23 Sep Noise pollution from entertainment venue
Noise pollution from entertainment venue
by George Coucounis
“The Court may order that noise pollution be prohibited, except at the times and volume permitted by the license of the competent authority”
THE operation of an entertainment venue requires obtaining a license from the competent authority which, when examining an application, takes into account both the views of the competent bodies and the representation of the owners or occupiers of residences in a short distance from the area of the entertainment venue. Its operation is inherently a nuisance activity due to the noise and sound it causes during its operating hours. The competent authority, the relevant municipality or District Officer, should avoid the licensing of an entertainment venue in purely residential areas, since its operation is expected to adversely affect the life and comfort of the residents of the area, their health and the enjoyment of their property. Where an operation license and an audio broadcast license are issued, the relevant authority is obliged, either on its own motion or following a complaint, to inspect the audio broadcasting and to ensure the adherence of the audio broadcast license’s terms and, where appropriate, to reduce the prescribed limits of the audio broadcast.
The existence of an operation license for an entertainment venue and an audio broadcast license do not exempt the owner or the occupier from his obligation to avoid causing nuisance and in particular nuisance from broadcasting increased sound volume. The existence of a license or the scope of acts of the administration, as underlined by the District Court of Limassol in its judgement issued on 5.9.2022 in an application for a prohibitive order, do not constitute an absolute defense for the owner or the occupier of the entertainment venue and do not preclude the possibility of a claim for damages or other remedy for nuisance.
An owner of a residence situated near an entertainment venue issued an action claiming against the venue’s occupier damages and orders precluding the venue from operating in a way causing nuisance through the use of sound speakers, as well as through creating increased sound volume affecting the enjoyment of his residence. Simultaneously, through an application, he claimed and secured a temporary interim order prohibiting the defendant – occupier of the venue from using loudspeakers between the hours of 11:30 in the evening and 5:00 in the morning beyond certain volume limits.
The Court examining the conditions for the issuance of a prohibitory order, prompted to article 46 of the Civil Wrongs Law, Cap.148, which provides that a private nuisance consists of any person so conducting himself or his business or so using any immovable property of which he is the owner or occupier as habitually to interfere with the reasonable use and enjoyment, having regard to the situation and nature thereof, of the immovable property of any other person. The plaintiff is not entitled to recover compensation in respect of any private nuisance unless he shall have suffered damages thereby. Nuisance, as the Court added, could be created or caused through noise, including high audio volume from loudspeakers. The reduction in the standard of living, the use and enjoyment of the plaintiff’s residence could be considered as a loss. Therefore, the Court held that the issue raised by the plaintiff was actionable.
In addition, the Court remarked, it is not precluded to a person to claim damages for loss incurred or an order prohibiting a conduct contrary to Law 50(Ι)/2016 or to Law 29/1985 or to any other law or a conduct which does not comply with the existing legal framework applying to the broadcasting of sound, especially where it has not been possible to find resource to other monitoring mechanisms. Article 6 of Law 50(Ι)/2016 provides for a procedure for submitting a complaint to the competent authority, as well as for penalties and administrative fines. As the Court held, the entitlement of the plaintiff to submit a complaint or an accusation, does not annul the possibility of success in the plaintiff’s action for damages or for remedies safeguarding the containment of nuisance.
The Court concluded that, on the balance of probabilities or justice, the plaintiff established that his right to enjoy a peaceful environment in the home he resides with his family is threatened with substantial alteration by the neighbouring development of the venue, which is by its nature causing nuisance, since it also broadcasts sound from loudspeakers in various volumes. The Court granted an injunction prohibiting the defendant from broadcasting sound from outside the venue using loudspeakers, except at the times and in such volume and way permitted by the audio broadcasting license of the relevant authority.