Are you the owner of a commercial property such as a venue, pub or hotel? If so, you will want to read about the case of Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280. In May 2018, the Supreme Court of Western Australia, firstly heard the apartment owner, Mr. Ammon, who sought an order to reduce the amount of noise and music coming from the Raffles Hotel, which was located next door to him. The decision was subsequently appealed and there are some key takeaways from the appeal decision relating to private nuisance and substantial interference with property.
Background
- the defendant, Colonial Leisure Group Pty Ltd (CLG) is the owner of the heritage listed Raffles Hotel located in Perth;
- In 2005, an apartment complex was constructed on the boundary of the Hotel;
- In 2009, Mr. Ammon purchased a fifth-floor apartment adjacent to the Hotel’s beer garden;
- In 2014, the Hotel was renovated, and Mr. Ammon then claimed that the level of noise had increased, interfering with his enjoyment and use of his apartment; and,
- Mr. Ammon claimed that the relevant regulation required the noise level to be 48 decibels, when it was in fact 65 decibels.
Consequently, Mr. Ammon commenced proceedings seeking an injunction to restrain the Hotel from playing music in the beer garden and on another bar located in the Hotel during certain hours of the week.
The First Instance Decision
The Court held that Mr. Ammon could not establish that the noise from the Hotel substantially and unreasonably interfered with the beneficial use of his apartment as:
- the noise levels exceeded the noise level specified in the relevant Regulation, did not of itself constitute a substantial and unreasonable interference;
- Mr. Ammon’s evidence was not supported by any other residents of the apartment block; and,
- In 2014, the owners of the apartment consented to the redevelopment of the Hotel.
The Court also considered that when the Hotel was redeveloped, CLG took measures to reduce the noise coming from the hotel after they received complaints from the strata owners and the City of Melville.
A few measures CLG implemented included:
- moving the DJ indoors;
- turning off some of the speakers;
- replacing the external doors to double glazed and sealed doors; and,
- hiring a security guard for the purpose of keeping one of the external doors continuously closed.
The Court also acknowledged that the redevelopment of the Hotel did not alter the use of the Hotel. The noise coming from the Hotel consisted of noise from the crowd and music, which is associated with the common use of the Hotel and therefore not considered to be unreasonable by the Court.
The Court also noted that in 2014, the owners of the apartment complex consented to the redevelopment of the Hotel and as a result of a collective complaint made to the City of Melville in 2016, CLG took a number of steps to reduce the level of noise.
Appeal
Mr. Ammon appealed the first instance decision on the basis that the Master Sanderson erred in finding that the Hotel’s noise did not constitute substantial interference. However, The Western Australian Court of Appeal dismissed the appeal based on the following:
- the Court found the Master did not make a mistake in finding that the Hotel’s noise did not amount to substantial interference with Mr. Ammon’s property;
- the Court would not order an injunction to restrict the Hotel in operating in a way that is consistent with the orderly and proper use of the venue;
- Mr. Ammon purchased the property knowing it was located next to the Hotel and two busy freeways, which evidence showed the noise from the road generated more noise than the assigned level required by the Regulation;
- Mr. Ammon purchased the property knowing the Hotel was operating as an entertainment venue and would expect a certain level of noise; and,
- the CLG considered and took appropriate steps to reduce the amount of noise coming from the venue.
Key Takeaways
- If Mr. Ammon was successful and the injunction was enforced, it would have limited the use of the Hotel and therefore it is important as an owner of commercial property to consider measures to reduce noise as this was a relevant factor considered by the Court in this case;
- A property developer should also consider taking measures to limit noise interference in similar circumstances. For example, the property developer of the apartments could have considered re-designing the balconies to face away from the Hotel beer garden; and,
- This case demonstrates that it may be difficult to prove ‘substantial and unreasonable inference’ in relation to the enjoyment of land caused by noise.
If you need assistance or advice in relation to a dispute with a neighbouring property or any items discussed in the above article, please do not hesitate to get in touch with Coleman Greig’s Commercial Property team who would be more than happy to assist.
