Hotel Millenia v Worship Centre Christian Churches World Wide [2009] WSSC 76 (17 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

"HOTEL MILLENIA" a trading entity of PAT AH HIM LTD a duly incorporated company having its registered office at Apia.
Plaintiff

AND:

WORSHIP CENTRE CHRISTIAN CHURCHES WORLD WIDE a duly incorporated Charitable Trust.
First Defendant

AND:

VILIAMU MAFO’E of Sogi, Minister of Religion.
Second Defendant

Counsels: Ms MV Peteru for the plaintiff
Mr. G. Latu for the defendants

Hearing: 16 July 2009
Decision: 17 July 2009

DECISION OF NELSON J.

The plaintiff is an hotel and has been operating boarding and related facilities at Sogi in Apia since the year 2000. Recently it upgraded its operation by the addition of 30 new up market rooms and a swimming pool. These are located at the rear of its Sogi property and the pool is located next to its boundary with the first defendant.

The first defendant is a charitable trust incorporated in 2005 for religious purposes. It is headquartered at its Sogi land and has been so since 2005. It is situated next door to the plaintiff's establishment. The first defendant on its Sogi property holds church services twice a week on Friday evenings from 7-10pm and on Sundays, a morning service from 9-12noon and an evening service from 5-8pm.

The second defendant is the pastor of the first defendant congregation and he deposes in his affidavit that Sunday services involve about 1,000 worshippers bused in from all over the country as there are no places of worship for them in their areas. The services and worship involve not only singing and the use of many types of musical instruments some of which are electric in nature but also preaching, clapping and other noise generating activities. Large amplifiers, speakers, subwoofers and a sophisticated 48 channel sound system with an output of many thousands of watts has in the past been used to amplify and increase the raw power of the defendants message and devotions. The affidavit of their sound technician Mr Filipo indicates a total power output in the vicinity of some 12,000 watts, the sort of level you would expect at an outdoor rock concert.

This has been the source of much discontent and annoyance to the plaintiff, its guests and patrons. It is apparent on the material before me that there has been correspondence going as far as back as 2006 and eventually in 2008 the plaintiff sought the assistance of the Planning and Urban Management Agency of the Ministry of Natural Resources and Environment, also known as PUMA established pursuant to the Planning and Urban Management Act 2004.

The agency's functions include pursuant to section 9(a) of their legislation implementing of the provisions of the legislation in accordance with its objectives. One such objective by virtue of section 8(d) is "To secure a pleasant, efficient and safe working, living and recreational environment for all Samoans and visitors to Samoa." The agency's functions also include that in section 9(b) (iv) namely "preparing and approving planning provisions and any requirements development standards or guidelines provided for by this Act or which may facilitate its implementation or advance its objectives."

The Agency wrote to the second defendant on 8 December 2008 about the plaintiff's complaints advising the second defendant they will be carrying out sound level readings to ascertain if the complaints were justified. No response appears to have been given to that correspondence but the agency carried out its tests and determined that the defendants' noise levels exceeded those prescribed for this area by the Puma Noise Standards Policy. It found the defendants to be in breach of section 63(1) (a) of the Puma Legislation which relevantly provides as follows:

"where the amenity of an area or place is in the opinion of the Agency compromised by: (a) excessive noise, the Agency may require the owner or occupier by Order under section 80, to undertake the work or activity specified by the Agency in the Order to remove or minimize the nuisance impacting on the amenity of the area or place."

The second defendant was so advised by letter dated 8 January 2009 from Puma. He did not respond which led to a further letter dated 2 February 2009 to which there was a response, the second defendant saying the matter had been dealt with previously in a meeting with the Honourable Minister of Environment who is by statute Chairman of the Agency’s controlling Board.

It appears from the material before me that the defendants have taken steps to try and minimize the noise levels created by their activities. Thus they at one stage placed a number of 40ft containers along the common boundary with the plaintiff as well as planting a hedge alongside the containers to act as noise barriers. But these seem to have proved ineffective as the latest Puma tests of Friday 2 July 2009 and Sunday 12 July 2009 show the noise still to be in excess of approved levels albeit there has been a marked decrease from the levels of December 2008.

The improvement is no doubt due to the defendants other efforts as detailed in the affidavit of Mr Filipo in reducing by at least one-third the sound boosting capacity of the defendants equipment and also due to the building by the plaintiff as at its own expense of a 2.6 meter block wall along their common boundary. But these improvements have not resolved the problem which has led to the plaintiff issuing the current proceedings.

The plaintiff seeks an order restraining further breaches of the Puma Legislation a cause of action it can take as conceded by counsel for the defendant pursuant to section 83(2) and 83(3) of the Puma Act as it is clearly "an interested party" in the terms of the legislation. Section 83 gives the court very wide ranging powers:

"83. Enforcement of Act in Supreme Court –

(1) In this section:

(a) A reference to a breach of this Act is a reference to:

(i) a contravention of or failure to comply with this Act, and

(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act; and

(b) A reference to this Act includes a reference to the following:

• (i) the regulations;
  
• (ii) a sustainable management plan;
  
• (iii) a development consent granted under this Act, including a condition subject to which such consent is granted.
  

(2) The Agency or any interested person may bring proceedings in the Supreme Court for an order to remedy or restrain a breach of this Act.

(3) Proceedings under this section may be brought by an interested person on their own behalf or on their own behalf and other persons (with their consent) or a body corporate or unincorporated body (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(4) Where the Supreme Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Supreme Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(5) Without limiting the powers of the Supreme Court under subsection (4), an order made under that subsection may:

• (a) Where the breach of this Act comprises a use of any building, work or land, refrain that use;
  
• (b) Where the breach of this Act comprises the erection of a building or the carrying out of a work, require the demolition or removal of that building or work; or
  
• (c) Where the breach of this Act has the effect of altering the condition or state of any building, work or land, require the reinstatement, so far as is practicable, of that building, work or land, as the case may be, to the condition or state the building, work or land was in immediately before the breach was committed.
  

(6) Where a breach of this Act would not have been committed but for the failure to obtain a development consent, the Supreme Court, upon application being made by the defendant may:

• (a) Adjourn the proceeding to enable a development application to be made to obtain that consent; and
  
• (b) In its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are so adjourned.
  

(7) The functions and powers of the Supreme Court under this section are in addition to and not in derogation from any other functions and powers of the Supreme Court."

The plaintiff also seeks an interim injunction prohibiting the defendants from using its marquee tent for services and worship and seeks various awards of damages as well as costs.

The court is presently concerned with the part of the litigation that seeks relief by way of an interim injunction order. That application has been opposed by the defendants. Firstly on the ground that as a matter of fact the noise levels are not excessive. In this regard they rely on the testimony and affidavit of their sound technician Mr Filipo who gave evidence about the reduction actioned in respect of the sound equipment being used as well as the new decibel readings of such equipment which at maximum output are well below the approved Puma noise levels. If his evidence is to be accepted it puts the sound output at somewhere between the soft whispering and library quiet level according to the Puma standards appended to their Noise Policy document. But in fact that is not the point.

The plaintiff does not claim the maximum output from the defendant's equipment exceeds approved levels. Its claim is the totality of the noise produced by a combination of the singing, clapping, loud preaching and such like, additional to what is amplified and enhanced by the defendants equipment, exceeds the approved Puma levels and exceeds levels of reasonable noise. Mr Filipo himself in his evidence in cross examination conceded that if we put all these together with the sound emanating from the equipment that the approved Puma levels could well be exceeded as noted in the Puma test carried out last Sunday 12 July 2009, the results of which are contained in the affidavit of the Puma testing officer Mr Leung Wai.

The defendants have also argued that even if Puma standards are exceeded the noise level is nevertheless reasonable given that the services are only conducted on two days of the week and are of limited duration. Here the defendants are relying on Kruse v Aiafi [2001] WSSC 11 where it was stated by the Honourable Chief Justice:

"the tort of private nuisance is concerned with harmful interference with a person’s beneficial use or enjoyment of land. Such interference includes disturbance of a person’s comfort or convenience. But it is not every harmful interference that will constitute a nuisance. The interference must be substantial and unreasonable. Whether an interference falls within that category is largely a question of fact to be determined according to the objective standards of a reasonable person living in the particular locality where the nuisance complained of takes place. It has been said the question is not to be determined according to the subjective notions, sensitivities or idiosyncrasies of the plaintiff."

The defendants argue the interference in this case is neither substantial nor unreasonable and in assessing that the court is not confined to an abstract consideration of the acts themselves but it must do so –

"by reference to all the circumstances of a particular case including for example the time of the commission of the acts complained of, the place of its commission, the manner of committing it, that is whether it is done wantingly or in the reasonable exercise of rights and the effect of its commission i.e. whether those effects are transitory or permanent or occasional or continuous so that the question of nuisance or no nuisance is one of fact": Stone v Bolton [1949] 1AllER 237 at 238.

I have no quarrel with the defendant's statement of the law because that was the approach taken in Kruse v Aiafi where the court examined the particular facts and circumstances of the case.

In respect of the time factor, as noted services operate on Friday evenings from 7-10pm and on Sunday mornings from 9-12noon and Sunday evenings from 5-8pm. In relation to Friday evening services it is common knowledge the plaintiff operates its own outdoor live band activities until 10pm so to some extent it is hardly in a position to complain about the noise levels generated at that time from next door causing discomfort to its guests and patrons when in fact it is generating its own noise on the property. As for Sundays I accept that is generally a day in this country for worship and reflection and that tourists coming to the Pacific understand the significance of a Sunday in pacific cultures and would generally not expect raucous assemblies, live bands or open air concerts to be occurring on Sundays. Most travelers respect the quiet of a Sunday even in an urban area such as Apia and many travelers are attracted to the Pacific because of its laid back and tranquil atmosphere and lifestyle.

The intensity and duration are also relevant aspects to be considered. As pointed out in Todds "Law of Torts in New Zealand" 3rd edition at para. 9.4.3:

"temporary discomfort and inconvenience caused by such activities as road construction, demolition and building work does not amount to a nuisance provided it is conducted at reasonable times of the day and reasonable steps are taken to keep the level of interference to a minimum. But at the same time, an intermittent interference with comfort and convenience may amount to a nuisance if it is long-term and of high intensity: Bank of New Zealand v Greenwood [1984] 1 NZLR 526 (a case where the dazzling glare from reflection of sunlight from a glass veranda was held to constitute a nuisance); Bloodworth v Cormack [1949] NZLR 1058 (where it was held to be a nuisance where there was substantial noise from a speedway for 3 hours one night a week albeit only for 5 months of the year). Indeed one judge has pointed out that an intermittent noise, particularly when it does not come at stated intervals, is likely to be more disagreeable than if it were a constant noise: Rapier v London Tranways Co. [1893] Ch 588,591."

As to the factor of location the evidence is the area in question has been designated by Puma as a commercial area bordering on industrial. Probably due to the presence of another large hotel to the east of these properties, an oil storage depot to the south and a night club/motel to the west. But the area is also mixed residential as Sogi village is to the west and south west of the properties and there are scattered houses surrounding the properties. From a zoning perspective it is a most unsuitable venue for a church or place for open air religious activities.

As to other relevant factors it is clear the noise dispute has been ongoing for a number of years and while I accept that the defendants have made some effort to reduce the impact of their noise levels, so has the plaintiff by its brick wall. Nevertheless it is clear from the most recent Puma tests that the problem remains and the test last Sunday was undertaken at only one point in the day the inference being that at all other times during the service and worship, the level would probably have been as constant and consistently excessive although I accept as with all church services there is necessarily an ebb and flow of noise.

The evidence is the services conducted by the first defendant lasts about three hours. For Sundays which has two services that is six hours of noise. The Friday service is not of such concern given the plaintiffs own Friday night activities but the Sunday services clearly fall into a different category. While the defendants have a constitutional right under article 11 of the Constitution to freedom of religion and practicing it in terms that they see fit, they must exercise this right within the boundaries of the law. And the boundaries of the law require that the right be exercised reasonably. The exercise of the right can be curtailed by virtue of article 11(2) by legislation passed by Parliament that imposes reasonable restrictions on the right. Restrictions that are required in the interests as stated in article 11(2) of "public order or for protecting the rights and freedoms of others." In short the right is not a complete and absolute right but must be exercised within these bounds. And the fact that it may be a costly exercise for the defendants to remedy the problem is irrelevant. As was stated in BNZ v Greenwood:

"If one creates an actionable nuisance, he must eliminate it whatever the cost. The fact that it will be expensive does not affect his liability. Nor does the fact that his innocent neighbour could avoid its effects more cheaply."

The applicant's case for a nuisance has been established to my satisfaction and I find the nuisance is substantial and unreasonable. It is also in breach of s.63 (1) (a) of the Puma Act and the relevant notice has been issued by Puma. The only question then remaining is whether pending final determination of the plaintiff's claims, the court should issue an interim injunction.

The principles operative in relation to an interim injunction are well established. The approach is two fold as noted by both counsel: Firstly, is there a serious question to be tried? Secondly where does the balance of convenience lie? (Esera v NUS [2003] WSSC 12; Asiata v Asiata [20070 WSSC 4).

In relation to the first limb, defendants counsel argues the evidence is insufficient because the affidavits that have been submitted on behalf of the plaintiff are unspecific as they provide no details as to how the noise has disturbed either Mr Ah Him as manager personally who claims it has affected his mental capacity and/or users of the plaintiffs facilities. Counsel points to the Aiafi case as requiring detailed affidavit evidence from guests and/or users of the facilities about the effect on them of the so called excessive noise. However as indicated by the court this is an interlocutory application only, this is not a final hearing of the prospective merits claims and facts of this matter which is what occurred in Aiafi. In Aiafi interim relief had already been granted and the court was there concerned with the final determination of the matter. For present purposes the court is not required to embark on an in-depth analysis of all aspects of the facts. It is entitled to rely on what has been placed before it by way of affidavit and other evidence.

In this case what has been placed before it consists of affidavits and the oral testimony of the witnesses for both the plaintiff as well as the defendants. After considering the evidence in total I am satisfied there is a serious question to be tried as to whether a permanent injunction against the defendants' excessive noise should be made and whether damages should be awarded for the nuisance occasioned over the preceding years.

As to the second consideration of balance of convenience it has been submitted by the defendants an injunction would impede on the financial operations of the Church such that it would cripple it and not allow it to function or pursue the exercise of its rights of religious freedom and worship. With respect that misunderstands the nature of the relief sought. The essence of the plaintiff's complaint is not noise but excessive and unreasonable noise. The defendants are still free to conduct their activities provided they tone it down to acceptable levels. It is not and would not be the goal of the court to shut down the defendants operation or indeed any form of religious worship or activity. Far from it, it is the goal and responsibility of the court is to ensure that in future such activities are conducted in a lawful and appropriate manner. In this case within the approved Puma noise limits and without causing any unreasonable disturbance to users of the adjoining facilities. The balance of convenience was defined in the Esera case:

"Though expressed as a ‘balance of convenience’, the balance that the court seeks to make is more fundamental and weightier than mere convenience - it is the ‘balance of the risk of doing an injustice’ that better describes the process. In assessing where this balance lies, the Court must weigh the respective risks that injustice may result from its deciding one way rather than the other at a stage when the evidence is incomplete."

Bearing in mind what is stated above the balance in my respectful view lies in favour of issuing the interim injunctive relief sought.

Accordingly an interim injunction is to issue as against the defendants, their employees, agents, members of their congregation and anyone acting for, through or by any of them in the following terms.

1. prohibiting the conducting of Friday services in excess of the approved applicable Puma noise levels and in any event such services are not to extend beyond 10pm at night;
   
2. prohibiting the conduct of all Sunday services until such time as Puma and the plaintiff are satisfied that adequate measures and safeguards have been put into place to ensure that the applicable Puma noise levels will not be exceeded during such services; and
   
3. prohibiting the conducting of services on any other day or at any other time that may result in the applicable Puma noise levels for this area being breached.
   

In view of these conclusions it is not necessary to consider the applicants alternative prayer for an interim injunction to issue on the basis of breach of the Puma legislative requirement as to a development consent for the defendants use of its marquee tent. I would only note that while the Act allows an interested party to bring an action to enforce such an obligation that is more properly in my view a matter for Puma whose interest in such matters cover a broader field and would be much wider in scope and more general in application than the interests of specific applicants or individuals seeking court redress.

Costs in this matter are reserved.

JUSTICE NELSON