Do you have a right to
peace and quiet (if you live next door to a hotel)?
Loud noise can cause neighbours to act strangely. In Mr
Ammon‘s case, he threw tomatoes and water bottles from his
balcony at the noise-making equipment in the beer garden of
the Raffles Hotel in Perth. This did not stop the noise.
Mr Ammon took legal action.
In Ammon v Colonial Leisure Group Pty Ltd 
WASCA 158 (17 October 2019), the Court of Appeal, Supreme
Court of Western Australia, considered whether Mr Ammon
should be protected by the common law tort of private
nuisance and be granted an injunction to prevent the
Raffles Hotel from playing music in the beer garden and in
the Riverside Room after 9:00 pm.
The Raffles Hotel has been trading as a hotel since 1896
at Applecross near the Canning Bridge. It has views over the
In or about 2005, the Raffles Hotel (Apartments)
consisting of 116 residential strata lots was constructed as
part of the same strata complex as the hotel.
In May 2009, Mr Ammon purchased and moved into apartment
E501, on the fifth floor. It is a luxury 3 bedroom apartment
which overlooks the Raffles Hotel beer garden to the north
and is nearby the upstairs bar of the hotel known as the
The Kwinana Freeway is located to the east and the
Canning Highway is located to the south.
In 2014, a refurbishment of the hotel was approved by the
strata owners and the City of Melville. The Raffles Hotel
was closed for a short time for the refurbishment, which
included noise abatement measures to comply with the
‘Assigned Noise Levels’ condition of approval.
In 2016, in response to complaints received from the
strata owners and the City of Melville about the noise
caused by music and crowds, the Raffles Hotel took steps to
limit the noise including: moving the DJs away from the
apartments and inside the bar, limiting the time to 10:00
pm, turning off some speakers and turning away others, and
keeping the Riverside Room balcony doors facing the
This appeared to satisfy the City of Melville. But Mr
Ammon was not satisfied, and took legal action.
Mr Ammon contended that the noise emanating from the
Raffles Hotel was a private nuisance which interfered with
his enjoyment of his apartment.
Mr Ammon’s case was heavily reliant upon expert
evidence concerning the exceedance of assigned emission
levels under the Environmental Protection (Noise)
Regulations 1997 (WA).
Specifically, between 7:00 pm and 10:00 pm on all days
except Sundays and public holidays, the assigned LA10
level for Mr Ammon’s premises is 48 decibels. Measured noise
levels averaged 65 decibels, including 10 decibels because
the noise emission was music. Therefore, the noise levels
significantly exceeded the assigned noise levels.
The Court’s disposition
The Court made the following general observations:
The essential purpose of an action for private
nuisance is to protect an owner or occupier's use and
enjoyment of land, or of a right in relation to it. To
constitute a nuisance, the interference with the
plaintiff's use or enjoyment must be both substantial
The test of unreasonableness is objective. The
reasonableness enquiry involves a balancing exercise
between the defendant's right to use his or her land
freely, and the right of the plaintiff to enjoy his or
her land without interference. The reasonableness
requirement thus reflects the need for give and take
between neighbours living within a community.
The fundamental question [to be decided] is whether
the emission of noise from the hotel substantially and
unreasonably interferes with Mr Ammon's beneficial use
of his apartment.
(paragraphs 119, 120 & 122, judgment)
Having decided that the ‘correctness standard’ applied to
the appellate review of the primary facts agreed or found by
the trial court, the Court examined the facts and found
The master was correct to conclude that Mr Ammon had
not established that the emission of noise from the
hotel substantially and unreasonably interfered with the
beneficial use of his apartment … for the following
Firstly … Exceeding noise levels assigned by the
Regulations, while relevant, is not to be equated with a
substantial and unreasonable interference under the law
of nuisance [because the common law provides its own
Where, as here, the statutory scheme permits assigned
levels to be exceeded when ministerial approval is
granted, the exceeding of the assigned levels carries
less weight for the nuisance evaluation than it would in
the context of a statutory scheme involving an absolute
Secondly … the test is an objective one. [Mr Ammon’s]
evidence was not supported by any evidence from other
persons staying in or visiting his apartment. Nor was it
supported by residents in other apartments after the
remedial steps undertaken by Colonial in 2016. … [which]
suggests that Mr Ammon's subjective experience of the
noise (as preventing him from reading, watching
television and sleeping) may be peculiar to him.
Thirdly … [Mr Ammon] purchased an apartment near the
intersection of two extremely busy highways next to a
hotel. Whilst it is not a defence to say that a
plaintiff came to the nuisance, the character of the
locality, as having high ambient noise, is relevant to
what constitutes a substantial and unreasonable
interference. Here … the long term and consistent use of
the Raffles as a hotel gave the locality a character
that was a relevant circumstance for the reasonableness
Fourthly … it was always the case that crowd noise
and music would be associated with the common and
ordinary use of a hotel. … The redevelopment involving
the beer garden and the upstairs bar, completed in late
2014, did not materially change the uses of the hotel or
the nature of the locality.
Fifthly … [relevant to the character of the locality
in the context of the noise complained about, the]
expert evidence indicates that on the balcony, the
traffic noise generally exceeds the assigned noise
levels under the Regulations in any event. Also, the
ambient light music and crowd noise on Wednesdays,
Fridays and Sundays were not materially higher than the
traffic noise otherwise generally experienced on the
balcony. [Mr Ammon did not describe how he would have
used the balcony but for the noise]
Sixthly … the measured noise levels inside the
apartment with the balcony doors closed ranged from 35
decibels [a ‘quiet countryside] and 45 decibels [a quiet
Seventhly … while Colonial has taken steps to reduce
the level of noise generated by crowds and music, the
expert opinion appears to be that the hotel cannot
reasonably comply with assigned noise levels in adjacent
apartments, even without any music, as crowd levels
alone would, in all probability, exceed the prescribed
noise levels. There appears to be little to be done to
prevent the hotel's operations causing or significantly
contributing to a level of noise that exceeds the
assigned levels under the Regulations, short of stopping
the hotel operating as such, where the ordinary
operation of the hotel involves attracting patrons and
Eighthly … Mr Ammon [did not give evidence of] any
noise attenuation measures he had taken at his
(paragraphs 130 to 143, judgment)
The Court (Murphy JA, Mitchell JA & Beech JA,
unanimously) concluded that Mr Ammon’s appeal be dismissed.
If a breach of the tort of private nuisance is
established, the remedies can be powerful. In this case, had
Mr Ammon succeeded, he would have prevented the Raffles
Hotel from using the beer garden and the Riverside Room
after 9:00 pm.
But it is not easy to prove a ‘substantial and
unreasonable interference’ with enjoyment of land caused by
noise pollution, because many factors are taken into
account. In Ammon’s case, two factors stood out,
first the high ambient traffic noise, the second the
renovations did not materially change the use.
The lesson from Ammon’s case is that it is better
to focus on the conditions of consent the public authority
imposes when approving a development to ensure that
appropriate conditions of consent imposed to protect the
peace and quiet of a neighbourhood.
In this case, Raffles Hotel should have insisted on
double-glazing and re-orienting the balconies away from the
beer garden when approval was given to build the Raffles
Hotel Apartments. Mr Ammon should have insisted on
restricting the hours of operation of the beer garden and
Riverside room to 9:00 pm when approval was given to
renovate the Raffles Hotel.