· Initially, the plaintiffs and defendants enjoyed a neighbourly relationship which included the defendants allowing Ms Jackson to graze her horses on their property.
· Over time, minor disputes occurred between them which included; the defendants complaining when Mr Courtney burnt a 5 gallon drum of horse manure near the fence line causing smoke and fumes to go onto their property; the defendants complaining of the smell and odour when the plaintiffs left large bales of hay and manure near the fence line; and, the defendants complaining when Mr Courtney left his yacht near the fence line interfering with the view from their kitchen window.
· In May 2012, a major and acrimonious dispute occurred between them in relation to the sealing of Mathiesons Road. A bitter exchange of emails occurred between Mr Courtney and Mr Howell over what Mr Courtney alleged was Mr Howell’s abuse and bullying of an elderly neighbour who had decided not to make a contribution to the combined cost involved in sealing the road.
Background to the issuing of Proceedings
22 Ms Jackson gave evidence that during 2012 she became aware of noise emanating from the defendants property. She told the court that she initially thought it was due to a continuation of a bat infestation problem that had plagued Bairnsdale during that year but in late 2012 was made aware by another that the source of the bird noise was mechanical in nature.
23 On 17 December 2012, without the knowledge of Mr Courtney, she rang the East Gippsland Shire Council to complain about the noise and a Council officer, Mr Mirabella attended her property to investigate. It appears that as a consequence of discussions between that officer and Mr Howell, the ABD was re-programmed on 19 December 2012 in relation to its operating times to comply with Environment Protection Authority regulations.
24 In February 2013, the plaintiffs lodged a written complaint with the Council in relation to the ‘constant noise emitting’ from the defendants property. In his correspondence to the Council (and to Comlaw lawyers), Mr Courtney alleged that the noise breached the provisions of the Environment Protection Act 1970 and the Public Health and Wellbeing Act 2008.
25 It appears that as a result of further attendances and discussions between Council officers, Mr Hull and Mr Watson and Mr Howell, the volume of the ABD was reduced on 28 February 2013 but the plaintiffs maintained their view that the noise from the ABD was still audible inside their house.
26 The evidence indicates that Mr Howell attempted to resolve the issue by suggesting to council officer Mr Hull, that he attend the plaintiffs property and while present he be in telephone contact with him so he could make the appropriate adjustments to the output of the ABD.
27 On 13 March 2013, at the suggestion of a council officer, Ms Jackson obtained a certificate from her general practitioner, Dr Worboys at the Bairnsdale Medical Group addressed to the Shire stating;
Megan is clearly stressed when at home by the invasion of distressing noise from a neighbour’s property - a recording of distressing bird noises. As a result she is experiencing increased weakness, muscle twitching, skin pain and crawling sensation, loss of balance, insomnia and trigeminal neuralgia that are manifestations of her multiple sclerosis - these, she says are worse than any time in the past 10 years.
28 As a result of the ongoing dispute, council officers attended the properties on two further occasions and after further discussion with Mr Howell, he reduced the volume of the ABD.
29 On 23 April 2013, the Council concluded that the ABD was being operated within environmental protection regulations and suggested that if there were ongoing issues between the parties that private action was more likely to be effective and appropriate and they should attend formal mediation.
30 Mr Courtney was not satisfied with the Council response and lodged a complaint against them on 5 May 2013 with the Victorian Ombudsman. On 21 May 2013, the Victorian Ombudsman notified the plaintiffs that he considered the investigation of the noise complaint by the council was appropriate. On 15 July 2013, the plaintiffs sought a review of the decision of the Ombudsman which was refused on 19 August 2013.
31 Mr Courtney gave evidence that between March 2013 and 22 February 2016 he recorded 635 video clips totalling approximately 50 hours of the ABD in operation. He told the court that he randomly recorded and videoed noise from the defendants ABD in conjunction with a sound meter he had purchased. He said that he did this to use as ‘evidence’ if need be. He gave evidence that he purchased his own ABD to gauge its effect on swallows, to experiment with and as a retaliatory act against the defendants by directing it towards their property. He disputed that this was a malicious act and said he did it as he was ‘putting them to the test’. The evidence revealed that his device was a Bird X Peller which contained bird noises from; a European Starling, Silvereye (screech), Crow (danger), Red Wattle Bird (screech), Silver eye, Ring-billed Gull, screech and NZ Falcon/European Starling. Mr Courtney also admitted placing a radio on the window sill in his office adjacent to the common fence line on 18 November 2014, directed at the defendants property on full volume and between stations, thereby causing static noise, as ‘retribution’.
32 On 20 January 2014, as a result of the impasse between the parties, the plaintiffs instructed Comlaw to send a letter of demand to the defendants alleging the ‘nuisance’ from the ABD resulted in an unreasonable interference with the plaintiffs use and enjoyment of their land, requesting that it cease and warning that in the event that personal injury was suffered, action would be taken to compensate them for that injury.
33 On 29 January 2014, the defendants instructed their lawyers to send a letter to the plaintiffs lawyers providing details as to the reasons why the ABD was installed and the adjustments that had been made by them to the ABD when they became aware of the plaintiffs grievances. The defendants also invited the plaintiffs to participate in a formal or informal mediation process, which never occurred.
Effect of the ABD on the Plaintiffs
34 Ms Jackson told the court that after she became aware of the noise from the ABD in late 2012, she has been forced because of its effects on her to take her horses to another location to groom, train and school them. She gave evidence that she was diagnosed as suffering from multiple sclerosis in 1993 which is exacerbated from time to time by extreme heat, extreme noise and stress. She said that her condition is controlled by rest and relaxation. Ms Jackson described the noise from the ABD as; ‘loud, regular, squawking, high-pitched, squealing, screeching and repetitive from dawn to dusk’.
35 She told the court that in periods during 2013 and 2014 when she noticed that the ABD was turned off she was ‘happy, overjoyed and relieved’. She said that in August 2014, the ABD noise was ‘really loud’ which caused her multiple sclerosis symptoms to worsen. She told the court that she felt ‘weakness, tiredness, skin pain, that she experienced muscle twitches, dizziness and suffered from sleep deprivation’. She gave evidence that the noise was ‘ingrained in my brain and I could hear it when it was not even on’. Ms Jackson said that she became angry and frustrated and the noise was ‘driving me nuts’ and it was ‘unbearable’. She told the court that in early March 2015, prior to the engineers inspections, she noticed that the volume of the ABD had been reduced which she recorded in her diary.
36 Ms Jackson told the court that the noise caused her to stay indoors and close the windows and that she went outside as little as possible and was ‘totally introverted and miserable’. She said that over time she became increasingly frustrated, annoyed and angry as there was nothing she could do about it. She said that her social life takes place away from her property which includes attending book club and a painting group. She said that she and Mr Courtney rarely invite people to their home and that when she is in her front paddock tending to her horses, she can still hear the noise from the ABD despite wearing earplugs and listening to music on her iPod.
37 During cross examination, Ms Jackson agreed that the noise caused by Mr Courtney over a 6 to 8 week period in relation to the ‘radio incident’ was ‘very loud’ but said that it did not affect her as she ‘was away from it’. She also said that the noise emitted from his ABD did not affect her as they were different bird noises, pitch and tone. She disputed that Mr Courtney’s cardiac health problems over recent years were stressful to her.
38 In addition to the certificate referred to from Dr Worboys, a Progress Note dated 6 February 2014 and a report from Dr Uebergang, Psychologist dated 10 March 2015 were tendered. The Progress Note indicates that Dr Uebergang saw Ms Jackson on 6 February 2014, on referral from Dr Yilmaz from the Bairnsdale Medical Group as a result of the bird deterrent creating distress to her. Ms Jackson told Dr Uebergang that the noise had been going on for 2 years and that Ms Jackson thought it could be retribution but did not disclose why. Dr Uebergang obtained a history from Ms Jackson that she was diagnosed with Multiple Sclerosis in 1993 and seemed to manage that condition well but now felt emotionally tense, angry and disappointed that she and her partner seemed to have no control over the noise and that they were not enjoying their environment and their chosen lifestyle. Dr Uebergang advised Ms Jackson that she and her partner had little control over someone else’s behaviour and actions but they did have a certain amount of control over their own emotional reactions. She gave Ms Jackson strategies and neuropsychological strategies for reducing stress and anxiety and Ms Jackson did not request a further appointment.
39 Dr Jacobson, Psychologist gave evidence on behalf of Ms Jackson and a medico-legal report prepared by him and dated 7 May 2015 was tendered. He confirmed that he assessed Ms Jackson on 7 May 2015 and obtained a history from her that approximately 3 ½ years ago, in early 2012, a neighbour installed a device to scare swallows. She told him that the device was installed on top of a 30 foot pole and the pole is 175 m from her front door. She told Dr Jacobson that the sound was extremely loud to the extent that she could hear it inside her house and hear it in her bathroom. Ms Jackson told Dr Jacobson that her neighbour tends to use the device during prescribed hours, which she estimated was between 7 a.m. and 8 p.m. (but a little later on weekends). She said the noise lasted for approximately 30 seconds and occurred every 2 ½ to 4 minutes apart.
40 Dr Jacobson obtained a history that Ms Jackson considered approaching her neighbour directly but that she thought better of it because he had previously been angry and aggressive in other situations with neighbours as well as with her de facto partner, Mr Courtney and herself regarding unrelated matters. Ms Jackson told him that she has experienced ‘extreme unhappiness’. She also told him that she feels ‘locked in my house because I can’t bear the noise for 3 summers’. She said this has prevented her from going outside to garden, to have barbecues on her property or from simply sitting in the sun to read a book. She told Dr Jacobson that she feels aggravated, that it has made her feel angry as she has no control over it and she can’t relax and feels like she is being tortured. She said that she has no peace and feels angry that she cannot enjoy her property. Ms Jackson told Dr Jacobson and that she has 3 horses on her property which require regular training and that she is therefore forced to go outside her house and endure the distress of being exposed to the incessant noise. She told him that she has some sleeping difficulties that have been exacerbated since the machine was installed. She also told him that she no longer entertains at home to the same extent that she used to because in part she is distressed by the noise and in part because she is embarrassed by it. She said that she has a studio at home where she paints but has been disinclined to do so because of the noise from the machine and has been unable to open the windows of her home because the noise is so intrusive. She told Dr Jacobson that even when the noise machine is turned off, such as in the evening, she can still ‘hear’ the sound in her head. She told him that she feels relief when she is away from the property and has enjoyment in her life, but upon returning she feels despair and distress.
41 Ms Jackson told Dr Jacobson that for a two-week period over Christmas when her neighbours were overseas the machine was turned off which resulted in most of her symptoms disappearing almost immediately and that she felt ‘tremendous relief’. She said as soon as the noise machine was turned on again she felt an immediate escalation in her symptoms. Ms Jackson told Dr Jacobson that she had seen a psychologist who told her that there was nothing she could do to assist and therefore she got no relief from the consultation with that psychologist. She also told Dr Jacobson that she had been diagnosed with Multiple Sclerosis in 1993 and that between that date and the installation of the ABD she only had one episode of MS but subsequent to its installation she has experienced multiple exacerbation of her symptoms including nerve pain in her entire body, loss of balance and general muscle weakness and told him that her MS is exacerbated by stress and tension. She told him that there have been no other stressors in her life that might account for the intermittent worsening of her MS symptoms.
42 In his report, Dr Jacobson commented that he noticed that Ms Jackson’s distress and despair were obvious by the way she spoke about her circumstances. He expressed the opinion that her symptoms meet the criteria for a major depressive disorder, the symptoms of which include; depressed /dysphoric mood most of the day, markedly diminished interest or pleasure in all or most activities most of the day, insomnia nearly every day, psycho motor agitation nearly every day and fatigue or loss of energy nearly every day. He commented that her distress and despair have been compounded by fruitless attempts to resolve the issue with her neighbours. He also commented that it appeared her distress and despair are felt so acutely by her that her MS worsened since the time her neighbour installed the ABD and in his opinion the physical symptoms/worsening of physical symptoms as the result of psychological factors suggest severe distress. He opined that unless the issue with her neighbour is resolved, it is likely that her symptoms will continue and possibly worsen and her health will further decline.
43 Dr Jacobson told the court that treatment will not assist Ms Jackson’s recovery unless the ABD is turned off. He said that he did not consider anti-depressant medication or psychotherapy would reduce her symptoms. On being questioned by me as to the history he obtained from Ms Jackson regarding the particular ABD noise, he said that she did not tell him what it was but he ‘assumed’ that the noise was a ‘screech or a siren’. On being informed that the ABD emitted bird noises, he said that the nature of the sound did not cause him to alter his opinion.
44 Dr Wahr, Consultant Psychiatrist, gave evidence that he assessed Ms Jackson for medico-legal purposes on 10 August 2015. Dr Wahr obtained a history from Ms Jackson that; ‘in 2012, her neighbour started using a bird scaring device, which is an electronic transmitter sounding the noise of ‘killing birds’ and the noise is played over and over every 2 ½ minutes-the same noise which is a high pitched squeaking, squealing, horrible and annoying noise’. She told him that the noise goes on all day from dawn to dusk and has gone on since 2012 and is audible inside her house. She said that the noise traps her inside her home because every time she goes out the noise makes her distressed and upset, that it is intolerable and it causes severe anxiety that requires her to keep all the windows closed and she feels trapped in her own home, instead of enjoying the 4 acres she lives on.
45 Ms Jackson told Dr Wahr that she had seen a psychologist and takes Mogadon for sleeping. She told him that she has severe anxiety, anger, and distress and that she has to take a deep breath and put her shoulders back when she walks outside her door. Dr Wahr obtained a history from Ms Jackson regarding her social life, past medical history and then undertook a mental status examination and assessment. He concluded that she displays evidence of a significant anxious affect but no evidence of depression or psycho motor retardation. He opined that she is suffering from an anxiety state constituting an impairment of 25%. He stated that 20% of her anxiety state relates to the noise and 5% relates to her having MS. Dr Wahr opined that Ms Jackson would benefit from treatment by a consulting psychiatrist with supportive psychiatric psychotherapy and appropriate anti-anxiety medication rather than taking Mogadon. He stated that she is quite significantly distressed and her quality of life has been impaired.
46 Dr Wahr provided a Certificate of Assessment dated 15 September 2015 in accordance with S 28LN of the Wrongs Act 1958, certifying that Ms Jackson’s anxiety state results in more than a 10% degree of impairment. The purpose of obtaining this certificate was to allow Ms Jackson to claim damages for non-pecuniary loss against the defendants on the basis that she satisfies the ‘significant injury’ threshold pursuant to S 28LB(b), should the plaintiffs succeed on the primary issue.
47 Dr Wahr gave evidence that Ms Jackson requires supportive psychotherapy treatment and medication in the form of Alprazolam or Seroquel. He said that if the noise ceased, Ms Jackson would have a 75% improvement within 6 months and she would be left with a small chronic anxiety impairment of 5%.
48 During cross-examination, Dr Wahr said that Ms Jackson described the ABD noise as being ‘killing birds’ which caused him to assume that the noise was of someone who had recorded the killing of birds. He said that he was not aware the ABD noise was of different bird sounds. He also told the court that he was not informed of the decibel level of the emitted noise but assumed it was ‘loud to her’ and assumed the noise could be heard by her inside her house.
49 Dr Wahr gave evidence that Ms Jackson did not tell him her anxiety was triggered when she heard bird noises away from the property and she did not tell him the ABD affected her ability to paint. He agreed with the suggestion that the heart complaints that Mr Courtney has suffered in recent years could have increased her anxiety levels. He said that he would have expected Ms Jackson to be in immediate distress when she first heard the noise emitted from the ABD.
50 Mr Courtney gave evidence that he did not notice any noise from the ABD until he was alerted to it by Ms Jackson in late 2012. He said that because she told him it was distressing to her, he lodged a written complaint with the local Council in February 2013. Although he acknowledged that he has a significant hearing loss, he told the court that he could ‘clearly hear the noise all over the property’ which affected him badly until 6 March 2015 when it was turned down and that he ‘rarely hears it now’.
51 Mr Courtney told the court that he was the author of numerous emails and letters to the Council which he said was an attempt by him to solve the problem. He said that he was increasingly becoming angrier and irritated about the issue which caused him to gravitate from his office, which is adjacent to the common fence line with the defendants, to his house. He said that his office includes a gym, lounge, shower and bathroom and it used to be his favourite spot on the property. He described it as his ‘refuge’. He told the court that he now largely works from inside the main house.
52 Mr Courtney gave evidence that during 2015, Ms Jackson was becoming more stressed and on one occasion he observed her on the couch, ‘shaking’ and in the ‘foetal position’. He told the court that he rarely heard the noise inside the house and that at one stage he and Ms Jackson considered selling their property but ultimately decided to ‘tough it out’. He also told the court that the ABD is ‘off more than it is on, but he still hears it a lot of the time’.
53 Mr Backman, Farrier, gave evidence on behalf of the plaintiffs. He told the court that he has lived in the area for 40 years and has been employed by the plaintiffs as their Farrier for approximately 10 years. He said that he visits their property every 6 to 7 weeks to perform Farrier work on Ms Jackson’s three horses. He said that when he first heard the bird noises he thought the neighbours had an Aviary. He told the court that the ‘squawking noise’ was annoying and a ‘crappy noise’ and if it was a real bird he would ‘shoot it’.
54 Ms Waddell, the plaintiffs domestic cleaner, gave evidence on their behalf. She told the court that she attends the plaintiffs property once per week for 4 hours to perform cleaning duties. She said she can hear the bird noises from the front gate when she arrives and when she is working inside the house. She described the sound as ‘screeching like a parrot’. She said that it was very loud at the start, approximately 2 years ago, but from March 2015 it was less noisy although she could still hear it when outside the house but would have to ‘listen hard’ to hear it when inside the house.
55 Ms Scott, a friend of Ms Jackson, also gave evidence. She told the court that she has known Ms Jackson since 2011 as a result of her participation in the Riding for the Disabled Association. She told the court that she visited the plaintiffs property twice a week for a 1 to 2 hour period to assist Ms Jackson school her horses. She said that she noticed the bird sounds in January 2013 which she described as ‘very loud, mechanical, repetitive and almost constant-like screeching cockatoos’. She said that it disturbed her because of its effect on Ms Jackson who would regularly leave the paddock and go inside her house. Ms Scott gave evidence that she did not notice the noise ‘that much’ because she was busy with the horses. She told the court that she could hear the noise from the ABD when riding at Eagle Point Bluff which is approximately 600 m from the defendants property.
56 The defendants tendered an Expert Report of Ms Miklosvary, Audiologist from Gippsland Audiology. Her opinion was based on audiological assessments that the defendants had arranged to be conducted on each of the parties by bloom hearing specialists in July 2015. The assessment of Mr Courtney indicated moderate rising to mild sensorineural hearing loss in the left ear and a moderately severe rising to mild loss in his right ear. Ms Jackson’s results indicated a mild sensorineural hearing loss in the left ear and a mild to moderate sensorineural hearing loss in the right ear. When assessed Mr Howell told the audiometrist that he had a hearing problem for the past 3 to 4 years and has hearing aids but really uses them. His assessment indicated a moderate sensorineural hearing loss in the left ear and a moderately severe sensorineural loss in the right ear. The assessment of Ms Howell indicated that her hearing was within normal limits. Ms Miklosvary provided an opinion on each of the parties in relation to a number of questions posed by the defendants’ lawyers. In relation to their individual perception of sound pressure levels she reported that; given Mr Howell’s hearing is within normal limits in the low frequencies she would expect him to hear some characteristics of broadband environmental noises down to about 30-35dBa; as Mrs Howell’s hearing is within normal limits across all speech frequencies she would be able to hear very quiet broadband environmental noises down to 30dBa; as Ms Jackson has a mild hearing loss, she would be expected to hear broadband environmental noises down to about 35-40dBa; and, Mr Courtney, whose hearing is within normal limits in the left ear in the mid frequencies would be able to hear some characteristics of broadband environmental noises down to about 35dBa.
57 Ms Miklosvary also made an ‘approximate estimate’ of the parties ability to hear noise in the frequency band 2-6 kHz based on sound pressure level ranges of 35-45dBa and at 45-55dBa and opined that; Mr Howell would most likely be able to hear noise down to about 45dBa at 2kHz; Mrs Howell would be likely to hear noise down to 30dBa; Ms Jackson would be likely to hear noise down to 35dBa and Mr Courtney at about 40dBa.
58 Ms Miklosvary also noted that despite each individual’s ability to hear the environmental noise in each condition, how each individual listens to or is aware of the sound will vary greatly. She reported that this will depend on many factors which may include attention, concentration, other environmental noises present, where the conversation is trying to be understood, humidity, wind direction and feelings about the noise. She stated that for example, even though the environmental noise may be barely audible to one individual and comfortably audible to another, it may seem louder and more intrusive to the individual in which the sound is barely audible.
59 The plaintiffs called evidence from Mr Growcott, Acoustic Engineer and an Expert Report prepared by him and dated May 2015 was tendered. The defendants tendered an Expert Report from Dr English, Acoustic Engineer which was reviewed by Mr Dalmau, Acoustic Consultant, dated May 2015, and a report dated 7 July 2015 in which Dr English reviewed the Expert Report of Mr Growcott.
60 Mr Growcott gave evidence that he has over 40 years’ experience in noise impact and control assessments. His report indicated that he was contacted by Mr Courtney in November 2014 to conduct an assessment on the noise being emitted by the defendants ABD. Mr Growcott visited the plaintiffs’ property on 1 May 2015 and deployed a permanent noise logger in their front garden between 1 May and 4 May 2015. He also measured the noise being emitted using a precision sound level meter which included frequency analysis circuitry. He observed that the noise environment on the property included; occasional distant traffic, natural bird noises near and far and the repetitive and regular noise from the sequence of small bird sounds including birds under stress from the ABD located on the defendants property. He estimated that the residences on either property were approximately 80 metres apart and that the ABD loudspeaker was approximately 150 metres from the measuring location in the front garden of the plaintiffs property which was approximately 17 metres from the front of the their house. He reported that measurements and observations were made at the paddock fence line beside Mathiesons Road and near the front steel gates of the defendants’ property which he estimated to be approximately 80 metres from the ABD loudspeaker.
61 Mr Growcott observed that the loudspeaker was providing a directional sound propagation field, with the higher values observed when the loudspeaker is directly facing the listener and lower values when the listener is off the direct propagation axis. He noted that the noise environment while on the plaintiffs’ property included occasional periods when there were little or no natural bird noises of any kind. He stated that there were other periods when the ABD was the dominating noise source and more common times when the noise of live birds near and far produced overall noise levels of similar and higher values to that of the ABD. He stated that the dominant other live bird noise was produced by galahs which were near and far. He said the character of galah noise produced lower frequency noise than the ABD and therefore it was possible to identify the noise levels of each of these bird noise sources.
62 Mr Growcott observed that the ABD appeared to have a similar sequence of noise events with the distress call component separating segments of chirping sounds. He also noted that the duration of chirping in the sequences appeared to vary with the stress component varying. He said that once he was aware of the character and the repeated 3 to 5 minute and 28 second sequence of the ABD, the noise from it was very identifiable. He said that this was despite the random galah and other bird noises occurring regularly at similar and sometimes higher levels than the ABD, in particular when the galahs were flying relatively close to the observation location. Mr Growcott said that Mr Courtney informed him that on or about 6 March 2015, (two months before he attended the property), the level of noise from the ABD was reduced in volume.
63 Mr Growcott stated that he inspected the sound level meter used by Mr Courtney when he recorded the noise emitting from the defendants ABD. He noted that Mr Courtney’s sound level meter has the ability to measure a single overall noise level, but not individual frequency components of a particular noise. Mr Growcott reported that he listened to and observed the sounds of the defendants ABD on Mr Courtney’s computer which indicated that the ABD was the dominating noise and the higher value noise levels as indicated on Mr Courtney’s sound level meter were in the order of 43dB(A).[5] Mr Growcott reported that a similar exercise carried out by him during the survey, using his precision sound level meter, produced higher values in the range of 36-40dB(A) (when dominated by the ABD noise). Mr Growcott ‘assumed’ that the noise level reduction would have been in the order of 3-7dB(A) based on comparisons between his readings and that of Mr Courtney’s. He noted that it is generally considered that a 10dB(A) reduction in a noise level will be subjectively assessed as a halving of a noise level.
[5] dB(A) means the decibel level with an applied A-weighting.
64 The result of Mr Growcott’s survey of noise measurement from the front of the plaintiffs garden indicated;
- typical higher observed noise levels of ABD chirping noise: 36dB(A)
- typical higher observed noise levels of ABD squawking noise: 40dB(A)
- typical lower levels of ambient noise in the absence of ABD noise: 30dB(A)
- typical range of natural bird noises from near and far: 35 to 45dB(A)
65 Mr Growcott reported that he is not aware of any specific noise assessment procedures or rules and regulations in relation to electronic bird scarers where they have been installed for housekeeping purposes in a residential property zone. He noted that the Victorian Environmental Protection Authority has issued qualitative guidelines for limiting the noise associated with bird scaring guns which produce short-term explosive noise. He noted that the guidelines also impose other limits, including avoiding using scare guns when the distance to the complainant’s residence will be less than 300 metres and limiting blasts to no more than 70 blasts per day. Mr Growcott reported that the South Australian Environmental Protection Authority has provided suggested daytime noise limits for electronic bird scarers on productive farming land or orchards, when there are nearby residences. He told the court that the methodology he used was to apply the EPA Noise Control Guidelines that are applicable to residence noise impacting on other residences as he considered them to be the most appropriate in the circumstances. He stated that under these Guidelines a reasonable outcome is where the intrusion does not exceed the lower level of background noise by more than 5dB(A). He said that under this method it compares the lower levels of ambient noise with the higher level of the introduced noise.
66 Mr Growcott noted that the defendants’ expert, Dr English, adopted the EPA Guidelines – Noise from Industry in Regional Victoria - SEPP N-1. The guidelines apply in all locations in Victoria outside the boundary of metropolitan Melbourne, which includes Eagle Point. Within the SEPP N-1 area, SEPP N-1 is law and must be used. He told the court that he was involved in the implementation of SEPP N-1 and that that they relate to industry impact on residence. He did not consider SEPP N-1 to be appropriate in the circumstances of this case which involves private residences. He conceded during cross examination that the NIRV guidelines allow for the assessment of such devices but their purpose should be confined to noise from commercial or industrial premises. He said that because the ABD noise does not last 1 minute you are not required to adjust intermittency as intermittency is said to increase annoyance. In the present case, he noted that the ABD emits noise for 30 seconds every 3 to 5 minutes and if it did it emit noise for 1 minute he would adjust intermittency under the State Environmental Protection Guidelines.
67 When asked to compare the expert opinions, Mr Growcott said that they were in agreement that when the ABD is quiet, the noise level is 30dB(A) and he did not believe the noise levels measurements taken him and Dr English differed that much.
68 Mr Growcott noted that the patterns of the ABD were repetitive and regular which made them easily audible and identifiable in the ambient noise environment surrounding the plaintiffs’ property. He noted that the ambient noise environment during the daytime was observed to include times when natural bird sounds represented a significant component of the overall environmental noise levels. He stated that even during these periods the character of the ABD noise was significant in their overall audibility. He noted that audibility of a potentially intruding noise is really character of a qualitative noise assessment. He said that at times when the noise of natural birds were minimal in the ambient noise environment, the higher value noise levels from the defendants ABD was regularly 40dB(A). In his opinion, most common qualitative noise assessment procedures would determine that this differential between the lower levels of the ambient noise and the levels produced by a potentially intrusive noise to be unreasonable. He noted that the EPA General Guidelines for domestic noise sources recommends that the higher noise levels of a domestic source during daytime does not exceed the average lower levels of the ambient noise by 5dB(A). He also stated that most noise assessment procedures determine acceptable noise levels for potentially intruding noise to be at a level to be immersed within the natural environmental noise that existed prior to the introduction of the new potentially intruding noise.
69 In Mr Growcott’s opinion, there will be times when the natural bird noise forming part of the natural noise environment will be sufficiently loud to immerse the ABD within the noise environment, but he does not consider that it was enough to justify the noise as reasonable. In his opinion, if the ABD is to remain, it could be reduced in noise level at the plaintiffs’ property with practical noise control to the noise source. When giving evidence he suggested that a panel could be inserted to direct the sound; the speakers could be relocated so as not to have the propagation site at the plaintiffs property; the speakers could be located near the common boundary and directed towards the courtyard on the defendants property; or, the speakers could be set at a lower volume in different locations. He noted that as it presently exists the ABD admits high frequency noise and he recommends that it should not exceed 35dB(A) in the front garden of the plaintiffs property. In his opinion, this level of noise at the plaintiffs’ property would result in the noise level being audible some of the time, but mostly masked by other ambient noise.
70 Dr English reported that he attended the site on 17 and 25 March 2015. He noted that the parties land is low density residential zoned land bound by the Mitchell River to the north, public park and recreation zoned land to the east, low density residential zoned land and general residential zoned land to the south and low density residential zoned land to the west. He also noted that the plaintiffs’ property is located to the west of the defendants’ property and the ABD is located approximately 165 metres south east of the most exposed façade of the plaintiffs’ house. Dr English noted that the ABD is configured to target swallows with a combination of four different bird calls lasting 28 seconds and operates randomly approximately 21 times per hour.
71 Dr English reported that the Victorian Government provides guidance on industry operational noise levels and limits by reference to; State Environment Protection policy – Control of Noise from Commerce, Industry and Trade No. N-1 (SEPP N-1) and Noise for Industry in Regional Victoria (NIRV): Recommended Maximum Noise Levels from Commerce, Industry and Trade Premises in Regional Victoria. He noted that both are intended to be applied for noise generated by commerce, industrial and trade premises although it is stated in the NIRV guidelines that noise from electronic bird-scaring devices may be assessed under these guidelines. In his opinion, the appropriate noise criteria applicable to the ABD in this case are the recommended levels as determined in accordance with the NIRV guidelines.
72 Dr English reported that the methods for determining the effective noise levels under the Guidelines include penalty adjustment for the character and duration of the noise. In accordance with that Guideline, the effective noise level is the noise level from industry measured at a residential dwelling or noise sensitive location, which has had adjustments applied to it to account for certain characteristics such as tone, impulse, duration, intermittency, etc. which may make the noise more or less annoying to residents than the measured level alone would indicate. He also referred to the World Health Organisation (WHO) guidelines for community noise which identify parameters for measuring the noise level, the adverse health effects of noise and which provides guidance values using the lowest noise level that produces an adverse health effect which includes issues with speech communication, sleep disturbance, cardiovascular and physiological effects, residential behaviour and annoyance.
73 After taking these matters into account, he determined that the following noise limits for the ABD are applicable;
• the ABD should not be audible to the plaintiffs inside their house during the night-time period and between 7 a.m. and 9 a.m. on weekend days and public holidays; and
• in the outdoors, the noise from the ABD should not exceed 45dB(A) during the daytime, 39dB(A) in the evening and 34dB(A) at night.
On the basis that the ABD operates during the day and evening, Dr English concluded that the limiting criteria is an effective noise level of 39dB(A). By reference to the WHO Guidelines, he stated that the indoor levels should remain below 35dB(A) during the day and evening to ensure that the speech intelligibility and serious or moderate annoyance are not an issue.
74 Dr English reported that the noise survey conducted by him between 17 and 25 March 2015 by use of a noise logger in conditions that were mainly fine with light to moderate winds and occasional rain recorded a noise level ranging between 35db and 42db during the day, with an average reading of 34db and a range between 33db and 41db during the evening with an average of 33db.
75 Dr English also recorded the ambient noise environment on the plaintiffs property and inside their house. He noted that the primary contributors to the noise environment included local birdlife, distant road traffic as well as agricultural vehicles and activities. He recorded the following background noise levels on 17 March;
• bedroom: 22db
• office: 29db
• South East corner: 33db
• noise logger position: 37db
76 Dr English also compared the noise emitted from the ABD and the ambient noise level. He concluded that the ABD only exceeds the ambient noise level in the 3.15kHz and 4kHz frequency bands and that the majority of the ABD sound power is contained between 2.5kHz and 5kHz. He concluded that because the ABD is highly tonal in nature, a +5db penalty should be applied and because the device sounds for 28 seconds at random intervals 21 times per hour it requires a -7.9dB duration adjustment. Mr Growcott agreed that these penalty and adjustments were appropriate when he gave evidence.
77 After applying the tonal adjustment and duration adjustment, Dr English made the following effective noise level calculations on the plaintiffs property based on his recording of noise levels on 17 and 25 March 2015;
- South east corner of plaintiffs property: 32 dB(A)
- Paddock: 36dB(A)
- Front of gym: 36dB(A)
- Logger location: 34dB(A)
- Patio: 29dB(A)
- Front gate: 29dB(A)
- Inside office: 22 dB(A)
- Inside living area with patio door open: 19dB(A)
78 Dr English concluded that; the ABD complies with the Environment Protection (Residential Noise) Regulations 2008 and the effective noise levels do not exceed the recommended maximum levels defined in the NIRV and the WHO Guidelines for Community Noise threshold levels. He noted that the noise level of the ABD is of a particularly low level compared to the existing background noise levels. He considered the ABD to be ‘just perceivable’ inside the main living area of the plaintiff’s house with the patio doors fully open and ‘not perceivable’ inside the master bedroom when the windows are open or closed.
79 In his report dated 7 July 2015, Dr English reviewed the report of Mr Growcott. He agreed with the conclusion of Mr Growcott that the ABD is directional with higher noise levels emitted in the direction of the plaintiffs property compared to the direction along Mathiesons Road. He also agreed with his observations that the local noise environment is dominated by local birdlife, which at times generate noise levels significantly higher than that of the ABD in the plaintiffs property. However, Dr English noted that in addition to galahs, as reported by Mr Growcott, he observed bird noise emanating from cockatoos, magpies and wattle birds and others when he visited the properties. Dr English agreed with Mr Growcott that the noise from the ABD is primarily between 3kHz and 5kHz frequency bands.
80 When applying his chosen methodology (SEPP N-1), Dr English noted that because the ABD operates for only a short amount of time, the noise should be subject to a ‘Duration’ adjustment of -8dB in addition to a tonal penalty of +5dB which results in the effective noise level as measured by Mr Growcott to be 31-34dB(A). He also noted that Mr Growcott stated that his measured background noise level was 30dB(A) whereas his measurements indicated it was 33dB(A). Dr English reported that after using the industry standard method for establishing background noise levels and using the ‘Background + 5dB’ methodology based on his readings, the background noise level would increase the noise limit to 38dB(A) and not 33dB(A) as stated by Mr Growcott.
81 Dr English reported that after use of the adjustments to account for the very short duration of the ABD noise and the tonal penalty under SEPP N-1, the effective noise level of the ABD is 31-34dB(A) which is below 35dB(A) as recommended by Mr Growcott. He also noted that the difference in the background noise level readings suggest that during the dates of the assessment the noise level complied with the ‘Background Plus’ level based on the methodology he used for both his and Mr Growcott’s measurements.
82 Mr Howell gave evidence that after becoming aware of the plaintiffs concerns he undertook various steps to address them including adjusting the volume of the ABD, the number of bird sounds, frequency and speaker operation whilst at the same time ensuring that the device performed its function and effectiveness to prevent swallow infestation and its associated problems. He told the court that after he received the plaintiffs lawyer’s letter of demand in January 2014, he suggested that the dispute be mediated or another method adopted by which their concerns could be independently assessed. He told the court that this suggestion was not taken up by the plaintiffs.
83 Mr Howell told the court that after proceedings were issued on 5 September 2014, he suggested that a series of tests be conducted in November 2014 involving adjusting various aspects of the operation of the ABD for specified periods to determine the effectiveness of the adjustments on the function of the device and whether they would lessen the alleged impact on Ms Jackson. Mr Howell tendered a Table of adjustments made by him to the device between 19 December 2012 and 12 December 2014. He acknowledged that in November 2014, the plaintiff’s lawyers suggested that he could place the ABD speakers to direct the noise from the West to East and that the speakers could be enclosed in a sound attenuation box pointing towards their residence. He told the court that he did attempt to configure the direction of the sound by disconnecting the speakers facing south and west and leaving the north and east speakers operating but found there was a significant amount of sound leakage. He said that he also researched the possibility of a sound attenuation box but found that it would need to be sizable, situated on a mast and would need town planning approval. He said that he did not consider it would work.
84 Mr Howell gave evidence that the last time he made adjustments to the volume of the ABD was on 24 November 2014, to the tone on 30 November 2014 and to the speakers on 12 December 2014. On the basis of the evidence he gave that the ABD was operating on all four speakers between January 2012 and 12 December 2014 and thereafter on two speakers necessitated the court conducting a second view on the 5th day of hearing in order to determine whether there was any discernible difference in the level of noise emitted from the ABD on the plaintiffs property from when the first view was conducted (with only two speakers in operation as has been the case since 12 December 2014) and when four speakers were in use which occurred between January 2012 and 12 December 2014. At the second view, the court heard the ABD in operation with both 4 and 2 speakers in operation and a combination of 4 and 8 bird calls. Mr Howell said he did not believe the ABD noise was louder with 4 speakers in operation rather than 2. He confirmed that only 2 speakers were in operation when both Mr Growcott and Dr English inspected the site and made their recordings (Ms Jackson, Mr Courtney and Ms Waddell gave evidence that the volume was reduced prior to their inspections). Mr Howell told the court that at present the ABD operates at the later of sunrise or 7 a.m. and is off at the earlier of sunset or 7 p.m. Monday to Friday. He said that on weekends it operates from the later of sunrise or 9 a.m. and shuts down the earlier of sunset or 7 p.m.
85 Mr Howell gave evidence that at present the ABD operates at varying times as outlined above depending on the time of year with a randomised call sequence between one minute and 4 minutes 15 seconds.
86 During cross examination, Mr Howell disputed that he had modified the noise controls of the ABD. He also disputed the suggestion that swallows are a seasonal bird and told the court that they are present all year round and therefore it was not practical to operate the ABD for only 3 months of the year or only during the breeding season. He said that he would not be willing to turn the ABD off during the morning hours as there is high activity by the swallows during that time but would consider turning it off between May and July providing the swallows did not re-establish themselves. Mr Howell disputed the suggestion that it is his intention to protect his property from swallows at any cost. However, he did concede that he was prepared to use all means necessary to protect his property, providing it did not breach any law or cause interference to his neighbours. He agreed that he has not implemented any of the alternatives suggested by Mr Growcott but is prepared to negotiate with the plaintiffs to find a solution to the dispute.
Other Cases
87 There have been a number of cases over the years dealing with a private action in nuisance based on noise. The subject matter of the nuisance has included; church bell noise[6], the noise and smell of horses[7], noise from a wood saw[8], noise of horses and the smell of manure and urine[9], noise from boilers and noxious acid smuts[10], noise from an inebriated neighbour, singing, shouting and swearing[11], noise from a neighbour’s property[12], noise from children in kindergartens and schoolyards[13] and noise from garbage trucks[14]. Cases involving the use, restriction and prohibition of an ABD have arisen in the context of planning applications before local councils. [15] It is important to note that whilst guidance can be given from these cases, the question of the existence of a nuisance is one of degree and must necessarily turn on its own particular facts and circumstances. Ultimately, the question of whether a particular noise amounts to a nuisance, is a question of fact.
[6] Haddon and Anor v Lynch and Ors (1910) VLR 5.
[7] Painter v Reed (1930) SASC 295.
[8] Spencer v Silva (1942) SASR 213.
[9] Munro v Southern Dairies Ltd (1955) VLR 332.
[10] Halsey v Esso Petroleum Co. Ltd (1961) QBD 145.
[11] Vincent and Anor v Peacock (1973) NSWLR 466.
[12] Oldham v Lawson (No.1) [1976] VR 654.
[13] Meriden School v Pedavoli [2009] NSWLEC 183.
[14] Cohen v City of Perth [2000] WASC 306.
[15] Macgillivray v District Council of Mt Barker [2001] SAERDC 11 and Edwards v District Council of Mt Barker [2007] SAERDC 9.
88 A number of statements and principles from these cases are of assistance when considering the issues that confront the court in this proceeding. In Haddon’s case, the plaintiffs were aggrieved by the ringing of a church bell on early Sunday mornings. It was a source of annoyance to them and they complained that the ringing of the bell disturbed them in the peaceable and quiet possession, use, and enjoyment of their house and therefore constituted a nuisance. Evidence was given on behalf of the defendants by a number of neighbours to the effect that they suffered no annoyance. A’Beckett J stated; “what I have to decide is whether the plaintiffs have truthfully described the effects of the bell upon themselves, and whether those effects are due to its exceptional aggressiveness or to their exceptional nervous condition. If they have suffered it is quite immaterial that other people have not. Of course, the evidence of other people is of value in testing the plaintiff’s veracity or sincerity, or the extent to which hypersensitivity this has caused them to suffer”. His Honour referred to what Knight Bruce LJ said in Walter v Selfe[16], “that the inconvenience which the court will protect against must not be one of mere delicacy and fastidiousness, but must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among English people”. His Honour also referred to the statement of Lord Selbourne in St Helens Smelting Company v Tipping[17] where he said; “with regard to personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom…… Whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs”. Ultimately it was held that the early morning ringing of the church bells was an unreasonable disturbance of the plaintiffs comfort and a nuisance which the court should restrain.
[16] [1851] 4 D.G. & S 315.
[17] [1865] 11 HLC 642.
89 In Spencer, the plaintiff lived in a residential district and the defendant who was his neighbour conducted a wood yard business on his property which required him to use a saw almost continually during working days and hours. Evidence was given that the noise from the wood saw was penetrating, annoying, irritating and screeching. Mayo J stated; “but that the plaintiff, and that the person or persons living with her, are so affected is not necessarily sufficient. The test does not depend arbitrarily upon the peculiar susceptibilities of the person complaining. Although the application of the test is subjective, the measure must be objective. It is to be measured by plain sober and simple notions among ordinary people, and not according to elegant or dainty modes or habits of life (as per Knight Bruce in Selfe). If a person be impervious to noise, and remain unaffected, he will not have any ground of complaint, notwithstanding that persons of ordinary sensibility would be adversely affected. He has suffered no damage, and damage is part of the cause of action. In some circumstances, which do not include cases ‘where the discomfort is purely personal’ only very slight evidence of damage need be proved. To that extent the test is subjective. On the other hand, persons who are so sensitive that they cannot endure sounds to which ordinary people would not object, can have no relief if the claim fails when related to the objective criterion. That increasing age often brings a higher degree of sensitivity to noise as suggested by witnesses is probable. That factor is, I think, proper to be brought in when fixing the objective standard. Elderly people are entitled to consideration equally with those who are young. Tested then upon the basis of persons unaffected by idiosyncrasy, of persons who are not abnormally sensitive to noise, would the suffering of the plaintiff and her husband be deemed a reasonable consequence? The behaviour of both, the plaintiff very much less so than her husband, has been extravagant, which may itself be an indication of abnormality, if not of ultra-sensitiveness. “A nuisance by noise…. is emphatically a question of degree”; per Murray CJ in McKenzie v Powley [18]. The attributes or characteristics of sound, which are relevant to the question of degree, are intensity or loudness, pitch, whether high or low, and timbre or quality of tone. Where musical tones are simultaneous, they may result in harmony or discord. Even if harmonious it does not necessarily follow that they are free from offence on all occasions. Sounds that are not annoying or irksome, when produced for short periods only, and not at inopportune times (such as the early hours of morning), may become so by long continuation, or by the unsuitability of the time or occasion.
[18] [1916] SALR 1.
90 To constitute a nuisance noise must be unusual or excessive. It must be such as materially to interfere with the ordinary comfort of those living in the neighbourhood, according to plain and sober and simple notions. The persistent noise of wood sawing at high speed is sufficiently loud to carry some distance, and discordant and shrill enough to be difficult for persons, not enured to it, all without the special quality of being capable to endure themselves to it, or who are unable to concentrate on their immediate task, whether laborious or pleasurable, to the exclusion of such competitive distraction. When that noise occurs daily for long periods, I think, it becomes a menace to reasonable comfort. It may be true that some people can readily adapt themselves to it without effort, others can with the exercise of determination accustom themselves to it, something like the inhabitants of London towards bombing, but that does not necessarily mean, because that is so, if it is, that the law requires all persons to endure themselves to the unpleasantness or quit”. Mayo J ultimately held that the persistence and the daily relentlessness of the noise subjected the plaintiff to more than she should properly be called upon to endure.
91 In Halsey, the plaintiff was the owner and occupier of a house in a residential area and the defendants owned and occupied an oil storage and issuing depot opposite his house. In the depot, the defendant operated steam boilers the noise from which went on throughout the night and which varied in intensity peaking at 63dB causing the plaintiff’s windows and doors to vibrate resulting in sleep disturbance. He also complained of the noise from the engines of oil tankers which came and went from the defendant’s premises throughout the night. Veale J said that one useful approach to the considerations to be taken into account in a case of alleged nuisance by noise is to be found in decision of Luxmore J in Vanderpant v Mayfair Hotel Co. [19] who also referred to the statement of Knight Bruce VC in Selfe and stated: “it is also necessary to take into account the circumstances and character of the locality in which the complainant is living. The making or causing of such a noise as materially interferes with the comfort of a neighbour when judged by the standard to which I have just referred, constitutes an actionable nuisance, and it is no edge to say that the best-known means have been taken to reduce or prevent the noise complained of, or that the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner. Again, the question of the existence of a nuisance is one of degree and depends on the circumstances of the case”.
[19] [1930] 1 Ch 138.
92 Veale J went on to state; “nuisance by smell or noise is something to which no absolute standard can be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The character of the neighbourhood is very relevant and all the relevant circumstances have to be taken into account. What might be a nuisance in one area is by no means necessarily so in another….. The standard in respect of discomfort and inconvenience from noise and smell which I have to apply is that of the ordinary reasonable and responsible person who lives in this particular area of Fulham. This is not necessarily the same as the standard which the plaintiff chooses to set up for himself. It is the standard of the ordinary man, and the ordinary man, who may well like peace and quiet, will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory”. On the facts before him, Veale J found that the plaintiff had satisfied him that a nuisance existed and granted damages and an injunction.
93 In Oldham, a husband and wife brought an action in nuisance arising from noise from their neighbours house. Harris J said;
“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 at 31 Mathoura Rd. 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 noise”.
94 In Cohen’s case, Roberts-Smith J adopted, with some modification, the propositions as stated by Jordan CJ in Don Brass Foundry Pty Ltd v Stead [20] as follows;
[20] (1948) 48 SR (NSW) 482.
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 all 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 to 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-and-take.
5. In many cases it is a question of degree.
95 A case involving the use of an audible bird scaring device is that of Edwards v District Council of Mount Barker and ORS [21], a decision of the Environment Resources and Development Court of South Australia. The appellants who changed the use of their land from grazing to viticulture were aggrieved by a decision of the Council which imposed a condition that no audible bird scaring devices were to be used on the property. The respondents to the application also included neighbours of the appellants who were concerned that the noise from the ABD would limit their ability to enjoy outdoor activities on their property, particularly at weekends together with the intention of the appellants to use the device continuously, 7 days a week between the hours of 7 a.m. and 8 p.m. and the possibility that the devices would be audible and annoying even when they were inside their house with the doors and windows closed. It was also of concern to one of the neighbours that the noise from the ABD could cause dogs in the vicinity to bark. The appellants land consisted of 29.95 hectares and is located in an area characterised by a mix of grazing, crop production and viticulture and adjoining residences. The appellants sought to install two separate electronic audible bird scaring devices each consisting of two speakers. In the application to Council, it was proposed that a number of restraints would occur in relation to the operation of the ABD including; use of a maximum of two speakers at any one time, operation of the ABD between 7 a.m. and 8 p.m., use of it between February and April inclusive (the period that the grapes are vulnerable to damage by birds) and the speakers to be located within a defined ‘allowable speaker placement area’, located a minimum of 300 metres from nearby dwellings.
[21] [2007] SAERDC 9.
96 The principal issue for the court to determine was whether the noise from the ABD was an unavoidable and acceptable consequence of the commercial production of grapes on the appellants land. The Council had refused the request because of noise nuisance and amenity.
97 The court noted that there were no approved noise standards relating to the devices, although there were a set of draft environment noise guidelines for ABD’s published by the South Australian Environment Protection Authority in 2003. The court noted that these draft guidelines had no statutory force but did provide useful benchmarks including;
• noise from ABD’s before 7 a.m. or after 8 p.m. must not emit a noise level that exceeds 45dB(A) at a location other than on the site on which the device is in operation;
• electronic speaker noise from the device at an LAeq of 52dB(A) when adjusted is deemed to represent the maximum level of reasonable interference at the interface between an area or zone specifically intended for primary production and one for rural living or residential amenity;
• a penalty of 5dB(A) may be applied for each of the characteristics of tone, modulation (frequency or amplitude) and impulsiveness.
98 In conclusion, the court noted that the Development Plan seeks a balance between the avoidance of noise nuisance and loss of amenity, on the one hand, and the legitimate interests of primary producers on the other. The court referred to an earlier decision of the court in MacGillivray v District Council of Mt Barker which found that the use of ABD’s was not a necessary incident of the use of land for viticulture. The court in Edwards held that the subject land had been used for grape growing for a number of years and it could not therefore be argued that the use of the devices was ‘essential’. It noted that the draft guidelines place considerable weight on the importance of having a bird management plan in circumstances where the use of an ABD might have an adverse impact on the surrounding community. It noted that plan could include a range of measures including, visual scarers, audible scarers, noise and movement on the property, netting, habitat management and culling. The court’s major concern was the sustained nature of the noise emitted by the proposed ABD in that it emitted an array of sounds which was virtually continuous apart from a very brief pause before changing from one sound to another with an interval of 15 seconds at the end of each cycle before the complete cycle began again. It also noted that the device was intended to be operated 13 hours a day, 7 days a week. On balance, the court held that the operation of the ABD in this way and in the locality was likely to impact significantly and adversely on the amenity of local residents and therefore it did not meet the provisions of the Development Plan.
99 In Macgillivray, the case involved the use of an ABD in the form of a gas gun which was to be used to protect 60 acres containing vines. Expert evidence was given that 300 metres was the appropriate minimum distance between the position of a gas gun and a noise sensitive location, such as a dwelling. The court permitted the use of the ABD with restrictions imposed which included; its use only between February and April each year and only as part of a range of bird deterrent devices, it could not be activated within 300 metres of a dwelling, restricted hours, no more than 6 detonations per hour and with an acoustic screen erected adjacent to the gas gun.
100 The court said; “it is considered that there is potential for annoyance to those living in the vicinity of the subject land from the noise of gas guns used to scare birds from the vineyard. There is also a potential for annoyance to be caused to residents of the Township of Macclesfield, particularly those living or working in the south-western area of the township. However, we have concluded that it is likely that the resulting noise nuisance to this category of persons from the use of gas guns on the subject land would not be a serious as that likely to result to those occupying some of the dwellings on rural properties in the vicinity of the subject land. In so saying, we do not discount the evidence of Mr Burt and Mr Barrett, but we accept that sensitivity to noise is subjective and may be dependent upon the particular activity or occupation in which a person is engaged at the relevant time. Thus, we accept that the noise of gas guns being fired at intervals might be unacceptably annoying for a person quietly engaged in concentrated study of a text, or in the preparation of a thesis, assignment or report or other occupations. Ultimately, the level of noise which is acceptable will be a function of the community’s desire to have a comfortable, relatively noise free residential environment and the community’s economic aspirations. The question is whether it is acceptable that person should suffer noise nuisance as a result of the use of gas guns on a vineyard, in the interests of enabling the vineyard owner to maximise crop production. In the context of the location of the subject land, its proximity to the Township of Macclesfield and the relevant provisions of the development plan which appear to encourage rural production, the maintenance of rural productivity and the maintenance of productivity of land for primary production, we have concluded that it is acceptable, subject to the imposition of conditions designed to limit the noise nuisance to the community within reasonable bounds”.
Conclusion
101 I am not persuaded that the noise emitted by the ABD constitutes a nuisance.
102 I have reached this conclusion after engaging in a balancing exercise between the rights of the Howells to protect their property from the effects of swallow activity and the rights of the plaintiffs not to have their use and enjoyment of their property unduly interfered with.
103 In making this finding I have considered the evidence before the court and the principles and comments made in the cases to which I have referred.
104 At the outset it is worth noting that the pre-hearing procedures were hard fought, protracted and involved numerous applications to the court for determination. It was obvious to the court prior to evidence being given that a great deal of animosity exists between the parties which resulted in them incurring significant legal costs and undoubtedly causing a great deal of anxiety and stress to them. The court heard evidence over 5 days and at the conclusion of the hearing was presented with very detailed (and helpful) written submissions comprising 87 pages.
105 I found Mr Howell to be a credible and honest witness. I accept his evidence that he tried various methods to deter the swallows, which were unsuccessful, prior to investigating and researching other alternatives and then ultimately installing the ABD, which has had its desired result. I do not accept the plaintiffs submission that the Howells were high handed and arrogant and had an attitude that they would ‘protect their property at any cost’. It is understandable that the Howells were prepared to go to extraordinary lengths and incur significant cost in installing the ABD as they have a beautiful property consisting of what appeared to be highly maintained gardens, manicured lawns and a truly magnificent timber house containing a glassed roof atrium. The evidence also disclosed that they modified and adjusted the operation times and settings of the ABD when they became aware of the complaints by the plaintiffs and offered to mediate prior to the issue of proceedings.
106 I find that the Howells were prepared to make ongoing adjustments to appease the plaintiffs without success. Their attempts to appease the plaintiffs extended beyond the issue of proceedings, with further adjustments being made to the ABD, re-configuration of the speakers, the investigation of the use of a sound attenuation box and a suggested ‘test plan period’ to gauge its impact on the plaintiffs which was not responded to. I find that they did all that could reasonably be expected of them in the circumstances, save and except for disconnecting the ABD. The evidence indicates that the plaintiffs formed the view, erroneously in my opinion, that the Howells installed the ABD for a malicious purpose or a retaliatory action against them as a consequence of the ‘road sealing’ dispute. This is evident by the statement Ms Jackson made to Dr Uebergang on 6 February 2014 when she said, referring to the use of the ABD by the Howells, that it could be “retribution” and in correspondence from Mr Courtney (incorrectly as it turned out) suggesting the ABD was erected shortly after the sealing of Mathiesons Rd and that “I suspect that the relationship between the public outing and anti bird device may be more than coincidental”.
107 When considering the nature, characteristics and loudness of the ABD, I have had regard to the expert evidence of Mr Growcott and Dr English. I have also taken into account the character of the location, my own observations at the views conducted by the court and the evidence of Mrs Miklosvary.
108 I find that although the acoustic experts applied different methodology, the sound level readings obtained by each did not substantially differ, 35-39dBA-(Dr English) and 36-40dBA-(Mr Growcott). In the factual scenario of this case, it does not appear to me that either SEPP N-1 or NIRV can be strictly applied. Mr Growcott and Dr English agreed that the ABD does not breach any applicable standard for noise control. Although this is a relevant fact, it has little evidentiary value when determining whether a nuisance exists.[22]
[22] See Coventry & Ors v Lawrence & Anor [2014] UKSC 13.
109 I find that the sound level readings of the acoustic experts in conjunction with the evidence of Mrs Miklosvary, audiologist, indicate that both plaintiffs would be able to hear the noise emitted from the ABD when outside their residence. For Ms Jackson, Mrs Miklosvary ‘estimated’ the noise would be “quiet” and for Mr Courtney, she ‘estimated’ it would be “barely audible”. Furthermore, I accept the evidence of Ms Jackson that she can hear the noise from the ABD and the evidence of Mr Courtney that he could hear it until March 2015 but “rarely hears it now”. I have also taken into account the comments made by Ms Miklosvary that an individual’s sensitivity to noise does vary due to a number of factors including their ‘feelings’ about the noise.
110 From my own observations, when attending the ‘views’ on 29 February and 4 March, I found it difficult to distinguish between the bird noises emitted from the ABD and the surrounding ‘natural’ bird noises. It was only after the ‘squawking noise’ was identified that I could identify when the ABD was operating and at times I observed the surrounding ‘natural’ bird noises were louder than those emitted by the ABD. In his report, Mr Growcott noted that whilst at the plaintiffs property there were occasional periods when there was little or no natural bird noises, other periods when the ABD was the dominating noise source and more common times when the noise of live birds near and far (which he identified as galahs) which produced overall noise levels of similar and higher values to that of the ABD. Dr English identified other noises being local birdlife, distant road traffic, agricultural vehicles and activities. In relation to local birdlife he also noted that at times they generated noise levels significantly higher than that of the ABD and included noise from galahs, cockatoos, magpies, wattle birds and others. My observations and those of Mr Growcott and Dr English are not unexpected having regards to the fact that the properties are located in a semi-rural low density area with an abundance of bush and the Mitchell River close by. Furthermore, I was unable to hear noise from the ABD when inside the plaintiffs’ house. The readings taken by Dr English indicated a reading of 22db from the bedroom of the house and after applying adjustments stated that the effective noise level in the inside living area with the patio doors open was only 19 dBA which he considered to be ‘just perceivable’ and ‘not perceivable’ inside the master bedroom whether the windows were open or closed. On the basis of the opinion of Mrs Miklosvary, neither Ms Jackson nor Mr Courtney would be able to hear the ABD noise from inside their house.
111 I accept as truthful the evidence of Mr Howell that he did not “turn down” the volume of the ABD on or about 6 March 2015, prior to the assessments being conducted by Dr English and Mr Growcott. The records he kept and the evidence he gave indicate that the last time he adjusted the volume of the ABD was on 24 November 2014. I do not conclude as the plaintiffs suggest that Mr Howell deliberately turned down the volume of the ABD to ensure that the measurements taken by the engineers were at a lower level than existed for the previous three years. My conclusion to some extent also effects the reliability of the assessment made by Mr Growcott as he ‘estimated’ the “turn down” of the volume was likely to be in the order of 3-7dBA based on what he was told by Mr Courtney.
112 Although a considerable amount of cross examination of Mr Howell related to the position of the volume control knob on the ABD and its variation to that depicted in the factory settings and the placing of paper over the factory markings, I accept his evidence as being truthful that he did not adjust the ‘control knob’ in an attempt to misrepresent the settings of the device. The photos of the device taken prior to the attendance of the engineers, which were tendered, do not indicate that the dial had been moved.
113 I was not persuaded by the evidence of Ms Jackson or Mr Courtney that they have been affected to the extent asserted, by the noise emitted by the ABD. Ms Jackson initially attempted to portray to the court that she and Mr Courtney had a neighbourly relationship with the Howells prior to this dispute. It was only after the ‘road dispute’ was put to her during cross examination that she conceded that their relationship with the Howells was acrimonious. While the evidence indicates that Ms Jackson was aware of noise at the Howells property in May 2012, (she thought it was Bats), it was not until late 2012 and after she was told by another that the noise was mechanical in nature that she complained to the council. Her ‘annoyance’ about the noise occurred subsequent to the bitter dispute between Mr Courtney and Mr Howell in relation to the sealing of Mathiesons Road.
114 I find that Ms Jackson has exaggerated the nature and extent of her symptoms and the causative effect of them. At times her presentation in the witness box when giving evidence was histrionic. I accept the medical evidence that she has an anxiety state/depressive condition but I am not satisfied that her condition has been caused or contributed to by the noise she hears from the ABD or that her MS symptoms have been aggravated by the noise. The evidence she gave as to the effects on her of the noise from the ABD is not only relevant to whether her evidence should be accepted, but is also relevant to the reliability of the medical evidence on which she has relied to establish her case because the opinions of Dr Ubergang, Dr Worboys, Dr Jacobson and Dr Wahr were dependent on her credibility and the reliability of her account of the history of her injury and its effects on her.[23]
[23] See Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108.
115 In particular, I have noted that despite Ms Jackson giving evidence that the noise was causing stress to her from late 2012 and that it was aggravating her MS symptoms, she did not seek medical advice until it was suggested to her by Mr Hull from the Council in March 2013. Even after doing so, she did not voluntarily seek treatment until February 2014 when she attended Dr Uebergang. Even then, she did not complain to Dr Uebergang that the noise from the ABD was loud and Dr Uebergang did not appear to be concerned about her condition as she did not suggest a treatment regime, medication or a referral to a psychiatrist but simply gave her strategies for reducing her stress and anxiety. Furthermore, Ms Jackson did not return to Dr Uebergang for treatment when her symptoms allegedly worsened over the next two years. I have also had regard to the fact that the only other medical evidence presented was in the form of medico-legal opinions and that despite the alleged severity of her symptoms, Ms Jackson did not feel the need to obtain independent and ongoing treatment from any doctor or follow the recommendation of Dr Wahr that she required psychotherapy and medication.
116 I also find that Ms Jackson provided incorrect information to both Dr Jacobson and Dr Wahr when she was assessed by them. She told Dr Jacobson that the sound from the ABD was extremely loud to the extent that she could hear it inside her house and hear it in her bathroom. She told Dr Wahr that the noise was audible inside her house which forced her to keep all the windows closed. As stated, the readings obtained by Dr English from inside the house, my own observations and the ‘qualified’ medical opinion of Mrs Miklosvary make those assertions improbable. She also told Dr Uebergang that the noise could be heard by her from 7 AM to 10 PM all year round which is incorrect. Later she told Dr Jacobson that the ABD operated between 7 AM and 8 PM and a few months later told Dr Wahr that it operated all day from dawn to dusk. It appears to me that Ms Jackson was attempting to paint a picture that the noise emitted from the ABD was very loud, continuous, unrelenting, operated all day long and as such she was confined indoors. To the contrary, the evidence she gave to the court and her diary entries indicate that she is socially active and does not spend prolonged periods at home during the daylight hours when the ABD is operating. My conclusion that she was attempting to paint a false picture is also confirmed by the fact that she did not provide an accurate description of the noise to either Dr Jacobson or Dr Wahr. Dr Jacobson assumed that the unrelenting noise was a ‘screech or a siren’ and Dr Wahr assumed that the noise was of someone who had recorded the ‘killing of birds’. Neither doctor was told that the noise constituted ‘natural’ bird sounds. Ms Jackson also told Dr Jacobson that she could ‘hear’ the noise in her head even when the machine was turned off and told the court that the noise was ‘ingrained in my brain and I could hear it when it was not even on’.
117 I also have difficulty accepting the veracity of the evidence given by Ms Jackson that she was not affected by the noise emitted from the ABD used by Mr Courtney on the basis that they were different bird noises, pitch and tone and that she was not affected by the noise emitted from the radio employed by Mr Courtney over a 6 to 8 week period in November 2014, despite giving evidence that it was ‘very loud’ because she was ‘away from it’.
118 I did not find Mr Courtney to be a credible witness. I do not accept his evidence as being truthful that he has been affected by the noise emitted from the ABD therefore interfering with his enjoyment of his property. I find that his behaviour since becoming aware of the existence of the ABD in late 2012, has been motivated primarily by his animosity and his need to take retaliatory action against the Howells following the ‘road sealing’ episode and in part to protect Ms Jackson on the basis of her complaints to him of the effect of the noise from the ABD on her. His evidence that he could hear the noise from the ABD “all over the property” until March 2015 is not accepted by me as being truthful. He was unaware of its existence from January 2012 until Ms Jackson told him about it in late 2012. I find that he became angry and irritated, not because of its effect on him, but due to the fact that his complaints to the Council and Ombudsman were unsuccessful. His evidence was contradictory in that at one stage he told the court that he “rarely hears it now” but later said, it is “off more than it is on, but he still hears it a lot of the time”. The sound readings of Mr Growcott and Dr English, together with the opinion of Mrs Miklosvary cast doubts on his evidence. If the effect of the Howells ABD was as great as he asserts, it is implausible that he would then subject himself (and Ms Jackson) to noise from his own ABD and the noise from the radio over a 6-8 week period at a significantly higher volume than the Howells ABD. The contents of the letters and emails authored by Mr Courtney in relation to this dispute demonstrate the animosity he felt towards the Howells and his determination to proceed with litigation notwithstanding the genuine and reasonable attempts by the Howells to address his concerns and that of Ms Jackson.
119 When determining the matter, I have also had regard to the duration of the noise emitted by the ABD. The ABD does not emit noise continuously throughout the daylight hours. Even accepting the plaintiffs calculations, the ABD operates 9.8 minutes of every daylight hour or for approximately 2 hours over a 12 hour day. It is not persisting and relentless. Furthermore, the noise is not unusual or excessive. The sound is of ‘natural’ bird noises. After considering the readings taken by both experts and from my own observations, it cannot be said that the noise level is excessive, especially when compared to the noise level of ‘natural’ birds in the immediate area. It is not annoying or irksome when produced for short periods and it is not emitted at inopportune times, such as early morning or after dark.
120 I have not drawn any adverse inference on the basis that Mrs Howell was not called to give evidence. It does not appear to me that any evidence she could have given would have assisted the court. The basis of the defendants case was that the noise emitted by the ABD does not constitute a nuisance. The evidence of Mr Howell was in general, limited to the reasons why he installed the ABD, how it operates, its effect on the swallows and the steps he has taken to address the concerns of the plaintiffs. Evidence from Mrs Howell would not have expanded on the evidence he gave.
121 The evidence given by Mr Backman, Ms Waddell and Ms Scott confirmed that they were able to hear the ABD when attending the plaintiffs’ property and that it was of an ‘annoying’ nature to them particularly when they first became aware of it. Their views appear to have been ‘influenced’ by the attitude of the plaintiffs. In particular, Ms Scott indicated that the noise affected her because of its effect on Ms Jackson and that she did not notice the noise “that much” because she was occupied attending to the horses.
122 I find that the nature, character and duration of the noise emitted by the ABD is not comparable to the factual scenarios of the cases to which I have referred being; the early morning ringing of church bells (Haddon), the continual use of a wood saw throughout the day (Spencer), the operation of steam boilers and noise from oil tanker engines throughout the night (Halsey) or the continuous use of a noise gun or gas guns (Macgillivray and Edwards).
123 These cases refer to the fact that the court must consider a number of factors when applying the subjective test and the objective standard required which include; the truthfulness of the evidence as to the effects of the noise on the complainants; whether those effects are due to their own particular sensitivities, susceptibilities or delicacies; whether the noise is unusual or excessive especially when compared to other noises in the area; whether the noise is typical for the area; the character of the area; whether the inconvenience is sufficiently serious; the time and duration of the noise; and, the number of people affected by the noise.
124 When considering these criteria and after applying the balancing exercise referred to, common sense dictates that the noise emitted by the defendants ABD does not constitute a nuisance.
125 Accordingly, the answers to the questions posed in paragraph 9 are:
· a. Yes
· b. No
· c. Not Applicable
· d. No
· e. No
· f. Not Applicable
· g. Not Applicable
· h. Not Applicable.
125 The proceeding is dismissed. The parties have liberty to apply for any consequential orders necessary to finalise the proceeding.
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