Supreme Court of WA|2000-12-15|Before: Smith J

Cohen v City of Perth [2000] WASC 306 (15 December 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COHEN -v- CITY OF PERTH [2000] WASC 306

Nuisance - Noise - Whether breach of statutory maximum noise levels creates a private right of action

Nuisance - Private nuisance - Noise emitted by garbage trucks - Material interference with convenience and comfort

Nuisance - Public nuisance - Unreasonable interference with right common to all - Whether injunction should go

Injunction - Discretion - Whether grant should be suspended pending determination of exemption from statutory requirements

American Cyanamid Co V Ethicon Ltd [1975] UKHL 1; [1975] AC 396

Andreae v Selfridge & Co Ltd [1937] 3 All ER 255

Council of the Shire of Hornsby v Dangdale (1929) 29 SR (NSW) 118

Kennaway v Thompson [1980] EWCA Civ 1; [1981] QB 88

Roberts v Gwyrfai District Council [1899] 2 Ch 608

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287

Sovar v Henry Lane Pty Limited [1967] HCA 31; (1967) 116 CLR 397

Swan Brewery Co Ltd v Shire of Belmont [1974] WAR 196

Vanderpant v Mayfair Hotel Co [1930] 1 Ch 138

Walter v Selfe (1851) 4 De G & Sm 332

Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672

1 ROBERTS-SMITH J: There is in Australia a growing push for the revival of inner city living. That is particularly evident in the City of Perth. One of the advantages often urged is the vibrant activity generated during day and night time hours from the close juxtaposition of high density residential accommodation, restaurants, social venues and office and commercial activities. However, all of these require the support of and servicing by public utilities and local authorities and there can be tensions between residential amenity or commercial needs and the practical provision of services by public utilities or local authorities.

3 The plaintiff, Mr Cohen, lives in an apartment on the second floor of mixed residential and commercial premises at 313 Murray Street, Perth. The defendant, the City of Perth ("the Council") is responsible for waste collection from those and other premises in the locality: s 112(1) of the Local Government Act 1995 (WA).

4 The building at 313 Murray Street, Perth extends back to a laneway described variously as Murray Mews or Metro Lane. For consistency, I shall refer to it in these reasons as Metro Lane. The building itself is called Murray Gardens. Murray Street itself runs roughly East/West. Wellington Street is the next parallel major roadway to the North, Hay Street is the next parallel major roadway to the South and William Street is the next major roadway to the East - although there is no direct access to that from Metro Lane.

5 Metro Lane itself runs into King Street to the West. Approximately 200 metres East from King Street, Metro lane turns 90 degrees to the North and runs into Murray Street. Approximately 100 metres from King Street there is further access to Metro Lane by a smaller laneway running into it from Murray Street, through a building. Traffic in that smaller laneway is one way, North to South. Traffic in Metro Lane is one way, but in different directions from the laneway. From the point at which the laneway and Metro Lane meet the traffic direction is West to East towards William Street and East to West towards King Street.

6 There are five designated garbage truck stopping points along Metro Lane. One of those (which is also the one closest to Mr Cohen's unit) is directly opposite the point at which the laneway runs into Metro Lane. This is probably about 5 to 10 metres from the rear wall of Mr Cohen's unit, which overlooks it. There is another stopping point some 25 metres to the West and one approximately 70 metres to the East, at the point where Metro Lane turns towards Murray Street.

7 The laneway and either end of Metro Lane are only wide enough for one vehicle, although for most of Metro Lane's East/West distance it is wide enough for two vehicles.

8 I am satisfied on the evidence, and find, that the whole of Metro Lane is subject to "no parking" and "no standing" signs. There is some parking but that is tenant parking abutting but not intruding into Metro Lane itself.

9 Mr Cohen moved to Unit 10, 313 Murray Street, Perth in July 1997. In his evidence he explained that he spent the Saturday and Sunday physically moving in and by Sunday was very tired and went to bed. At approximately 11.30 that Sunday night he was awoken by what he described as a horrendous crashing, crunching loud noise. This came from two garbage trucks operating, as he described it, right outside his window.

10 At the first opportunity he complained to the Council.

11 From that time onwards there was continuing and increasingly acerbic communication between Mr Cohen and Council officers virtually until the date of hearing. The Council made certain changes to the collection of waste and recyclable materials in the vicinity of Mr Cohen's unit but to date none of these has been satisfactory to him.

12 In July 1997 the Council's sanitation workers were scheduled to collect waste and recyclable materials from Metro Lane before 11pm every Sunday to Thursday. From 27 November 1997 as a result of Mr Cohen's complaints the Council changed the schedule to collections between 9.30 to 10.00pm Sunday to Thursday and after 6.30am on Saturday with no collection being made on Fridays. In December 1997 modifications were made to sanitation trucks in an attempt to reduce the level of noise emanating from them.

13 In March 1998 Mr Cohen consulted his general practitioner, Dr Papaelias and was prescribed anti-depressant medication.

14 On 4 April 1998 the Council applied to the Minister for the Environment for an exemption from the provisions of reg 17 of the Environmental Protection (Noise) Regulations 1997. This was done because acoustic tests conducted by or on behalf of the Council had demonstrated that notwithstanding the modifications to the trucks the noise levels being generated were still in excess of those permitted under the regulations.

15 On 26 February 1999 Mr Cohen filed a writ of summons and statement of claim against the Council claiming an injunction and damages. He also sought an interlocutory injunction pending the hearing of the action.

16 On 4 May 1999 Templeman J dismissed Mr Cohen's application for an interlocutory injunction. His Honour had no doubt that there was a serious question to be tried and indeed made the observation that -

"It seems to me quite likely that if the matter went to trial on facts which were no different from those referred to in the affidavits that there would be a strong prospect of the plaintiff obtaining a permanent injunction." (at 10)

17 However, his Honour was not satisfied that on a consideration of the balance of convenience he ought to exercise his discretion such as to grant the interlocutory injunction. His Honour suggested that the defendant investigate further the means of overcoming the problem and complying with the law. He noted that there was then an application for exemption before the Minister but declined to adjourn the application pending the outcome of that application, deciding instead to dismiss the application on the basis that if the noise problem was not rectified nor resolved by the time the action came to trial there would, in his Honour's view, be:

" ... a very strong possibility of final relief being granted along the lines sought by the plaintiff today or in some different terms but having the same effect."

18 No doubt in response to his Honour's exhortations the Council, on 30 August 1999, changed its schedule for collection of waste to be between 7 to 7.30pm Mondays to Fridays, after 7am on Saturdays with no collection on Sundays. The schedule for collection of recyclable materials was changed to after 7am Tuesdays and Thursdays.

19 On 30 August 1999 the Council changed the primary sanitation truck used for the collection of waste materials in Metro Lane to a newer and quieter model albeit one which still generated noise in excess of the prescribed levels.

20 Mr Cohen's statement of claim is quite short and may be conveniently set out in full -

"1. Since July 1997 the plaintiff has resided at Apartment 10, Murray Gardens, 313 Murray Street, Perth, Western Australia ("the premises").

2. The defendant is a local government as defined by the Local Government Act 1995 with the corporate name "City of Perth", capable of suing and being sued pursuant to section 2.5 thereof.

3. The defendant is responsible for waste collection, which expression includes the collection of recyclable material, from the premises and surrounding areas ("the waste collection") and retains contractors for this purpose.

5. Since at least July 1997 the defendants have directed, permitted and suffered its contractors and employees to collect waste products:

5.1 in such a manner so as to create a volume of noise ("the noise"), that is and has consistently been higher than 47 dB as measured from within the premises:

(i) after 10pm and before 7am Mondays to Saturdays;

(ii) after 10pm and before 9am, Sundays and public holidays;

5.2 in such a manner so as to create a volume of noise ("the noise"), that is and has consistently been higher than 52 dB as measured from within the premises:

(i) after 7pm and before 10pm, Mondays to Sundays;

(ii) after 9am and before 7pm, Sundays and public holidays.

5.3 in such a manner so as to create a volume of noise ("the noise"), that is and has consistently been higher than 57 dB as measured from within the premises after 7am and before 7pm Mondays to Saturdays.

6. The average duration of the noise is between 11 and 15 minutes.

7. The "assigned level" of noise for the premises for the times pleaded in paragraphs 5.1, 5.2 and 5.3 herein are 47dB, 52dB and 57dB, respectively, pursuant to regulation 8 of the Environmental Protections (Noise) Regulations 1997.

8. The noise is in excess of the "assigned level" and interferes directly with the health, comfort and amenity of the plaintiff. It is "unreasonable noise" as defined by s 3 of the Environmental Protection Act 1987, pursuant to reg 5 and reg 7 of the Environmental Protection (Noise) Regulations 1997.

9. By virtue of matters pleaded above the defendant and the contractor have been and are committing an offence at law pursuant to s 79(1) of the Environmental Protection Act 1986, which Act binds the Crown.

10. As a result of this continued offence the plaintiff has suffered and continues to suffer unreasonable interference to his health, comfort and amenity and has thereby incurred loss and damage.

AND THE PLAINTIFF CLAIMS;

(a) an injunction restraining the defendant from directing, permitting or suffering its contractors and employees from collecting waste products in the manner described in paragraph 5 hereof;

(b) damages;

(c) such other relief as the Court thinks fit; and

(d) costs."

21 In its amended defence filed 17 November 1999 the Council pleads as follows:

"1. The defendant admits paragraphs 1, 2 and 32 of the statement of claim.

2. Save to admit that since at least July 1997 the defendant has directed, permitted and suffered its contractors, servants and employees to collect waste products from the laneway adjacent to the premises and save to admit that on 18 December 1997 during the course of collection of waste products from the laneway the noise levels calculated in accordance with the Environmental Protection (Noise) Regulations 1997 were exceeded for a short period, the defendant denies paragraphs 5, 6 7 and 8.

3. To the extent that the noise exceeded the assigned levels calculated in accordance with the Environmental Protection (Noise) Regulations by reason of the noise of vehicles used in the rubbish collection service, the Regulations do not apply.

4. Since December 1997 the defendant has taken steps to reduce the volume of noise created during the collection of waste products in the laneway adjacent to the premises in that:

(a) the vehicles used in the collection of waste products have been changed to vehicles which have a stationary compaction engine revolution of 1,100 rpm instead of 1,250 rpm and are better insulated around the engine compartment areas;

(b) cushion valves have been fitted to the sweep blade cylinders on the vehicles to reduce the noise of the cylinders at the end of their stroke;

(c) the level adjust bracket which supports the bin on the lifters has been welded to eliminate rattle during operation;

(d) the vehicles are fitted with proximity switches to eliminate noise;

(e) the end of the compaction cycle in the vehicles is controlled electrically instead of by pressure switches reducing the noise level at the completion of the cycle;

(f) the operation and wear in the bin lifter and compaction equipment on the vehicles is monitored on a regular basis and is repaired and greased in order to reduce the operational noise; and

(g) the number of bins collected from the laneway had been reduced.

5. The defendant denies paragraphs 9 and 10.

6. The method of collection of waste products used by the defendant is the most practically feasible method in view of the physical constraints and the expense that would be involved to further reduce noise.

7. The plaintiff has delayed unreasonably in his claim

8. The grant of permanent injunction in the terms sought by the plaintiff would cause undue hardship to the defendant, third parties whose rubbish collection service is provided in Murray Mews and the public generally in that:

(a) the injunction would prevent the collection of rubbish from Murray Mews with consequent detriment to rate payers whose rubbish is presently collected in Murray Mews;

(b) alternative methods of collection of rubbish would substantially increase the expense to the City;

(c) the rate payers in the City generally would have to bear the additional expense;

(d) more noise would be generated in the collection of the rubbish from other locations."

22 I turn now to a more detailed consideration of the evidence.

23 Mr Cohen testified that just before Christmas 1994 he moved into a residential unit at 601 Wellington Street, which was part of the Railways Institute complex and a Homeswest development comprising some 70 apartments for Homeswest tenants and six apartments classified as commercial/residential. The apartments were zoned commercial on the ground floor and residential on the next three floors, one of which was occupied by Mr Cohen. According to him, early in January 1995 it became apparent that there was a noise problem with garbage trucks collecting at night time. Mr Cohen complained to Mr Mike Barry, the then Director Business Units of the Council. Eventually, by 10 November 1995 Mr Barry had made arrangements for the rubbish collection to be done by the Council's day shift waste collection crew during normal daylight hours.

24 So it was, when upset by the late night noise of the rubbish collection in Metro Lane in July 1997 Mr Cohen again contacted Mr Barry, who in turn, referred him to the shift supervisor, Mr Neil Woodenberg, who subsequently referred him to Mr Stewart Cameron.

25 The tenor of Mr Cohen's communications with Council officers thereafter was set in a letter from Mr Cohen to Mr Cameron dated 16 July 1997 which commenced in the following way -

"The rudeness displayed by you today in hanging up on me when I was trying to give you some background on the problem is unacceptable of a person in the position that you are.

I have been a resident in the City for almost three years and have operated my business in the City for the same period.

When the problems of the high levels of noise produced by the trucks became evident, Mike Barry, then the director of Business units, listened to the problems and when shown the noise as far above the permissible levels for a residential area as set by the Environmental Protection Act he understood and at very little inconvenience to the City of Perth, had the round altered.

This I am requesting again as my residence above Murray Mews in the complex known as Murray Gardens is directly above the rubbish bin areas and is subject to the full blast of the compacter noise."

26 In that letter Mr Cohen went on to say that he accepted that the maximum allowable noise levels in inner city areas can be higher than those for urban residential areas but considered they must still be controlled at reasonable levels. He referred to the Noise Abatement (Neighbourhood Annoyance) Regulations and to what he said were allowable sound levels prescribed in those regulations. He stated that the Council was breaking the law and asked that it desist.

27 Mr Cameron responded by letter date 23 July 1997 in which he wrote -

"As I tried to explain to you on the telephone, when you continually talked over me, the strategic planning unit are currently looking into developing a policy for the City which specifically addresses such problems as the performance of essential services within the city and the effect on inner city residents.

I am unable to make programming changes to the current night shift waste collection rounds. Many other inner city residents have requested alterations to the city's rubbish pickups for the very same reason you have. We have been able to oblige you on a previous occasion before you moved away from the City. However, to do so again would be to the detriment of other residents.

It has been the experience of other residents in the past that, whilst initially the after dark city noises have been disruptive, with time, the residents have adapted to these conditions ..."

28 This response did not satisfy Mr Cohen. He wrote on 24 July 1997 pointing out that the "constant (for up to nine minutes whilst loading in Murray Mews)" noise far exceeded the EPA legal limit and that consequently the Council was breaking the law. He did not accept that programme changes could not be made and suggested the day shift collection from 601 Wellington Street could be extended to collect from Murray Mews before 9.15am, which would be past the morning peak traffic time. He described the garbage truck collection in the quiet of the night as "like an explosion" and an unacceptable intrusion on the residents' peace and quiet.

29 On 4 August 1997 Mr Darren Ponton, who was the Council's Acting Manager Compliance Services, wrote a memorandum to Mr Cameron (exhibit P10, p 17) acknowledging the likelihood that the noise levels were excessive and suggesting that the collection time be altered. He pointed out that Mr Cohen had drawn attention to the Council's lack of compliance with the noise regulations and that his assumptions were generally correct. Mr Ponton wrote that although noise measurements of the rubbish trucks had not been taken by Compliance Services, it was highly probable the noise levels were excessive "as have been proven in the past". He went on to observe that Mr Cohen and other residents had previously been involved in longstanding complaints about the Gobbles nightclub and that therefore his knowledge and experience in terms of Council's obligations to comply with legislation on the matter was good. He added that the Council had agreed to change rubbish removal times on another occasion when requested by Mr Cohen who resided at a different inner city location at the time and that accordingly a precedent existed for Council to meet the wishes of residents specifically disturbed by the garbage collection activity.

30 Mr Ponton expressed the view that refusal to change the rubbish collection rounds would likely result in further lobbying by Mr Cohen to State Government, elected members of Council, the CEO and perhaps the media. He noted that Mr Cohen had apparently discussed the possibility of changing the rubbish removal times with operations staff who believed it was possible, and he therefore recommended that the rubbish removal times be altered, noting that Mr Cohen had indicated that after 9am would be acceptable.

31 By memorandum dated 14 August 1997 (exhibit P10, page 19) Mr Cameron pointed out that a system for two pickup locations and times had been reorganised some nine months earlier to accommodate residents in Murray Mews. That had been a satisfactory arrangement with no complaints until Mr Cohen had moved in. In response to Mr Ponton's suggestion Mr Cohen's view was that access for rubbish trucks during day time, (that is 8am to 8pm) was not possible, because of vehicles parked in or using Murray Mews (sic). Previous attempts to collect during day time had resulted in the truck having to reverse against the one way system to exit into Murray Street. He believed that the Council had exhausted alternatives to collecting the rubbish from Murray Mews unless a truck were to be sent in outside the normal operating hours of the day or night shifts which would incur additional expense. He could suggest no alternative until such time as a complete strategy could be developed to cover essential city services operating outside normal business hours and the conflict of interest that may develop with the increasing number of inner city residents. He concluded with the observation that the current programme of rubbish collections had no complainant other than Mr Cohen.

32 Mr Douglas Forster was subsequently appointed to the substantive position of Director Business Units. It is unclear from the evidence precisely what communication there was between Mr Forster and Mr Cohen at that initial stage but it resulted in a change to the timing of the rubbish collection to before 10pm on weeknights. It appears to have been that which prompted what was described in evidence as "the complimentary letter" from Mr Cohen to Mr Forster dated 16 October 1997 which began -

"Bloody amazing. You have been at the City of Perth for only five minutes, yet in only ten hours you have achieved what I have taken three months to unsuccessfully arrange. You have displayed a commonsense approach rarely seen and certainly refreshing as opposed the the (sic) stubborn obstinate obfuscation indulged in by Messrs Cameron and Wootenberg (sic)."

33 He then referred to a confrontation between himself and a Council driver the previous evening.

34 On 17 October 1997 Mr Cohen received by facsimile a letter dated the previous day from Mr Forster in which the latter explained that noise level measurements on the garbage collection vehicles were to be undertaken shortly and the results interpreted by the Compliance Unit of the Council. He wrote that should noise levels exceed environmental protection standards steps would immediately be taken to correct the situation and that in the meantime arrangements had been made for the collection vehicle to service Metro Lane prior to 10pm on weeknights for a trial period of two weeks. That trial would highlight whether any problems existed due to parked cars in particular. Mr Forster pointed out that the trial was being conducted on the basis that in a telephone conversation with Mr Cohen on 15 October the latter had agreed that it would acceptable were the service to be provided prior to 10pm. Similarly, the pickup service on Saturday morning would be changed for the same two week trial to be between 6.30am and 7.00am rather than 5.00am to 5.30am. Mr Forster concluded his letter by pointing out that employees who undertake this service often do so under extremely difficult conditions and under direction from his office so that should there be an enquiry regarding garbage collection or any other business unit service it should be directed accordingly. He pointed out that just as residents are afforded protection from unlawful acts so too are Council employees undertaking essential services in the City. These last comments appear to have been a reference to the confrontation between Mr Cohen and the Council driver on 15 October.

35 It appears Mr Cohen had been under the impression that the changed schedule for garbage collection to be conducted prior to 10pm weeknights was a permanent arrangement. Mr Forster's letter advising that it was for a two week trial basis only prompted an immediate response from Mr Cohen on 17 October expressing his disappointment and making the comment -

"Two weeks trial and then back to breaking laws again is it?"

36 He said if parked cars cause a problem they should be shifted or infringement notices should be issued as they would be parked illegally.

37 He queried why if the Council could run a "trial" period, it could not make the new schedule permanent, and concluded -

"This is looking like a crock of rocking horse fescennine.

Stop pussy footing around. No more red herrings."

38 On 23 October 1997 Mr Forster requested the Compliance unit to take noise level measurements as deemed appropriate, interpret the results in terms of EPA standards and provide him with a written direction as what needed to be done to comply with them. He added that the matter had some urgency.

39 The noise monitoring was undertaken by Mr Darren Ponton on 10 November 1997 commencing at approximately 9pm. Measurements were conducted from the rear gate of the Murray Mews (ie Murray Gardens) complex. One rubbish truck entered Metro Lane at 9.13pm and left the lane at approximately 9.19pm stopping three times along the lane to collect bins. A rubbish swamper had entered the laneway at 9.11pm to walk up the lane in front of the truck arranging the bins to ease loading them into it.

40 It is necessary at this point to say something of the methods of noise measurement and the standards applied to it.

41 In 1997 the relevant regulations were the Noise Abatement (Neighbourhood Annoyance) Regulations 1979 ("the Noise Abatement Regulations"). With effect from 31 January 1998 they were replaced by the Environmental Protection (Noise) Regulations 1997 ("the Noise Regulations") which were gazetted on 31 October 1997. The Noise Regulations are made under s 123(2) and Sch 2 of the Environmental Protection Act 1986 (WA) ("the Act"). They set different "assigned noise levels" which are the highest noise levels that can be received at a premises for different categories of premises depending upon whether they are noise sensitive (such as residences), commercial or industrial premises (such as factories and mines).

42 For noise sensitive premises assigned levels are calculated by formulae which take into account zonings within circles of 100 metres and 450 metres radius from a noise receiver including a proportion of industrial land use zonings, a proportion of commercial zonings and the presence of major roads.

43 Time of day also affects the assigned levels for noise sensitive premises. The lowest levels are set for night time (10pm to 7am any day or to 9am Sundays and public holidays); higher levels are set during the evenings (7pm to 10pm) and on Sundays and public holidays (9am to 7pm). The highest levels permissible are during the day which is defined as 7am to 7pm Monday to Saturday.

44 The calculation of measured noise levels takes into account certain characteristics of particular noises such as whether the noise is impulsive (banging or thumping) tonal (whining or droning) or modulated (such as a siren). A loading of a prescribed number of decibels is added to measured noise levels which have these features; this is referred to as the "Influencing Factor".

45 Regulation 17 of the Noise Regulations authorises the Minister for the Environment to approve a variation to the assigned levels where the applicant can demonstrate that the applicant cannot reasonably or practicably comply with them in the particular circumstances.

46 The assigned levels form "prescribed standards" under various sections and cl 22 of Sch 4 of the Act. Causing or allowing noise emissions which exceed the prescribed standard is an offence and can also be "pollution" or "unreasonable noise" as defined in s 3 of the Act.

47 Regulation 8 defines three types of assigned levels of noise. They are -

LAmax: This is the noise level which is not to be exceeded at any time;
LA1: Is the level of noise which is not to be exceeded for more than 1 per cent of the time - that is for more than 1 minute in 100 minutes (more than 1 minute in 1 hour 40 minutes);
LA10: Is the noise level which is not to be exceeded for more than 10 per cent of the time (that is for more than 10 minutes in 100 minutes).

48 More colloquial descriptions are that the LA10 is the average noise and the LAmax is the maximum noise in the measured period (ex. P10, page 80).

49 The time period over which the noise levels can be assessed must be between 15 minutes and 4 hours.

50 Regulation 19 prescribes the manner in which noise measurement is to be made in relation to buildings. Where a measurement is made inside residential premises the measured level is to be adjusted by adding 15 dB if the external doors and windows are shut or 10 dB if they are open.

51 The noise measurements made by Mr Ponton on 10 November 1997 were made in accordance with the Noise Regulations even though they did not come into effect until January the following year. For the period between 7pm and 10pm the assigned levels (including the influencing factor) were calculated to be LA10 (54 dB), LA1 (64 dB), LAmax (69 dB). The measured noise levels at each of three stops were for (LA10) 65, 68 and 68 dB and (for LAmax) 70 dB, 82 dB and 72 dB; thus both assigned levels were exceeded during the measurement period. Indeed as Mr Ponton pointed out in his memorandum to the Manager Compliance Services dated 10 November 1997, the assigned levels for the day time hours (7am to 7pm) would also have been exceeded based on those measurements. He commented that the LA10 measurement was principally due to the noise from the truck idling and its lifting and compacting mechanism whereas the LAmax measurements were principally due to the impact of objects falling into the truck. He suggested that two courses of action to ensure rubbish collection from Metro Lane complied with the regulations would be to collect the bins between 7am to 7pm Monday to Saturday or not to permit the truck to remain stationary in the areas of Metro Lane adjoining residential premises but instead unload bins away from them, namely, at either of the lane.

52 The Manager Compliance Services, Mr Richard Currie reported to the Director Business Units by memorandum dated 18 November 1997 on the outcome of the noise measurements taken on 10 November. He essentially set out the findings referred to above with the additional observation that -

"During the measurement period the volume of noise was greatest when the truck stopped immediately behind Murray Mews and considerably less when the truck was stopped at either end of Metro Lane."

53 In other words, the noise level was greatest at the point at which the trucks were closest to Mr Cohen's unit.

54 There was a flurry of correspondence from Mr Cohen to Council officers and others in late November and early December 1997. In the course of that he referred to (amongst other things) the suggestion (which he described as "preposterous") that it would take up to 30 minutes for a rubbish truck to break into the peak hour traffic at 9.15am. He also disagreed that there would be a vehicle parking problem in the lane at the same time. He mentioned that Mr Forster had promised to have the recycling truck through first at 9.15pm with the general waste truck following around 9.30pm and he described that as acceptable, although in fact on 26 November 1997 the situation had reverted to one in which the recycling truck came after the general waste truck at 10.05pm. He also complained of the noise from a compressor under his window the previous Sunday when the lane was being resurfaced.

55 In response to these complaints Mr Forster wrote to Mr Cohen on 27 November reaffirming that the collection system had been put in place as per their discussions whereby the recycling service was to precede the general refuse collection service where practical. There would be times however, due to operational and other circumstances, where that would not occur although Mr Forster assured Mr Cohen that every endeavour would be made to keep those changes to a minimum. He confirmed that he had requested the Compliance Section to undertake noise level readings from inside Mr Cohen's property and that an officer would contact him to gain entry and undertake the necessary readings in Mr Cohen's presence. He also pointed out that means of further reducing noise emanating from the collection vehicles was being pursued and he confirmed earlier discussions that the physical altercation which took place between Mr Cohen and a Council officer had been reported to the police immediately after the incident and that matter was now in their hands.

56 Some satisfactory progress appeared to have been achieved by 19 December 1997. On that date Mr Cohen wrote to Mr Forster in the following terms -

"The changed procedures (trucks not roaring through the lane, quieter emptying of bins and the waste paper truck preceding the general refuse truck) for Sunday night through Thursday night, both before 10pm are more than acceptable. Are they going to continue?

Saturday morning is still unacceptable. When will that comply with the EPA law?

Merry Xmas" (emphasis in the original).

57 However by 24 December 1997 Mr Cohen was again writing advising that his letter of 19 December had proved to be a little premature in that on Sunday 21 December the waste paper collection occurred at 10.07pm and the general refuse collection at 10.10pm. He asserted noise levels had been read on Wednesday 17 December and were 60 dB after 10pm which (he said) was 50 per cent above the permissible level.

58 According to internal memoranda of the Council some of the noise reduction measures which had been implemented by 27 November 1997 included the greasing of the compacter/loading mechanism, the padding of bin stops with foam insulation and the relocation of pickup positions in Metro Lane to positions further from Mr Cohen's flat.

59 The noise measurement exercise conducted on 17 December referred to by Mr Cohen had been undertaken by Mr Meyerkort of the Council's Compliance Services Unit. The measurements had been conducted from the lounge room of Mr Cohen's residence. The paper recycling truck had entered the laneway at 9.35pm and exited at 9.38pm, stopping twice. It had been followed six minutes later at 9.46pm by the general rubbish truck which left the lane at approximately 9.55pm having stopped three times to collect bins.

60 The assigned level for noise between 7pm to 10pm all days (including the influencing factor) were 54 dB for LA10, 64 dB for LA1 and 69 dB for LAmax. The actual measurements for the paper recycling truck for LA10 were 65 dB, 60 dB and 59 dB respectively. The LAmax readings were 79 dB, 69 dB and 69 dB. Thus, both the LA10 and the LAmax measurements exceeded the assigned levels between 9.35pm and 9.38pm. Once again, Mr Meyerkort pointed out that the assigned levels for 7am to 7pm (ie "daytime") would be exceeded based on those measurements, although it was likely that due to background noise the rubbish collection would not "significantly contribute" to noise level measurements during the day.

61 So far as the general refuse truck was concerned the LA10 measurements gave readings of 60, 59, 69 and 60 dB respectively and the LAmax readings were 63 dB, 66 dB, 77 dB, 75 dB, 65 dB and 63 dB respectively. These again generally exceeded the assigned noise levels.

62 In respect of both the recycling and the general refuse collection the LA10 measurements were principally due to the noise from the truck idling and the lifting and compacting mechanism, whereas the LAmax measurements were principally due to the impacts of objects falling into the truck.

63 The assigned levels had been calculated in accordance with the Noise Regulations.

64 Another test was conducted on Tuesday 30 December 1997 commencing at approximately 9.00pm and the results of that were the subject of a memorandum to the Manager, Compliance Services from Mr Ponton dated 31 December.

65 The measurements were again conducted from the rear gate of the Murray Mews complex. The recycling truck entered Metro Lane at 9.32pm and left at approximately 9.36pm stopping once. The general rubbish truck entered Metro Lane at 9.38pm and left the lane at approximately 9.49pm stopping three times along the lane to collect bins.

66 The assigned noise levels were again exceeded by both trucks although there had been a slight reduction in the measurements from 10 November 1997. This was probably due to the locations for the stops having been varied. The greatest reduction was with the general rubbish truck at its first stop which was approximately 30 metres East of the measuring point (the other stops were 15 metres East and 15 metres West). The recycling truck produced higher noise levels which was probably due to the fact that it stopped approximately 10 metres East of the measuring point.

67 In the same memorandum Mr Ponton described an exercise in which the noise of three rubbish trucks (RT 140, RT 78 and RT 126) had been conducted in an open area of the garbage depot grounds away from any building structures. Two of the trucks (RT 140 and RT 126) were then currently and had recently been involved in collections from Metro Lane. RT 140 was a newer truck and had recently replaced RT 126 in Metro Lane in an attempt to reduce noise levels as well as adopt quieter work practices. RT 126 was replaced by RT 140.

68 It was accepted that the noise levels measured during the simulations were lower than what they may have been in Metro Lane principally because they did not involve the impact of rubbish falling into the trucks and there was greater care being exercised by the operators. Even so, the measurements for both LA10 and LAmax for each of the trucks exceeded (and in some instances substantially) the assigned levels for Metro Lane.

69 Mr Ponton reiterated the recommendations he had made earlier.

70 Mr Cohen wrote to Mr Currie on 6 January 1998 requesting the readings taken on 17 December. By letter of the same date Mr Currie confirmed that the measurements were taken between 9.46 and 9.55pm and an estimated sound level reading of 60 dB(A) (when adjusted for indoors) was experienced during the refuse collection period which lasted nine minutes.

71 On 8 January 1998 Mr Cohen wrote to Dr P Nattrass, the Lord Mayor of the City of Perth, complaining that the garbage collection noise problem still existed with the trucks emitting 60+ dB and complaining in particular that the truck came through at 6.15am on New Years day. That letter was referred to Mr Forster who provided a confidential report to the Lord Mayor in the form of a memorandum dated 12 February 1998. He first summarised the action taken to that date as follows -

1. The recycling and garbage collection services had been changed from 11.30pm on weeknights to before 10.00pm.

2. The pickup service on Saturday morning was changed from 5.00am to 6.30am.

3. Noise measurements had been taken inside Mr Cohen's apartment in his presence.

4. A smaller and quieter vehicle was now being used for the garbage pickup.

5. Sound reducing modifications had been made to the garbage vehicle.

6. The operation of aspect of the vehicles, ie the number of "jerks" of each bin to ensure it is fully emptied had been reduced.

7. The recent introduction of the garbage charge and the rationalisation of bins which had subsequently taken place had effectively reduced the number of bins now picked up in Metro Lane.

8. The new garbage vehicles shortly to be purchased had been further modified at Mr Forster's request to reduce noise.

72 Despite all of this he acknowledged that the levels of noise attributable to the vehicle operations and measured inside Mr Cohen's apartment were still above those assigned under the regulations by approximately 15 per cent. He pointed out that on average the paper recycling truck was in Metro Lane for some three to five minutes and the garbage vehicle for approximately eight to ten minutes each weeknight and Saturday morning.

73 Mr Forster had assessed the option of providing a service during the day time but there were difficulties with that. The restrictions on entry to and egress from Metro Lane from Murray Street and into King Street for collection vehicles were difficult because of cars parking at either end. In addition, the two vehicles drive the wrong way down the one-way lane due to the manoeuvring difficulties. For all other traffic Metro Lane has dedicated one-way traffic from King Street to Murray Street. In addition there was no garbage service (apart from litter bin pickup) within the city during the major part of the day. The shifts had been structured in that way to minimise conflict between large slow moving garbage vehicles and general commercial and shopping traffic during normal business hours. To service Metro Lane exclusively during the day time would mean either altering those shifts with the obvious traffic flow impacts or alternatively bringing a crew in just for that reason.

74 Mr Forster made the observation that as city living becomes popular so noise associated with service vehicles, street sweeping, nightclubs and other noise generators will become more of an issue. It was his belief that the long term solution to this quandary must be in building design and construction. He had accordingly written to the Manager Approval Services raising the issue of making the sound-proofing of residential developments a necessary and fundamental condition for building approvals.

75 He concluded by accepting that Mr Cohen's claim that the Council was breaking the law with the noise levels emanating from its garbage service vehicles was correct, but Mr Forster asserted that this needed to be placed in perspective. He pointed out the noise is a very short duration (ie three to ten minutes), it occurs once per week night before 10pm and in the morning on a Saturday and significant improvements had been made and would continue to be made in operating procedures and mechanical noise. He wrote -

"Whilst a special day time service could be provided to Mr Cohen at considerable additional cost, inner city living in the future will generate more noise issues which are unable to be satisfied with a day time service given the traffic conflict and disruption to business and commercial activities."

76 Mr Forster's suggested course of action was that the Council inform Mr Cohen that the current arrangements were on balance the best that could be provided, although Council would continue to seek to reduce noise levels by improving the technology and operational procedures.

77 Between 20 February and 9 April 1998 Mr Cohen wrote a number of letters to Mr Forster still complaining principally about noise levels from garbage trucks collecting rubbish at various times after 10pm (ranging from five to fifteen minutes) but also making various complaints about the collection of recycling material.

78 By letter dated 27 February 1998 Messrs Franconi and Associates, solicitors, wrote to the Council advising that they had been consulted by Mr Cohen in relation to the excessive noise levels and that as a result of the Council's continued breach of the Act they had been instructed to take action against the Council for damages and "penalties". That letter was acknowledged by Messrs Clayton Utz, solicitors for the Council, by letter dated 4 March 1998. But by letter dated 22 April 1998 Mr Cohen wrote to Messrs Clayton Utz advising that Franconi and Associates were no longer acting for him and requesting that all correspondence be directed to him.

79 Mr Forster replied to Mr Cohen's then most recent series of letters by letter dated 14 April 1998 in which he in effect reiterated what he had reported to the Lord Mayor about the action which had been taken in the matter since October 1997. In respect of Mr Cohen's complaint that Mr Forster had not been replying to his letters the latter pointed out first that issues of a substantial nature had been addressed and secondly that the personal abuse with which Mr Cohen continued to persist was not acceptable "by any reasonable human communication standards".

80 It is clear I think that by April 1998 the Council officers had come to the realisation that the noise emanating from the garbage trucks could not be reduced sufficiently to comply with the assigned levels in Metro Lane. Thus, on 21 April 1998 they wrote to the Hon Minister for Environment, Employment and Training making application for a variation under reg 17 of the Noise Regulations. In that letter the Chief Executive Officer Mr Gary Hunt noted that a degree of machinery and operational noise inevitably accompanies the process of providing essential cleansing and refuse collection services within the City of Perth, even though in its services the City uses the latest technology in the way of vehicle design and construction not dissimilar to that used in other large cities within Australia. He wrote that in order to manage noise levels the Council had also varied collection times, collection locations and operational procedures but despite its best efforts the vehicles still exceeded the noise levels as stipulated in the regulations. He said he was writing on the advice of the Department of Environmental Protection to seek a reg 17 variation in relation to a situation whereby the prescribed noise level cannot reasonably nor practically be achieved. He acknowledged that in the longer term as more and more people are attracted to the benefits of inner city living so the issue of noise may escalate and that accordingly the Council's building approvals staff were working towards improved sound proofing and alternative construction materials to attenuate noise in residential building development, but obviously that would need some time to take effect.

81 Mr Cohen's letters of complaint (heavily laced with sarcasm) to the Council continued. His letter to Mr Forster dated 23 June 1998 (exhibit P5, p 38) was typical. In that he complained about the lack of collection of bins, the way in which recycling material was collected and confrontations between him and Council garbage collection staff.

82 The Council was progressing its application to the Minister. Mr Meyerkort had a meeting with Mr Russell Giles from the Department of Environmental Protection ("DEP") who requested further information. In particular, Mr Giles was seeking information on town planning zones, land uses, garbage truck routes and bin pickup spots, details of measures Council had taken or proposed to take to reduce truck noise and a list of complaints about garbage truck noise made over the previous two years. According to Mr Meyerkort, Mr Giles had indicated DEP was sympathetic to the problem and wished to meet the Council half-way in granting the variation, but

" ... needed adequate justification and analysis."

83 The measures taken by the Council to reduce noise levels by August 1998 were outlined in a memorandum from Mr Cameron to Mr Meyerkort dated 5 August 1998. They were

1. Changing the collection pickup points to distance the trucks from residential areas.

2. Manually removing bins from laneways where residences back on to limit the loading done in potentially disturbing situation (sic).

3. Maximising the load in each bin through the introduction of the rubbish rate charge to minimise the actual number of bin lifts.

4. Fitting of rubber cushioned bin stops to dull the noise of the bin hitting the stop at the top position in emptying.

5. Hydraulic rams with a break mechanism at the end of travel had been installed to prevent any metallic thud as the ram reached its travel limit.

6. Electronic as opposed to mechanical switching mechanisms had been fitted to trucks to reduce noise and switching from the loading to the compacting cycle.

7. The night shift collections had commenced an hour earlier at night so that sensitive areas could be accessed before 10pm. This had inconvenienced collections because not all the laneways are accessible because a lot of evening traffic still remains in the City. This practice was continuing.

8. The City had embarked on a plant replacement programme to use the latest technology in quieter and more efficient trucks. Two new trucks had recently joined the City of Perth fleet and would be utilised in problem areas. Additional replacement trucks were to join the fleet later that financial year.

84 On 14 August 1998 Mr Meyerkort conducted noise monitoring of the new garbage collection trucks RT 143 and 292 at the Council depot. As with the previous monitoring the noise measured was only that produced by the operation of the bin collection equipment and not the propulsion system of the vehicles (the latter being exempt from the regulations). Whilst there were some differences from the measurements made on 13 February 1998 the overall result still was that all noise levels measured were in excess of the assigned levels. In a memorandum to Mr George Laird, Supervisor Trades, Operations, dated 19 August 1998 Mr Meyerkort noted the Council's application to the Minister for variation under reg 17 and commented that -

"If successful the matter will be resolved without the need to operate trucks at perhaps unachievable low noise levels."

85 By October 1998 it seems Mr Cohen had learned of the Council's approach to the Minister for a variation under reg 17. By letter dated 21 October 1998 he wrote -

"Your refusal of my not unreasonable request to have you meet me on the site for you to prove to me how the traffic is so thick at 9.00 to 9.15am is not surprising in the least. It actually proves how unwilling, uncooperative and pigheadingly stubborn you and your staff are.

For you to think you could sneak in an exemption from the Minister shows how much out of touch you are with reality and Rotary's principal (sic) of "is it fair to all concerned". You've got Buckley's.

You seem to have forgotten that I am a rate payer of the City of Perth.

Merry Xmas."

86 The reference to the traffic between 9.00 and 9.15am was a reference to Mr Cohen's proposal to Council that the garbage collection trucks could collect at that time; Mr Forster was of the view that the proposition was untenable because traffic in the area was too heavy.

87 On 27 October 1998 Mr Cohen wrote to Mr Giles registering his strong opposition to the Minister granting any exemption to the Council under reg 17. On the same date he wrote to the Lord Mayor (exhibit P5, page 45) commencing -

"Your letter of 7 July jumps and jives all around the problem. You have changed the emphasis three times in the course of one letter. I thought only Forrster (sic) was capable of that ..."

88 His first complaint was about the collection of cardboard cartons for recycling. He then referred to his refusal to allow the collection staff to pick up his bins because they were taking recycled material in the general refuse collection and he wrote -

89 He asserted that the Lord Mayor was being lied to, being given selective information or being "snowed".

90 The Acting Chief Executive Officer Mr Gary Dunn had met with Mr Cohen at 9.15am on Friday 23 October 1998 in the laneway off King Street at the back of Mr Cohen's residence. The purpose of this was to examine Mr Cohen's contention that waste collection should occur in the morning as it did in the Homeswest units in Wellington Street. Mr Cohen's suggestion was that the vehicle run which collected waste from Wellington Street in the morning (which it did because of previous complaints of noise during the night collection) could be extended simply by having the vehicle that comes down Murray Street and normally turns into King Street and then into Wellington Street continue a little further along Murray Street and turn into the laneway at the rear of his premises at Metro Lane, pick up waste along the laneway exiting to King Street, across Murray Street and then down King Street to continue its normal round to taking the Wellington Street units. In a file note dated 28 October 1998 Mr Dunn noted that having regard to the considerable efforts which had been made to minimise the noise and that a request had been made to the DEP seeking special dispensation with regard to the provision of this essential service which must be carried out during the evening because of traffic and safety reasons, it did not seem warranted to reschedule the entire night collection round to accommodate Mr Cohen. Nonetheless, he instructed the Director of Business Units to further examine Mr Cohen's request that the current service provided to the Wellington Street units in the morning be extended to accommodate his present residence.

91 On 5 November 1998 Mr Dunn wrote to the Minister for the Environment referring to the Council's letter of 21 April and enquiring whether the matter had received consideration and what the outcome might be.

92 On 30 November 1998 Messrs Birman and Ride solicitors wrote to the Council advising that they were acting for Mr Cohen and that unless within seven days they received the City's written undertaking not to continue the nuisance and breaches of the regulations and that the Council thereafter complied with such undertaking they were instructed to issue proceedings to obtain an injunction in respect of the nuisance and damages.

93 A writ and statement of claim was filed on 26 February 1999 as was a chamber summons in which Mr Cohen applied for an interim injunction.

94 Clayton Utz wrote to the Minister for the Environment on 23 March 1999 referring to the Council's application for variation under reg 17 and advising that Mr Cohen's application for an interlocutory injunction was to be heard in April. The Minister's determination of the Council's application was said to potentially have significant bearing on Mr Cohen's injunction application and on the outcome of his action generally. Consequently they were enquiring when the Minister's determination could be expected and indicated that it would be in the best interests of all concerned if that could be prior to the hearing in April.

95 Mr Meyerkort took further measurements in Metro Lane at 9.30pm on 24 March 1999. The results indicated no real improvement in noise reduction. As Mr Meyerkort advised in a memorandum to the Manager, Compliance Services, dated 25 March 1999 the adjusted measured noise levels for LA10, LA1 and LAmax were found to be excessive by 12, 13 and 19 dB respectively "thereby confirming the existence of a noise nuisance". On the advice of Clayton Utz these noise measurements were obtained for rubbish truck operations only within 30 metres of the complainant's premises. One of Mr Meyerkort's recommendations was the further measures be investigated to control the noise. In particular, distancing rubbish truck pickup points 70 to 100 metres from Mr Cohen's residence and out of direct line of sight to take advantage of the shielding effects of other buildings.

96 Mr Cohen made his own arrangements with ERM Mitchell McCotter, a firm of environmental and planning consultants and on Tuesday 13 April 1999 Mr Michael Cake, an acoustic engineer with that firm took noise measurements at Mr Cohen's apartment over a period during which the Council was collecting garbage in the laneway adjacent to it. The trucks arrived at approximately 9.30pm and had departed by 10pm. Maximum noise levels were found to occur during loading, particularly as heavy rubbish, eg glass bottles, impacted upon the truck floor. During the measurement period a maximum A - weighted noise level (LAmax) of 87.9 dB (A) was recorded. This noise level occurred whilst the truck was loading garbage. In accordance with the Noise Regulations 10 dB was added to the measured level to account for the fact that the measurement was taken inside a building with external windows and doors open. The noise emissions from the garbage trucks were also found to be impulsive and so incurred an additional 10 dB penalty under the regulations. Applying those corrections the adjusted LAmax measured noise level was 107.9 dB (A). Based on a 12 dB influencing factor (which information was supplied to them by Mr Cohen) the LAmax assigned level for the noise sensitive premises was 67 dB (A). Thus the measurements undertaken by ERM Mitchell McCotter indicated the garbage collection activities exceeded the allowable noise level by more than 40 dB. The LA10 noise levels received at the residence were 52.6 dB (A).

97 As observed above, Mr Cohen's application for an interim injunction was heard by Templeman J on 4 May 1999. The application was refused. In the course of the hearing counsel for the Council informed Templeman J that the indications at that stage were a further three months would be required before the application for variation under reg 17 would be dealt with.

98 Following the refusal of the application for an interim injunction Mr Dunn wrote again to the Minister for the Environment on 14 May 1999 pointing out that although the application had been refused Templeman J had commented that should the matter proceed to trial there was strong possibility that the injunction sought by Mr Cohen could be granted on a permanent basis. In fact, the Council's service vehicles were exceeding the noise levels prescribed in the regulations and even with their best endeavours the noise levels were not able to be reduced further by technical improvements. He argued that very little more could be done without considerable inconvenience and additional cost to the City and private customers and noted the Council had found the requirements under the Western Australian legislation technically very difficult to achieve and accordingly had sought exemption under reg 17. He concluded -

"Your consideration of a review of the relevant sections of the Environmental Protection Act and accompanying regulations in relation to noise emission levels for emergency and essential services would be appreciated. We believe that a more pragmatic approach in this regard, combined with town planning and building improvements for inner city living related to noise, will provide the solution for what is a growing problem."

99 The Minister responded by letter dated 17 May 1999 in which she observed that she was bound to seek the advice of the EPA as part of the process under reg 17 before determining whether to grant a variation to assign noise levels. As to that the EPA was seeking technical advice from DEP and she understood that the DEP expected its investigation to be concluded within the next three months. The EPA report should follow soon thereafter whereupon she would make her determination.

100 In mid-July 1999 the Council wrote to users of the garbage collection service in Metro Lane to establish customer reaction to a new proposal. At that time rubbish and recyclable materials were being collected from Metro Lane Sundays to Thursdays at approximately 10pm and Saturdays after 6.30am. The new proposal was for collection to be prior to 7.30pm Sundays to Thursdays and after 7.30am on Saturdays. There was a 60 per cent response rate with (according to Mr Forster - see his memorandum dated 10 August 1999; exhibit P10, page 120) the responses generally ambivalent to the proposed change in collection times.

101 Thus, on 10 August 1999 Mr Forster notified the elected members of Council that it was proposed to introduce the new service times with effect from Sunday 29 August that year for a trial period. The service would involve using a larger collection truck which in turn would generate manoeuvring difficulties at the King Street end. He anticipated it may be that a parking bay would need to be removed, one bollard at least would need to be relocated and sections of footpath would need to be strengthened to enable the truck to exit. The trial would confirm whether those changes were necessary. He noted that the new service times were in accordance with those stated to be acceptable by Mr Cohen.

102 By letter dated 23 August 1999 the Minister for the Environment responded to Mr Hunt's letter to her dated 14 May. She stated that consideration of the Council's case was well advanced and that the DEP was working together with Mr Forster to produce a "best practice" document for inner city garbage collection which would form the basis for establishing "reasonable and practicable" noise limits. The views of the affected community could then be ascertained through appropriate targeted public consultation. She noted the DEP would contact Council directly regarding that matter. She also stated that in view of Council's interest in the parts of the noise regulations relating to noise emissions from emergency and essential services vehicles she had also the DEP to include the Council in the stakeholder consultation list for the compulsory noise regulation review.

103 On 11 October 1999 Mr Dunn wrote again to the Minister for the Environment recalling that the application for variation of assigned noise levels under reg 17 had been made in April 1998 pointing out that a number of changes had been made to the service following negotiations with Mr Cohen over the past 18 months but the matter was no closer to resolution as the changes had not placated Mr Cohen, the matter was proceeding to trial in the Supreme Court and noting further that although in May the Minister had indicated that the DEP would have its investigation concluded within three months, no further information had been forthcoming. He referred to the pending trial and said it was most desirable that a determination be sought particularly given the time lapse since the application was first made.

104 There was no substantive response to that letter although its receipt was acknowledged by the Minister's office by letter dated 14 October 1999. It had, however, been referred to Mr Giles of the DEP who sent a facsimile message to Mr Forster on 26 October 1999 in which he set out a synopsis of the reg 17 process and detailed the information which was required from the Council. It was clear the process would not be completed before the case evaluation conference which had been set down for 17 November 1999.

105 As outlined by Mr Giles the reg 17 process involved the following stages -

On receipt of the application the Minister must seek the advice of the EPA.
The EPA would then require the DEP to provide technical advice on the matter.
In advising the EPA the DEP in consultation with the applicant must investigate reasonable and practical, all technical and other means for minimising noise impact on affected noise sensitive premises.
The DEP must also be able to assure the EPA that the people potentially affected by any change in assigned noise levels had been informed of the probable impact it will have on them. The views of these stakeholders on the suggested changes must also be sought and taken into consideration by the EPA in formulating its advice to the Minister.

106 He observed that the advice which the DEP gives the EPA usually plays a major part in the recommendations the EPA provides in turn to the Minister.

107 Mr Giles confirmed an earlier telephone conversation he had with Mr Forster that two reports from the Council would be fundamental to the DEP's advice to the EPA. These reports were -

1. An outline of the way the Council would run its collection service and modify its equipment so as to minimise the noise impact on people. He suggested this could be called a Procedure for Operation of Inner-city Service Vehicles and may include essential street sweeping operations as well as garbage collection activities. The report should fully document the criteria and means by which the Council's conclusions about "best practice" have been reached.

2. The results of a targeted survey of occupants at premises currently affected or likely to be affected in the near future by noise from the activities of these essential services.

108 What he was really seeking from the Council as he then made clear was a "best practice" manual for operation of essential service vehicles in densely populated urban areas. The DEP would be advising on that "best practice" document which would probably form an integral part of any approval which the Minister might grant.

109 He also observed that any possible changes to the noise regulations as they apply to essential services vehicles and gradual improvement in collection equipment would influence the period of time that the DEP would recommend to the EPA that any reg 17 approval remain in force.

110 Mr Forster wrote to Mr Giles by letter dated 27 October 1999 purporting to address the request made by Mr Giles in their telephone conversation the previous Friday. Although that letter was not faxed to Mr Giles until 28 October it plainly did not satisfactorily address the DEP requirements which had been outlined by Mr Giles in that conversation and reiterated in his facsimile of 26 October.

111 It was Mr Giles' view (as he described in evidence) that the Council officers were not "getting the message" and had no real appreciation of what was required from the Council to support the application for variation. This sense of frustration was evident in a letter from the Minister to Mr Dunn dated 1 November 1999 responding to his letter of 11 October. The Minister's letter was drafted with input from Mr Giles. In it, the Minister wrote that she understood the DEP had made direct contact with Council officers with a view to expediting the public consultation process and to the production of "best practice" guidelines, the need for which she had highlighted in her last correspondence on 23 August 1999. She noted that the case evaluation conference had been set down for 17 November and had conveyed Council's concerns about preparing for the conference to the DEP and they had undertaken to release any available relevant documentation from the reg 17 process such as the stakeholder consultation report arising from the targeted consultation of occupiers of other potentially affected premises and the DEP technical comment on the Council's "best practice" "Procedure for Operation of Inner-city Service Vehicles" including garbage trucks. She concluded that in the interim she would appreciate any assistance Council could offer the DEP in their survey of stakeholder opinion and in concluding other necessary technical enquiries.

112 A draft "Management of Noise Associated with Waste Management Service Delivery" document describing Council's activities in that regard was finally forwarded to Mr Giles by Mr Forster on 18 November 1999 in support of the Council's application for variation under reg 17.

113 Mr Giles was the DEP officer who had carriage of the Council's application for variation since he joined the DEP in May 1998. By 1 November 1999, he had made it known to Council officers that he wanted specific and detailed information to enable the application to be dealt with. He did later receive a document, but it was inadequate for his purposes. The occasions on which Council officers sought information as to progress of the application for variation seem generally to have been related to developments in this litigation - most notably just prior to the application before Templeman J. Mr Giles' response was to seek to reiterate that more information was required from Council and to again explain what that was. In essence, he needed the Council to show that it had done everything that could reasonably and practicably be done to minimise the noise from rubbish collection, and in that regard, he had sought information about route maps, times of day and the results of noise measurements. Some information was provided on 16 March and 1 April 1999, although still not all Mr Giles required.

114 As late as December 1999 the DEP were still requiring from the Council details of measures taken to reduce disruption and noise to a minimum and to submit a "best practice plan". The draft document "Management of Noise Associated with Waste Management Service Delivery" was returned to Council with annotations and comments and that is apparently where it remains.

115 In January 2000 Mr Giles was asking about a survey to be conducted of inner city residents and requesting that a draft questionnaire be returned to DEP for review, but that was never done.

116 Mr Giles' evidence was that DEP had had no contact with the Council regarding the development of its case for variation since January 2000.

117 What had happened here was that Council's efforts to deal with the problem at the regulatory level had become diverted from the variation application to be directed instead to the object of securing an amendment to the regulations, which would have the effect of excluding its garbage trucks from the noise limits. Council was putting material to the working party which was responsible for reviewing the regulations and proposing amendments. However, as Mr Giles explained (T 231), whilst the Council may have been providing input to the working party, that did not satisfy the DEP requirements for processing its application for variation under the existing reg 17.

118 The defendant called four other local residents to give evidence of the extent to which the noise of garbage trucks affected them. Mr Jeremy Brennan has lived in Murray Gardens since January 2000. He said the noise did not trouble him. He is generally not home Friday nights, although he has heard them on other nights. It is very rare that he has actually noticed them. His unit is below Mr Cohen's, but his window faces North out to the laneway, whereas the plaintiff's faces East along Metro Lane and is closer to that collection point.

119 Mrs Margaret Haydon also lives on the floor below. Her unit is even further away from that collection point than is Mr Cohen's. She had not really ever taken much notice of the stopping points.

120 Mr James Stephen lives in Murray Gardens and is also part owner and manager of a restaurant in King Street. He was not aware of hearing the trucks on weekdays or weeknights at all, although he is often not there. He said the Council trucks collect rubbish from outside his restaurant about 10.00 pm. They do make noise, but it is very quick. He would not want the trucks moving around King Street during the day because it would be more difficult with busier traffic and the smell is unpleasant. He was not aware of the collection at 7.30 am, so it did not bother him.

121 Mr Philip McAllister lives at 329 Murray Street, which is a building which backs on to Metro Lane. The rubbish collection vehicles do not cause him any concern. His apartment is on the first floor above Murray Mews, which is the access way which runs from 329 Murray Street. There are restaurants in Murray Mews and he lives above one of them. Approximately one third of the block is between his apartment and Metro Lane - he would be about 15 metres from the back of the property. He has no window out to the laneway. There is a building between his apartment and the closest collection point.

122 Whilst the evidence of these witnesses gave some useful context, it did not in my view detract from Mr Cohen's evidence as to the noise levels experienced at his apartment, nor afford a basis for any conclusion that he is being unduly sensitive or fastidious in his reaction to them.

123 It is apparent from the evidence of Mr Foster that the manoeuvring of Council garbage trucks in and out of Metro Lane during peak traffic is extremely difficult, if not impossible. From his evidence and that of Mr Woodenberg, it must be accepted that cars and delivery vehicles are not infrequently left parked or standing in Metro Lane. However, that is contrary to the Council parking by-laws and ought not to occur.

124 Much of the evidence of both Mr Foster and Mr Woodenberg was concerned with the practical possibilities open to the Council in terms of changing rosters, alternate routes and times, and the costs associated with them. I do not mean to diminish the content nor effect of that evidence by not referring to it in detail. I accept that the Council has done much to attempt to accommodate Mr Cohen's concerns. Whether in the end that has been enough is another question.

125 Mr Foster maintained that most (if not all) of the remaining options open with respect to changing collection times would involve considerable inconvenience and expense. I am not satisfied that is necessarily so or that if it is, it would be unreasonable to require the Council to incur that expense. I found Mr Foster's explanation of additional costs vague and unsatisfactory. He was unable to explain the basis upon which he had arrived at the figures he advanced, ultimately suggesting only that he had relied on Mr Woodenberg - who in turn said those calculations were done by Mr Forster (See eg T 372 - 378).

126 In his evidence-in-chief (statement exhibit D8), Mr Foster asserted that changing the current route and method of collection would result in considerable increased costs to Council. He said (par 9(iii)) that if the service were provided during weekdays between 5.30 am and 3.00 pm, the increased costs would be significant, approximately $40,000 per annum ("being an accumulation of lost time including delay by traffic, having employees monitor and control traffic and so on"). He later referred to the New Schedule introduced between 24 August 1997 to 30 August 1999 being Sunday to Thursday between 9.30 am and 10.00 pm, no collection Friday, and collection after 6.30 am on Saturday. He said by changing the roster and bringing nightshift staff on one and a half hours earlier, the Council paid nightshift staff penalty rates of time and a half - which cost the Council $44,460 per annum. However, he said the Second New Schedule introduced from 30 August 1999 (which is the current schedule) involves waste collection between 7.00 and 7.30 pm, Mondays to Fridays, after 7.00 am on Saturday and no collection Sunday, and that has cost the Council (an additional) $29,640 per annum. In cross-examination he said that in his calculations he had allowed 45 minutes for the day time collection and 60 minutes for the night time collection, but was unable to explain how he had arrived at the significant cost differential (T 351). In re-examination (T 363), he said it was due to penalty rates applicable to employees who are required to work outside the hours of their ordinary shift. Nonetheless, none of his calculations were in evidence and it is impossible to know how he actually calculated them or on what basis.

127 As I have already mentioned, the presence of vehicles in Metro Lane creates real difficulty for the Council's large garbage trucks attempting to negotiate their way through. This was confirmed in the evidence of Mr Woodenberg and a diary record (annexure NJW3) maintained by drivers. As Mr Woodenberg conceded, "most of the time" these other vehicles would be illegally parked. It would not be unreasonable, I think, to expect the Council and other relevant authorities to do more to effectively police those parking restrictions (perhaps by making the area a "tow away" zone). Likewise, and more generally in the context of the problem of reconciling the need to maintain essential services with the constraints associated with increased inner city living, it may be that smaller rather than larger trucks will have to be used in some locations. An examination of these and various other possibilities was no doubt part of what DEP was looking to see in the Council's "best practice" document.

128 Section 79 of the Act makes it an offence for any person on any premises to use cause or allow to be used any equipment in such a way as to emit unreasonable noise from those premises. Regulation 6 of the Noise Regulations deals with the emission of noise from public places and stipulates that public places are to be treated as premises to which various sections of the Act including s 79 apply. The person causing or permitting the noise is to be treated as the occupier. By s 6(2) a person who fails to comply with the requirements of reg 6 is subject to a penalty of $5000. For the purposes of the Act noise is to be taken to be unreasonable if it is emitted in contravention of the Act or any subsidiary legislation made under it (s 3(3)(a) and reg 5):

"Having regard to the nature and duration of the noise emissions, the frequency of similar noise emissions from the same source (or a source under the control of the same person or persons) and to the time of day at which the noise is emitted, the noise unreasonably interferes with the health, welfare, convenience, comfort or amenity of any person." (s 3(3)(b)),

or is prescribed to be unreasonable for the purposes of the Act. Regulation 5(1) provides that noise emitted in contravention of the standards prescribed under reg 7 or reg 11 is to be taken as unreasonable.

129 The Council specifically accepts that the noise levels specified in the regulations are exceeded to the extent identified by its experts, Mr Meyerkort and Mr Ponton and that its conduct is in breach of the Noise Regulations but denies any liability to Mr Cohen. It is contended that the question in issue in these proceedings is not whether the Council has breached the regulations but whether the plaintiff has any basis for making a claim as a result. The defendant argues that the plaintiff has no private right of action in these circumstances, no action for private nuisance, no action for public nuisance and that even were such claims to have a foundation in law as a matter of discretion no injunction should be granted. I will deal first with the question whether or not the provisions of the Act and the Noise Regulations give rise to a private right of action in Mr Cohen.

130 The question whether the breach of a statutory standard of conduct creates a private right of action depends upon the proper construction of the statute as a whole: Henwood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438 at 461 (per Dixon and McTiernan JJ).

131 In O'Connor v S P Bray Limited [1937] HCA 18; (1936-37) 56 CLR 464 it was held that a worker injured as a result of a failure to comply with a statutory duty to provide safety equipment for a lift had a cause of action against the person responsible under the regulation for the operation of the lift. The appellant had received compensation under the Workers Compensation legislation of New South Wales. When his weekly payments were terminated he took proceedings before the Workers Compensation Commission to establish that his incapacity continued. The Commission held in favour of the respondent. The appellant then instituted an action at common law. In the High Court it was held that as the jury had found he was not aware of his rights to take a common law action when instituted proceedings under the Workers Compensation Act he was entitled to maintain his common law claim. The regulations contained detailed and elaborate provisions directed to ensuring safety.

Cohen v City of Perth [2000] WASC 306

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Judgment (272 paragraphs)

Cohen v City of Perth [2000] WASC 306 (15 December 2000)

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Legislation Cited (10)

Cases Cited (13)