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When Does a “Bad Law” Affect the Welfare of our Autistic Children?

Vehicles_bikes_motocross_dirt_track_dust_cloud By Elizabeth Gillespie

When does a “Bad Law” affect the welfare of our Autistic children?

On the 6th May 2011, I (the Applicant) attended a Tribunal and took the local council (1st Respondents) and my neighbours (2nd Respondents) to court. The matter was over the neighbours riding their motor bikes close to my boundary and impacting on my son’s well-being.  I lost my case!

What is a Tribunal:

A tribunal is known as –  VCAT  (Victorian Civil and Administrative Tribunal, Australia), it is where minor cases of disputes are heard and where they encourage you to represent yourself for efficiency as well as being cost effective.  VCAT usually comes into play when your complaints go unheard by neighbours and/or local councils- as in my case. Some cases may take 15 minutes to resolve, while others may take all day. In many instances a decision made by the member (the individual sitting on the bench before you) can resolve a matter on the same day, whereas some more complicated decisions can take two weeks. It took the member two weeks to make her decision to rule against me.

How the neighbours impacted on me:

My dispute with the neighbours had been ongoing since 5th December 2009 when I first moved into my home and three motorbikes on the adjoining property rode alongside my boundary. 

The excessive noise from constant revving, the high speed acceleration to execute jumps, the dust created and the fumes from the bikes spilled over to my property. What is worst is the impact it had on my Pervasive Developmental Disorder, Global Develop Delay, Autistic Disorder, non-verbal and vaccine injured son; Callan.  

On one occasion I found Callan cowering under my dining room table to hide from the noise. There were three bike riders constantly riding up and down the boundary completely oblivious to how their actions were impacting on my family.

Another concern of mine was the speed in which they were travelling. The speed was necessary for them to execute their man-made jumps that were mounds of dirt made by an earthmoving machine. The mounds of dirt rose to about 2 metres (6.5ft) high and a crude aluminium ramp was placed in front of the mound to provide the height for the jumps. The riders could execute jumps 4.5 metres (15ft) high.

What was my motivation to attend VCAT:

Since December 2009 we have suffered from dust, fumes and excessive noise from the bikes which not only impacts on Callan, it also has an adverse affect on the whole family. It is the whole family who has to console an inconsolable child, especially one that does not understand and is overwhelmed by the noise.

One day Callan escaped from the property and I found him wondering aimlessly across the motor bike track, luckily the bikes were not being ridden on this particular day.

After seeing the direct affects it was having on Callan I started doing a little research (you become an exceptionally brilliant detective when you are an Autism Mum).  According to two recent decisions made my members from VCAT it was found that the style of riding on other properties was found to be defined as “Motor Racing Track” therefore becoming prohibited under our “Planning & Environment Laws.” This was the angle I chose to take before the Tribunal to show that two different members in two different cases prohibited the use of motor bike riding for those particular matters.

So what went wrong:

 I took footage of the bikes riding along my boundary at excessive speeds, dust sweeping over my property and how the riders executed their jumps.

I presumed that the evidence I took to the Tribunal would be sufficient enough to show the member how, why and when a recreational activity of the neighbours can have an impact on my amenities and family.

The member’s decision did not include any of my evidence; Callan’s sensitivities, the DVD footage nor the two recent decisions I presented her. Her main argument to rule against me was that the neighbours live on the property i.e. ‘a dwelling’ therefore the recreational activity becomes an ‘ancillary use’.  The member’s decision simply means that the neighbours can ride as often and whenever they want!

So many questions:

So when does a recreational activity take precedent over someone else’s stressors?

Why does a ‘bad law’ fail our sensitive children?

How much impact needs to occur before you have a legitimate case?

Should I restrict Callan from playing outside on his own property in the event the neighbours start riding?

Do I appeal the decision in the Supreme courts whereby the legal costs can be in excess of $25,000.00 ($26,500.00 USA) (£16,400.00)?

The battle continues:

 I am now in the process of arguing costs forwarded to me by the local council’s solicitor. The costs are grossly excessive; up to $12,000.00 ($12,700.00 USA) (£7,800.00).  My argument to the Tribunal is that I oppose the full amount and each party should bear their own costs. If you can prove that your case wasn’t frivolous and it wasn’t wasting members nor courts time then you have a legitimate argument.

I am also pursuing this matter before the Magistrates Court under the ‘Public Health and Wellbeing Act’ because of the noise, dust and the smell of fumes affecting Callan. 

Comments

Seamas Kennedy

I have a similar problem with up to 4 motor bikes, trucks, chainsaws and wood splitters and a grandson who visits occassionally who is 5
and is infatuated with motor bikes.
I sympathise with you and find the ruling unjust.
I cannot find the other 2 rulings which were favourable and would be grateful if you could e-mail me the references.

Benedetta

Adult men!
Why aren't they on some road trip actually going somewhere?

AussieMum

Australia,

Thanks to all for your support, and I should add that these riders are all adult men and once the bikes start-up they continue non-stop for at least one hour and thirty minutes.

It is encouraged by local councils for motorbikes to be ridden in designated places in the bush. However, there are some that chose not to do so.

Also, Callan doesn't recognise danger and is a wanderer, that is my greatest fear.

Elizabeth-AussieMum to 9yr old, Pervasive Developmental Disorder, Global Development Delay, Autistic Disorder, non-verbal and Vaccine injured son.

Kym Grosso

I have to agree. It isn't that I don't like motorcycles but they can be VERY loud. The noise does affect whoever is in the path. And so many of our kids are sensitive to noise that is not even loud. Our neighbor sometimes rides one through our neighborhood and it is really loud too. They should be able to make motorcycles that aren't so loud. And then for this person, there is the dust. It is kind of like when a neighbor here decides to burn leaves...which I hate. You can barely breathe if you are in the path of the smoke yet lots of townships allow it. :-(

Madvocate

I would measure the decibel level of the bikes and see if they violate noise ordinances. My primary concern would be the child being hit by one of the bikes.

I hope you get some justice. If not, I would move. (I've gone house-hunting over less.) I know it seems unfair, but I don't see how you have a choice. This situation is intolerable.

Deb in IL

My first thought is Karma is going to get them. Imagine being a child, fearing the noise so much you're hiding. You reap what you sow, so someday they will be trapped in their own hell like the one they are doing to your little one.

It doesn't take away from the loss, but there will be Karmic justice done. :(

Benedetta

Well one thing about it - it is only a matter of time untill one of the kids gets hurt.
My neighbor's boy got hurt last summer; knocked his healthy brain unconscious, and lacerated his liver.
AND - about ten years pior, girl knocked herself out on the pavement while her parents were gone (busted her little sister's knee open too), and we had to take both of them the emergency room and then get hold try to get ahold of the parents.

But what is a healthy brain, nothing to be thankful about now is there.

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