A recent decision of the Land and Environment Court in Doon v Snowy Valleys Council [2025] NSWLEC 1514, confirms that the ‘reasonable suspicion’ required to issue a Prevention Notice under the Protection of the Environment Operations Act 1993 (POEO Act) is not arbitrary and must be based on objective evidence.
Background
These proceedings related to an appeal against a Noise Prevention Notice issued by Snowy Valleys Council (Council) to Mr Doon (Appellant) under s 96 of the POEO Act.
Council received 15 written complaints from three neighbours about noise emanating from the Appellant’s property. The complaints related to noise from:- vehicles; undertaking of vehicle repairs; use of power tools, use of ride-on lawnmower, use of dirt bikes and amplified noise. The Appellant’s property is approximately 1.5ha, located within a low density residential zone and adjoins the Tumut golf course on one side.
The complaints were made by residents of 3 of the 9 nearest residential properties. One of the complainants was a close working colleague of the Council officer who investigated the complaints and issued the Notice, and the colleague’s mother was another complainant.
Council Officers attended site on three occasions in response to complaints. During those inspections, the officers observed vehicle noise but did not observe any amplified noise, or vehicle service and repair noise, of the type that was subject of complaints and included in the Notice.
Council relied on its site inspections and on the written submissions, videos and a noise diary provided by the complainants to establish a ‘reasonable suspicion’ that activities were being undertaken at the Appellant’s property in an “environmentally unsatisfactory manner”, warranting the issue of a Prevention Notice (Notice) under s96(1) of the POEO Act.
Section 96 the POEO Act provides that a Notice may be issued where the “regulatory authority reasonably suspects an activity has been or is being carried on in an environmentally unsatisfactory manner”.
Section 95 POEO Act defines “environmentally unsatisfactory manner” to include an activity that is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution. The definition of “pollution” includes noise pollution, being the emission of “offensive noise”.
Council issued the Notice on the basis the noise subject of the complaints was ‘offensive noise’. However, Council did not undertake any quantifiable measurements of the noise or background noise levels and instead relied solely on the evidence of the complainants. Council did not attend any of the complainants’ premises to observe noise from a habitable room (as required by the Protection of the Environment Operations (Noise Control) Regulation 2017 (POEO Regulation)) and did not assess the noise against the NSW Environment Protection Authority ‘Noise Guide for Local Government’ (Noise Guide).
The Appellant engaged an acoustic expert, whose opinion was that the noise generated from the subject site did not constitute ‘offensive noise’ when assessed against the POEO Regulation. In particular, the majority of complaints were made during the daytime hours (when there is no restriction under the POEO Act or POEO Regulation), the noise source fell within an exception, or the complaints did not provide sufficient information for an objective assessment to be undertaken.
Findings
The Court found that Council did not have the objective evidence necessary to form the required ‘reasonable suspicion’ that an activity has been, or was being, carried out in an environmentally unsatisfactory manner. Accordingly, the Notice did not satisfy s 96(1) of the POEO Act and was revoked.
The Court observed that Council made no meaningful effort to verify whether the complaints were reasonable. In particular, it failed to assess the noise against the POEO Regulation and the Noise Guide. The Court noted that a consent authority should not simply accept the submissions of residents at face value; “excessive noise” will not necessarily amount to “offensive noise” for the purposes of the POEO Act.
The Court held that “reasonable suspicion” for the purposes of s 96(1) of the POEO Act is not arbitrary: there must be a factual basis of the suspicion. Supported by evidence capable of determining the objective test of “offensive noise”.
The Court also affirmed earlier decisions that greater weight should generally be given to expert evidence when determining whether the objective test of “offensive noise” is satisfied.
Key Takeaways
- Council cannot rely on complaints alone to justify issuing a Notice under s 96 of the POEO Act. Objective noise measurements should be taken and assessed against the POEO Regulation and Noise Guide to determine whether the noise constitutes ”offensive noise”.
- Excessive noise that disturbs neighbours will not necessarily constitute “offensive noise” for the purposes of the POEO Act.
