NSW: Q&A Noise Complaints to Strata

These questions from NSW are concerning nuisance in strata. Is a committee compelled to investigate a noise complaint? To what level and who pays for the investigation? What happens after a lot owner issues a noise complaint letter to strata?

Table of Contents:

• QUESTION: My neighbour has a water fountain in her yard next to my patio. It is like listening to someone urinating into a toilet bowl 24/7. Although the level of noise isn’t excessive, could this be considered a nuisance?
• QUESTION: If an owner raises an issue where there is no compelling evidence there is a problem for the Committee to attend to, who should pay for the investigation?
• QUESTION: I have issued a noise complaint letter to strata, but the noise from the water pump in the wall has not been resolved. What is the next step to settle this matter and let me get a good nights sleep?

Question: My neighbour has a water fountain in her yard next to my patio. It is like listening to someone urinating into a toilet bowl 24/7. Although the level of noise isn’t excessive, could this be considered a nuisance?

My neighbour has a water fountain in her yard next to my patio. The fountain runs 24/7. Although I have asked her to move the fountain and even offered to assist with the relocation, she refuses. Our strata manager has contacted the lot owner who claims her doctor said the sound of the fountain would be relaxing for her.

It is like listening to someone urinating into a toilet bowl 24/7. Strata management is unable to offer any other solution, feeling they have hit a wall with this owner. I am aware of NCAT but I’m unsure if the noise level is what EPA would deem excessive.

Answer: It is possible with the proper evidence in support that you could be successful in having the hours of operation of the water-fountain restricted, having it altered to reduce nuisance or having it decommissioned altogether.

Your case may lie within the nuisance provisions of the strata 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

…

Smoking, odours, light from external sensor downlights have all been held to constitute a nuisance in those particular situations. It is possible with the proper evidence in support that you could be successful in having the hours of operation of the water-fountain restricted, having it altered to reduce nuisance or having it decommissioned altogether.

Was the water fountain installed after the registration of the strata plan? If so, it is likely that a by-law would have been required and that by-law should have made provision that it does not cause nuisance, water egress etc, in which case, you could rely on the breach of by-laws provisions under the legislation.

Arguably, also, the sound from the water fountain may constitute “noise”. Noise is variously defined as a “sound” especially one that is loud or unpleasant or that causes disturbance. In other words, just because the noise is not unbearably loud, it might be proven that it causes you disturbance or that it is unpleasant for you.

Conversely, there is a lot of case law that suggests that strata living requires a “high” degree of tolerance.

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

This post appears in Strata News #593.

Question: If an owner raises an issue where there is no compelling evidence there is a problem for the Committee to attend to, who should pay for the investigation?

I understand that we have a responsibility to repair and maintain common property. On occasions, an owner may raise an issue where there is no compelling evidence that there is a problem that the Committee needs to attend to. In instances such as this, who should pay for the investigation into the issue?

For example, what happens when an owner complains that neighbours are noisy. I understand from reading the LookUpStrata publication that we can commission an Acoustic Engineer to evaluate noise level – that in itself is sound advice.

In such an instance should the Committee act only after the lot owner had supplied supporting evidence to justify their noise complaint? and what then If the engineer comes back with a report stating the noise levers are within reasonable/acceptable levels – Who pays? The Lot Owner? Strata?

This scenario could also be applied to things like defects – e.g if a lot owner believes the balcony waterproofing is defective.

Answer: If an owner feels there is an issue to be raised, they need to present a proper argument backed by compelling evidence. A weak argument will go nowhere.

In any given scenario, the evidence needs to be compelling enough for an owners corporation or its strata committee to decide to take action, whether it is an allegation of a breach of by-laws or reporting a matter for repair and maintenance.

On the other end of the scale, if an owners corporation or its strata committee are unreasonably refusing to take action, they can be compelled to do so by order of a Tribunal or Court.

In the same way, if an owner feels that an owners corporation is unreasonably refusing to act, and they seek orders from a Court or Tribunal, they have to convince the Court or Tribunal. For example, in the case of a noise complaint, there would need to be sound recordings, witnesses, a record of disturbances and so on.

As for who is responsible for costs – this can always be negotiated depending on the circumstances. For example, the owners corporation may say that the owner has to produce the acoustic engineers report to prove that there is in fact an issue to then pursue from a repair/maintenance perspective. The owners corporation may agree that, if the report does prove an issue, it will reimburse the owner. The owners corporation may also ask that the owner use a specific engineer to ensure a quality outcome.

Sometimes this is not so easy – for example, there is flooding of an apartment, the owners corporation organises a plumber to the unit above, only to find they left their tap on. In that situation, it would not be unreasonable for the owners corporation to ask for the costs of the plumber to be reimbursed (though the next question is whether the occupant of the unit above actually agrees to and pays for the invoice – and if they don’t, is the owners corporation going to spend money on pursuing the matter through the courts?).

Finally, it is important for all parties to understand their rights and obligations to begin with, so they can respond appropriately. Reading the many articles published by LookUpStrata is a great start.

So where does this all leave us?

1. If occupants/owners/agents and other stakeholders feel there is an issue to be raised, they need to present a proper argument backed by compelling evidence. A weak argument will go nowhere.
2. When considering matters, the owners corporation and its strata committee need to be satisfied of the issue, but also need to be willing to listen and to take matters seriously. Understanding the owners corporations obligations is key to this.
3. If an owners corporation or its strata committee fail to then take action, they can be compelled to do so by the Tribunal or Courts. The Tribunal or courts then decide for everyone.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in Strata News #586.

Question: I have issued a noise complaint letter to strata, but the noise from the water pump in the wall has not been resolved. What is the next step to settle this matter and let me get a good nights sleep?

I have a unit that has a hot water pump on the other side of my bedroom wall. There is a low hum that reverberates throughout my unit at night from this pump.

I have issued a noise complaint letter to strata, however, my strata manager tells me that there is nothing they can do and they are within the required limits.

I have had a Sydney council inspector come in to measure the noise in the afternoon but they say that there is no case for them to take action.

What can I do? It is not fair that I am suffering because of a mechanical device that I have no control over. Can I take legal action?

Answer: You would make an application to NCAT for Orders to settle the “dispute” provided you attempted mediation first.

Under Section 153 of the Strata Schemes Management Act, 2015 (NSW), owners/ occupiers must not create nuisance. You would make application to NCAT for Orders to settle the “dispute” provided you attempted mediation first.

Note, however, as you would be the applicant, you would have the onus of proof to prove that the “low hum” constitutes a nuisance (which will be quite onerous given that you state the device meets with Australian Building Codes and Standards and the noise generated appears to be within normal tolerance levels):

Owners, occupiers and other persons not to create nuisance

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.

4. 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.

   Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.

The only other recourse might be that there is a “defect” in the common property walls causing acoustic issues or that the hot water system was installed unlawfully (ie without the proper approvals of the Owners Corporation, if this is relevant). Again, you would need expert evidence to support your case.

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

This post appears in Strata News #144.

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

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Read next:

• NSW: Q&A Is piano playing for hours a day a breach of our peaceful enjoyment?
• NSW: Q&A Water Dripping Over Balcony From the Neighbour Above
• Law Access NSW: Noise complaints in strata
• Law Access NSW: Sample letter to noisy neighbour

Are you interested in more about issuing a noise complaint letter to strata or information particular to NSW legislation? 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.

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