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Applying for a noise order

If you have a problem with a noisy neighbour you can try to stop the noise by making an application for a noise abatement order at the Local Court.

A noise abatement order is a court order given to a person making the noise or the occupier of any property that the noise is coming from. The order requires the person to stop making the type of noise described in the order.

An order made by the court operates from when it is made, unless a later day is set in the order, and lasts until it is revoked (cancelled) by the court.

What is offensive noise?

The court will issue a noise abatement order if you can prove on the balance of probabilities (that it is more likely than not) that the noise is 'offensive' and is likely to occur again. 

Offensive noise is noise that:

  • is harmful or likely to be harmful to a person outside the premises where the noise is coming from, or
  • interferes unreasonably or is likely to interfere unreasonably with the comfort or repose (relaxation) of a person outside the premises where the noise is coming from.

The court may consider things like:

  • the volume of the noise
  • how loud the noise is compared to other noise in the area
  • if the noise has any irritating characteristics, for example, if it is high pitched
  • the time the noise occurs
  • the frequency of the noise
  • how long the noise lasts
  • the effect the noise has on you and other people in your area.

The evidence you present at the hearing should be about these factors.

You can apply for a noise abatement order at your nearest Local Court. You will need to fill in a form and file it at the court.

For more information, see Step by step guide - Applying for a noise abatement order.

After you file your application notice, the court will give you a court date. This is the mention date. It is usually a few weeks after you file your application.

The mention will be the first time you and your neighbour have to go to court. The Court will make orders to prepare your case for a hearing. It may also be a chance to discuss settlement of your case.   

After you have filed your application, you will be referred to as the applicant and your neighbour will be the respondent.

After you file your application notice, the Court will give you a court date. This is the mention date. It is usually a few weeks after you file your application. The mention will be the first time you and your neighbour have to go to court.   

The mention is where the Court makes orders to prepare your case for a hearing. It may also be a chance to discuss settlement of your case.

You should take the following to the mention:

  • a copy of your application notice
  • a list of the evidence you plan to bring to the hearing, for example the number of witnesses or witness statements
  • any evidence of your attempts to resolve the matter informally, for example mediation or complaints in writing a notepad and pen

You should arrive at court at least 15 minutes early to give yourself enough time to go through security and find your courtroom.

If you are running late, it is important that you ring the court registry and let them know.

When you arrive at court you will need to find your courtroom by:

  • looking for your name on a list on a noticeboard
  • asking the court staff.

Some courts will have a registration desk where you can give them your name and let the court know you are there. In other courts, the court officer will approach you in the court room.

Take a seat in the courtroom and wait for your case. There are often many cases listed on the same day. The court officer or the magistrate may call out the name of your matter.

You are called the 'applicant' and your neighbour will be 'the respondent'.

The magistrate or registrar will close the courtroom for morning tea (usually around 11:30am) and lunch (usually around 1:00-2:00pm). You will have to leave the courtroom during these breaks. You can check what time the courtroom will reopen by asking the court officer or the registry.

It is possible that you could be at court for a few hours so you should make arrangements with your work or childcare if necessary.

Remember to turn off your mobile phone before going into the courtroom. You should also remove hats and sunglasses and be quiet in the courtroom when the magistrate or registrar is dealing with other cases.

Mentions in the Local Court are dealt with by a magistrate or a registrar. You should:

  • refer to the magistrate as 'Your Honour', and a registrar as 'Registrar', followed by their surname
  • always be polite to the magistrate, registrar, court staff and your neighbour
  • refer to your neighbour or their lawyer as Mr/Ms and their surname.

Once your name is called, you and the other party should go and stand next to the bar table. This is the table at the front of the courtroom where the lawyers sit.

The magistrate or registrar will want to know the other party's response to your application. If the other party is not there the magistrate or registrar may adjourn (postpone) the mention to another date or they may set a hearing date.

If you and the other party are able to settle the case, the magistrate or registrar may make orders to end the case in the same terms as your agreement. For example:

  • if the other party agrees with your application, the magistrate or registrar may make a noise abatement order, or
  • if you agree that the other party has now stopped the noise, you might agree to withdraw the application.

The magistrate or registrar may ask if you have tried mediation and may adjourn your case while you try mediation.

If the other party disagrees with your application, the magistrate or registrar may make orders to prepare the case for a hearing. The court may make orders that:

  • you file (give to the court) and serve (give to the other side) your witness statement, the statements of other witnesses and any other evidence you have by a certain date
  • the other party file and serve their witness statements, the statements of any other witnesses and any other evidence by a certain date
  • both parties return to court for a further mention date.

 

If you are unable to go to a mention date, you should ask for an adjournment as soon as possible. You can do this by writing to the court giving your reasons for why you need an adjournment. You should check with the court to see if your case is adjourned.

If you do not go to the mention and it is your application, the court may:

  • dismiss your application
  • make an order that you pay any legal costs of the respondent.

If your case has been dismissed you should get legal advice.

Instructions: Instructions for filling out a subpoena for production

Sample: Sample subpoena for production

Instructions: Instructions for filling out a subpoena to give evidence

Sample: Sample subpoena to give evidence

There are three types of subpoenas (pronounced supeenas):

  1. Subpoena for Production: A court order that requires a person to produce documents
  2. Subpoena to Give Evidence: A court order that requires a person to attend a hearing to give evidence
  3. Subpoena for Production and to Give Evidence: A court order that requires a person to produce documents and attend a hearing to give evidence.

Before you apply for a subpoena in an application for a noise abatement order, you should seek leave (permission) from the Local Court.

If you need documents or other evidence for your case, or you want to make sure that a witness is going to come to court, you can issue a subpoena. 

After you apply for a noise abatement order, you will need to prepare your case.

You may need to:

  • ask for an adjournment
  • gather your evidence
  • review your neighbour’s evidence
  • apply for subpoenas
  • follow any directions made by the Court
  • plan what to say at the hearing.

For more information, see Step by step guide – Preparing noise order application.

Once you have prepared your case the next step is to attend the hearing and present your case.

Your case will run more smoothly if you know some of the rules about what to say and do in the courtroom and you understand the steps of the hearing. Sometimes you or the other party may need to postpone the hearing to another date. This is called an 'adjournment'.

The Court will make a noise abatement order if it is satisfied on the balance of probabilities that:

  • the offensive noise exists, or
  • the noise is likely to reoccur.

For more information about what happens at the hearing, see Step by step guide - Hearing noise order application.

If the Court makes a noise abatement order, it comes into force immediately or on the date specified in the order.

Your neighbour must follow the order while it is in force. If they don’t, they may be committing a criminal offence. You may need to contact the Environmental Protection Agency or your Local Council to enforce the order.

The Court may also order your neighbour to pay your legal costs.

If your application is dismissed an order will not be made, and you may be ordered to pay some of your neighbour's legal costs.

If you are not happy with the Court's decision, you may be able to appeal to the NSW Land and Environment Court within 21 days of the decision.

 Before you appeal, you should get legal advice. If your appeal is unsuccessful, it is likely that you will be ordered to pay your neighbours legal costs.

You or your neighbour may be able to apply to the Local Court to vary (change) or revoke (end) the order.

For more information, see Varying, revoking or appealing a noise abatement order.

After the Court has made a decision in your case, they may also make an order about costs.

If you win

If you are successful in your application for a noise abatement order, you may ask the magistrate to make an order that the other party pay your costs in preparing for the hearing.

Your costs may include the costs of having a lawyer (if you had one), and any costs of gathering evidence, for example, the cost of getting a noise expert. 

If you lose

If you are unsuccessful in obtaining a noise abatement order, the magistrate may make an order that you pay the other party's costs in preparing for the hearing.

The other party's costs may include their legal fees if they had a lawyer representing them, as well as any costs for collecting evidence, for example the cost of getting a noise expert.

A noise abatement order takes effect immediately after it has been made, or on a date specified by the Court. Unless the order specifies an end date, it continues to apply until it is revoked (cancelled) by the court.

If a noise abatement order is made and served (given) on your neighbour, they must stop making the type of noise specified in the order. If your neighbour continues to make the noise they may be breaching (breaking) the order. It is an offence to breach a noise abatement order.

The Environmental Protection Agency, the local council or the police have the power to prosecute a breach of a noise abatement order. You may contact one of these agencies and show them a copy of the order. They may charge your neighbour with a criminal offence for breaching a noise abatement order.

If your neighbour is charged they will have to go to court to defend the charge. At the court hearing the magistrate must decide whether they continued to make noise in breach of the order.

If the magistrate is satisfied beyond a reasonable doubt that they did breach the order, your neighbour may have to pay a fine.  

If you were the applicant for the noise abatement order, you may prosecute the breach of the order yourself. Before taking this step you should get legal advice. If you are unsuccessful, you risk an order that you pay the other side's legal costs.