This article about noise due to flooring from the lot above has been supplied by Kerin Benson Lawyers.
In the recent decision of the Appeal Panel of the NSW Civil & Administrative Tribunal (NCAT) in Andelman v Small [2020] NSWCATAP 32, the Appeal Panel considered the provisions of by-law 14 requiring all floor spaces except kitchens, laundries, toilets and bathrooms are covered or otherwise treated to the extent sufficient to prevent that transmission from the floor space of noise likely to disturb the peaceful enjoyment of the occupant of another lot. In the case the owner of the lot below was complaining of noise for the lot above.
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The Appeal Panel reiterated that the test under by-law 14 “is whether the noise being transmitted is “likely to disturb the peaceful enjoyment” of the lot beneath, not whether the noise is “normal living noise”, or “excessive” or caused by high heels or bouncing balls.”
The test is objective. This does not mean that subjective evidence, such as evidence of the occupant, will not be considered by the Tribunal, it just means that the Tribunal then had to consider objectively whether by-law 14 was breached.
While expert testing had not been conducted in the upstairs lot, the expert had provided evidence as to the noise levels. While the expert’s evidence was not considered “as weighty” as a report following testing using his equipment and expertise his observations, together with the evidence of the lot owner and the former tenant was sufficient to establish that the noise was sufficient particularly where the actions of the upstairs lot owner had prevented the expert conducting tests.
Key Takeaways
Lessons to be taken from this case are that the subjective evidence can establish a breach of the objective test and that what is sufficient evidence will vary from case to case.
If you have a noise issue start documenting the times, dates, duration and type of the noise and where it can be heard from and seek legal advice.
This post appears in Strata News #366.
Have a question about excessive noise from the lot above or something to add to the article? Leave a comment below.
Kerin Benson Lawyers
P: 02 4032 7990
E: enquiries@kerinbensonlawyers.com.au
This article contains general information only and it is not legal advice. Before you take any action you should seek legal advice tailored to your specific circumstances.
Read next:
- NSW: Crash, Bang, Sigh! What Can I Do About Noise? Residential Noise!
- NSW: NCAT says Landlords are not responsible for Tenants’ Noise
- NSW: Q&A Noisy Neighbour, Renovations and Construction Noise
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.
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If my neighbour is making noise by way of talking loudly with her visitors or sometimes over the phone in her COURT YARD ( in strata building ) and in the passage area and/or inside her unit on a regular basis which I can hear clearly in my unit even if all my doors and windows are closed , in that case is it a breach of strata by-laws ? I talked to my neighbour about the noise issue few times but it fell on deaf years.
Hi Dipak
This article should assist: NSW: What is a Nuisance?
Hi,
The unit directly above me has a watering air garden system approximately 1.5m high with filters timer etc on their balcony.
It affects me most because the noise travels down through the concrete. Note we are also separated in a jut out like position to the rest of the block. A Committee member went to their unit because they had installed air con without permission. It was unknown if the air con or the air garden system was the culprit of the noise. Air conditioning has now been approved.
Air conditioning is not the source of the noise. It is the air garden and it’s watering system.
The person must have changed something for the inspection (note the tenant said to the Committee member the air garden system is on for only half an hour a day ( not the case) and the water not on overnight also not the case.
The Committee member said when they were there it wasn’t loud or disturbing.
However a previous committee member was at the building months ago and heard it loud and clear.
Strata won’t accept this other Committee members statement which is fair enough. I guess it was prior to the recent inspection mentioned re the air conditioner.
I have since contacted the Strata manager, offered to meet to play my recordings (from my phone) that offer has not been accepted, I got the resident next door to come in to my unit and verified the noise in an email which I sent to the strata manager. The strata manager says it’s a civil issue and they will not act unless more than one person is affected despite the set up of the units. That until they have a complaint from more than one person it is civil. Is this correct? Is there a law that says this? I am underneath, the noise travels down and there are no adjoining units to the left or right to verify. Only one above.
Should I bring it up again with the Committee or pursue Strata?
I go to bed at night feeling next to an electrical box buzzing and whirring.
Note the Strata Manage also said to have the Committee member who lives 2 hours away and had inspected the air conditioner and reported not much noise to come to my unit? I feel they are making this harder than need be.
I am on the Committee.
The noise is occurring, I don’t know what the tenant did when the Committee member came.
A way forward would be greatly appreciated.
Thank you.
Hi Justine, I am in no way a legal person nor do I advise you to take my advice, but I have had a similar situation about noise from 2 neighbours that I took to my strata committee – the committee were unwelcoming, dismissive and antagonistic & fobbed me off to NCAT – but there are laws & they’re called by-laws. Check your strata by-laws regarding Noise and Nuisance. If your strata committee refuses to act, then they are in breach of legislation & put the owners corporation in a compromising situation for legal issues. By the way, our strata manager is rude & also dismissive and antagonisitc. I wrote to the committee that they had due diligence in their positions & that Fair Trading advised me to report the strata manager & the strata committeem, and I advised there would be repercussions (I was referring to legal) – that gave them the rocket to do something, and they did the least they wanted, By reading the information & watching the webinars on this amazing site, I have learned a lot and feel confident that if I need to communicate again with the strata manager/the committee, I will have confidence in what I am doing and put these gods in their place. It was a simple noise complaint that they have made me suffer for nearly 2 years, it has made me unwell due to sleep depravation, no-one can work when they’re sick. Read the legislation regarding the committee’s responsibilities as a member – it’s important for you to understand they cannot do as they please and to advise them of such. Good luck!
This is a good win for lot owners impacted by other lot noise..
By by-law does the article mean that Strata plan by law, or some nsw Strata schemes section covering By laws.
Hi Steve
The article refers to the Model By-laws which can be viewed under Schedule 2 of the Regulations, in this case By-Law 14:
14 FLOOR COVERINGS
(1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.
(2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.
To see if your scheme has the Model By-laws or has chosen to change the by-laws, you would need to check your owners corporation records. More about by-laws can also be found on the NSW Fair Trading site: By-laws in your strata scheme
We hope this assists. If not, please let us know.
All the best.
we have above somebody who changed their floors years ago, I had a battle via mail where the owner said that is how she brought it and was not going to change, by the way, she does not live but rents it short term. There was some effort in that rugs were put down which did help a little.
All the worry seems to be about the unit under which in this case is also rented, nobody stays longer than they have to and being renters did not want to help my case, so the question is … if somebody lives above the unit that is causing problems and is effected is that considered.
I do not often read of cases like mine actually I have seen none, but when anything heavy hits the floor like people walking with leather shoes, dropping things, sliding chairs, it echos through my place, I know when they go to bed and drop if things like shoes I can count them as they are dropped., and do not get me going on the banging of draws or doors.
Ray
While the consideration of excessive noise is subjective, what can one do about a lot owner who had a timber floor fitted with no noise testing done but then demands that the lot owner above them must comply with noise testing regulations before fitting an exact same floor and raises considerable objections to the lot owner above renovating their unit without meeting strict guidelines which were absolute garbage. It is noted that this bottom lot owner had illegally removed the Vermiculite which is a noise deadener.