An NSW Lot Owner is wondering whether the apartment neighbours piano playing is a breach of the peaceful enjoyment bylaw.
Table of Contents:
- QUESTION: I am a piano player living in a NSW strata apartment building. I have received two noise breaches for nuisance about the piano music, claiming I play excessively. This is not correct. What can I do?
- QUESTION: Our neighbour has recently been playing their piano for hours every day. Is this a breach of the peaceful enjoyment bylaw and how can we make this stop?
Question: I am a piano player living in a NSW strata apartment building. I have received two noise breaches for nuisance about the piano music, claiming I play excessively. This is not correct. What can I do?
I am a piano player living in a NSW strata apartment building. I have received two noise breaches for nuisance, both of which claim that I play for ’12 hours each day, causing considerable disruption to other residents’.
It does appear that there is no real definition of what a nuisance is, but that strata law seems to favour the complainant – even though environment, planning and council regulations are quite specific with regard to musical instruments.
I play for about an hour a day, generally between the hours of 10 am and 7 pm. Following the first breach, I added additional sound insulation, and sought specifics from strata and other residents on particular times or issues that were problematic. 4 other residents indicate that they loved it, but I received no further feedback until the second breach notice this week, again claiming I play 12 hours each day and asking me to practice elsewhere or install headphones – both untenable options.
I have no desire to disturb my neighbours – and have made reasonable attempts to address any issues. Nevertheless, strata law seems to err on the side of the complainant, even though the claims, in this case, are both unsubstantiated and highly exaggerated.
It seems my only option is to wait until I am served a notice to appear at the NCAT, given I am still unaware who the complainant is. Can you suggest any other solutions for how I can resolve this issue? Or am I in the wrong?
Answer: We recommend you approach strata for a viable solution
Rather than wait for the matter to escalate and potentially be fined and then re-fined if you breach the by-laws within 12 months, we recommend you approach strata for a viable solution eg restricting times and hours of practice, installing floor coverings, window furnishings, acoustic insulation, using the mute pedal etc to minimise any potential disturbance. You may wish to propose a by-law regulating the playing of musical instruments (let us know we can direct you to an appropriate lawyer).
There is a NCAT 2018 case in which it was held that the Tribunal DID NOT have the jurisdiction to restrict the Respondent’s (piano player’s) use of her lot in such a manner. There is also the difficulty of enforcement of orders of this nature, wrote the Tribunal. It is considered, however, that the Tribunal is entitled to make orders requiring the Respondent’s compliance with both the by-law and section 117 of the Act.
“Whilst to effect compliance it may be necessary for the Respondent to install soundproof material or restrict the times and other conditions which operate when the piano is played, it is a matter for the Respondent as to exactly how compliance is achieved”.
There is also a 2003 CTTT case which held:
Although the standard By law 1 is framed in strict terms of “not creating noise” this cannot mean that occupiers are at the complete mercy of their neighbours in regard to noise. The Act requires the injection of some objective qualification about the nature of the noise. In a strata scheme, it is inevitable that there will be some give and take about the ordinary noise producing activities of everyday life such as the playing of musical instruments, television sets, swimming in pools and the like.
Despite the above, as we are not lawyers, we are unable to determine whether or not there have been cases of higher authority to displace or override this position. But the test appears to have been how reasonable you have been in terms of time and duration of practice, choice of repertoire (ie presumably nothing too dissonant or percussive) and attempts to attenuate noise and appease your neighbours. For your own records, you should keep timesheets of date, time and duration of practice and repertoire.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #478.
Question: Our neighbour has recently been playing their piano for hours every day. Is this a breach of the peaceful enjoyment bylaw and how can we make this stop?
We have been living very happily in our apartment for 6 years. Recently, the apartment directly above us regularly plays their piano. The noise vibrates through their floor / our ceiling so loudly, it is absolutely driving us mad.
We contacted our strata manager and the secretary of the Strata Committee. They issued a Breach of By-Law 1 to the owner. I have also contacted the owner and explained the situation.
The owner has refused to adhere to the ByLaw.
My daughter studies every night after work and all weekend. This has totally disrupted her studying and she is now having tension headaches all the time.
We received an email from our Strata Manager yesterday passing on a request from the owner of the upstairs apartment saying they wanted to play the piano a few hours every evening and then for 4 hours on a Sunday afternoon. Obviously, this is unacceptable to us – we have to live in our unit.
I have asked a motion be put on the agenda for the next Strata Committee meeting but this is on in a few week’s time. In the meantime, what steps can I take and what is the Strata Manager and Strata Committee obliged to do in this situation.
Answer: Fortunately, the strata manager has issued a notice to comply with the peaceful enjoyment bylaw as the owners corporation should be enforcing the by-laws.
Fortunately, the strata manager has issued a notice to comply with the peaceful enjoyment bylaw as the owners corporation should be enforcing the by-laws. Now that the alleged breaches have continued, the Owners Corporation should make an application to the Tribunal for monetary penalties with penalty units ranging from 10-20 penalty units equating to $1,100 – $2,200. Alternatively, you may apply for Mediation followed with an Application to NCAT.
Based on the case law, it would seem that the amount of piano practice sought by the owner and the stated deleterious effects on your daughter would likely be excessive and amount to nuisance and/or breach of by-law 1.
In one case, the Tribunal was asked to make Orders to require that the piano playing Lot must close all windows and doors whilst the piano is being played, restrict the hours, duration and volume in which the piano can be played and also that soundproof material be installed before the piano is played.
The Tribunal declined to restrict the Respondent’s use of her lot in such a manner but made Orders that the piano lot not breach the nuisance provisions of the strata legislation and held:
“Whilst to effect compliance it may be necessary for the Respondent to install soundproof material or restrict the times and other conditions which operate when the piano is played, it is a matter for the Respondent as to exactly how compliance is achieved”.
So, in the above case, the piano playing was held to constitute a breach of the nuisance provisions on the legislation but the Tribunal would not go so far as to stipulate how compliance with those provisions would be achieved.
In a breach of by-law 1 case on appeal, it was held that a 9 year old child learning the piano and playing for no more than an hour a day usually after school and before 7.00 pm would not be considered by a reasonable person result in noise that was likely to disturb the peaceful enjoyment of another resident. The Member continued “I too am of the view that activity such as the practice of musical instruments should be accommodated. However, this is subject to such practice being for reasonable periods such as 1 hour or less a day. The respondents should be aware that it may be that even the piano practice if the duration of it is extended or if the frequency is increased may well amount to noise which was likely to disturb the peaceful enjoyment of another resident”.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
This post appears in Strata News #216.
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So what was the final outcome? Did the piano playing cease or reduce to an acceptable level?
To the strata piano player who is having the identity of the complaining neighbour concealed by the Corporation, that musician has every right to view the corporate records, which should not be redacted or tampered with in any way, to reveal the source.
The identity of the neighbour is a protected right to ascertain. The secrecy and concealment is unlawful.
The Member continued “I too am of the view that activity such as the practice of musical instruments should be accommodated. However, this is subject to such practice being for reasonable periods such as 1 hour or less a day. The respondents should be aware that it may be that even the piano practice if the duration of it is extended or if the frequency is increased may well amount to noise which was likely to disturb the peaceful enjoyment of another resident”.
(citation required)
Lark v Wang (Strata and Community Schemes) [2008] NSWCTTT 1459 (16 December 2008)
APPLICATION NO:
SCS 08/02555
STRATA SCHEME:
Strata Plan No 75707
APPLICATION:
Appeal / Breach of by-laws
LEGISLATION:
Strata Schemes Management Act s 162
ORDERS
1. The orders made by the Adjudicator on 17 December 2007 are set aside & substituted with the orders that follow hereunder;
2. The Tribunal finds that the Respondent is in breach of section 117 of the Strata Schemes Management Act 1996 and by-law 1 made under Schedule 1 of the Act by permitting the playing of a piano within her lot in such a manner as to cause the emission of noise that is both a nuisance to the Appellants & prevents their peaceful enjoyment of their lot and the common property;
3. The Respondent is to take all reasonable steps necessary to ensure compliance with section 117 and by-law 1.
4. Compliance is required within 14 days of these orders.
K. Thane
Strata Schemes Adjudicator
10 December 2008
REASONS FOR DECISION
Particulars and Procedure
An Application was initially made on 28 September 2007 seeking Adjudicator’s orders to comply with by-law 1 and abate certain noise nuisance. The parties filed their written material and the Application including all submissions was put before an Adjudicator who made orders dismissing the Application on 17 December 2007.
On 11 January 2008, the present Application was lodged, this being an appeal of the orders made by the Adjudicator on 17 December 2007. In Annexure A of the Application, the Appellant sets out the various grounds relied upon in relation to the appeal, which include;
• The Adjudicator gave weight to submissions which are misconceived, inaccurate or misleading;
• The Adjudicator has not given sufficient weight to the Appellant’s evidence concerning the impact of the noise;
• The Adjudicator failed to consider some of the evidence which was filed;
• Based on the evidence, the Adjudicator should have found a breach of by-law 1 and a breach of section 117 of the Act;
• The Adjudicator should have attended the scheme and investigated the issues in dispute.
The matter was first listed for directions on 6 February 2008. Since that time there have been various delays in the matter being finally determined by the Tribunal including;
• A change in legal representation by the Respondent;
• The need for parties to prepare additional evidence in support of their positions;
• A final attempt at settlement in September 2008.
The matter was listed for hearing on 25 November 2008 and both parties were given the opportunity to present evidence. The matter was adjourned after the hearing so that the Member could consider the material presented and make a decision.
This is the Member’s determination.
Case for the Appellants
The Appellants, Mr and Mrs Lark were represented by Mr Lark at the hearing, who gave evidence under oath and tendered the following material:
• Written submission summarising the Appellant’s case;
• Unsworn witness statements from the following persons;
o – Elizabeth Donachie;
o – Lynette Ferguson;
o – Anthony Serra;
o – Jacqueline Serra;
o – Maureen Paris;
o – Moira Carney;
o – Natalie Dixon;
o – David Lark.
• Extracts from the Appellant’s diary and record of effects experienced.
• Medical report from Mrs Lark’s GP outlining the effect that the noise has had on her health.
• Correspondence showing attempts at resolution.
The Appellants’ position can be summarised as follows[1]:
• The Appellants are the owners & occupiers of lot 1 in the strata scheme in question. The Respondent is the owner and occupier (together with her husband and 2 children) of lot 2.
• The lots share a common wall on the eastern side.
• Approximately 2 years ago the Respondent purchased a piano and her children began having lessons.
• The piano is situated near the common wall & according to the Appellants the noise of the Respondent’s children practising on the piano can be heard on a daily basis.
• The Appellants say that the noise is loud, offensive, disruptive and annoying. They claim that it is not possible to escape the noise as closing the doors and windows of their unit makes no difference because the noise is transmitted directly through the wall.
• On a typical day, the noise begins at about 3.30pm and continues until 8.30pm or 9.00pm.
• The Appellants say that the noise makes it difficult for them to hear their television at normal volume. They cannot relax in the unit or entertain without hearing the noise. They say that the noise makes it difficult to concentrate in the home office and impossible to have an afternoon nap.
• They claim that they now try and avoid being home to avoid the noise and it has affected Mrs Lark’s health. The problem has affected their relationship and caused them stress.
• The Appellants have included a diary detailing the times and dates that they have heard the noise. They have also included a statement from Mrs Lark’s GP, which supports her claims in relation to the deterioration of her health.
• There have been various attempts to resolve the issues with the Respondent to no avail. The Appellants say that the Respondent has refused to restrict the times when the piano is played in the unit or to reduce the volume of noise.
• The Appellants say that the Respondent engaged an acoustic engineer to record the noise levels. They say that the noise levels were measured with sound absorber in place.
• They say that the noise appears to be lessened with the sound absorber in place but this has since been removed by the Respondent. The Appellants say that if the sound absorber was in place, the effects of the noise on the Appellants would be reduced.
• According to the Appellants, the Respondent will not permanently install the sound absorber unless they pay a large proportion of the costs towards it. They say that the Respondent also claims that there is no guarantee it will solve the problem.
• The various unsworn statements support the Appellants’ claims in relation to the noise levels[2]. In particular:
o – Elizabeth Donachie says that she lives in a freestanding dwelling next door to the strata scheme. She claims that she can hear the piano in close proximity from her back door and backyard as the Respondent usually has the door open. She says the noise is loud and offensive and on a typical day begins about 3.30pm and can often continue until 8.30pm or 9.00pm.
In a further letter from Ms Donachie, she states that she has been in the Appellants’ unit and heard the noise first hand.
– Lynette Ferguson is the sister of Mrs Lark. She claims to have heard the noise on many occasions whilst visiting the Appellants and claims that the noise from the piano has made it difficult to enjoy a conversation.
– Anthony Serra is an owner occupier of lot 4 in the strata plan. He claims to have heard the piano whilst visiting the Appellants. He also claims to be able to hear in his own townhouse, often up until 9.00pm. He says that during a period in 2007 the noise was greatly reduced.
– Jacqueline Serra is Anthony Serra’s wife. Her statement is virtually in identical terms to that of her husband.
– Maureen Paris is a long term friend of the appellants who has visited lot 1 often and heard the noise of the piano. She claims that at times the noise has made it impossible to enjoy a quiet meal and conversation.
– Moira Carney is a long term friend of the Appellants and says that she has visited their home on many occasions. She claims to have heard the noise, which penetrates through the wall and is very stressful while trying to enjoy an evening with her friends.
– Natalie Dixon is an owner occupier of lot 11 in the scheme. She claims to have heard the noise of the piano whilst visiting the Appellants on one occasion was forced to go home.
• Despite being represented by a solicitor, the Respondent elected not to call any of the authors of the above statements to test their evidence.
• The Appellants say that the Day Report should not be relied upon for a number of reasons[3] including the fact that testing was carried out when 100mm thick foam was in place (it is no longer installed).
Case for the Respondent
The Respondent, Ms Wang was represented at the hearing by her solicitor, Mr Ku. Ms Wang gave evidence under oath and tendered the following:
• Written submission prepared by solicitor;
• Unsworn witness statements from the following persons;
o – Yong Qing Wang;
o – Siong Kim Tan and Siew Lin Lau
o – Erik Denny
o – Christopher and Charmaine Cooper;
o – Wendy Wang and David Dong;
o – Shirley Yuan;
o – David Xu;
• Report from Day Design Pty Ltd Consulting Acoustical Engineers dated 23 November 2007 and unsworn statement from Athol Day[4];
• Schedule of piano practising time
The Respondent’s position can be summarised as follows:
• The Respondent says that she owner and occupier of lot 2 in the strata scheme, located next door to the Appellants’ lot.
• She agrees that her 2 daughters regularly practice the piano but claims that their combined playing would be for duration of one and a half hours per day only. She says that this is supported by her schedule of piano practising time. It is noted that when questioned by the Appellant the Respondent admitted that she had kept a diary of her daughters’ piano playing but elected not to bring that to the hearing.
• She says that the playing normally stops before 9.00pm but on one occasion the playing was until 9.10pm.
• The Respondent says that since the claim has been lodged she has asked her daughters not to play loud music. She has also placed a thick carpet under the piano to absorb the sound. She agrees that the sound absorbing material is no longer in place.
• The Respondent claims to rely on the Day Report, which she says is the most objective evidence before the Tribunal.
• The various unsworn statements provided by the Respondent support her position, in particular[5];
o – Siong Kim Tan and Siew Lin Lau claim that they are not bothered by the sound of the piano and can only hear it at their unit (unit 13) when they are in the back yard.
o – Erik Denny claims that he is not bothered by the sound of the piano and can only hear it at his unit (unit 14) when he is in the back yard.
o – Christopher and Charmaine Cooper claim that they are not bothered by the sound of the piano and can only hear it at their unit (unit 15) when they are in the back yard.
o – Wendy Wang and David Dong are family friends of the Respondent and claim to have been in unit 2 when the girls are playing the piano. They say that the piano can be heard on the first floor of lot 2 but it is definitely not intrusive at all.
o – Shirley Yuan is a family friend of the Respondent and claims to have been in unit 2 when the girls are playing the piano. She says that the piano can be heard on the first floor of lot 2 but it is definitely not intrusive at all.
o – David Xu is a family friend of the Respondent and claims to have been in unit 2 when the girls are playing the piano. She says that the piano can be heard on the first floor of lot 2 but it is definitely not intrusive at all.
Strata Schemes Management Act 1996 – SECT 117
Owners, occupiers and other persons not to create nuisance
117 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in such a manner or for such a purpose as to interfere 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
(c) use or enjoy the common property in such a manner or for such a purpose as to interfere 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.
(2) This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of:
(a) in the case of a freehold strata scheme, section 28L of the Strata Schemes (Freehold Development) Act 1973 , or
(b) in the case of a leasehold strata scheme, section 52 of the Strata Schemes (Leasehold Development) Act 1986 .
(3) In this section, “lessee” of a lot in a strata leasehold scheme means a sublessee of the lot.
Strata Schemes Management Act 1996 – SCHEDULE 1
SCHEDULE 1 – By-laws
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.
Findings
The present Application is an appeal from a decision of an Adjudicator made on 17 December 2007.
In making the original decision, the Adjudicator relied heavily on an acoustic report prepared by Day Design Pty Ltd. The report in the form in which it was before the Adjudicator did not contain a reference to the relevant Chairperson’s directions pertaining to expert reports, nor did it provide a resume or details of the author’s particular expertise.
In addition, it is noted that the acoustic testing was carried out whilst a 100mm thick panel of foam was in place immediately adjacent to the piano. This would have “reduced the noise intrusion by several decibels” according to the writer of the acoustic report. It is common ground that the foam is no longer in place, was not in place at the time the Adjudicator made his decision and has not been in place for a period of several months.
At paragraph “k” of the Adjudicator’s decision, he states that “it is relevant that there is no evidence from any other lot owner in support of the Application.” This is in fact not true as the Applicants filed statements with the original Application from 4 other lot owners stating that they can hear the piano from their lots.
In addition, the Applicants filed statements from other people who have been at the unit and heard the offending noise. It is apparent from the adjudicator’s reasons that none of this material was considered by the Adjudicator when he made the decision on 17 December 2008.
Whilst the issue of the acoustic engineer’s CV and compliance with the Chairperson’s directions may have been addressed at the hearing, albeit retrospectively, it is of concern that the testing was carried out whilst sound deadening foam was in place. This aspect should have been addressed by the Adjudicator when he made his decision and it is considered that less weight ought to have been placed on the report for this reason.
In addition, it is clear that the Adjudicator made his decision without regard to material filed by the Appellants. For these reasons, it is considered that the Adjudicator’s decision is flawed and the Appeal should be allowed.
The issue before the Tribunal is whether the Respondent is in breach of by-law 1 and or section 117 of the Act (both reproduced above). Having regard to the available evidence as detailed, it is considered that the Respondent is indeed in breach of those statutory obligations.
The Tribunal has reached such a conclusion and has preferred particular evidence primarily for the following reasons:
• The Appellants have tendered statements from a variety of witnesses who have been at the subject unit and have heard the noise of the piano. Whilst those statements are not sworn they are uncontested. The Respondent, who is represented by a solicitor did not elect to call the authors of those statements to test their evidence;
• In addition to statements attesting to what was heard whilst in the Appellants’ unit, a variety of residents claim that they can hear the piano from their yards and the noise is “loud, offensive, disruptive, annoying and inescapable”;
• Whilst the statements from other residents filed by the Respondent say that they are “not bothered by the sound of piano” they all admit that it can be heard from their backyards.
• The Appellants’ evidence is supported by evidence taken from their diary/log which recorded the noise, the duration thereof & the effect on the Appellants.
• The Respondent disputes this and claims that her children only play the piano for one and a half hours duration at the most and aside from on one occasion, after 9.00pm. However, her claims were not supported by a diary/log compiled contemporaneously. Interestingly, the Respondent claims to have kept such a log but failed to file it as evidence or to bring it to the Tribunal on the day of the hearing.
• The measurements in the acoustic report were clearly taken when foam was in place. That foam is likely to affect the noise transmission by “several decibels” according to Mr Day. The report therefore does not adequately record the noise levels experienced by the Appellants.
• The comments of Mr Day at paragraph 2 on page 7 are not to be regarded as reliable on the grounds of hearsay and does not serve as proof as to whether the foam was or was not in place after the testing took place. The Respondent who was legally represented could have brought additional evidence on this point but elected not to do so.
• Whether the noise levels comply with various statutory provisions and Acts of parliament may be a relevant factor for consideration, but is not the deciding issue before the Tribunal. That issue is whether by-law 1 and or section 117 of the Act has been breached and in particular whether the Respondent is creating any noise within lot 1 that is likely to interfere with the Appellants’ peaceful enjoyment of their lot and the common property.
The Appellants are of the view that if they satisfy the Tribunal that the Respondent is in breach, the Tribunal should make orders requiring that the Respondent close all windows and doors whilst the piano is being played, restrict the hours, duration and volume in which the piano can be played and also that sound proof material be installed before the piano is played.
It is not considered that the Tribunal has the jurisdiction to restrict the Respondent’s use of her lot in such a manner. There is also the difficulty of enforcement of orders of this nature. It is considered, however that the Tribunal is entitled to make orders requiring the Respondent’s compliance with both the by-law and section 117 of the Act.
Whilst to effect compliance it may be necessary for the Respondent to install sound proof material or restrict the times and other conditions which operate when the piano is played, it is a matter for the Respondent as to exactly how compliance is achieved.
K. Thane
Strata Schemes Adjudicator
16 December 2008
I am very interested in this as the tenant underneath me has complained about my piano playing. I have taught piano for 35 years, belong to a piano group and play occasionally in a recital. The piano is a huge part of my life.
So…I have suggested I only play between the hours of 9.00-10.30am and with a damper on the inside of the piano. Not ideal for many reasons.
Unfortunately, before buying in, you should have checked the soundproofing of the apartment. There is not much you can do as s/he is playing within the hours as outlined in the environmental noise-guidelines. Perhaps you can negotiate with your neighbour and ask that s/he play something soft and melodious during the hours that your daughter studies. If you cannot negotiate, then Christmas is soon approaching and a gift of headphones for your child may be necessary OR soundproof your apartment.
In the above case, the piano playing was held to constitute a breach of the nuisance provisions on the legislation but the Tribunal would not go so far as to stipulate how compliance with those provisions would be achieved.
So, what is the outcome? What happens if the piano playing continues?
Hi Gary
We have received the following reply from Leanne Habib, Premium Strata:
The piano playing lot was ordered to ensure compliance with the Orders within 14 days. Failure to comply would entitle the complaining neighbour to seek enforcement of the orders/application for pecuniary penalty through NCAT.
Maybe the noisy neighbours can google “silent piano”, or consider using a keyboard with headphones.