With the coronavirus restrictions many people are now either working from home or at home much more than previously. One side effect has been that the noise from nearby construction sites and the neighbours home renovations has started driving some of us up the wall. What can you do? The answer is it depends if the noise if residential or from a construction site as there are different restrictions that apply. In this post I will deal with noise emanating from construction sites starting with the situation normally and the situation now that Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 is in effect.

Pre-COVID Order – i.e. before 2 April 2020

Construction noise can be significant both in sound and in duration across the course of a normal working day.  Normally, this type of noise would not affect as many people as they would be at their places of work or school during the time most construction sites are active.

Your local council, the Environmental Protection Agency (the EPA) and if needed the police are the key enforcers in respect of construction noise.

Most development work will be regulated by your local council so the first step should be to look at the development consent conditions imposed on the construction site by your council.

The development consent from council will regulate the hours of work and when certain types of work can be conducted. This may not assist much, however there is a big difference between a requirement for tools down until 8am versus tools down until 7am. In most cases, the development consent can be obtained from a search of on your local council’s website, or, failing that, you could contact its planning team.

If work is starting before permitted hours or continuing after hours or you believe the noise is excessive then a complaint should be made to your council in writing specifying times, dates and the nature of the complaint. If this does not resolve your issue I suggest you seek legal advice regarding potential further steps as you may also have a case against the noise maker and the owner of the site in nuisance.

If the construction noise is coming from work undertaken by a public authority then the EPA is generally the appropriate body to make a complaint to.

The EPA’s Interim Construction Noise Guideline contains general guidelines for work start times. They are not mandatory but are a helpful guide and are used by councils in determining development consent conditions. The guidelines include (but are not limited to):

Construction noise source / Work Type	Time restriction guidelines
Normal construction noise	Sundays & Public Holidays: no work permitted   Saturday: not before 8am or after 1pm   Any other day: not before 9am or after 5pm
Blasting	Sundays & Public Holidays: no work permitted   Saturday: not before 98am or after 1pm   Any other day: not before 9am or after 5pm

The link to the guideline can be found here: https://www.epa.nsw.gov.au/your-environment/noise/industrial-noise/interim-construction-noise-guideline

If the construction noise is coming from within a lot in your scheme, you should also consider your scheme’s by-laws or management statement. Generally, they will have by-laws regulating noise and any works by-laws or consents will generally also have terms in relation to noise during the construction work. These restrictions can be enforced at a scheme level and by the NSW Civil & Administrative Tribunal (NCAT).

After COVID-19 Order – 2 April 2020 until further notice

In response to COVID-19 and concerns about keeping construction going, the NSW Government passed the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 which is from 2 April 2020 in effect. This means that if a site has a development consent then the days upon which construction on that site can be undertaken has been increased – all that the builders need to do to be able to work on a Saturday, Sunday or Public Holiday is to:

(a) comply with the conditions of consent that restrict the hours of work on any other day (i.e. Monday to Friday); and

(b) not conduct rock breaking, rock hammering, sheet piling, pile driving or similar activities during the hours that it would not be permitted under the normal conditions of consent; and

(c) take all feasible and reasonable measures to reduce noise.

There are some conditions which require social distancing measures and for the construction to comply with all other development conditions however it appears that for those living near construction sites, noise may be an issue for the foreseeable future, with little recourse to remedies.

UPDATE:

The Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 applies to work where there is development consent.

The Environmental Planning & Assessment Act 1979 at 1.4 defines “development consent” as meaning “consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate”. At 4.2 it provides that if an environmental planning instrument (think a Local Environmental Plan, SEPP etc)  states that specified development may not be carried out except with development consent, a person must not carry the development out unless consent is obtained, it is in force and the development is carried out in accordance with the consent and the planning instrument. It also has the effect that a complying development certificate (also known as a CDC) issued by the consent authority or a private certifier is a development consent for complying development. Complying development is work that complies with pre-determined development standards.

This means that the new provisions in Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 apply to any work that is a complying development or that requires an application for consent.

If you are uncertain if your work is exempt, complying or other development then you should check with your local council.

Stay tuned:  In next week’s post I will deal with noise emanating from other homes such as power tools, air conditioners etc.  

This article contains general information only and it is not legal advice. Before you take any action you should seek legal advice tailored to your specific circumstances.