Act protects citizens against noise pollution
10 DEC 2014 MICHALI ZACHARIOU AND CHANTELLE GLADWIN
Noise is a natural consequence of whatever we do. It forms part of our everyday lives and, we often just tolerate it. However, noise has the capacity to cause conflict between those who are generating it and those who are victims of it.
In industrial areas, the permissible limit is 75 dB for daytime and 70 dB at night. In commercial areas, it is 65 dB and 55 dB, while in residential areas it is 55 dB and 45 dB during daytime and night respectively.
Noise pollution can be described as unwanted or offensive sounds that unreasonably intrude into people’s daily activities. Under most circumstances, intolerable noise will not cause people to complain, but there are circumstances where the volume, extent, or recurrence will cause irritation and frustration.
Fortunately, South African law, through the Environment Conservation Act 73 of 1989 and municipal by-laws, protect recipients of intolerable noise pollution.
Most South Africans live in a world filled with noise pollution. Urban development, traffic, aeroplanes, taxis and construction work are amongst the many sources of the noise that fills our cities. When people go home after a long day at the office they just want to relax in peace and quiet. For the most part people put up with noise, but when the noise becomes unnecessary and intrusive and begins to infringing upon ones right to the use and enjoyment of their property, victims do have recourse.
Entitled to comfort
In the case of Prinsloo v Shaw 1938 AD 570 575 the court stated that “…a resident in a town, and more particularly a resident in a residential neighbourhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbour he is subjected to annoyance or inconvenience greater than that to which a normal person must be expected to submit in contact with his fellow-men, then he has a legal remedy.”
The urban myth says you can make noise until 10pm on a week night and 12pm on a weekend but, in actual fact most municipalities have by-laws in place that focus on the number of decibels rendered rather than the actual time frame in which noise is made.
According to the case of Laskey and Another v Showzone CC and Others (5988/06) [2006] ZAWCHC 50; [2007] 4 All SA 1162 (C) (30 October 2006) there are two different kinds of noise, namely, disturbing noise and noise nuisance. A disturbing noise is objective and is defined as a scientifically measurable noise level and generally compared to the existing ambient noise level. A noise nuisance is a subjective measure and is defined as any noise that disturbs or impairs or may disturb or impair the convenience or peace of any person.
Municipal by-laws govern disturbing noise. An example of this kind of noise would be loud party music. This kind of party noise is generally tolerated until 10pm on a Friday and/or Saturday evening before you can take steps against the perpetrator/s. SAPS will generally deal with these noise issues if there are complaints from neighbours and there are steps to follow if it becomes a nasty habit of a neighbour.
Noise nuisance
Noise nuisance is a totally different animal. This kind of noise makes you reach for the Panados and can include playing loud music or a musical instrument or operating a television set loudly, operating machinery or power tools that cause a noise nuisance, shouting and talking loudly, allowing an animal to become a noise nuisance, operating a vehicle that causes a noise nuisance an driving a vehicle on a public road in a manner that causes a noise nuisance. This noise is illegal at all times and is enforceable at any time of the day.
In terms of section 25 of the Act, the Minister of Environmental Affairs and Tourism is empowered to make regulations regarding noise, and the powers of provincial and local authorities to control noise prevention, reduction or elimination. As such, we look to the National Noise Control Regulations. These regulations give local authorities extensive powers to regulate noise.
The Regulations define noise disturbance as follows: “Any sound which disturbs or impairs or may disturb or impair the convenience or peace of any person” and “disturbing noise” as “a noise level that exceeds the ambient sound level measured continuously at the same measuring point by 7 decibels or more.”
Sections 4 and 5
Section 4 and section 5 of the Regulations further state that:
Section 4: “No person shall make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof.”
Section 5: “No person shall:
- operate or play, or allow to be operated or played, a radio, television set, drums, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound, or allow it be operated or played so as to cause a noise nuisance;
- offer any article for sale by shouting, ringing a bell or making other sounds or by allowing shouting, the ringing of a bell or the making of other sounds in a manner which may cause a noise nuisance;
- as the owner or person in control of an animal, allow it to cause noise nuisance;
- build, make, construct, repair, rebuild modify, operate or test a vehicle, vessel, aircraft or object on or near residential premises, or allow it to be built, made, constructed, repaired, rebuilt, modified or tested there, if this may cause a noise nuisance;
- erect a building or structure on residential premises to allow it to be erected there if this may cause a noise nuisance;
- use or discharge any explosive, firearm, or similar device that emits an impulsive sound and may cause a noise nuisance, or allow it to be used or discharged, except with the prior consent in writing of the local authority concerned and subject to the conditions as the local authority may deem necessary;
- except in an emergency emit a sound, or allow a sound to be emitted, by means of a bell, carillon, siren, hooter, static alarm, whistle, loud-speaker or similar device, if it may cause a noise nuisance;
- operate any machinery, saw, sander, drill, grinder, lawnmower, power garden tool or similar device or allow it to be operated, if it may cause a noise nuisance;
- load, unload, open, shut or in any other way handle a crate, box, container, building material, rubbish container or any other article, or allow it to be loaded, unloaded, opened, shut or handled, if this may cause a noise nuisance;
- drive a vehicle on a public road in such a manner that it may cause a noise nuisance; or
- use any power tool or power equipment used for construction work, drilling work or demolition work, or allow it to be used in or near a residential area if it may cause a noise nuisance.”
In order to show that a noise nuisance exists, a reasonable person must find a certain noise intolerable or seriously effecting his enjoyment of his property. A person who is too sensitive or easily irritable must accordingly think twice when considering taking action against his neighbour, as the action may not be successful if the reasonable person would not have been affected by the noise. Notwithstanding our law does offer remedies to victims of excessive noise.
Legal remedies
The first option available is to lay a complaint with your local authority by way of a written statement. Many local authorities have Noise Control Units who have the power to take steps it may deem necessary to control situations regarding noise and associated complaints. Law enforcement officials will investigate the problem to see how serious the situation is. If necessary, they can instruct the reduction of the noise and if the offenders don’t comply, can issue a fine, and in extreme cases even confiscate the equipment.
If the above remedy fails and the offender persists with the noise, it is then possible to approach a court for relief. An affected party has two options in this regard. He/She can apply for an interdict to prevent your neighbour from causing the specific noise, or sue your neighbour for damages suffered as a result of excessive noise caused by him/her.
An interdict can be granted if the neighbour’s conduct is unlawful or threatens to be unlawful. The factors that the courts generally take into account to determine if the actions are unlawful are: the type of noise, the degree of persistence, where the noise occurs, the times when the noise is heard and the efforts made to resolve the matter.
Unlawfulness of action
There is no fixed standard to determine the unlawfulness of the action and every matter will be adjudicated on its own set of facts. If an interdict is granted and the neighbour still persists with the unlawful actions, the neighbour may be found guilty of contempt of court, in which case the court may impose a fine or imprisonment in serious cases.
An action for damages must be carefully approached as the success of the action will lie in what damages can be proven to have been caused by the noise. In an action where the neighbour is sued for damages, the following will generally have to be proven: the noise has negatively affected your quality of life, your health, your comfort, and/or your general well-being.
No matter what the type of nuisance, for it to be subject to interference and relief by courts or a local authority, it must be substantial and continuous, and one must bear in mind that your claim for your neighbour to lower his noise levels, is subject to the principle that your neighbour enjoys the same rights as you do in respect of the use and enjoyment of his own property.
International standards
The World Bank has stipulated a guideline which indicates that the maximum allowable ambient noise levels in a residential area are 55 decibels during the day and 45 at night. How loud is 45 decibels? The City of Tshwane’s Noise Management Policy document gives comparisons such as 25 – 30 decibels being akin to the quiet rustling of leaves while 35 – 46 decibels equates an average suburban home during night time. 50 decibels is equal to an average suburban home during the day time while 70 decibels would be a blaring radio and 85-100 decibels would be the inside of a disco on a Saturday night.
According to section 9 of the Regulations any person who contravenes or fails to comply section 4 and 5 and liable on conviction to a fine not exceeding R20,000 or imprisonment for a period not exceeding two years. Should these steps fail to stop the noise, it is possible to sue the person in question in a small claims court.
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