'NOISE NUISANCE' - WHEN NOISE BECOMES AN ISSUE

A certain level of noise is an inescapable part of urban and suburban living and residents accept that they will regularly be subjected to numerous noise sources of various levels including traffic, taxis, construction work and quite often, their neighbours.

Yael Geffen, CEO of Lew Geffen Sotheby's International Realty says that in recent years, the level of noise has been exacerbated by the ongoing densification in cities, especially in the suburbs where new residential properties are being built and commercial centres expanded to meet the growing demand.

"Not only are the sounds of construction more commonplace, but properties are becoming smaller with more people living together in closer proximity in apartment blocks and gated communities which intensifies the level of peripheral sound that we have to endure on a daily basis".

However, there is a point where noise can reach an unacceptable level and, whilst there is little we can do about the constant thrum of traffic, home owners do have recourse when noise becomes unnecessarily intrusive and impacts on our right to enjoy the ordinary comfort and convenience of our homes.

"These days there is more sensitivity and awareness regarding the negative impact of noise that exceeds specified levels and municipal by-laws and environment legislation include provisions for dealing with noise regulation contravention" comments Eduan Milner of Eduan Milner Attorneys, Notaries and Conveyancers.

"However, it should be noted that South African law makes a distinction between 'Disturbing Noise' and 'Noise Nuisance.'"

"The first is objective and is defined as a scientifically measurable noise level such as a loud party where music is played at midnight at volume where the lyrics are audible to neighbours, while the latter is a subjective measure and is defined as any noise that disturbs or impairs the convenience or peace of any person like the incessant barking of a neighbour's dog." 

Both are illegal in terms of the Environment Conservation Act but, while the first is usually effectively handled with a call to the police, the latter is not always as simple.

"In order to show that a Noise Nuisance exists, a reasonable person must find a certain noise intolerable or seriously effecting his enjoyment of his property and it may come down to a court applying a test of objective reasonableness," says Milner.

"In residential areas, the enforcement is by the local authority and there are various penalties provided it is shown that the noise actually exceeds acceptable levels. Generally the 'guilty party' will be asked to desist from making the noise and if he fails to do, further steps can be taken such as fines issued by the authorities or an action brought to court by the complainant."

However, this final step should be carefully considered and complainants must ensure they have all their ducks in a row as payment for the costs usually depends on the outcome with the courts ordering the unsuccessful party to settle the costs.

Geffen adds that people should also be cognizant of any new zoning regulations which may have been passed, especially if they are considering buying residential property in a mixed-use area.

"It is always best to be forewarned as to what is permitted in an area where you are looking to purchase property and to decide whether or not your needs and lifestyle could be impacted".

"If you like to be asleep by 21:00pm every night and you value peace and tranquility then buying a home in vibrant suburbs like Cape Town's De Waterkant or the heart of Rosebank in Johannesburg is probably not a good idea."

"It is also wise to look into an area's sub-division and development laws and the prevalence of development in that suburb if living next to a building site for a year would drive you crazy".

"However, if investors love a property but are unsure about the proximity of businesses, they must ask a local estate agent who will be able to enlighten them about the general tone of an area and what noise levels can be expected" she concludes.