Responding to a noise order

A noise abatement order is a court order made by the Local Court. The order requires a person to stop making the type of noise described in the order.

Your neighbour can apply for a noise abatement order by making an application at the Local Court. If your neighbour makes an application, a copy of that application must be served (given) to you. The application will say what date and at what court the case will be heard.

If you want to oppose the order you will need to go to court on the specified date. If you don't go to court, the order may be made without you being there. The case will be listed for a mention and then a hearing. At the hearing you may present evidence supporting the reasons why you think an order should not be issued.

The magistrate may make a noise abatement order if they are satisfied that there is offensive noise. If the order is made it applies immediately and lasts until it is it revoked (cancelled) by the court. 

You should try mediating with your neighbour going to court. For more information, see Talking to your neighbour.

The court will issue a noise abatement order if your neighbour 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 will consider a number of factors before determining whether the noise is offensive including:

• 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 that the noise is not offensive should cover these issues.

You should take the following to the mention:

• a copy of the application notice
  
• a list of the evidence you plan to bring, for example the number of witnesses or witness statements
  
• any evidence of your attempts to resolve the matter informally, for example mediation and any correspondence with your neighbour where you have offered to negotiate about the noise
  
• 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, or
  
• 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.

Mentions in the Local Court can be dealt with by a magistrate or a registrar:

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

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

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 entering 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.

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 how you want to respond to the application.

If you are not ready to respond to the application, for example you are still arranging legal advice or legal representation, you may ask for an 'adjournment.' An adjournment will postpone the mention to another 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 you agree with the application, the magistrate or registrar may make a noise abatement order, or
  
• if your neighbour agrees that you have stopped the noise, they 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 you disagree with the application, the magistrate or registrar may make orders to prepare the case for a hearing. The court may make orders that:

• the other party file (give to the court) and serve (give to you) their witness statement, the statements of other witnesses and any other evidence they have by a certain date
  
• you file and serve your 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 beforehand. 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, the court may:

• adjourn the case to another day, or
  
• make the orders the applicant is asking for without the other party.
  

If orders are made when you are not there, you should get legal advice.

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

If you win

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

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 a noise abatement order is made, the magistrate may make an order that you pay the other party's costs.

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.

What if you continue to make the noise?

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

If you have been served with a noise abatement order and you continue to make the type of noise specified in the order, you may be breaching (breaking) the order.

Breaching a noise abatement order is a criminal offence. 

The Environment Protection Agency, the local council or the police have the power to prosecute a breach of a noise abatement order. If they are notified that you have breached the order, they may charge you.

It is also possible for the person who applied for the order to prosecute you for a breach.

Will you have to go to court?

If you are charged with breaching a noise abatement order, you will have to attend a hearing at the Local Court. The police will give you a Court Attendance Notice (CAN) telling you when you have to go to court and which court you have to go to. 

To be convicted of breaching a noise abatement order, it must be proven 'beyond a reasonable doubt' that you continued to make noise in breach of the order.

If you have been charged with breaching a noise abatement order, you should get legal advice.

Penalties

If you are convicted of breaching a noise abatement order, you may have to pay a fine. 

The court may also make an order that you pay the other party's legal and other court costs.