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IN THE MAGISTRATES COURT OF VICTORIA

AT BAIRNSDALE
CIVIL DIVISION
Case No.E12961424
THOMAS JOSEPH COURTNEY & MEGAN
JACKSON

Plaintiffs

v
PETER MAXWELL HOWELL & SALLY ANNE
HOWELL

Defendants

--MAGISTRATE:

S GARNETT

WHERE HELD:

BAIRNSDALE

DATE OF HEARING:

DATE OF DECISION:

29 FEBRUARY, 1 4 MARCH 2016, (Written Submission

Filed by Plaintiffs on 16 May, by the Defendants on 6 June
and Plaintiffs Reply on 17 June 2016)
26 JULY 2016

CASE MAY BE CITED AS:

COURTNEY & JACKSON v HOWELL

REASONS FOR DECISION

--Catchwords: Nuisance: Noise - Acoustic Bird Deterrent Device claim for injunctive relief
and damages for loss of amenity and for personal injury allegedly suffered by Ms Jackson
in the form of an Anxiety State/Major Depressive Disorder, distress, insomnia and
exacerbation of multiple sclerosis symptoms. Test to be applied: a balancing exercise
between the rights of the defendants to do what they like on their land and the rights of the
plaintiffs not to have their use or enjoyment of their property interfered with. Proceeding
Dismissed.

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr Hancock

COMLAW

For the Defendant

Mr Magowan

Macpherson Kelley

!Undefined Bookmark, I

HIS HONOUR:
1

The plaintiffs and defendants live on adjacent 5 acre properties in a semi-rural,

tranquil and idyllic setting at Eagle Point near Bairnsdale. Their properties are
situated on a hill which overlooks the Mitchell River and Lake King to the
north. The plaintiffs allege that their peace, tranquillity and the ability to enjoy
their property ended when the defendants installed an acoustic bird scaring
device in January 2012.

On 5 September 2014, the plaintiffs issued proceedings alleging that noise from
the device constitutes a nuisance and they seek injunctive relief and damages
for loss of amenity and for the injuries in the form of an anxiety state,
depression, distress, insomnia and an exacerbation of multiple sclerosis
symptoms allegedly suffered by Ms Jackson as a result of the nuisance.

The defendants deny that the acoustic bird deterrent (ABD) causes excessive
noise thereby causing a nuisance.

The court conducted two views of the properties on the first and fifth day of the
hearing which involved inspecting the device, the 4 speaker system located
on the roof of the defendants machinery shed and listening to the device in
operation from the defendants property and various locations on the plaintiffs
property which included the lounge room, main bedroom, outdoor patio area
and front paddock.

The properties are situated in the Shire of East Gippsland on the Gippsland
Lakes with the area being well known for its bushland and tourism. There are
several other existing residences on properties adjacent to and across the
road from the properties in question.

Immediately following the initial view, the defendants made an application to

dismiss the proceedings pursuant to S 63 of the Civil Procedure Act 2010. The
Court of Appeal has stated that the test: should be construed as one of
1

DECISION

whether the respondent to the application for summary judgement has a real
as opposed to a fanciful chance of success; that the real chance of success
test is to some degree a more liberal test than the hopeless or bound to fail
test; and that, as the law is at present understood, the real chance of success
test permits the possibility that there may be cases, yet to be identified, in
which it appears that, although the respondents case is not hopeless or
bound to fail, it does not have a real prospect of succeeding. 1 After
considering the test laid down by the Court of Appeal, I refused the
defendants application to dismiss the proceeding.
7

The law regarding private nuisance is well established and was adequately and
thoroughly explained by Preston CJ in the case of Robson v Leischke2. The
following propositions, relevant to these proceedings, were stated:
-

Private nuisance involves an act or omission which is an interference with,

disturbance of or annoyance to a person in the exercise or enjoyment of
his or her ownership or occupation of land or some easement, profit or
right used in connection with the land.

Nuisance involves an infringement of the claimants interest in the property

without any direct entry via the defendant and is actionable only on proof
of special damage

Where the defendant created the nuisance, the fault element varies
depending on the nature of the defendants conduct and his or her state of
knowledge.

The defendant will be liable if, when the nuisance arose, the defendant did
not take any reasonable means to bring it to an end when the defendant
became aware, or ought to have been aware, of the existence of the
nuisance, and damage results.

1
2

Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.
[2008] NSWLEC 152.
2

DECISION

Private nuisance involves balancing, on one hand, the right of one owner
or occupier of land to do what he or she likes on their land with, on the
other hand, a right of a neighbour not to have his or her use or enjoyment
of their property interfered with3. The tipping point in the balance is where
the consequences of the use by the first person of his or her land unduly
interferes, in ways recognised by the law as constituting a nuisance, with
the use and enjoyment by the neighbour of his or her property.

Nuisance. arise where there is an excessive use by the defendant of his

land resulting in an unreasonable interference with the enjoyment by the
plaintiff of his land, having regard to the ordinary usages of humankind
living in a particular society. In determining whether there has been such
an unreasonable interference, a balance must be maintained between the
rights of the occupier to do what he or she likes with his or her own land
and the right of the neighbour not to be interfered with.

Nuisance will generally arise from something emanating from the

defendants land. Examples of such emanations are: noise, vibrations,
dust, sediment from soil erosion, noxious smuts and pollution, smoke, and
offensive odours and stenches.

The essence of the tort of nuisance is that it is a tort against the land or,
more accurately, a tort directed against the plaintiffs enjoyment of rights or
interests in land.

When balancing the rights of the plaintiffs and defendants in this case, regard
should be had to what was said by the English Court of Appeal in Kennaway v
Thompson & Anor 4:
Now nearly all of us living in these islands have to put up with a certain
amount of annoyance from our neighbours. Those living in towns may be
irritated by their neighbours noisy radios or incompetent playing of musical

3
4

Sedleigh-Denfield v OCallaghan [1940] AC 880 at 903.

[1981] 1 QB 88 at 94.
3

DECISION

instruments; and they in turn may be inconvenienced by the noise caused by

our guests slamming car doors and chattering after a late party. Even in the
country the lowing of a sick cow or the early morning crowing of a farmyard
cock may interfere with sleep and comfort. Intervention by injunction is only
justified when the irritating noise causes inconvenience beyond what other
occupiers in the neighbourhood can be expected to bear. The question is
whether the neighbour is using his property reasonably, having regard to the
fact that he has a neighbour. The neighbour who is complaining must
remember, too, that the other man can use his property in a reasonable way
and there must be a measure of give and take, live and let live.
9

When considering these principles, the questions that the court must answer in
this case are;
a. Since January 2012, have the defendants caused noise to emanate
from their property which has reached the plaintiffs land?
b. Does the noise constitute a substantial interference with the
plaintiffs use and enjoyment of their property?
c. If so, does it result in an unreasonable and unacceptable offensive
noise impact upon the plaintiffs?
d. Is the defendants conduct unreasonable in all the circumstances?
e. Does the noise constitute a nuisance?
f. Should injunctive relief be granted to restrain the defendants from
continuing the nuisance?
g. Has either plaintiff suffered reasonably foreseeable loss and
damage as a consequence of the nuisance?
h. If so, what is the quantum of that loss and damage?

DECISION

10

The evidence revealed that the plaintiffs purchased their land in 1993, built their
house and permanently occupied it from 1996. Mr Courtney, aged 76 years,
gave evidence that he was formerly employed as an accountant and operated
his own business from 1977 to 1995. He said that he is now retired but is still
active in land subdivision. He also told the court that he was an elected
councillor with the East Gippsland Shire between 2000 and 2003 serving one
year as Mayor.

11

Ms Jackson, aged 67 years, gave evidence that she is retired and was
previously employed as a graphic designer, artist and art director. She said
that she is now involved in numerous activities including training her horses to
participate in Riding for the Disabled Association of Australia as well as
painting as a hobby. She told the court that she trains, schools, grooms and
feeds her horses in the front paddock of her property which is in direct line
with the ABD speakers.

12

Mr Howell, aged 72 years, gave evidence that he and his wife purchased their
property, which consisted of a Homestead built in the 1880s, in 1996. He said
that over a period of 4 years they repaired, renovated and extended the 90
square timber house and moved in permanently in 2000. He told the court that
he was formerly employed as an engineer and site project manager and then
he established a fire protection and fire sprinkler business which he sold in
1986 before developing an emergency warning system business which he
sold in 2003.
The Acoustic Bird Device

13

The Acoustic Bird Device (ABD) is a Super Pro Unit and was supplied to the
defendants in January 2012 by Bird Gard Australia at a cost of $1,990. The
function of the device is to combine actual bird distress cries and predator
calls to ward off pest birds, in this case, Swallows. In theory, the longer the
birds are subjected to it, the more it annoys or scares them in addition to

DECISION

overriding the chatter amongst themselves, thereby making communication

difficult, adding to the birds stress and fear. The device purchased was
recommended as suitable for a 6 acre property and contains 8 bird
distress/predator/alarm sounds which include; Tree Swallow, Red Winged
Blackbird, European Starling, House Sparrow, Tree Swallow, Peregrine
Falcon, Coopers Hawk and Sharp Shinned Hawk.
14

The device includes a control unit and four speakers which the defendants
mounted on their machinery shed and positioned them so as to create a
sound net over their house which happened to be in the direction of the
plaintiffs property. The device is fully programmable and allows the defendants
to adjust volume, specific sound combinations, intervals and operation times.

15

Mr Howell gave evidence that he purchased the ABD because his property was
beset by swallows in late 2011 and they were defecating on the glass roof of
his atrium, house roof, walls and patio. He told the court that the swallows
would also fly under the verandas and perch and roost on the solar panels
and veranda frames which required constant cleaning.

16

He told the court that prior to installing the ABD he had tried other methods to
deter the swallows which included; the use of plastic humming strips that hum
in the wind, fitting plastic/metal spikes on the top of the external architraves all
of which, was only mildly successful. He said these measures stopped the
swallows perching in most areas but did not prevent them from flying
underneath the verandas and overhead and defecating.

17

Mr Howell gave evidence that he initially mounted the ABD speakers on a fence
which had a significant effect but it did not completely deter the swallows. He
then mounted the speakers on his machinery shed and programmed the
device to operate with all 8 bird calls lasting 58 seconds on a setting of
between 1 minute and 4 minute 15 second intervals at 75% of maximum
volume.

DECISION

18

He said that in March 2013, he reduced the number of bird calls to 4, being; two
tree sparrows, one sparrow distress call and one sharp shinned Hawk as the
predator call. He said that he also reduced the volume and changed the range
to 5 minute - 10 minute intervals but then reverted to the previous settings in
May 2014 because of increased swallow activity.

19

Mr Howell gave evidence that he configured the four speakers to create a

sound net over his house but due to the issues that developed with the
plaintiffs he slightly lowered the volume on 30 November 2014, reconfigured
the speakers and on 12 December 2014, disconnected two of the speakers
leaving only the north and east directional speakers operating. He said that for
the most part the ABD operates between the latter of Sunrise or 7 a.m. and
the earlier of sunset or 7 p.m.

20

Mr Courtney and Ms Jackson assert that the noise emanating from the ABD
since January 2012 has been and is an unreasonable interference with their
enjoyment of their property in that the noise is incessant, regular, of a
disturbing character and an unreasonable use by the defendants of their
property after taking into account the nature of the interference, its duration
and the nature of the locality.

21

The evidence revealed that;

Initially, the plaintiffs and defendants enjoyed a neighbourly relationship

which included the defendants allowing Ms Jackson to graze her
horses on their property.

Over time, minor disputes occurred between them which included; the
defendants complaining when Mr Courtney burnt a 5 gallon drum of
horse manure near the fence line causing smoke and fumes to go onto
their property; the defendants complaining of the smell and odour when
the plaintiffs left large bales of hay and manure near the fence line;
and, the defendants complaining when Mr Courtney left his yacht near
7

DECISION

the fence line interfering with the view from their kitchen window.

In May 2012, a major and acrimonious dispute occurred between them

in relation to the sealing of Mathiesons Road. A bitter exchange of
emails occurred between Mr Courtney and Mr Howell over what Mr
Courtney alleged was Mr Howells abuse and bullying of an elderly
neighbour who had decided not to make a contribution to the combined
cost involved in sealing the road.

Background to the issuing of Proceedings

22

Ms Jackson gave evidence that during 2012 she became aware of noise
emanating from the defendants property. She told the court that she initially
thought it was due to a continuation of a bat infestation problem that had
plagued Bairnsdale during that year but in late 2012 was made aware by
another that the source of the bird noise was mechanical in nature.

23

On 17 December 2012, without the knowledge of Mr Courtney, she rang the

East Gippsland Shire Council to complain about the noise and a Council
officer, Mr Mirabella attended her property to investigate. It appears that as a
consequence of discussions between that officer and Mr Howell, the ABD was
re-programmed on 19 December 2012 in relation to its operating times to
comply with Environment Protection Authority regulations.

24

In February 2013, the plaintiffs lodged a written complaint with the Council in
relation to the constant noise emitting from the defendants property. In his
correspondence to the Council (and to Comlaw lawyers), Mr Courtney alleged
that the noise breached the provisions of the Environment Protection Act 1970
and the Public Health and Wellbeing Act 2008.

25

It appears that as a result of further attendances and discussions between

Council officers, Mr Hull and Mr Watson and Mr Howell, the volume of the
ABD was reduced on 28 February 2013 but the plaintiffs maintained their view

DECISION

that the noise from the ABD was still audible inside their house.
26

The evidence indicates that Mr Howell attempted to resolve the issue by

suggesting to council officer Mr Hull, that he attend the plaintiffs property and
while present he be in telephone contact with him so he could make the
appropriate adjustments to the output of the ABD.

27

On 13 March 2013, at the suggestion of a council officer, Ms Jackson obtained a

certificate from her general practitioner, Dr Worboys at the Bairnsdale Medical
Group addressed to the Shire stating;
Megan is clearly stressed when at home by the invasion of distressing noise
from a neighbours property - a recording of distressing bird noises. As a
result she is experiencing increased weakness, muscle twitching, skin pain
and crawling sensation, loss of balance, insomnia and trigeminal neuralgia
that are manifestations of her multiple sclerosis - these, she says are worse
than any time in the past 10 years.

28

As a result of the ongoing dispute, council officers attended the properties on

two further occasions and after further discussion with Mr Howell, he reduced
the volume of the ABD.

29

On 23 April 2013, the Council concluded that the ABD was being operated within
environmental protection regulations and suggested that if there were ongoing
issues between the parties that private action was more likely to be effective
and appropriate and they should attend formal mediation.

30

Mr Courtney was not satisfied with the Council response and lodged a complaint
against them on 5 May 2013 with the Victorian Ombudsman. On 21 May
2013, the Victorian Ombudsman notified the plaintiffs that he considered the
investigation of the noise complaint by the council was appropriate. On 15
July 2013, the plaintiffs sought a review of the decision of the Ombudsman
which was refused on 19 August 2013.

DECISION

31

Mr Courtney gave evidence that between March 2013 and 22 February 2016 he
recorded 635 video clips totalling approximately 50 hours of the ABD in
operation. He told the court that he randomly recorded and videoed noise
from the defendants ABD in conjunction with a sound meter he had
purchased. He said that he did this to use as evidence if need be. He gave
evidence that he purchased his own ABD to gauge its effect on swallows, to
experiment with and as a retaliatory act against the defendants by directing it
towards their property. He disputed that this was a malicious act and said he
did it as he was putting them to the test. The evidence revealed that his
device was a Bird X Peller which contained bird noises from; a European
Starling, Silvereye (screech), Crow (danger), Red Wattle Bird (screech), Silver
eye, Ring-billed Gull, screech and NZ Falcon/European Starling. Mr Courtney
also admitted placing a radio on the window sill in his office adjacent to the
common fence line on 18 November 2014, directed at the defendants property
on full volume and between stations, thereby causing static noise, as
retribution.

32

On 20 January 2014, as a result of the impasse between the parties, the

plaintiffs instructed Comlaw to send a letter of demand to the defendants
alleging the nuisance from the ABD resulted in an unreasonable interference
with the plaintiffs use and enjoyment of their land, requesting that it cease and
warning that in the event that personal injury was suffered, action would be
taken to compensate them for that injury.

33

On 29 January 2014, the defendants instructed their lawyers to send a letter to

the plaintiffs lawyers providing details as to the reasons why the ABD was
installed and the adjustments that had been made by them to the ABD when
they became aware of the plaintiffs grievances. The defendants also invited
the plaintiffs to participate in a formal or informal mediation process, which
never occurred.
Effect of the ABD on the Plaintiffs
10

DECISION

34

Ms Jackson told the court that after she became aware of the noise from the
ABD in late 2012, she has been forced because of its effects on her to take
her horses to another location to groom, train and school them. She gave
evidence that she was diagnosed as suffering from multiple sclerosis in 1993
which is exacerbated from time to time by extreme heat, extreme noise and
stress. She said that her condition is controlled by rest and relaxation. Ms
Jackson described the noise from the ABD as; loud, regular, squawking, highpitched, squealing, screeching and repetitive from dawn to dusk.

35

She told the court that in periods during 2013 and 2014 when she noticed that
the ABD was turned off she was happy, overjoyed and relieved. She said that
in August 2014, the ABD noise was really loud which caused her multiple
sclerosis symptoms to worsen. She told the court that she felt weakness,
tiredness, skin pain, that she experienced muscle twitches, dizziness and
suffered from sleep deprivation. She gave evidence that the noise was
ingrained in my brain and I could hear it when it was not even on. Ms
Jackson said that she became angry and frustrated and the noise was driving
me nuts and it was unbearable. She told the court that in early March 2015,
prior to the engineers inspections, she noticed that the volume of the ABD had
been reduced which she recorded in her diary.

36

Ms Jackson told the court that the noise caused her to stay indoors and close
the windows and that she went outside as little as possible and was totally
introverted and miserable. She said that over time she became increasingly
frustrated, annoyed and angry as there was nothing she could do about it.
She said that her social life takes place away from her property which includes
attending book club and a painting group. She said that she and Mr Courtney
rarely invite people to their home and that when she is in her front paddock
tending to her horses, she can still hear the noise from the ABD despite
wearing earplugs and listening to music on her iPod.

37

During cross examination, Ms Jackson agreed that the noise caused by Mr

11

DECISION

Courtney over a 6 to 8 week period in relation to the radio incident was very
loud but said that it did not affect her as she was away from it. She also said
that the noise emitted from his ABD did not affect her as they were different
bird noises, pitch and tone. She disputed that Mr Courtneys cardiac health
problems over recent years were stressful to her.
38

In addition to the certificate referred to from Dr Worboys, a Progress Note dated

6 February 2014 and a report from Dr Uebergang, Psychologist dated 10
March 2015 were tendered. The Progress Note indicates that Dr Uebergang
saw Ms Jackson on 6 February 2014, on referral from Dr Yilmaz from the
Bairnsdale Medical Group as a result of the bird deterrent creating distress to
her. Ms Jackson told Dr Uebergang that the noise had been going on for 2
years and that Ms Jackson thought it could be retribution but did not disclose
why. Dr Uebergang obtained a history from Ms Jackson that she was
diagnosed with Multiple Sclerosis in 1993 and seemed to manage that
condition well but now felt emotionally tense, angry and disappointed that she
and her partner seemed to have no control over the noise and that they were
not enjoying their environment and their chosen lifestyle. Dr Uebergang
advised Ms Jackson that she and her partner had little control over someone
elses behaviour and actions but they did have a certain amount of control
over their own emotional reactions. She gave Ms Jackson strategies and
neuropsychological strategies for reducing stress and anxiety and Ms Jackson
did not request a further appointment.

39

Dr Jacobson, Psychologist gave evidence on behalf of Ms Jackson and a

medico-legal report prepared by him and dated 7 May 2015 was tendered. He
confirmed that he assessed Ms Jackson on 7 May 2015 and obtained a
history from her that approximately 3 years ago, in early 2012, a neighbour
installed a device to scare swallows. She told him that the device was
installed on top of a 30 foot pole and the pole is 175 m from her front door.
She told Dr Jacobson that the sound was extremely loud to the extent that she

12

DECISION

could hear it inside her house and hear it in her bathroom. Ms Jackson told Dr
Jacobson that her neighbour tends to use the device during prescribed hours,
which she estimated was between 7 a.m. and 8 p.m. (but a little later on
weekends). She said the noise lasted for approximately 30 seconds and
occurred every 2 to 4 minutes apart.
40

Dr Jacobson obtained a history that Ms Jackson considered approaching her

neighbour directly but that she thought better of it because he had previously
been angry and aggressive in other situations with neighbours as well as with
her de facto partner, Mr Courtney and herself regarding unrelated matters. Ms
Jackson told him that she has experienced extreme unhappiness. She also
told him that she feels locked in my house because I cant bear the noise for
3 summers. She said this has prevented her from going outside to garden, to
have barbecues on her property or from simply sitting in the sun to read a
book. She told Dr Jacobson that she feels aggravated, that it has made her
feel angry as she has no control over it and she cant relax and feels like she
is being tortured. She said that she has no peace and feels angry that she
cannot enjoy her property. Ms Jackson told Dr Jacobson and that she has 3
horses on her property which require regular training and that she is therefore
forced to go outside her house and endure the distress of being exposed to
the incessant noise. She told him that she has some sleeping difficulties that
have been exacerbated since the machine was installed. She also told him
that she no longer entertains at home to the same extent that she used to
because in part she is distressed by the noise and in part because she is
embarrassed by it. She said that she has a studio at home where she paints
but has been disinclined to do so because of the noise from the machine and
has been unable to open the windows of her home because the noise is so
intrusive. She told Dr Jacobson that even when the noise machine is turned
off, such as in the evening, she can still hear the sound in her head. She told
him that she feels relief when she is away from the property and has
enjoyment in her life, but upon returning she feels despair and distress.
13

DECISION

41

Ms Jackson told Dr Jacobson that for a two-week period over Christmas when
her neighbours were overseas the machine was turned off which resulted in
most of her symptoms disappearing almost immediately and that she felt
tremendous relief. She said as soon as the noise machine was turned on
again she felt an immediate escalation in her symptoms. Ms Jackson told Dr
Jacobson that she had seen a psychologist who told her that there was
nothing she could do to assist and therefore she got no relief from the
consultation with that psychologist. She also told Dr Jacobson that she had
been diagnosed with Multiple Sclerosis in 1993 and that between that date
and the installation of the ABD she only had one episode of MS but
subsequent to its installation she has experienced multiple exacerbation of her
symptoms including nerve pain in her entire body, loss of balance and general
muscle weakness and told him that her MS is exacerbated by stress and
tension. She told him that there have been no other stressors in her life that
might account for the intermittent worsening of her MS symptoms.

42

In his report, Dr Jacobson commented that he noticed that Ms Jacksons

distress and despair were obvious by the way she spoke about her
circumstances. He expressed the opinion that her symptoms meet the criteria
for a major depressive disorder, the symptoms of which include; depressed
/dysphoric mood most of the day, markedly diminished interest or pleasure in
all or most activities most of the day, insomnia nearly every day, psycho motor
agitation nearly every day and fatigue or loss of energy nearly every day. He
commented that her distress and despair have been compounded by fruitless
attempts to resolve the issue with her neighbours. He also commented that it
appeared her distress and despair are felt so acutely by her that her MS
worsened since the time her neighbour installed the ABD and in his opinion
the physical symptoms/worsening of physical symptoms as the result of
psychological factors suggest severe distress. He opined that unless the issue
with her neighbour is resolved, it is likely that her symptoms will continue and
possibly worsen and her health will further decline.
14

DECISION

43

Dr Jacobson told the court that treatment will not assist Ms Jacksons recovery
unless the ABD is turned off. He said that he did not consider anti-depressant
medication or psychotherapy would reduce her symptoms. On being
questioned by me as to the history he obtained from Ms Jackson regarding
the particular ABD noise, he said that she did not tell him what it was but he
assumed that the noise was a screech or a siren. On being informed that
the ABD emitted bird noises, he said that the nature of the sound did not
cause him to alter his opinion.

44

Dr Wahr, Consultant Psychiatrist, gave evidence that he assessed Ms Jackson

for medico-legal purposes on 10 August 2015. Dr Wahr obtained a history
from Ms Jackson that; in 2012, her neighbour started using a bird scaring
device, which is an electronic transmitter sounding the noise of killing birds
and the noise is played over and over every 2 minutes-the same noise
which is a high pitched squeaking, squealing, horrible and annoying noise.
She told him that the noise goes on all day from dawn to dusk and has gone
on since 2012 and is audible inside her house. She said that the noise traps
her inside her home because every time she goes out the noise makes her
distressed and upset, that it is intolerable and it causes severe anxiety that
requires her to keep all the windows closed and she feels trapped in her own
home, instead of enjoying the 4 acres she lives on.

45

Ms Jackson told Dr Wahr that she had seen a psychologist and takes Mogadon
for sleeping. She told him that she has severe anxiety, anger, and distress and
that she has to take a deep breath and put her shoulders back when she
walks outside her door. Dr Wahr obtained a history from Ms Jackson
regarding her social life, past medical history and then undertook a mental
status examination and assessment. He concluded that she displays evidence
of a significant anxious affect but no evidence of depression or psycho motor
retardation. He opined that she is suffering from an anxiety state constituting
an impairment of 25%. He stated that 20% of her anxiety state relates to the

15

DECISION

noise and 5% relates to her having MS. Dr Wahr opined that Ms Jackson
would benefit from treatment by a consulting psychiatrist with supportive
psychiatric psychotherapy and appropriate anti-anxiety medication rather than
taking Mogadon. He stated that she is quite significantly distressed and her
quality of life has been impaired.
46

Dr Wahr provided a Certificate of Assessment dated 15 September 2015 in

accordance with S 28LN of the Wrongs Act 1958, certifying that Ms Jacksons
anxiety state results in more than a 10% degree of impairment. The purpose
of obtaining this certificate was to allow Ms Jackson to claim damages for
non-pecuniary loss against the defendants on the basis that she satisfies the
significant injury threshold pursuant to S 28LB(b), should the plaintiffs
succeed on the primary issue.

47

Dr Wahr gave evidence that Ms Jackson requires supportive psychotherapy

treatment and medication in the form of Alprazolam or Seroquel. He said that
if the noise ceased, Ms Jackson would have a 75% improvement within 6
months and she would be left with a small chronic anxiety impairment of 5%.

48

During cross-examination, Dr Wahr said that Ms Jackson described the ABD

noise as being killing birds which caused him to assume that the noise was of
someone who had recorded the killing of birds. He said that he was not aware
the ABD noise was of different bird sounds. He also told the court that he was
not informed of the decibel level of the emitted noise but assumed it was loud
to her and assumed the noise could be heard by her inside her house.

49

Dr Wahr gave evidence that Ms Jackson did not tell him her anxiety was
triggered when she heard bird noises away from the property and she did not
tell him the ABD affected her ability to paint. He agreed with the suggestion
that the heart complaints that Mr Courtney has suffered in recent years could
have increased her anxiety levels. He said that he would have expected Ms
Jackson to be in immediate distress when she first heard the noise emitted

16

DECISION

from the ABD.

50

Mr Courtney gave evidence that he did not notice any noise from the ABD until
he was alerted to it by Ms Jackson in late 2012. He said that because she told
him it was distressing to her, he lodged a written complaint with the local
Council in February 2013. Although he acknowledged that he has a significant
hearing loss, he told the court that he could clearly hear the noise all over the
property which affected him badly until 6 March 2015 when it was turned
down and that he rarely hears it now.

51

Mr Courtney told the court that he was the author of numerous emails and
letters to the Council which he said was an attempt by him to solve the
problem. He said that he was increasingly becoming angrier and irritated
about the issue which caused him to gravitate from his office, which is
adjacent to the common fence line with the defendants, to his house. He said
that his office includes a gym, lounge, shower and bathroom and it used to be
his favourite spot on the property. He described it as his refuge. He told the
court that he now largely works from inside the main house.

52

Mr Courtney gave evidence that during 2015, Ms Jackson was becoming more
stressed and on one occasion he observed her on the couch, shaking and in
the foetal position. He told the court that he rarely heard the noise inside the
house and that at one stage he and Ms Jackson considered selling their
property but ultimately decided to tough it out. He also told the court that the
ABD is off more than it is on, but he still hears it a lot of the time.

53

Mr Backman, Farrier, gave evidence on behalf of the plaintiffs. He told the court
that he has lived in the area for 40 years and has been employed by the
plaintiffs as their Farrier for approximately 10 years. He said that he visits their
property every 6 to 7 weeks to perform Farrier work on Ms Jacksons three
horses. He said that when he first heard the bird noises he thought the
neighbours had an Aviary. He told the court that the squawking noise was

17

DECISION

annoying and a crappy noise and if it was a real bird he would shoot it.
54

Ms Waddell, the plaintiffs domestic cleaner, gave evidence on their behalf. She
told the court that she attends the plaintiffs property once per week for 4 hours
to perform cleaning duties. She said she can hear the bird noises from the
front gate when she arrives and when she is working inside the house. She
described the sound as screeching like a parrot. She said that it was very
loud at the start, approximately 2 years ago, but from March 2015 it was less
noisy although she could still hear it when outside the house but would have
to listen hard to hear it when inside the house.

55

Ms Scott, a friend of Ms Jackson, also gave evidence. She told the court that
she has known Ms Jackson since 2011 as a result of her participation in the
Riding for the Disabled Association. She told the court that she visited the
plaintiffs property twice a week for a 1 to 2 hour period to assist Ms Jackson
school her horses. She said that she noticed the bird sounds in January 2013
which she described as very loud, mechanical, repetitive and almost
constant-like screeching cockatoos. She said that it disturbed her because of
its effect on Ms Jackson who would regularly leave the paddock and go inside
her house. Ms Scott gave evidence that she did not notice the noise that
much because she was busy with the horses. She told the court that she
could hear the noise from the ABD when riding at Eagle Point Bluff which is
approximately 600 m from the defendants property.

56

The defendants tendered an Expert Report of Ms Miklosvary, Audiologist from

Gippsland Audiology. Her opinion was based on audiological assessments
that the defendants had arranged to be conducted on each of the parties by
bloom hearing specialists in July 2015. The assessment of Mr Courtney
indicated moderate rising to mild sensorineural hearing loss in the left ear and
a moderately severe rising to mild loss in his right ear. Ms Jacksons results
indicated a mild sensorineural hearing loss in the left ear and a mild to
moderate sensorineural hearing loss in the right ear. When assessed Mr
18

DECISION

Howell told the audiometrist that he had a hearing problem for the past 3 to 4
years and has hearing aids but really uses them. His assessment indicated a
moderate sensorineural hearing loss in the left ear and a moderately severe
sensorineural loss in the right ear. The assessment of Ms Howell indicated
that her hearing was within normal limits. Ms Miklosvary provided an opinion
on each of the parties in relation to a number of questions posed by the
defendants lawyers. In relation to their individual perception of sound
pressure levels she reported that; given Mr Howells hearing is within normal
limits in the low frequencies she would expect him to hear some
characteristics of broadband environmental noises down to about 30-35dBa;
as Mrs Howells hearing is within normal limits across all speech frequencies
she would be able to hear very quiet broadband environmental noises down to
30dBa; as Ms Jackson has a mild hearing loss, she would be expected to
hear broadband environmental noises down to about 35-40dBa; and, Mr
Courtney, whose hearing is within normal limits in the left ear in the mid
frequencies would be able to hear some characteristics of broadband
environmental noises down to about 35dBa.
57

Ms Miklosvary also made an approximate estimate of the parties ability to hear

noise in the frequency band 2-6 kHz based on sound pressure level ranges of
35-45dBa and at 45-55dBa and opined that; Mr Howell would most likely be
able to hear noise down to about 45dBa at 2kHz; Mrs Howell would be likely
to hear noise down to 30dBa; Ms Jackson would be likely to hear noise down
to 35dBa and Mr Courtney at about 40dBa.

58

Ms Miklosvary also noted that despite each individuals ability to hear the
environmental noise in each condition, how each individual listens to or is
aware of the sound will vary greatly. She reported that this will depend on
many factors which may include attention, concentration, other environmental
noises present, where the conversation is trying to be understood, humidity,
wind direction and feelings about the noise. She stated that for example, even

19

DECISION

though the environmental noise may be barely audible to one individual and
comfortably audible to another, it may seem louder and more intrusive to the
individual in which the sound is barely audible.
59

The plaintiffs called evidence from Mr Growcott, Acoustic Engineer and an

Expert Report prepared by him and dated May 2015 was tendered. The
defendants tendered an Expert Report from Dr English, Acoustic Engineer
which was reviewed by Mr Dalmau, Acoustic Consultant, dated May 2015,
and a report dated 7 July 2015 in which Dr English reviewed the Expert
Report of Mr Growcott.

60

Mr Growcott gave evidence that he has over 40 years experience in noise

impact and control assessments. His report indicated that he was contacted
by Mr Courtney in November 2014 to conduct an assessment on the noise
being emitted by the defendants ABD. Mr Growcott visited the plaintiffs
property on 1 May 2015 and deployed a permanent noise logger in their front
garden between 1 May and 4 May 2015. He also measured the noise being
emitted using a precision sound level meter which included frequency analysis
circuitry. He observed that the noise environment on the property included;
occasional distant traffic, natural bird noises near and far and the repetitive
and regular noise from the sequence of small bird sounds including birds
under stress from the ABD located on the defendants property. He estimated
that the residences on either property were approximately 80 metres apart
and that the ABD loudspeaker was approximately 150 metres from the
measuring location in the front garden of the plaintiffs property which was
approximately 17 metres from the front of the their house. He reported that
measurements and observations were made at the paddock fence line beside
Mathiesons Road and near the front steel gates of the defendants property
which he estimated to be approximately 80 metres from the ABD loudspeaker.

61

Mr Growcott observed that the loudspeaker was providing a directional sound

propagation field, with the higher values observed when the loudspeaker is
20

DECISION

directly facing the listener and lower values when the listener is off the direct
propagation axis. He noted that the noise environment while on the plaintiffs
property included occasional periods when there were little or no natural bird
noises of any kind. He stated that there were other periods when the ABD was
the dominating noise source and more common times when the noise of live
birds near and far produced overall noise levels of similar and higher values to
that of the ABD. He stated that the dominant other live bird noise was
produced by galahs which were near and far. He said the character of galah
noise produced lower frequency noise than the ABD and therefore it was
possible to identify the noise levels of each of these bird noise sources.
62

Mr Growcott observed that the ABD appeared to have a similar sequence of

noise events with the distress call component separating segments of chirping
sounds. He also noted that the duration of chirping in the sequences
appeared to vary with the stress component varying. He said that once he
was aware of the character and the repeated 3 to 5 minute and 28 second
sequence of the ABD, the noise from it was very identifiable. He said that this
was despite the random galah and other bird noises occurring regularly at
similar and sometimes higher levels than the ABD, in particular when the
galahs were flying relatively close to the observation location. Mr Growcott
said that Mr Courtney informed him that on or about 6 March 2015, (two
months before he attended the property), the level of noise from the ABD was
reduced in volume.

63

Mr Growcott stated that he inspected the sound level meter used by Mr

Courtney when he recorded the noise emitting from the defendants ABD. He
noted that Mr Courtneys sound level meter has the ability to measure a single
overall noise level, but not individual frequency components of a particular
noise. Mr Growcott reported that he listened to and observed the sounds of
the defendants ABD on Mr Courtneys computer which indicated that the ABD
was the dominating noise and the higher value noise levels as indicated on Mr

21

DECISION

Courtneys sound level meter were in the order of 43dB(A). 5 Mr Growcott

reported that a similar exercise carried out by him during the survey, using his
precision sound level meter, produced higher values in the range of 3640dB(A) (when dominated by the ABD noise). Mr Growcott assumed that the
noise level reduction would have been in the order of 3-7dB(A) based on
comparisons between his readings and that of Mr Courtneys. He noted that it
is generally considered that a 10dB(A) reduction in a noise level will be
subjectively assessed as a halving of a noise level.
64

The result of Mr Growcotts survey of noise measurement from the front of the
plaintiffs garden indicated;

65

typical higher observed noise levels of ABD chirping noise: 36dB(A)

typical higher observed noise levels of ABD squawking noise: 40dB(A)

typical lower levels of ambient noise in the absence of ABD noise: 30dB(A)

typical range of natural bird noises from near and far: 35 to 45dB(A)

Mr Growcott reported that he is not aware of any specific noise assessment

procedures or rules and regulations in relation to electronic bird scarers where
they have been installed for housekeeping purposes in a residential property
zone. He noted that the Victorian Environmental Protection Authority has
issued qualitative guidelines for limiting the noise associated with bird scaring
guns which produce short-term explosive noise. He noted that the guidelines
also impose other limits, including avoiding using scare guns when the
distance to the complainants residence will be less than 300 metres and
limiting blasts to no more than 70 blasts per day. Mr Growcott reported that
the South Australian Environmental Protection Authority has provided
suggested daytime noise limits for electronic bird scarers on productive
farming land or orchards, when there are nearby residences. He told the court
that the methodology he used was to apply the EPA Noise Control Guidelines

dB(A) means the decibel level with an applied A-weighting.

22

DECISION

that are applicable to residence noise impacting on other residences as he

considered them to be the most appropriate in the circumstances. He stated
that under these Guidelines a reasonable outcome is where the intrusion does
not exceed the lower level of background noise by more than 5dB(A). He said
that under this method it compares the lower levels of ambient noise with the
higher level of the introduced noise.
66

Mr Growcott noted that the defendants expert, Dr English, adopted the EPA
Guidelines Noise from Industry in Regional Victoria - SEPP N-1. The
guidelines apply in all locations in Victoria outside the boundary of
metropolitan Melbourne, which includes Eagle Point. Within the SEPP N-1
area, SEPP N-1 is law and must be used. He told the court that he was
involved in the implementation of SEPP N-1 and that that they relate to
industry impact on residence. He did not consider SEPP N-1 to be appropriate
in the circumstances of this case which involves private residences. He
conceded during cross examination that the NIRV guidelines allow for the
assessment of such devices but their purpose should be confined to noise
from commercial or industrial premises. He said that because the ABD noise
does not last 1 minute you are not required to adjust intermittency as
intermittency is said to increase annoyance. In the present case, he noted that
the ABD emits noise for 30 seconds every 3 to 5 minutes and if it did it emit
noise for 1 minute he would adjust intermittency under the State
Environmental Protection Guidelines.

67

When asked to compare the expert opinions, Mr Growcott said that they were in
agreement that when the ABD is quiet, the noise level is 30dB(A) and he did
not believe the noise levels measurements taken him and Dr English differed
that much.

68

Mr Growcott noted that the patterns of the ABD were repetitive and regular
which made them easily audible and identifiable in the ambient noise
environment surrounding the plaintiffs property. He noted that the ambient
23

DECISION

noise environment during the daytime was observed to include times when
natural bird sounds represented a significant component of the overall
environmental noise levels. He stated that even during these periods the
character of the ABD noise was significant in their overall audibility. He noted
that audibility of a potentially intruding noise is really character of a qualitative
noise assessment. He said that at times when the noise of natural birds were
minimal in the ambient noise environment, the higher value noise levels from
the defendants ABD was regularly 40dB(A). In his opinion, most common
qualitative noise assessment procedures would determine that this differential
between the lower levels of the ambient noise and the levels produced by a
potentially intrusive noise to be unreasonable. He noted that the EPA General
Guidelines for domestic noise sources recommends that the higher noise
levels of a domestic source during daytime does not exceed the average
lower levels of the ambient noise by 5dB(A). He also stated that most noise
assessment procedures determine acceptable noise levels for potentially
intruding noise to be at a level to be immersed within the natural
environmental noise that existed prior to the introduction of the new potentially
intruding noise.
69

In Mr Growcotts opinion, there will be times when the natural bird noise forming
part of the natural noise environment will be sufficiently loud to immerse the
ABD within the noise environment, but he does not consider that it was
enough to justify the noise as reasonable. In his opinion, if the ABD is to
remain, it could be reduced in noise level at the plaintiffs property with
practical noise control to the noise source. When giving evidence he
suggested that a panel could be inserted to direct the sound; the speakers
could be relocated so as not to have the propagation site at the plaintiffs
property; the speakers could be located near the common boundary and
directed towards the courtyard on the defendants property; or, the speakers
could be set at a lower volume in different locations. He noted that as it
presently exists the ABD admits high frequency noise and he recommends
24

DECISION

that it should not exceed 35dB(A) in the front garden of the plaintiffs property.
In his opinion, this level of noise at the plaintiffs property would result in the
noise level being audible some of the time, but mostly masked by other
ambient noise.
70

Dr English reported that he attended the site on 17 and 25 March 2015. He

noted that the parties land is low density residential zoned land bound by the
Mitchell River to the north, public park and recreation zoned land to the east,
low density residential zoned land and general residential zoned land to the
south and low density residential zoned land to the west. He also noted that
the plaintiffs property is located to the west of the defendants property and
the ABD is located approximately 165 metres south east of the most exposed
faade of the plaintiffs house. Dr English noted that the ABD is configured to
target swallows with a combination of four different bird calls lasting 28
seconds and operates randomly approximately 21 times per hour.

71

Dr English reported that the Victorian Government provides guidance on

industry operational noise levels and limits by reference to; State Environment
Protection policy Control of Noise from Commerce, Industry and Trade No.
N-1 (SEPP N-1) and Noise for Industry in Regional Victoria (NIRV):
Recommended Maximum Noise Levels from Commerce, Industry and Trade
Premises in Regional Victoria. He noted that both are intended to be applied
for noise generated by commerce, industrial and trade premises although it is
stated in the NIRV guidelines that noise from electronic bird-scaring devices
may be assessed under these guidelines. In his opinion, the appropriate noise
criteria applicable to the ABD in this case are the recommended levels as
determined in accordance with the NIRV guidelines.

72

Dr English reported that the methods for determining the effective noise levels
under the Guidelines include penalty adjustment for the character and
duration of the noise. In accordance with that Guideline, the effective noise
level is the noise level from industry measured at a residential dwelling or
25

DECISION

noise sensitive location, which has had adjustments applied to it to account for
certain characteristics such as tone, impulse, duration, intermittency, etc.
which may make the noise more or less annoying to residents than the
measured level alone would indicate. He also referred to the World Health
Organisation

(WHO)

guidelines

for

community

noise

which

identify

parameters for measuring the noise level, the adverse health effects of noise
and which provides guidance values using the lowest noise level that
produces an adverse health effect which includes issues with speech
communication, sleep disturbance, cardiovascular and physiological effects,
residential behaviour and annoyance.
73

After taking these matters into account, he determined that the following noise
limits for the ABD are applicable;

the ABD should not be audible to the plaintiffs inside their house during

the night-time period and between 7 a.m. and 9 a.m. on weekend days and
public holidays; and

in the outdoors, the noise from the ABD should not exceed 45dB(A)

during the daytime, 39dB(A) in the evening and 34dB(A) at night.

On the basis that the ABD operates during the day and evening, Dr English
concluded that the limiting criteria is an effective noise level of 39dB(A). By
reference to the WHO Guidelines, he stated that the indoor levels should
remain below 35dB(A) during the day and evening to ensure that the speech
intelligibility and serious or moderate annoyance are not an issue.
74

Dr English reported that the noise survey conducted by him between 17 and 25
March 2015 by use of a noise logger in conditions that were mainly fine with
light to moderate winds and occasional rain recorded a noise level ranging
between 35db and 42db during the day, with an average reading of 34db and
a range between 33db and 41db during the evening with an average of 33db.

26

DECISION

75

Dr English also recorded the ambient noise environment on the plaintiffs

property and inside their house. He noted that the primary contributors to the
noise environment included local birdlife, distant road traffic as well as
agricultural vehicles and activities. He recorded the following background
noise levels on 17 March;

76

bedroom: 22db

office: 29db

South East corner: 33db

noise logger position: 37db

Dr English also compared the noise emitted from the ABD and the ambient
noise level. He concluded that the ABD only exceeds the ambient noise level
in the 3.15kHz and 4kHz frequency bands and that the majority of the ABD
sound power is contained between 2.5kHz and 5kHz. He concluded that
because the ABD is highly tonal in nature, a +5db penalty should be applied
and because the device sounds for 28 seconds at random intervals 21 times
per hour it requires a -7.9dB duration adjustment. Mr Growcott agreed that
these penalty and adjustments were appropriate when he gave evidence.

77

After applying the tonal adjustment and duration adjustment, Dr English made
the following effective noise level calculations on the plaintiffs property based
on his recording of noise levels on 17 and 25 March 2015;
-

South east corner of plaintiffs property: 32 dB(A)

Paddock: 36dB(A)

Front of gym: 36dB(A)

Logger location: 34dB(A)

Patio: 29dB(A)
27

DECISION

78

Front gate: 29dB(A)

Inside office: 22 dB(A)

Inside living area with patio door open: 19dB(A)

Dr English concluded that; the ABD complies with the Environment Protection
(Residential Noise) Regulations 2008 and the effective noise levels do not
exceed the recommended maximum levels defined in the NIRV and the WHO
Guidelines for Community Noise threshold levels. He noted that the noise
level of the ABD is of a particularly low level compared to the existing
background noise levels. He considered the ABD to be just perceivable
inside the main living area of the plaintiffs house with the patio doors fully
open and not perceivable inside the master bedroom when the windows are
open or closed.

79

In his report dated 7 July 2015, Dr English reviewed the report of Mr Growcott.
He agreed with the conclusion of Mr Growcott that the ABD is directional with
higher noise levels emitted in the direction of the plaintiffs property compared
to the direction along Mathiesons Road. He also agreed with his observations
that the local noise environment is dominated by local birdlife, which at times
generate noise levels significantly higher than that of the ABD in the plaintiffs
property. However, Dr English noted that in addition to galahs, as reported by
Mr Growcott, he observed bird noise emanating from cockatoos, magpies and
wattle birds and others when he visited the properties. Dr English agreed with
Mr Growcott that the noise from the ABD is primarily between 3kHz and 5kHz
frequency bands.

80

When applying his chosen methodology (SEPP N-1), Dr English noted that
because the ABD operates for only a short amount of time, the noise should
be subject to a Duration adjustment of -8dB in addition to a tonal penalty of
+5dB which results in the effective noise level as measured by Mr Growcott to
be 31-34dB(A). He also noted that Mr Growcott stated that his measured
28

DECISION

background noise level was 30dB(A) whereas his measurements indicated it

was 33dB(A). Dr English reported that after using the industry standard
method for establishing background noise levels and using the Background +
5dB methodology based on his readings, the background noise level would
increase the noise limit to 38dB(A) and not 33dB(A) as stated by Mr Growcott.
81

Dr English reported that after use of the adjustments to account for the very
short duration of the ABD noise and the tonal penalty under SEPP N-1, the
effective noise level of the ABD is 31-34dB(A) which is below 35dB(A) as
recommended by Mr Growcott. He also noted that the difference in the
background noise level readings suggest that during the dates of the
assessment the noise level complied with the Background Plus level based
on the methodology he used for both his and Mr Growcotts measurements.

82

Mr Howell gave evidence that after becoming aware of the plaintiffs concerns
he undertook various steps to address them including adjusting the volume of
the ABD, the number of bird sounds, frequency and speaker operation whilst
at the same time ensuring that the device performed its function and
effectiveness to prevent swallow infestation and its associated problems. He
told the court that after he received the plaintiffs lawyers letter of demand in
January 2014, he suggested that the dispute be mediated or another method
adopted by which their concerns could be independently assessed. He told
the court that this suggestion was not taken up by the plaintiffs.

83

Mr Howell told the court that after proceedings were issued on 5 September
2014, he suggested that a series of tests be conducted in November 2014
involving adjusting various aspects of the operation of the ABD for specified
periods to determine the effectiveness of the adjustments on the function of
the device and whether they would lessen the alleged impact on Ms Jackson.
Mr Howell tendered a Table of adjustments made by him to the device
between 19 December 2012 and 12 December 2014. He acknowledged that
in November 2014, the plaintiffs lawyers suggested that he could place the
29

DECISION

ABD speakers to direct the noise from the West to East and that the speakers
could be enclosed in a sound attenuation box pointing towards their
residence. He told the court that he did attempt to configure the direction of
the sound by disconnecting the speakers facing south and west and leaving
the north and east speakers operating but found there was a significant
amount of sound leakage. He said that he also researched the possibility of a
sound attenuation box but found that it would need to be sizable, situated on a
mast and would need town planning approval. He said that he did not
consider it would work.
84

Mr Howell gave evidence that the last time he made adjustments to the volume
of the ABD was on 24 November 2014, to the tone on 30 November 2014 and
to the speakers on 12 December 2014. On the basis of the evidence he gave
that the ABD was operating on all four speakers between January 2012 and
12 December 2014 and thereafter on two speakers necessitated the court
conducting a second view on the 5th day of hearing in order to determine
whether there was any discernible difference in the level of noise emitted from
the ABD on the plaintiffs property from when the first view was conducted
(with only two speakers in operation as has been the case since 12 December
2014) and when four speakers were in use which occurred between January
2012 and 12 December 2014. At the second view, the court heard the ABD in
operation with both 4 and 2 speakers in operation and a combination of 4 and
8 bird calls. Mr Howell said he did not believe the ABD noise was louder with 4
speakers in operation rather than 2. He confirmed that only 2 speakers were
in operation when both Mr Growcott and Dr English inspected the site and
made their recordings (Ms Jackson, Mr Courtney and Ms Waddell gave
evidence that the volume was reduced prior to their inspections). Mr Howell
told the court that at present the ABD operates at the later of sunrise or 7 a.m.
and is off at the earlier of sunset or 7 p.m. Monday to Friday. He said that on
weekends it operates from the later of sunrise or 9 a.m. and shuts down the
earlier of sunset or 7 p.m.
30

DECISION

85

Mr Howell gave evidence that at present the ABD operates at varying times as
outlined above depending on the time of year with a randomised call
sequence between one minute and 4 minutes 15 seconds.

86

During cross examination, Mr Howell disputed that he had modified the noise
controls of the ABD. He also disputed the suggestion that swallows are a
seasonal bird and told the court that they are present all year round and
therefore it was not practical to operate the ABD for only 3 months of the year
or only during the breeding season. He said that he would not be willing to
turn the ABD off during the morning hours as there is high activity by the
swallows during that time but would consider turning it off between May and
July providing the swallows did not re-establish themselves. Mr Howell
disputed the suggestion that it is his intention to protect his property from
swallows at any cost. However, he did concede that he was prepared to use
all means necessary to protect his property, providing it did not breach any
law or cause interference to his neighbours. He agreed that he has not
implemented any of the alternatives suggested by Mr Growcott but is
prepared to negotiate with the plaintiffs to find a solution to the dispute.

Other Cases
87

There have been a number of cases over the years dealing with a private action
in nuisance based on noise. The subject matter of the nuisance has included;
church bell noise6, the noise and smell of horses7, noise from a wood saw8,
noise of horses and the smell of manure and urine 9, noise from boilers and
noxious acid smuts10, noise from an inebriated neighbour, singing, shouting
and swearing11, noise from a neighbours property 12, noise from children in

6
7
8
9
10
11
12

Haddon and Anor v Lynch and Ors (1910) VLR 5.

Painter v Reed (1930) SASC 295.
Spencer v Silva (1942) SASR 213.
Munro v Southern Dairies Ltd (1955) VLR 332.
Halsey v Esso Petroleum Co. Ltd (1961) QBD 145.
Vincent and Anor v Peacock (1973) NSWLR 466.
Oldham v Lawson (No.1) [1976] VR 654.
31

DECISION

kindergartens and schoolyards13 and noise from garbage trucks14. Cases

involving the use, restriction and prohibition of an ABD have arisen in the
context of planning applications before local councils.

15

It is important to note

that whilst guidance can be given from these cases, the question of the
existence of a nuisance is one of degree and must necessarily turn on its own
particular facts and circumstances. Ultimately, the question of whether a
particular noise amounts to a nuisance, is a question of fact.
88

A number of statements and principles from these cases are of assistance when
considering the issues that confront the court in this proceeding. In Haddons
case, the plaintiffs were aggrieved by the ringing of a church bell on early
Sunday mornings. It was a source of annoyance to them and they complained
that the ringing of the bell disturbed them in the peaceable and quiet
possession, use, and enjoyment of their house and therefore constituted a
nuisance. Evidence was given on behalf of the defendants by a number of
neighbours to the effect that they suffered no annoyance. ABeckett J stated;
what I have to decide is whether the plaintiffs have truthfully described the
effects of the bell upon themselves, and whether those effects are due to its
exceptional aggressiveness or to their exceptional nervous condition. If they
have suffered it is quite immaterial that other people have not. Of course, the
evidence of other people is of value in testing the plaintiffs veracity or
sincerity, or the extent to which hypersensitivity this has caused them to
suffer. His Honour referred to what Knight Bruce LJ said in Walter v Selfe16,
that the inconvenience which the court will protect against must not be one of
mere delicacy and fastidiousness, but must be an inconvenience materially
interfering with the ordinary comfort physically of human existence, not merely
according to elegant or dainty modes and habits of living, but according to
plain, sober, and simple notions among English people. His Honour also

13
14
15

16

Meriden School v Pedavoli [2009] NSWLEC 183.

Cohen v City of Perth [2000] WASC 306.
Macgillivray v District Council of Mt Barker [2001] SAERDC 11 and Edwards v District Council of Mt
Barker [2007] SAERDC 9.
[1851] 4 D.G. & S 315.
32

DECISION

referred to the statement of Lord Selbourne in St Helens Smelting Company v

Tipping17 where he said; with regard to personal inconvenience and
interference with ones enjoyment, ones quiet, ones personal freedom
Whether that may or may not be denominated a nuisance, must undoubtedly
depend greatly on the circumstances of the place where the thing complained
of actually occurs. Ultimately it was held that the early morning ringing of the
church bells was an unreasonable disturbance of the plaintiffs comfort and a
nuisance which the court should restrain.
89

In Spencer, the plaintiff lived in a residential district and the defendant who was
his neighbour conducted a wood yard business on his property which required
him to use a saw almost continually during working days and hours. Evidence
was given that the noise from the wood saw was penetrating, annoying,
irritating and screeching. Mayo J stated; but that the plaintiff, and that the
person or persons living with her, are so affected is not necessarily sufficient.
The test does not depend arbitrarily upon the peculiar susceptibilities of the
person complaining. Although the application of the test is subjective, the
measure must be objective. It is to be measured by plain sober and simple
notions among ordinary people, and not according to elegant or dainty modes
or habits of life (as per Knight Bruce in Selfe). If a person be impervious to
noise, and remain unaffected, he will not have any ground of complaint,
notwithstanding that persons of ordinary sensibility would be adversely
affected. He has suffered no damage, and damage is part of the cause of
action. In some circumstances, which do not include cases where the
discomfort is purely personal only very slight evidence of damage need be
proved. To that extent the test is subjective. On the other hand, persons who
are so sensitive that they cannot endure sounds to which ordinary people
would not object, can have no relief if the claim fails when related to the
objective criterion. That increasing age often brings a higher degree of
sensitivity to noise as suggested by witnesses is probable. That factor is, I

17

[1865] 11 HLC 642.

33

DECISION

think, proper to be brought in when fixing the objective standard. Elderly

people are entitled to consideration equally with those who are young. Tested
then upon the basis of persons unaffected by idiosyncrasy, of persons who
are not abnormally sensitive to noise, would the suffering of the plaintiff and
her husband be deemed a reasonable consequence? The behaviour of both,
the plaintiff very much less so than her husband, has been extravagant, which
may itself be an indication of abnormality, if not of ultra-sensitiveness. A
nuisance by noise. is emphatically a question of degree; per Murray CJ in
McKenzie v Powley

18

. The attributes or characteristics of sound, which are

relevant to the question of degree, are intensity or loudness, pitch, whether

high or low, and timbre or quality of tone. Where musical tones are
simultaneous, they may result in harmony or discord. Even if harmonious it
does not necessarily follow that they are free from offence on all occasions.
Sounds that are not annoying or irksome, when produced for short periods
only, and not at inopportune times (such as the early hours of morning), may
become so by long continuation, or by the unsuitability of the time or
occasion.
90

To constitute a nuisance noise must be unusual or excessive. It must be such

as materially to interfere with the ordinary comfort of those living in the
neighbourhood, according to plain and sober and simple notions. The
persistent noise of wood sawing at high speed is sufficiently loud to carry
some distance, and discordant and shrill enough to be difficult for persons,
not enured to it, all without the special quality of being capable to endure
themselves to it, or who are unable to concentrate on their immediate task,
whether laborious or pleasurable, to the exclusion of such competitive
distraction. When that noise occurs daily for long periods, I think, it becomes a
menace to reasonable comfort. It may be true that some people can readily
adapt themselves to it without effort, others can with the exercise of
determination accustom themselves to it, something like the inhabitants of

18

[1916] SALR 1.
34

DECISION

London towards bombing, but that does not necessarily mean, because that
is so, if it is, that the law requires all persons to endure themselves to the
unpleasantness or quit. Mayo J ultimately held that the persistence and the
daily relentlessness of the noise subjected the plaintiff to more than she
should properly be called upon to endure.
91

In Halsey, the plaintiff was the owner and occupier of a house in a residential
area and the defendants owned and occupied an oil storage and issuing
depot opposite his house. In the depot, the defendant operated steam boilers
the noise from which went on throughout the night and which varied in
intensity peaking at 63dB causing the plaintiffs windows and doors to vibrate
resulting in sleep disturbance. He also complained of the noise from the
engines of oil tankers which came and went from the defendants premises
throughout the night. Veale J said that one useful approach to the
considerations to be taken into account in a case of alleged nuisance by noise
is to be found in decision of Luxmore J in Vanderpant v Mayfair Hotel Co.

19

who also referred to the statement of Knight Bruce VC in Selfe and stated: it
is also necessary to take into account the circumstances and character of the
locality in which the complainant is living. The making or causing of such a
noise as materially interferes with the comfort of a neighbour when judged by
the standard to which I have just referred, constitutes an actionable nuisance,
and it is no edge to say that the best-known means have been taken to
reduce or prevent the noise complained of, or that the cause of the nuisance
is the exercise of a business or trade in a reasonable and proper manner.
Again, the question of the existence of a nuisance is one of degree and
depends on the circumstances of the case.
92

Veale J went on to state; nuisance by smell or noise is something to which no

absolute standard can be applied. It is always a question of degree whether
the interference with comfort or convenience is sufficiently serious to
constitute a nuisance. The character of the neighbourhood is very relevant

19

[1930] 1 Ch 138.
35

DECISION

and all the relevant circumstances have to be taken into account. What might
be a nuisance in one area is by no means necessarily so in another.. The
standard in respect of discomfort and inconvenience from noise and smell
which I have to apply is that of the ordinary reasonable and responsible
person who lives in this particular area of Fulham. This is not necessarily the
same as the standard which the plaintiff chooses to set up for himself. It is the
standard of the ordinary man, and the ordinary man, who may well like peace
and quiet, will not complain, for instance, of the noise of traffic if he chooses
to live on a main street in an urban centre, nor of the reasonable noises of
industry, if he chooses to live alongside a factory. On the facts before him,
Veale J found that the plaintiff had satisfied him that a nuisance existed and
granted damages and an injunction.
93

In Oldham, a husband and wife brought an action in nuisance arising from noise
from their neighbours house. Harris J said;
To establish a nuisance, the plaintiffs must show that there has been a
substantial degree of interference with their enjoyment of their use of the
house at 31 Mathoura Rd. What constitutes such a substantial degree of
interference must be decided according to what are reasonable standards for
the enjoyment of those premises. What are reasonable standards must be
determined by common sense, taking into account relevant factors, including
what the Court considers to be the ideas of reasonable people, the general
nature of the neighbourhood and the nature of the location at which the
alleged nuisance has taken place, and the character, duration and time of
occurrence of any noise emitted, and the effect of noise.

94

In Cohens case, Roberts-Smith J adopted, with some modification, the

propositions as stated by Jordan CJ in Don Brass Foundry Pty Ltd v Stead

20

as follows;
1. The test is whether the emanations complained of create an
20

(1948) 48 SR (NSW) 482.

36

DECISION

inconvenience materially interfering with the ordinary comfort physically of

human existence, not according to elegant or dainty modes and habits of
living, but according to plain and sober and simple notions
2. The law does not indulge mere delicacy all fastidiousness.
3. A person living in a locality mainly occupied for the conduct of trades which
are inevitably noisy or smoke producing cannot reasonably expect the
same standards of immunity from noise or smoke to as a person living in a
mainly residential area - but even here there must not be an unreasonable
increase in the amount of noise or smoke which denies the person
reasonable comfort.
4. In considering whether unreasonable inconvenience has been caused,
allowance must be made for reasonable give-and-take.
5. In many cases it is a question of degree.
95

A case involving the use of an audible bird scaring device is that of Edwards v
District Council of Mount Barker and ORS

21

, a decision of the Environment

Resources and Development Court of South Australia. The appellants who

changed the use of their land from grazing to viticulture were aggrieved by a
decision of the Council which imposed a condition that no audible bird scaring
devices were to be used on the property. The respondents to the application
also included neighbours of the appellants who were concerned that the noise
from the ABD would limit their ability to enjoy outdoor activities on their
property, particularly at weekends together with the intention of the appellants
to use the device continuously, 7 days a week between the hours of 7 a.m.
and 8 p.m. and the possibility that the devices would be audible and annoying
even when they were inside their house with the doors and windows closed. It
was also of concern to one of the neighbours that the noise from the ABD
could cause dogs in the vicinity to bark. The appellants land consisted of
21

[2007] SAERDC 9.
37

DECISION

29.95 hectares and is located in an area characterised by a mix of grazing,

crop production and viticulture and adjoining residences. The appellants
sought to install two separate electronic audible bird scaring devices each
consisting of two speakers. In the application to Council, it was proposed that
a number of restraints would occur in relation to the operation of the ABD
including; use of a maximum of two speakers at any one time, operation of the
ABD between 7 a.m. and 8 p.m., use of it between February and April
inclusive (the period that the grapes are vulnerable to damage by birds) and
the speakers to be located within a defined allowable speaker placement
area, located a minimum of 300 metres from nearby dwellings.
96

The principal issue for the court to determine was whether the noise from the
ABD was an unavoidable and acceptable consequence of the commercial
production of grapes on the appellants land. The Council had refused the
request because of noise nuisance and amenity.

97

The court noted that there were no approved noise standards relating to the
devices, although there were a set of draft environment noise guidelines for
ABDs published by the South Australian Environment Protection Authority in
2003. The court noted that these draft guidelines had no statutory force but
did provide useful benchmarks including;

noise from ABDs before 7 a.m. or after 8 p.m. must not emit a noise

level that exceeds 45dB(A) at a location other than on the site on which the
device is in operation;

electronic speaker noise from the device at an L Aeq of 52dB(A) when

adjusted is deemed to represent the maximum level of reasonable

interference at the interface between an area or zone specifically intended for
primary production and one for rural living or residential amenity;

a penalty of 5dB(A) may be applied for each of the characteristics of

tone, modulation (frequency or amplitude) and impulsiveness.

38

DECISION

98

In conclusion, the court noted that the Development Plan seeks a balance
between the avoidance of noise nuisance and loss of amenity, on the one
hand, and the legitimate interests of primary producers on the other. The court
referred to an earlier decision of the court in MacGillivray v District Council of
Mt Barker which found that the use of ABDs was not a necessary incident of
the use of land for viticulture. The court in Edwards held that the subject land
had been used for grape growing for a number of years and it could not
therefore be argued that the use of the devices was essential. It noted that
the draft guidelines place considerable weight on the importance of having a
bird management plan in circumstances where the use of an ABD might have
an adverse impact on the surrounding community. It noted that plan could
include a range of measures including, visual scarers, audible scarers, noise
and movement on the property, netting, habitat management and culling. The
courts major concern was the sustained nature of the noise emitted by the
proposed ABD in that it emitted an array of sounds which was virtually
continuous apart from a very brief pause before changing from one sound to
another with an interval of 15 seconds at the end of each cycle before the
complete cycle began again. It also noted that the device was intended to be
operated 13 hours a day, 7 days a week. On balance, the court held that the
operation of the ABD in this way and in the locality was likely to impact
significantly and adversely on the amenity of local residents and therefore it
did not meet the provisions of the Development Plan.

99

In Macgillivray, the case involved the use of an ABD in the form of a gas gun
which was to be used to protect 60 acres containing vines. Expert evidence
was given that 300 metres was the appropriate minimum distance between
the position of a gas gun and a noise sensitive location, such as a dwelling.
The court permitted the use of the ABD with restrictions imposed which
included; its use only between February and April each year and only as part
of a range of bird deterrent devices, it could not be activated within 300
metres of a dwelling, restricted hours, no more than 6 detonations per hour
39

DECISION

and with an acoustic screen erected adjacent to the gas gun.

100

The court said; it is considered that there is potential for annoyance to those
living in the vicinity of the subject land from the noise of gas guns used to
scare birds from the vineyard. There is also a potential for annoyance to be
caused to residents of the Township of Macclesfield, particularly those living
or working in the south-western area of the township. However, we have
concluded that it is likely that the resulting noise nuisance to this category of
persons from the use of gas guns on the subject land would not be a serious
as that likely to result to those occupying some of the dwellings on rural
properties in the vicinity of the subject land. In so saying, we do not discount
the evidence of Mr Burt and Mr Barrett, but we accept that sensitivity to noise
is subjective and may be dependent upon the particular activity or occupation
in which a person is engaged at the relevant time. Thus, we accept that the
noise of gas guns being fired at intervals might be unacceptably annoying for
a person quietly engaged in concentrated study of a text, or in the preparation
of a thesis, assignment or report or other occupations. Ultimately, the level of
noise which is acceptable will be a function of the communitys desire to have
a comfortable, relatively noise free residential environment and the
communitys economic aspirations. The question is whether it is acceptable
that person should suffer noise nuisance as a result of the use of gas guns on
a vineyard, in the interests of enabling the vineyard owner to maximise crop
production. In the context of the location of the subject land, its proximity to
the Township of Macclesfield and the relevant provisions of the development
plan which appear to encourage rural production, the maintenance of rural
productivity and the maintenance of productivity of land for primary
production, we have concluded that it is acceptable, subject to the imposition
of conditions designed to limit the noise nuisance to the community within
reasonable bounds.
Conclusion

40

DECISION

101

I am not persuaded that the noise emitted by the ABD constitutes a nuisance.

102

I have reached this conclusion after engaging in a balancing exercise between

the rights of the Howells to protect their property from the effects of swallow
activity and the rights of the plaintiffs not to have their use and enjoyment of
their property unduly interfered with.

103

In making this finding I have considered the evidence before the court and the
principles and comments made in the cases to which I have referred.

104

At the outset it is worth noting that the pre-hearing procedures were hard fought,
protracted and involved numerous applications to the court for determination.
It was obvious to the court prior to evidence being given that a great deal of
animosity exists between the parties which resulted in them incurring
significant legal costs and undoubtedly causing a great deal of anxiety and
stress to them. The court heard evidence over 5 days and at the conclusion of
the hearing was presented with very detailed (and helpful) written submissions
comprising 87 pages.

105

I found Mr Howell to be a credible and honest witness. I accept his evidence that
he tried various methods to deter the swallows, which were unsuccessful, prior
to investigating and researching other alternatives and then ultimately
installing the ABD, which has had its desired result. I do not accept the
plaintiffs submission that the Howells were high handed and arrogant and had
an attitude that they would protect their property at any cost. It is
understandable that the Howells were prepared to go to extraordinary lengths
and incur significant cost in installing the ABD as they have a beautiful
property consisting of what appeared to be highly maintained gardens,
manicured lawns and a truly magnificent timber house containing a glassed
roof atrium. The evidence also disclosed that they modified and adjusted the
operation times and settings of the ABD when they became aware of the
complaints by the plaintiffs and offered to mediate prior to the issue of

41

DECISION

proceedings.
106

I find that the Howells were prepared to make ongoing adjustments to appease
the plaintiffs without success. Their attempts to appease the plaintiffs
extended beyond the issue of proceedings, with further adjustments being
made to the ABD, re-configuration of the speakers, the investigation of the use
of a sound attenuation box and a suggested test plan period to gauge its
impact on the plaintiffs which was not responded to. I find that they did all that
could reasonably be expected of them in the circumstances, save and except
for disconnecting the ABD. The evidence indicates that the plaintiffs formed
the view, erroneously in my opinion, that the Howells installed the ABD for a
malicious purpose or a retaliatory action against them as a consequence of
the road sealing dispute. This is evident by the statement Ms Jackson made
to Dr Uebergang on 6 February 2014 when she said, referring to the use of
the ABD by the Howells, that it could be retribution and in correspondence
from Mr Courtney (incorrectly as it turned out) suggesting the ABD was
erected shortly after the sealing of Mathiesons Rd and that I suspect that the
relationship between the public outing and anti bird device may be more than
coincidental.

107

When considering the nature, characteristics and loudness of the ABD, I have
had regard to the expert evidence of Mr Growcott and Dr English. I have also
taken into account the character of the location, my own observations at the
views conducted by the court and the evidence of Mrs Miklosvary.

108

I find that although the acoustic experts applied different methodology, the
sound level readings obtained by each did not substantially differ, 35-39dBA(Dr English) and 36-40dBA-(Mr Growcott). In the factual scenario of this case,
it does not appear to me that either SEPP N-1 or NIRV can be strictly applied.
Mr Growcott and Dr English agreed that the ABD does not breach any
applicable standard for noise control. Although this is a relevant fact, it has

42

DECISION

little evidentiary value when determining whether a nuisance exists. 22

109

I find that the sound level readings of the acoustic experts in conjunction with
the evidence of Mrs Miklosvary, audiologist, indicate that both plaintiffs would
be able to hear the noise emitted from the ABD when outside their residence.
For Ms Jackson, Mrs Miklosvary estimated the noise would be quiet and for
Mr Courtney, she estimated it would be barely audible. Furthermore, I
accept the evidence of Ms Jackson that she can hear the noise from the ABD
and the evidence of Mr Courtney that he could hear it until March 2015 but
rarely hears it now. I have also taken into account the comments made by
Ms Miklosvary that an individuals sensitivity to noise does vary due to a
number of factors including their feelings about the noise.

110

From my own observations, when attending the views on 29 February and 4

March, I found it difficult to distinguish between the bird noises emitted from
the ABD and the surrounding natural bird noises. It was only after the
squawking noise was identified that I could identify when the ABD was
operating and at times I observed the surrounding natural bird noises were
louder than those emitted by the ABD. In his report, Mr Growcott noted that
whilst at the plaintiffs property there were occasional periods when there was
little or no natural bird noises, other periods when the ABD was the dominating
noise source and more common times when the noise of live birds near and
far (which he identified as galahs) which produced overall noise levels of
similar and higher values to that of the ABD. Dr English identified other noises
being local birdlife, distant road traffic, agricultural vehicles and activities. In
relation to local birdlife he also noted that at times they generated noise levels
significantly higher than that of the ABD and included noise from galahs,
cockatoos, magpies, wattle birds and others. My observations and those of Mr
Growcott and Dr English are not unexpected having regards to the fact that
the properties are located in a semi-rural low density area with an abundance
of bush and the Mitchell River close by. Furthermore, I was unable to hear

22

See Coventry & Ors v Lawrence & Anor [2014] UKSC 13.
43

DECISION

noise from the ABD when inside the plaintiffs house. The readings taken by Dr
English indicated a reading of 22db from the bedroom of the house and after
applying adjustments stated that the effective noise level in the inside living
area with the patio doors open was only 19 dBA which he considered to be
just perceivable and not perceivable inside the master bedroom whether the
windows were open or closed. On the basis of the opinion of Mrs Miklosvary,
neither Ms Jackson nor Mr Courtney would be able to hear the ABD noise
from inside their house.
111

I accept as truthful the evidence of Mr Howell that he did not turn down the
volume of the ABD on or about 6 March 2015, prior to the assessments being
conducted by Dr English and Mr Growcott. The records he kept and the
evidence he gave indicate that the last time he adjusted the volume of the
ABD was on 24 November 2014. I do not conclude as the plaintiffs suggest
that Mr Howell deliberately turned down the volume of the ABD to ensure that
the measurements taken by the engineers were at a lower level than existed
for the previous three years. My conclusion to some extent also effects the
reliability of the assessment made by Mr Growcott as he estimated the turn
down of the volume was likely to be in the order of 3-7dBA based on what he
was told by Mr Courtney.

112

Although a considerable amount of cross examination of Mr Howell related to

the position of the volume control knob on the ABD and its variation to that
depicted in the factory settings and the placing of paper over the factory
markings, I accept his evidence as being truthful that he did not adjust the
control knob in an attempt to misrepresent the settings of the device. The
photos of the device taken prior to the attendance of the engineers, which
were tendered, do not indicate that the dial had been moved.

113

I was not persuaded by the evidence of Ms Jackson or Mr Courtney that they

have been affected to the extent asserted, by the noise emitted by the ABD.
Ms Jackson initially attempted to portray to the court that she and Mr Courtney
44

DECISION

had a neighbourly relationship with the Howells prior to this dispute. It was
only after the road dispute was put to her during cross examination that she
conceded that their relationship with the Howells was acrimonious. While the
evidence indicates that Ms Jackson was aware of noise at the Howells
property in May 2012, (she thought it was Bats), it was not until late 2012 and
after she was told by another that the noise was mechanical in nature that she
complained to the council. Her annoyance about the noise occurred
subsequent to the bitter dispute between Mr Courtney and Mr Howell in
relation to the sealing of Mathiesons Road.
114

I find that Ms Jackson has exaggerated the nature and extent of her symptoms
and the causative effect of them. At times her presentation in the witness box
when giving evidence was histrionic. I accept the medical evidence that she
has an anxiety state/depressive condition but I am not satisfied that her
condition has been caused or contributed to by the noise she hears from the
ABD or that her MS symptoms have been aggravated by the noise. The
evidence she gave as to the effects on her of the noise from the ABD is not
only relevant to whether her evidence should be accepted, but is also relevant
to the reliability of the medical evidence on which she has relied to establish
her case because the opinions of Dr Ubergang, Dr Worboys, Dr Jacobson and
Dr Wahr were dependent on her credibility and the reliability of her account of
the history of her injury and its effects on her.23

115

In particular, I have noted that despite Ms Jackson giving evidence that the
noise was causing stress to her from late 2012 and that it was aggravating her
MS symptoms, she did not seek medical advice until it was suggested to her
by Mr Hull from the Council in March 2013. Even after doing so, she did not
voluntarily seek treatment until February 2014 when she attended Dr
Uebergang. Even then, she did not complain to Dr Uebergang that the noise
from the ABD was loud and Dr Uebergang did not appear to be concerned
about her condition as she did not suggest a treatment regime, medication or

23

See Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108.

45

DECISION

a referral to a psychiatrist but simply gave her strategies for reducing her
stress and anxiety. Furthermore, Ms Jackson did not return to Dr Uebergang
for treatment when her symptoms allegedly worsened over the next two years.
I have also had regard to the fact that the only other medical evidence
presented was in the form of medico-legal opinions and that despite the
alleged severity of her symptoms, Ms Jackson did not feel the need to obtain
independent and ongoing treatment from any doctor or follow the
recommendation of Dr Wahr that she required psychotherapy and medication.
116

I also find that Ms Jackson provided incorrect information to both Dr Jacobson

and Dr Wahr when she was assessed by them. She told Dr Jacobson that the
sound from the ABD was extremely loud to the extent that she could hear it
inside her house and hear it in her bathroom. She told Dr Wahr that the noise
was audible inside her house which forced her to keep all the windows closed.
As stated, the readings obtained by Dr English from inside the house, my own
observations and the qualified medical opinion of Mrs Miklosvary make those
assertions improbable. She also told Dr Uebergang that the noise could be
heard by her from 7 AM to 10 PM all year round which is incorrect. Later she
told Dr Jacobson that the ABD operated between 7 AM and 8 PM and a few
months later told Dr Wahr that it operated all day from dawn to dusk. It
appears to me that Ms Jackson was attempting to paint a picture that the
noise emitted from the ABD was very loud, continuous, unrelenting, operated
all day long and as such she was confined indoors. To the contrary, the
evidence she gave to the court and her diary entries indicate that she is
socially active and does not spend prolonged periods at home during the
daylight hours when the ABD is operating. My conclusion that she was
attempting to paint a false picture is also confirmed by the fact that she did not
provide an accurate description of the noise to either Dr Jacobson or Dr Wahr.
Dr Jacobson assumed that the unrelenting noise was a screech or a siren
and Dr Wahr assumed that the noise was of someone who had recorded the
killing of birds. Neither doctor was told that the noise constituted natural bird
46

DECISION

sounds. Ms Jackson also told Dr Jacobson that she could hear the noise in
her head even when the machine was turned off and told the court that the
noise was ingrained in my brain and I could hear it when it was not even on.
117

I also have difficulty accepting the veracity of the evidence given by Ms Jackson
that she was not affected by the noise emitted from the ABD used by Mr
Courtney on the basis that they were different bird noises, pitch and tone and
that she was not affected by the noise emitted from the radio employed by Mr
Courtney over a 6 to 8 week period in November 2014, despite giving
evidence that it was very loud because she was away from it.

118

I did not find Mr Courtney to be a credible witness. I do not accept his evidence
as being truthful that he has been affected by the noise emitted from the ABD
therefore interfering with his enjoyment of his property. I find that his behaviour
since becoming aware of the existence of the ABD in late 2012, has been
motivated primarily by his animosity and his need to take retaliatory action
against the Howells following the road sealing episode and in part to protect
Ms Jackson on the basis of her complaints to him of the effect of the noise
from the ABD on her. His evidence that he could hear the noise from the ABD
all over the property until March 2015 is not accepted by me as being
truthful. He was unaware of its existence from January 2012 until Ms Jackson
told him about it in late 2012. I find that he became angry and irritated, not
because of its effect on him, but due to the fact that his complaints to the
Council and Ombudsman were unsuccessful. His evidence was contradictory
in that at one stage he told the court that he rarely hears it now but later said,
it is off more than it is on, but he still hears it a lot of the time. The sound
readings of Mr Growcott and Dr English, together with the opinion of Mrs
Miklosvary cast doubts on his evidence. If the effect of the Howells ABD was
as great as he asserts, it is implausible that he would then subject himself
(and Ms Jackson) to noise from his own ABD and the noise from the radio
over a 6-8 week period at a significantly higher volume than the Howells ABD.

47

DECISION

The contents of the letters and emails authored by Mr Courtney in relation to

this dispute demonstrate the animosity he felt towards the Howells and his
determination to proceed with litigation notwithstanding the genuine and
reasonable attempts by the Howells to address his concerns and that of Ms
Jackson.
119

When determining the matter, I have also had regard to the duration of the noise
emitted by the ABD. The ABD does not emit noise continuously throughout the
daylight hours. Even accepting the plaintiffs calculations, the ABD operates
9.8 minutes of every daylight hour or for approximately 2 hours over a 12 hour
day. It is not persisting and relentless. Furthermore, the noise is not unusual or
excessive. The sound is of natural bird noises. After considering the readings
taken by both experts and from my own observations, it cannot be said that
the noise level is excessive, especially when compared to the noise level of
natural birds in the immediate area. It is not annoying or irksome when
produced for short periods and it is not emitted at inopportune times, such as
early morning or after dark.

120

I have not drawn any adverse inference on the basis that Mrs Howell was not
called to give evidence. It does not appear to me that any evidence she could
have given would have assisted the court. The basis of the defendants case
was that the noise emitted by the ABD does not constitute a nuisance. The
evidence of Mr Howell was in general, limited to the reasons why he installed
the ABD, how it operates, its effect on the swallows and the steps he has
taken to address the concerns of the plaintiffs. Evidence from Mrs Howell
would not have expanded on the evidence he gave.

121

The evidence given by Mr Backman, Ms Waddell and Ms Scott confirmed that

they were able to hear the ABD when attending the plaintiffs property and that
it was of an annoying nature to them particularly when they first became
aware of it. Their views appear to have been influenced by the attitude of the
plaintiffs. In particular, Ms Scott indicated that the noise affected her because
48

DECISION

of its effect on Ms Jackson and that she did not notice the noise that much
because she was occupied attending to the horses.
122

I find that the nature, character and duration of the noise emitted by the ABD is
not comparable to the factual scenarios of the cases to which I have referred
being; the early morning ringing of church bells (Haddon), the continual use of
a wood saw throughout the day (Spencer), the operation of steam boilers and
noise from oil tanker engines throughout the night (Halsey) or the continuous
use of a noise gun or gas guns (Macgillivray and Edwards).

123

These cases refer to the fact that the court must consider a number of factors
when applying the subjective test and the objective standard required which
include; the truthfulness of the evidence as to the effects of the noise on the
complainants; whether those effects are due to their own particular
sensitivities, susceptibilities or delicacies; whether the noise is unusual or
excessive especially when compared to other noises in the area; whether the
noise is typical for the area; the character of the area; whether the
inconvenience is sufficiently serious; the time and duration of the noise; and,
the number of people affected by the noise.

124

When considering these criteria and after applying the balancing exercise
referred to, common sense dictates that the noise emitted by the defendants
ABD does not constitute a nuisance.

125

Accordingly, the answers to the questions posed in paragraph 9 are:

a. Yes

b. No

c. Not Applicable

d. No

e. No
49

DECISION

125

f. Not Applicable

g. Not Applicable

h. Not Applicable.

The proceeding is dismissed. The parties have liberty to apply for any
consequential orders necessary to finalise the proceeding.

50

DECISION