The Health Act of 1958 (and further amended on 11 May 2005) is a Victorian Act of Parliament which covers a number of areas relating to public health such as nuisances and immunisation. The Health Act also empowers local councils to investigate complaints and perform inspections.

As an example, the Health Act and specifically Part III (Nuisances) was invoked in dealing with the excessive noise created by Southern Rocycling due to the following sections of the Act:

39A. Application of Part

This Part applies to nuisances which are, or are liable to be, dangerous to health or offensive and in particular to nuisances arising from or constituted by—

(a) any building or structure; or
(b) any land, water or land covered by water; or
(c) any animal, bird or pest animal within the meaning of section 108A; or

(d) any refuse; or
(e) any noise or emission; or
(f) any state, condition or activity; or
(g) any other matter or thing—
which is, or is liable to be, dangerous to health or offensive.

40. Definition

(1) In this Part—
“offensive” means noxious, annoying or injurious to personal comfort.

(2) In determining whether a state, condition or activity is a nuisance which is, or is liable to be, dangerous to health or offensive—
(a) regard must not be had to the number of persons affected or that may be affected by the state, condition or activity; and
(b) regard may be had to the degree of offensiveness of the state, condition or activity.

41. Duty of councils

A council must remedy as far as is reasonably possible all nuisances in its municipal district.

42. Offence of causing a nuisance

A person must not—
(a) cause a nuisance; or
(b) knowingly allow or suffer a nuisance to exist on or emanate from any land owned or occupied by or in the charge of that person.

Penalty: 100 penalty units.

43. Notification of nuisance

(1) If a person believes that a nuisance exists, that person may notify the municipal council in whose municipal district the alleged nuisance occurs.
(2) The council must investigate any notice of a nuisance.

(3) If, upon investigation, a nuisance is found to exist, the council must—
(a) take action to abate the nuisance; or
(b) if the council is of the opinion that the matter is better settled privately, advise the person notifying the council of the nuisance of any available methods for settling the matter privately.

44. Notice to abate a nuisance

(1) If the council is satisfied that a nuisance exists, it may serve a notice on the person who is causing the nuisance or, if that person cannot be found, on the owner or occupier of the land or person in charge of the land from which the nuisance emanates, requiring the abatement of the nuisance.

(2) A notice under sub-section (1)—

(a) must specify the time within which the nuisance must be abated; and
(b) may specify steps to be taken to prevent the recurrence of the nuisance and the time within which they are to be done.
(3) If—
(a) the person on whom the notice is served does not comply with it; or
(b) the nuisance, although removed, is, in the opinion of the council, likely to recur—
the council may cause a complaint to be made to the Magistrates’ Court which may summon the person to appear before the Magistrates’ Court.

45. Failure of council to investigate complaint

(1) If the council does not within a reasonable time of being notified of an alleged nuisance investigate the subject-matter of the notification, the person who notified the council may make a complaint to the Magistrates’ Court of the existence of the alleged nuisance.

(2) The Magistrates’ Court may summon the person alleged to be causing the nuisance before it and the court may proceed as if the complaint had been made by a council.
(3) If the court is satisfied that the person making a complaint under this section had reasonable grounds for doing so, the court may order the council to pay any costs and expenses incurred by that person.
(3A) The court must not order a council to pay any costs or expenses under sub-section (3) unless it first gives the council or its representative an opportunity to be heard.

47B. Power of councils to investigate nuisances outside their municipal districts

A council may investigate a nuisance which occurs outside its municipal district if that nuisance affects the council’s municipal district.

Alex Makin

Alex Makin

Alex Makin is a councillor for the Mullum Ward in the City of Maroondah. Alex has been a councillor since 2005, representing ratepayers, businesses, community groups and residents. I aim to continue making a difference and welcome any thoughts you may have in regard to life, community and business in Maroondah. Phone: (03) 9870 8202 or 0408 311 645 Email: alex@alexmakin.com.au

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