In all of the case studies, the following becomes immediately clear.
1) No complainant in any of the above case studies has attempted to simply knock on the neighbours door in an attempt for an amicable arrangement ... as suggested in the first paragraph on the Environment Protection Agency’s (EPA) website article “Residential Noise” and the Department of Justice’s “Tips for better Communication”.
2) A “form letter” is sent detailing Section 48a of the Environment Protection Act with a warning of hefty fines as a first resort rather than last; the fines themselves varying from Council to Council and an appearance that they are simply “made up” despite the letter’s officious tone.
3)The form letter itself is not clear as to the exact wording of the clause nor makes clear the rights of the individual as applied to that clause.
4) Little or no attempt is made to verify the accuracy of the reported nuisance or to the complaint being “vexatious or pernicious”.
5) There is no guarantee that letters, fines and spurious complaints will stop despite the music student or teacher being the “Agent of Change” (i.e. being the person who implements sound control measures at his/her own cost).
6) Little regard is paid to who actually receives these letters detailing alleged breaches of noise emissions and the threat of hefty fines; in the majority of cases, young students of musical instruments usually playing within prescribed time limits.
7) There are currently no legal rights recognised in regard to “first occupancy rights” in cases where there has not been any “noise” issues in a suburban street until a new neighbour moves in nearby and immediately starts complaining.
8) Upon examination, Case Studies shown supports the belief that current procedures creates divisive situations with families and neighbours; with the current process also being possibly interpreted as a “Course of Conduct” as described by the Department of Justice.
Course of Conduct
When deciding “a course of conduct”, a magistrate looks at the evidence to determine if the following type of behaviour has occurred on numerous occasions:
Loitering near your house or workplace
Keeping you under surveillance
When deciding if this forms a course of conduct, a magistrate may take into account:
The seriousness of each incident
The frequency of the incidents
The overall intended effect of the behaviour
(Information supplied by Department of Justice/Dispute Settlement Centre of Victoria)
... as applied to Noise Complaint procedures
If a noise complaint is made and letters threatening fines and “records being kept” are sent without first verifying the complaint and attempting to mediate an amicable solution; the following type of behaviour could be seen as “a Course of Conduct”
sending messages, surveillance, frequency
and overall intended effect of the behaviour
These being areas a Magistrate would take into account if a claim is made by the victim of a vexatious or pernicious complaint if the Council proceeds with action without due rights of defence being given to the victim of these complaints.
In all of the case studies, the musical instruments were being played well within the prescribed times of 7am to 10pm. The main source of complaint being that the instrument could be heard in a “habitable room”.
The fact that on any given afternoon in a habitable room, you can hear lawn mowers mowing, cars passing by, children playing in their backyard, nearby residential development construction, a son or daughters stereo in their bedroom, leads to a conclusion that there is a percieved prejudice toward the playing of musical instruments, especially those that have sound that projects at times, such as the trumpet, the saxophone and the drumset.
Council zoning and residential plans also add ever closer proximity between neighbouring properties all adding to less privacy and more general noise; this is not a criticism within itself, however, there is a definite case of “buyer beware” if somebody moves into a property situated on a busy street or next to a popular local hotel and expects the same peace and quiet to be found on a country acreage.
Issues for Discussion
First Occupancy Rights
In the case of Mr. Quinlan in 1996, his studio rear window gave a clear view to a nearby Creek, parkland and the Melbourne city skyline. The court now situated behind him did not exist; In 2005, he is surrounded by two-story houses.
The years from 1997-2000 were taken up with constant construction of these dwellings; Mr. Quinlan, working “afternoon shift” teaching hours made no complaints of their construction noise constantly interrupting his work, sleep and leisure times during this four year period.
The closest neighbours to the side and directly behind Mr. Quinlan have never found a problem with any noise emanating from his property, indeed it is acknowledged by one neighbour that “my children playing in the swimming pool are louder than Chris”.
Problems only arose upon the construction of the two-story buildings that now completely overshadow the rear of Mr. Quinlan’s property.
If Chris Quinlan did not have detailed records of student times and his own music practice and television show production, he would not have been able to mount any defence against the complainant’s allegations; he would have faced Council fines and the possible closure of his home based business.
When there is more than one sound source (example: two drummers living in close proximity) ... Complaints may well be made toward an innocent party.
During Chris Quinlan’s 2001 incident, he made the Council officer involved aware that he was not at home during the alleged noise nuisance; also bringing it to his attention that there was another drum teacher in close proximity; Mr. Quinlan made it clear he would be defending the allegations strongly; it is not known if this new information was investigated.
In the case of Dominic and Charlie, two other drummers and one other guitarist lived in the same street, in the same block .... why were the two young lads singled out?
One has to wonder in how many cases has a fine been imposed on an innocent party because that party didn’t keep records of practice times?
In how many cases has a music student given up his or her instrument because of the stress of noise complaints and pressure from neighbours?
How much time, stress and money would be saved by all parties if the complainant simply knocked on the neighbour’s door in an attempt for an amicable arrangement?
Sound travels in various ways and is subject to many conditions including weather/wind conditions. House Insulation (walls, curtains, etc) Outer Insulation (walls, trees, foliage, hedges) all help to attenuate noise; however, they can also cause confusion as to the source of the noise.
The first drumset frequencies to disappear through insulation and distance are the higher sounds of the cymbals and higher pitched drums. What is left is the lower frequency sounds, usually the bass drum.
A distant “oomph-oomph” may not be the drummer two doors down, it could be the other drummer four houses up across the street; or the loud stereo in the house situated in the next court.
It is a well known fact that during the Melbourne Formula One Grand Prix, sound seems to come from different directions to where the race is held due to the bouncing of sound from city buildings.
If a complainant is told that written records should be kept, then the complainant hears a distant musical sound on a mid-Wednesday afternoon amongst the sound of lawnmowers and peak hour local traffic (as was one entry recorded in Mr. Quinlan’s case study) how can an accurate record be possible?
The current approach of making complaints without first attempting an amicable solution and the sending of letters without proper investigation sends a clear perception to the community of a lack of awareness and respect of people’s rights and in the case of young children and teenagers studying music ...
.... a clear lack of moral responsibility.
A typical drum student's story
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