NSW: Children and Noise Complaints in Apartments

These Q&As discuss children and noise complaints in NSW apartments. The information contained in this article was correct at time of publishing.

Table of Contents:

• QUESTION: Are children allowed to play on the common property driveway? We have a group of families who socialise in the common areas? Is this allowed due to social distancing rules in NSW?
• QUESTION: With the current lockdown restrictions and more people including children home, will there be changes to strata laws regarding noise and neighbours?
• QUESTION: Are children excluded or exempted from breaching any provisions in the Strata Schemes Management legislation or any By-Law Clauses of the Strata Plan?
• QUESTION: Children Playing on Common Property – Do They Need Supervision? What are the rules around children and noise complaints in apartments?

Question: Are children allowed to play on the common property driveway? We have a group of families who socialise in the common areas? Is this allowed due to social distancing rules in NSW?

Are children allowed to play on the common property driveway? What happens when children and their friends, either other residents or visitors, are socialising on the common property? From my understanding, social distancing rules would include children playing. Is this allowable given the current climate?

We also have a group of families in our building who are holding social gatherings on common property during the lockdown? Should this be happening?

Answer: Children are not allowed to play on common property driveways at any time.

Children are not allowed to play on common property driveways. It is likely that you have the following standard by-law which applies to many schemes:

7 Children playing on common property in building

An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or another area of possible danger or hazard to children.

Generally speaking, children are not allowed to socialise on common property unless there is a designated area eg bbq area, swimming pool area, rooftop terrace in which case there are usually by-laws governing the consumption of alcohol, overcrowding etc apply as well.

Regarding social gatherings and children playing during this COVID-19 lockdown, during the Prime Minister’s recent announcement National Cabinet agreed to limit both indoor and outdoor gatherings to two persons only. Presumably, this extends to children playing except if they are from the same household.

With adults hold social activities on common property because the common property is owned by the Owners Corporation, such social activities would require the authorisation of the Owners Corporation, especially in light of the insurance implications in case of personal injury etc.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #340.

Question: With the current lockdown restrictions and more people including children home, will there be changes to strata laws regarding noise and neighbours?

In this current situation where strata residents are in lockdown due to COVID-19 restrictions, a lot of people are working/studying from home. Now that parents and carers are encouraged to keep their children home from school if possible, children are inside the apartments for more time than usual.

Will there be changes to strata laws regarding noise and neighbours? It’s now, more than ever, important for workers and people studying at home to live in a quiet and comfortable environment without constant noise from other residents.

Answer: It is likely noise will increase and that the government would expect a higher degree of tolerance in these difficult times.

We have not been advised of any proposed changes to noise laws. The existing legislation and standard by-laws, in our view, provide adequate protection.

In our view it is not that they are excluded or exempted, it is that the owners/occupiers of the lot are responsible to ensure no noise may interfere with someone else’s use of their lot or common property.

It is likely you will have a by-law to the following effect:

1 Noise

An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

Note: This by-law was previously by-law 12 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 13 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

Further, “nuisance” provisions exist in the legislation:

153 Owners, occupiers and other persons not to create nuisance

1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
   1. use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   2. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   3. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
      Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
2. This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

However, we believe in the current climate of COVID-19, and the fact that most people are working from home, children are being cared for at home or homeschooled, uni students are working online from home, it is likely that noise will increase and that the government would expect a higher degree of tolerance in these difficult times.

Reasonable noise is acceptable and we do not think that the Tribunal would impose office-like conditions at home, though of course, there are protections in place if the noise should become unreasonable or unacceptably disruptive.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #337.

Question: Are children excluded or exempted from breaching any provisions in the Strata Schemes Management legislation or any By-Law Clauses of the Strata Plan?

Though the question may seem rather ‘extraordinary’, unfortunately, it’s a matter that perhaps other Lot Owners may have encountered.

I live in a 1970s three-storey apartment complex. I reside on the first floor. Anyone who has resided in an apartment complex built before the advent of the Building Code of Australia would know these buildings are rather ‘hollow’, in that you can hear sounds generated from the floor above and it literally spreads through your apartment.

Recently, new owners moved into the apartment directly above mine. They have two young children around 4-8 years of age. They run around and scream and shriek during the days and also in the evenings and early mornings. I’ve been tolerable for some time now but my patience had waned considerably most recently. My recent Sunday sleep in was halted abruptly at 6 am. There were screams, shrieking, hollering, simply pandemonium happening directly above my bedroom. This raucous went for over an hour.

Based on the copious information in context to ‘noise and disturbances’ which LookUpStrata provides, I decided to implement what I had read and had a chat with the resident. Sadly, I was told by the Lot Owner that the noise was made by their two friends who were over for a sleepover, something they will continue to have on weekends.

Are children exempted/excluded from breaches of s.153(1)(a) Strata Schemes Management Act (NSW) 2015 and the Strata Plan’s By-law 1 which is based on the model By-Law pertaining to quiet use and enjoyment?

Again relating to children, we have a common property driveway and we don’t have any playground amenities whatsoever on the common property because the land size is at full capacity. Can children use the common property driveway as recreational grounds? Of course, this driveway is used as a thoroughfare for motor vehicles and pedestrians.

Basketball bounces resonate on the concrete drive. Is this a breach of quiet, or use or enjoyment of a Lot Owner which causes a nuisance? When this was raised, again the parents claimed their children have ‘rights’ to play anywhere on the common property.

Answer: Occupiers of the lot are responsible to ensure no noise may interfere with someone else’s use of their lot or common property.

In our view it is not that they are excluded or exempted, it is that the owners/occupiers of the lot are responsible to ensure no noise may interfere with someone else’s use of their lot or common property.

Children cannot use the common property driveway as recreational grounds. The by-laws typically state that an owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other areas of possible danger or hazard to children.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #265.

Question: Children Playing on Common Property – Do They Need Supervision? What are the rules around children and noise complaints in apartments?

I’m trying to get information about children and visiting grandchildren playing on common property. It is so hard trying to keep children (aged between 4 and 8) cooped up inside villas after school.

What age are children considered to no longer need adult supervision? My eldest grandchild is 8, so I know this one is fine, but I’m always out supervising my younger ones. What are the rules around children and noise complaints in apartments?

Answer: If there are areas of green space that the children can play in would be considered a much safer proposition but the children need to supervised in line with the by-law.

Children playing on common property is a very emotive issue. The residents with the children cannot see any issue with this and yet other residents are very concerned when this happens. And what age should children be allowed to play on common property unsupervised?

The bylaw in NSW reads (Unless the Owners Corporation has registered additional by-laws):

By-law 7 – Children playing on common property in building

An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other areas of possible danger or hazard to children.

The ACT Default Rules are a bit vaguer.

Previous generations had the freedom of kids playing cricket, kicking a football or just running around in the street or neighbourhood or of course in their own yards. In a strata situation, the areas of common property are owned by all owners.

Accordingly, rules are made around those areas to accommodate all the owners. A major concern as strata managers that we receive is children playing on common property driveways whether supervised or not. Residents are very concerned that cars coming into the complexes sometimes do not slow down and put the safety at risk of the children. There could also be a breach of By-law 3 Obstruction of Common Property.

The crux of this is also what age is an adult? The legal definition of an adult varies from 16 to 18. The additional issue is if children are riding bikes, skates, scooters etc. that could expose the Owners Corporation to liability in the case of a mishap.

If there are areas of green space that the children can play in would be considered a much safer proposition but the children need to supervised in line with the by-law. The wording is – car parking area or another area of possible danger or hazard to children. So if an Owners Corporation had a grassed area fenced with childproof fencing would this be considered not to be a possible danger or hazard to children and they could play there unsupervised. Interesting conundrum.

Jan Browne
Bridge Strata
E: jan@bridgestrata.com.au
P: 02 6109 7700

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Have a question about children and noise in apartments or something to add to the article? Leave a comment below.

Embed

Read next:

• Apartment living for families – how to get it right
• NSW: Q&A Is piano playing for hours a day a breach of our peaceful enjoyment?

For more information about children & noise complaints in apartments or strata information particular to NSW, visit our Strata Noisy Neighbours or NSW Strata Legislation.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.