NSW Neighbour's Installed a Noisy Skate Ramp

[Pennybell]

My neighbour installed an extremely noisy skate ramp last Christmas. We complained to the council and the noise from the ramp stopped for 6 months. After that it started up again, every day after school until around 8 pm and all weekend, with multiple children using it from around the neighbourhood.

I rang the council again to complain and was told that my complaint was invalid as my husband had signed a petition presented to him by the neighbourhood children saying the noise level wasn't a problem. He did this so as not to be identified as the compainant (we had already had a visit from the children asking if we were the "ones that dobbed us in" and a letter in our letterbox, as some identifying information had been given about us to them by council, although council denies this).

Council is saying the petition is a legal document and my husband's signature caused the notice of an illegal structure to be withdrawn and that's why the kids were back on it. Council insists that there is no way of invalidating the petition and that my husband has given the family permission to keep the skate ramp there and use it.

My question is, is the petition, handwritten by children and presented for signatures by children, a legal document or is the council having us on?

 

[Sarah J]

Hi Pennybell,

1. If your husband signed the petition waiving his right to complain, this should not waive your right to complain, or the rights of other neighbours to complain.

2. What does the petition actually say? Try and obtain a copy of the petition. Your husband can try and argue that he only waived his rights to that particular instance and did not waive his right to complain for continuing noise breaches or noise breaches of a similar or same nature. Or, it could be that your husband waive the right to complain to the installation of the skate ramp but not the noise it is now producing from its use. In brief, you will need a copy of the petition and read the exact wording of the petition.

Best to contact a local community legal centre or you can complain against the council's decision not to act by contacting the NSW State Ombudsman.

 

[Paul Cott]

Pennybell,

I agree with what Sarah has said.

I would add that if it is, as you say, an illegal structure, then may give you some rights to have the council take some action. In some cases I have heard where a structure is built on land without a relevant permit, then it can ordered to be taken down for that reason.

Maybe the Environmental protection authority or similar body in your state may act.

And finally, it's a long shot but maybe police could be contacted on the basis that the noise is causing a breach of the peace.

Good luck, it's a tough one with a skate park being built in a residential area which seems odd.

Paul.

 

[Sarah J]

Hi Pennybell,

I agree with the added point by Paul above.

If it is an illegal structure, chances are, they would need council's approval and apply for the relevant permits in order for the structure to remain. The notice requirement and complaints by neighbours will be taken into account by the council where they are considering whether to approve a structure retrospectively (i.e. after it has been built). The relevant departments may include planning, building and (possibly) health & safety.

It the council is not willing to act, then definitely give the State Ombudsman a try.

 

[Pennybell]

Thank you Sarah and Paul, it seems we are in a tangle with the council or a particular fellow in the council who has a bias toward our neighbour and their ramp - in our area it's possible there is a relationship other than this issue which in my industry would be highly unethical but it seems that is what we're up against. We are waiting to see if we need to create our own petition or even contact the ombudsman, as this council fellow is playing some sort of game with us by giving the skate ramp neighbours ways to get around our protest (e.g. the petition) and not giving us any information about what is happening regarding the skate ramp. It was another council worker that told us it is an illegal structure, not him. The noise suddenly stopped last week and a few days later he rang me and asked if it was nice and quiet here. Of course I said yes. A couple of days later my husband went to council with a signed letter saying he wanted to remove his name from the petition. This man told him there was no way he can remove his name and beside, I had put a halt to the complaint proceedings (whatever they are) by saying it was quiet now so don't go ahead! My husband said "my wife would never have said that" and rang me on his mobile and passed the phone to this man and he and I had a heated discussion about what I'd said and not said. I took the opportunity to bring it to this man's notice that it was my husband but not I that had signed the petition and that I had made the initial complaint to council so his signature should not have stopped the removal of the structure, and he thought for a minute then said "but you are cohabiting the same property". The next day the kids were back on the skate ramp in force, and have been on it every day since. It seems we are being played for the benefit of the noisy neighbours. Considering we have lived in peace in our home here for 35 years and paid rates faithfully we think this is unfair and quite insulting.

Penny

 

[Pennybell]

We are now 18 months down the track. We are still living with the skate ramp noise and are preparing our house for sale because of it. However we are concerned that once a prospective buyer hears the noise they will no longer want to live here. I have tried everything including appealing to the Ombudsman. Once I did that the council called me into a meeting with some other people who have similar neighbours and are desperate to find a way to restore their peace and repose, and some council members, and made as a sort of half promise that they would be able to find a loophole in council law and we would be free of the skate ramps in 8 weeks. 7 weeks later we received a letter from the council saying they couldn't do anything and that we could take out a noise abatement order, which I am now looking into. However I don't full understand the form that the courthouse emailed to me. It's the General Application to the Local Court, and in one section I'm to say Ive delivered a copy of the application to my neighbour. Am I supposed to do this before or after I lodge the application? As well, would I be better to do this through a lawyer from the start, or begin the process myself? I understand I'll have to produce proof that the noise is unacceptable somewhere along the way. Any and all ideas most welcome, and thank you for being here.

 

[Sarah J]

Hi Pennybell,

How unfortunate to hear that the Ombudsman could not help you. I am not 100% sure when you should deliver it to your neighbour. It should say on the application. Best to double check by calling up the court to enquire. However, for most applications (but not general court initiating applications), a copy of the application is delivered to the other side involved at the same time as lodging it with the court. For a general court application initiating action (e.g. writ) you file this with court first, then court grants it and then you have 12 months to serve the other side to start proceedings.

Hence, call up the court house and enquire about this particular application.

 

[Bindy7]

Hi Pennybell, how did you go with this case? I'm in a similar situation and was wondering if you had any luck?

 

[Pennybell]

Hi Bindy, I'm sorry to hear that - is it also with a skate ramp?

My advice from the courthouse (over the phone) was to create a petition signed by my neighbours to say just that they can hear the noise, and present it to the court house along with a noise abatement order application. In the last 6 months, the skate ramp hasn't really been used enough to come to the notice of the neighbours - I don't know why. Boys use it for 10 minutes then it's quiet again, and only a couple of times a week, which is easily tolerable.

Recently, there was a party for the boys and about 20 kids were using the skate ramp continuously, until 10pm. I yelled over the fence asking them to now be quiet because I wanted to go to bed. There was a protest but they did get off it, which was quite surprising considering the amount insistence we have had from them in the past that they have a right to use it whenever they want.

I don't trust this latest lack of ramp use and am waiting for it to start up again. It's school holidays and they usually go away (thank goodness) but their caravan is still in its cover this year so I'm expecting that when the rain clears we will have the noise again. That's when I'll take my petition to the neighbours. In the meantime, we're getting our house ready to sell.

Our difficulty has really been with the attitude of our local council, who could easily have helped us in the first place but for reasons of their own chose to help these neighbours keep their noise machine instead. You may have better luck with your council, I hope so!

 

[scorpiosting]

HI, I am not a lawyer, but I'm someone who has had neighbour & council problems.The council should, at least, do something about the illegal structure erected. You can actually appeal against the council decision not to take action to remove the illegal structure and take it further to the State Arbitration Tribunal/Commission.

By the way, did you know that as a ratepayer, you are allowed to ring and have a meeting with your local mayor or deputy mayor any time you wish? Ring & book an appointment to have a special private meeting with your mayor & when they ask the reason for the appointment, tell them it is of a private ratepayer matter. Then go in & take all your documents, notes from council conversations etc & state that you feel the council officer you have been talking to maybe biased towards the neighbours & ask if that officer lives there or is related to those who live there?

You can also arm yourself with the council bylaws about illegal structures by going into their website beforehand, looking it up & printing it off...

If the council approved of the structure then they should have known that a skate ramp would certainly bring environmental(noise) issues to neighbours and should have sent you a prior notice in the mail advising you that an application for the structure has been lodged & if you had any objections prior to it being built. If they never sent you those letters or the ramp is erected illegally then it is the council's job to have it be removed... especially for compensation purposes if a person is injured on it.

Just because your husband signed the form, does not mean your complaint is null & void, you did not sign the petition and you are a person in your own right. He signed it for his own reasons but you did not sign it & you also reside there.

Plus, if you end up by selling your property for less than it's true sale value due to the noise nuisance, you can sue the neighbours for the difference in value under the tort law of Nuisance. If they give you trouble when you try to sell it you can also include their behaviour in the lawsuit. Ask for aggravated & exemplary damages for the injured feelings, loss of dignity, loss of enjoyment of your home.

Ask your lawyer to research the case: Bilic&Bilic V Nichols. It makes for very interesting reading in a case of someone who had to sell their home for less than its value due to the disruption of the neighbours.

Good Luck.