Supreme Court dismisses neighbour noise complaints against hotel

10 September, 2018 by Craig Hawtin-Butcher

The Supreme Court of WA has dismissed an application for a final injunction made by a resident of the Raffles Waterfront residential building in Perth, owned by Colonial Leisure Group.

The decision could have important implications for future noise nuisance complaints.

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The injunction sought to restrict noise in the hotel’s beer garden, the oldest of its kind in Australia, as well as an internal bar, and also sought damages.

Fifth-floor resident Derek Ammon’s complaint alleged that he was substantially disturbed by noise coming from the hotel. Ammon told the court of the impact of the hotel’s noise, submitting: “The ongoing noise has made me feel increasingly frustrated, upset and angry. I have tried to remain calm about the situation but on occasions I have not been able to remain calm and have done some silly things which I later regretted. One such incident was the tomato and water bottle incident. I have also yelled at people and spoken badly to people.”

These two incidents relate to an occasion when Ammon “threw a number of tomatoes and four or five 375ml water bottles towards the noise-making equipment in the beer garden.” On that occasion, the police were called and no further action was taken. In the other, he confronted the strata management and part of that lively conversation was played to the court.

In dismissing the application, Master Sanderson said of that strata confrontation: “The fact he attempted to put a sanitised version of the meeting in a statement made to the court, does call into question his credibility.”

In a key statement dismissing the injunction, Sanderson said: “When the plaintiff [Ammon] bought his apartment, he was aware that the Raffles operated as an entertainment venue and had operated in that way for many years. He could not have known precisely what level of noise would emanate from the hotel. But he must has [sic] been aware that there would be some noise. Any hotel plays music. The plaintiff could not have expected anything else.”

Ammon had told the court of his frustation with the hotel’s noise, saying: “I make complaints because I am at my wits end and my nerves are frayed from the noise and my disturbed sleep.”

Sanderson also noted: “The apartments are not in a quiet suburban back water. There is ambient noise of a kind which would not be found if the apartments were constructed in a quieter location.”

In dismissing the injunction, Sanderson said: “I must conclude that there is interference with [Ammon’s] enjoyment of his apartment. The difficult question is whether that interference is ‘substantial’ and ‘unreasonable’. I am not satisfied the interference is substantial and unreasonable.”

“Just as cricket players could not be expected to refrain from hitting sixes,” Sanderson said, “the management of the Raffles cannot be expected to restrict the operation of a venue which is inconsistent with the orderly and proper use of that venue. That is the case here and it is, in my view, a compelling reason against issuing an injunction.”

Welcoming the decision, Lawrence Dowd, National General Manager, Colonial Leisure Group said: “Colonial Leisure Group welcomes the court’s ruling today to dismiss this application for an injunction, which would have, if upheld, imposed unreasonable restrictions on the operation of this much loved and historic Perth hotel.

“Raffles is a Western Australian icon with a long and colourful history that is important to the local and broader community.

“Colonial Leisure Group is proud of its track record of restoring and operating important historic establishments that are safe, fun and that positively contribute to the cultural landscape of the places they are located.”

Australian Hotels Association (WA) CEO Bradley Woods said “Friday’s decision was a win for common sense.”

“Operators of bars, pubs and taverns understand the importance of adhering to noise limits, respecting local residents and playing a positive role in the community,” Mr Woods said.

“If the Supreme Court had sided with the complainant, the Raffles Hotel would have been severely restricted in its ability to provide a vibrant, appealing venue.”

“Licensed venues have significant and obvious responsibilities to local residents, however what was being proposed by the complainant would have placed unreasonable noise restrictions on the venue.”

“Perth’s hospitality scene relies on licensed venues being able to provide a vibrant, lively atmosphere while maintaining their responsibilities to the community in which they operate.”

The court heard a hotel had stood on the site since 1896, with Ammon’s property built around 2005. The heritage-listed Raffles Hotel had undergone major renovations and as a result noise had increased on occasions. The court heard Colonial Leisure Group had made substantial efforts to reduce the noise from the venue.