A reader wants to know what the consequences could be for her son who is running a panel beater operation from his rented home and creating a disturbance in the neighbourhood.
She lives in the same area and describes it as an illegal operation, which creates noise pollution for the residents throughout the day, including weekends.
Her son’s landlord has advised him several times to cease his operations but he still continues, she says.
The reader is concerned the neighbouring residents may take steps against her son, which could land him in prison or result in a fine.
Noise pollution has become a hot topic in recent years.
See the reader’s question here.
This is because people are living closer to each other in, for example, sectional title complexes where an infringement can cause a disturbance for a great number of neighbours.
Noise control can be regulated in a number of ways.
Within a complex, the governing body itself may enforce certain rules relating to the conduct of the residents. On a larger scale noise control is regulated by legislation.
Depending on the province in which the nuisance is occurring, the Noise Control Regulation under the Environment Conservation Act may be applicable.
It should be noted that certain provinces have published their own provincial legislation dealing with noise control.
Local legislation may also be applicable where, for example, a municipality has published a bylaw setting out the manner in which it will deal with noise pollution.
As the reader is concerned with criminal liability, she should examine the particular legislation that may be applicable to the area in which they reside.
The legislation of this nature typically criminalises the causing of a noise nuisance should it exceed acceptable levels and, upon conviction, a court may impose a fine and/or imprisonment.
In the event of the residents not taking steps in terms of the legislation, or should this have proved unsuccessful, they may elect to prevent the continued noise through civil proceedings.
Thus, an interdict may be sought prohibiting the further conduct of the reader’s son.
An interdict is, in this instance, aimed at the prevention of the continued nuisance and the applicant seeking it would do so on the basis of common law.
The applicant would have to show that the infringement is unlawful due to it resulting from use outside of acceptable constraints or that such use is unreasonable and infringes on his or her rights.
In considering the application the court will generally weigh the effect of the granting of the interdict.
It will also look at the impact it will have on the son’s right to use and enjoy his property versus the use and enjoyment of the property of the applicant.
In doing so, the court will consider relevant circumstances in this process of balancing the interests of the parties involved.
To objectively consider if the reader’s son is using his property in an unreasonable manner, the court may consider a number of issues.
This, for example, can include the times and days on which the noise is made, type of environment, use of surrounding properties and any manner in which the noise may be dampened.
In particular, the use of the rented property for what could be described as a light industrial purpose could be considered highly unreasonable considering that the surrounding properties are purely residential.
If it is at all possible to lessen the noise to an acceptable level, the court may grant an interim interdict. This will allow the reader’s son some time and leeway to lessen the noise to an acceptable level.
In this instance, however, it is difficult to see how this may be possible considering the nature of the work.
The reader should have a serious discussion with her son, advising him of the consequences.
In the event of an interdict being successfully granted and the reader’s son continuing to conduct his business, the court may impose a fine for contempt of court.
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