Posted on August 28, 2025 by Anna Sinclair and Thuy Pham 13

Noise Prevention Notice and the Necessary Evidentiary Foundation of Reasonable Suspicion

A recent decision handed down by the Land and Environment Court provides useful guidance on the evidence that needs to be collected before a council or the EPA should issue a prevention notice relating to noise pollution under section 96 of the Protection of the Environment Operations Act 1997 (POEO Act).

Background

In Doon v Snowy Valleys Council [2025] NSWLEC 1514, the Court had to consider whether a prevention notice issued by the council under s96 of the POEO Act in respect of noise pollution (Notice) should be revoked.

The council had issued the Notice to the owner of the subject premises because of a range of noise emissions from the premises, including amplified music that had been played throughout the night; motor vehicle servicing and repairs at the premises (including banging, grinding and the use of pneumatic tools of varied duration); and the use of recreational bikes at various times.

The Council had received numerous noise complaints in respect of the premises consistently for about eleven months.

The Notice directed the owner to:

• prevent amplified music from being audible at any adjoining or adjacent residential premises, and limit music to 5 dBA above the background noise level,
• prohibit any amplified music between 8pm and 8am daily, and
• immediately attenuate other noises through appropriate measures.

Was the noise from the premises a ‘pollution incident’?

Section 96 of the POEO Act provides that a local council or the EPA can issue a prevention notice, if they “reasonably suspect that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person.”

Section 95 of the POEO Act defines ‘environmentally unsatisfactory manner’ to include an activity that causes or is likely to cause a ‘pollution incident’. Since ‘noise pollution’ is a type of pollution, and ‘offensive noise’ is a type of ‘noise pollution’, the key issue the Court had to decide in this case was whether the Council had a ‘reasonable suspicion’ that the complained activities met the following definition of ‘offensive noise‘:

“Offensive noise means noise—

(a)  that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances—

(i)  is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii)  interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

Evidence led by the parties

The Council relied on complaints from neighbours, including video recordings and a noise diary from one adjacent resident, supported by records of some Council officer visits. The Council did not take objective noise measurements or conduct an expert assessment because, in the Council’s view, the consideration of offensive noise is subjective, not objective.

In contrast, the landowner provided work diaries and photographs to dispute the timing and intensity of his activities. The landowner also led evidence from an acoustic expert that the Notice was not justified as most activities took place during permissible hours and were not “offensive noise”.

The expert also noted that the Council focused on only 2 residential locations despite the presence of 9 potential sensitive receptors, that it failed to pinpoint a background noise level and failed to verify complaints in an independent and objective way. On this basis, the expert concluded there was no reasonable foundation for the Council’s suspicion.

Findings

While the Court acknowledged disturbances to neighbours, it emphasised that excessive noise alone does not necessarily amount to “offensive noise” under the POEO Act.

In this case, the Court found that there was no evidentiary foundation for the Council’s suspicion because none of the Council’s evidence could establish:

• how the level, nature, character or quality, or the time at which the noise was made was harmful to or  likely to be harmful to the neighbour, or interfered unreasonably with (or was likely to interfere unreasonably with) the comfort or repose of the neighbour.
• that the noise was of a level, nature, character or quality prescribed in the regulations. 

While the Council officers attended the premises on 3 occasions, site inspection reports did not document any direct observation of relevant noise emissions or activities. The Council merely relied on untested lay evidence provided by a small number of occupants of residential properties among those impacted by the noise.

Further, no objective noise assessment was conducted, nor were recognised guidelines or acoustic experts engaged to verify the lay evidence of complainants.

Since the Council could point to no evidentiary basis for its suspicion of how the noise emitted was “offensive noise”, there was no basis for the Council to form a reasonable suspicion that the complained activities were carried out in an “environmentally unsatisfactory manner” – which is the threshold for the power to issue a notice under s96.

The Court reiterated that greater weight would be given to expert evidence than to lay evidence, especially where the latter is unverified or insufficient.

On this basis, the Court determined that the Notice, even as amended, must be revoked.

Takeaways

To avoid a similar challenge to a prevention notice issued in respect of noise pollution, a local council should:

1. not rely solely on complaints by neighbours, and should independently obtain its own evidence or have the complainants’ evidence verified, such as through an officers’ direct observations of the noise pollution, 

2. ensure that any evidence gathered, including through direct observations by a council officer or a complainant is detailed and specifies the level, nature, character or quality, and the time of the noise, and its effect on the person, and

3. ideally obtain a noise assessment from a suitably qualified expert who has carried out noise testing and provided an objective expert opinion that assesses whether the noise is an “offensive noise” for the purposes of the POEO Act . The assessment should have regard to the land zoning and permitted land uses as some activities may be tolerated in certain zones or if conducted within the hours set out in the POEO Act and regulations.

The full judgment can be found here.

If you have any questions regarding the above, please leave a comment below or contact Anna Sinclair on 02 8235 9713 or Thuy Pham on 8235 9731.