OPENING STATEMENT
Betty’s Bay is a beautify quiet town set in a buffer zone between nature reserve and biosphere environments. From almost anywhere in Betty’s Bay one can hear the crashing of the waves, animal calls and critter sounds. A place where we share our spaces with all kinds of wild animal life. It is because of this very tranquillity and privilege to live amongst nature that we have invested here.
COMMUNITY VISION
To be a community where the tranquillity of Betty’s Bay is maintained and respected by all.
To be a community where we respect each other and do not exercise our rights at the cost of other’s rights.
To be a community where all visitors are welcomed by the ratepayers and residents of Betty’s Bay.
AIM
The aim of this correspondence is to offer solutions to eliminating the prospect of party houses continuing to function in Betty’s Bay.
BACKGROUND
There are pensioners, young families, homeowners and residents that enjoy living in Betty’s Bay. We all like the fact that there are no lights and gravel roads. The quietness is important to us and the wild animals that live here.
But unfortunately for some of us this is not something that can be enjoyed as we live next to or close to a party house. A party house is a holiday home owned by a person that lives in a place other than Betty’s Bay and rents their holiday home, either privately or through an agency to groups of people that have a total disrespect for the people that live here and the environment. Both the owner and the agency have no other goal but to make money.
A typical party house weekend will look something like this. At about 14:00 on a Friday a taxi will arrive and drop of from 10 to 16 people off at the house with all their belongings. This includes huge amounts of alcohol, some bedding and clothing and a music device. This music device goes on almost immediately to full bore with the start of the GOEM GOEM GOEM which will last the entire weekend. Then the party starts, and the people start drinking and this too goes on the entire weekend. Just a few hours later the shouting and swearing starts unabated for the entire weekend as well. By nightfall the entire party is drunk and disorderly.
The other scenario has 4 to 6 vehicles arriving at the house fille with people, booze and drugs. The rest of the process is the same as above. At 22:00 the neighbourhood watches and security companies are called to ask these drunkards to turn the music down. Sometimes it works for a few minutes, or they simply swear at the watch or security person. Then OM law enforcement is called to assist, this too helps for a little while but as soon as law enforcement leave the music is turned up again. Next the SAPS officers give the same request to turn the music down with the same results. By this time, it is past 23:00 and the entire community is upset.
When the owners are contacted, they are totally uncooperative and even swear at the caller. Later they just don’t answer the calls. Another weekend destroyed by outsiders wanting to come here to get drunk and play loud music.
PROBLEM STATEMENT
Large groups of people occupying otherwise empty homes on weekends.
Excessive use of alcohol and drugs by these people.
Swearing and unruly behaviour.
Disrespectful behaviour towards permanent residents.
Total lack of understanding of our waste management requirements.
Playing of continuous loud music and loud shouting.
Owners or agencies continue to accommodate these types of people with no regard what so every to other permanent residents.
Little or no proper screening takes place in these cases.
ACKNOWLEDGEMENT: The outcome of the debate acknowledges that:
There are owners that rent out their empty homes here in Betty’s Bay to weekenders where there are never any problems.
There are owners that rent out their empty homes in Betty’s Bay to weekenders that have no respect for the permanent residents or the environment.
There are by laws on noise nuisance and disturbing the peace.
These homes are situated in residential areas and owners are deriving an income from the rentals.
We understand that this is a complex and difficult situation to manage.
We understand that by-laws will have to be enforced with fines issued.
We also will pursue the advice from SARS on the matter.
We will also establish a database on these houses to assist SAPS, Law Enforcement and individuals that want to go the legal route.
We, (you and I), must make decisions and come up with answers to our own problems, and encourage support from the BBRA and the Overstrand Municipality.
SUGESTION
The ratepayers and residents have proposed that a portfolio of evidence is established on each home and that each homeowner is engaged with in a neighbourly fashion. The response by the homeowner will determine the response by the complainant.
We establish a standard mechanism or process with all the relevant role players to fast track and streamline the processes of prosecution if required.
OBLIGAITON BY OWNER AND/OR LETTING AGENT
Municipal by-laws govern disturbing noise. An example of this kind of noise would be loud party music. This kind of party noise is generally tolerated until 10pm on a Friday and/or Saturday evening before you can take steps against the perpetrator/s.
If you want to let your house or apartment for short-term rentals during weekends or holidays, it is advised that you familiarise yourself with the Municipal Planning by-laws.
Property owners and letting agents must check if there are any restrictive provisions or clauses in their property title deeds that prohibit such letting of the property. They must also make sure they comply with the regulations before letting out their own homes as a guesthouse or bed and breakfast (B&B) or self-catering establishment.
Homeowners also have the responsibility to ensure that they understand the extent of these regulations.
Short-term rental is the letting of a room, rooms or a whole property be it a house, group house or flat to a transient guest, who has a permanent residence elsewhere, in return for payment. This includes the rooms of a guesthouse or B&B in a house.
In terms of municipal planning by-laws, the property owner who seeks to operate short-term holiday letting – irrespective of the platform facilitating such letting (including Airbnb, Booking.com or Lekkerslaap to name a few) must ensure the property is appropriately zoned and have applied for consent from the municipality’s town planning department.
Overstrand Municipality permits two guest rooms to be rented on a short-term basis from single residential dwellings without any permission subject to compliance with conditions as specified in the Overstrand Municipality Land Use Scheme Regulations and if not in contradiction of the Title Deed conditions. Should more than two guest rooms be rented out then an application is required for a guest house up to a maximum of five bedrooms. Self-catering is a primary right under single residential zoning.
It should be noted that self-catering, B&Bs and Guest Houses each have their requirements and parameters in terms of the by-law.
Councillor Clinton Lerm as Mayco Member of Investment and Infrastructure said, “Renting out a room or house might seem like an easy way to generate some income, but when things go wrong there are huge consequences”.
He advised homeowners who are interested to provide short-term holiday accommodation rentals to contact the Town Planning Department in 16 Paterson Street, Hermanus as first port of call for any accommodation related applications. Alternatively contact them on 028 313 8900 or rkuchar@overstrand.gov.za.
THE LAW AND NOISY NEIGHBOURS
A certain level of noise is an inescapable part of urban and suburban living and residents accept that they will regularly be subjected to numerous noise sources of various levels, including traffic, taxis, construction work and, quite often, their neighbours.
In recent years the level of noise has been exacerbated by the ongoing densification in cities, especially in the suburbs where new residential properties are being built and commercial centres expanded to meet growing demand.
However, there is a point where noise can reach an unacceptable level and, whilst there is little we can do about the constant thrum of traffic, we do have recourse when noise becomes unnecessarily intrusive and impacts on our right to enjoy the ordinary comfort and convenience of our homes.
These days there is more sensitivity and awareness regarding the negative impact of noise that exceeds specified levels and municipal by-laws and environment legislation include provisions for dealing with noise regulation contravention.
It should be noted that South African law makes a distinction between ‘Disturbing Noise’ and ‘Noise Nuisance.’
Disturbing Noise is objective and is defined as a scientifically measurable noise level such as a loud party where music is played at midnight at volume where the lyrics are audible to neighbours, while Noise Nuisance is a subjective measure and is defined as any noise that disturbs or impairs the convenience or peace of any person like the incessant barking of a neighbour’s dog.
Both are illegal in terms of the Environment Conservation Act but, while the first is usually effectively handled with a call to the police, the latter is not always as simple.
In order to show that a Noise Nuisance exists, a reasonable person must find a certain noise intolerable or seriously effecting his enjoyment of his property and it may come down to a court applying a test of objective reasonableness.
In residential areas, the enforcement is by the local authority and there are various penalties provided it is shown that the noise exceeds acceptable levels. Generally, the ‘guilty party’ will be asked to desist from making the noise and if he fails to do, further steps can be taken such as fines issued by the authorities, or an action brought to court by the complainant.
This final step should be carefully considered, and complainants must ensure they have all their ducks in a row as payment for the costs usually depends on the outcome with the courts ordering the unsuccessful party to settle the costs.
People should also be cognisant of any new zoning regulations which may have been passed, especially if they are considering buying residential property in a mixed-use area.
It’s always best to be forewarned as to what is permitted in an area where you are looking to purchase property and to decide whether your needs and lifestyle could be impacted.
If investors love a property but are unsure about the proximity of businesses, they must ask a local estate agent who will be able to enlighten them about the general tone of an area and what noise levels can be expected.”
NEIGHBOUR NUISANCE LAW
Residential properties in our country are reducing in size, with more people living together in gated communities. Could this lead to a whole branch of law for handling relationships between people who live next door to one another?
Section 36 of the Constitution provides that no right is absolute, as any right can be restricted to be equitable, and democratic in our society.
Neighbour Law in South Africa is comprehensive due to the scope of the disputes that can occur, but that most of these falls into one of five different areas: Nuisance, Encroachment, Lateral and surface support, Interference with the natural flow of water, The elimination of danger and Noisy neighbours.
Disturbing Noise – which is “objective and defined as a scientifically measurable noise level.”
Noise Nuisance – which is “a subjective measure and defined as any that disturbs or impairs or may disturb or impair the convenience or peace of any person.”
Both are illegal in terms of the Environment Conservation Act (73 of 1989) and the Noise Control Regulations in terms of Schedule 5 of the Constitution.
Disturbing Noise in the urban environment – a loud party, for example – is usually governed by municipal by-laws, so if your neighbour’s kids are driving you nuts with their “doef-doef-doef” at a ridiculous 85 decibels after 10:00 p.m. on a Friday or Saturday night, and if they refuse to respond to your polite requests to tone it down, a visit from the SAPS will usually do the trick.
Noise Nuisance, on the other hand, is more subjective and usually happens over a longer period. It’s defined as noise that “disturbs or impairs or may disturb or impair the convenience or peace of any person,
Examples of this would be operating a vehicle or machine that makes constant loud noises, driving a loud car on a public road, having a dog that barks loudly and constantly, playing a musical instrument loudly, entertainment (music or television) that is very loud, screaming or talking loudly, discharging fireworks in a residential area or any pervasive sound that makes your life a living hell.
In order to show that a Noise Nuisance exists, a reasonable person must find a certain noise intolerable or seriously effecting his enjoyment of his property.
If you feel that you’ve become a victim of excessive noise, you can take the matter to court. However, before you do that, consider that the court will apply a test of objective reasonableness.
A person who is too sensitive or easily irritated must consider whether he is reasonable in taking action against his neighbour. The action may not be successful if the reasonable person would not have been affected by the noise.
If you do decide to take steps against your neighbour, you should begin by making a written complaint to the Kleinmond Police Station Commanding Officer and our OM then cc the councillor and mayor. Both have Noise Control Units whose officials are empowered to take steps if they find that a problem exists and persists. They could serve an instruction to reduce the noise, issue a fine, or even in extreme cases confiscate equipment.
It is suggested that one should apply to a court for an interdict to prevent your neighbour from causing the specific noise and or suing for damages suffered. As a result of the excessive noise and if they are uncooperative, the court would then generally consider: the type of noise, the degree of persistence, where the noise occurs, the times when the noise is disturbing, the efforts made to resolve the matter before it makes a ruling.
Every case is decided on its own merits, since no fixed standards exist when it comes to determining whether an action of this sort is unlawful or not. If you do succeed in obtaining an interdict, but your neighbour persists with his or her unlawful actions, the neighbour may be found guilty of contempt of court, in which case the court may impose a fine or imprisonment in serious cases.
Penalties for violating noise by-laws are laid out in Section 9 of the Noise Control Regulations. Any person who contravenes or fails to comply with section 4 and 5 are liable on conviction to a fine not exceeding R 20,000.00 or imprisonment for a period not exceeding two years.
So, now that we have some context and information to work with, what is the next step to deal with a noisy neighbour. The answer, of course, is to try and resolve the matter as amicably as possible by talking it out. Yes, when it comes to keeping the peace, the direct and respectful way should always be your first option. Have proof of this in the form of witnesses or written correspondence. In many cases, a neighbour may not know that they are causing any noise-related issues.
Tips for approaching your neighbour about a noise complaint:
- Have a chat
Approach your neighbour and ask them if you can have a discussion with them about your concerns. If they can’t do it immediately, agree on a convenient time (you could even invite them over for a coffee, just to show you have no ill-intent).
2. Stay calm
It’s probably not the best idea to approach your neighbour in the heat of the moment, as you do not want to come across as angry or disgruntled. Instead, wait until you have calmed down. Many people respond to aggression with some level of pettiness, and your neighbour may continue with their disruptive behaviour just to irk you more!
- Keep it face-to-face
While you may want to break the ice with a note to your neighbour in their mailbox or under their door, this could come across as passive aggressive. So, to make sure there is no misunderstanding about your demeanour, try and have one-on-one interaction. However, if they refuse to have a chat with you, then delivering a written note could help prove that you tried to resolve the matter.
Of course, if the direct, face-to-face approach is unsuccessful, you do have legal options to consider. Consider appointing a mediator to facilitate a session to resolve the dispute. This approach is still on the civil side of things.
Should the neighbourly way not yield any results, you are within your legal rights to lay a complaint with the authorities via a written statement. After assessing the information, a law enforcement official will investigate the issue further to see to what extent the noise/nuisance is disruptive and possibly illegal. If so, they will inform your neighbour to reduce the noise, and if the issue persists, the official can issue a fine or in very extreme instances confiscate the equipment responsible for the noise.
If for some reason, all attempts to resolve the matter fails, you can ask a lawyer to write to your neighbour and ask them to desist. Should that not work, your lawyer can apply for an interdict to stop the noise.
The court will once again take the following into account: the type of noise, how often it occurs, where it comes from and what’s been done to try and resolve it. You will also have to inform that court how the noise has negatively impacted your life, health, comfort and general well-being.
What happens if a neighbour ignores a court interdict for being noisy?
Should your neighbour ignore the court interdict and not change their disruptive ways, they may be found guilty of contempt of court. This could result in a fine (up to R20 000) or jail time (up to two years).
CONCLUSION
This can be seen as a positive way forward and may be used as a model for future requests for same.
This information was gathered through debate by the ratepayers and residents of Betty’s Bay.
GRATITUDE BY BBRA CHAIRMAN
I thank each person that attended our debate and sent me emails in this regard. It all helps us to understand our situation better. It is the ratepayers and residents of this community that will ultimately find solutions to all the problems we have. This is not the end of it but the beginning and lots will be added going forward.
Date: 23 April 2023
(WR JACKSON)
BETTY’S BAY RATEPAYERS ASSOCIATION: CHAIRMAN