Introduction

Residents of strata buildings often encounter noise disturbances,which can sometimes interfere with peaceful living. The Strata Schemes Management Act 2015 (NSW), particularly Section 153, addresses the need to prevent nuisance, which includes excessive noise, within strata schemes. This legal provision underscores the obligation of residents to ensure their activities do not unreasonably disturb others.

Understanding how to approach noise issues within the legal framework is beneficial for strata residents. This article explores what constitutes actionable noise, the objective test used by tribunals, the importance of evidence, the liability of the Owners Corporation for noise from common property, and the steps involved in resolving noise disputes. The aim is to provide clarity on managing noise problems effectively in a strata community.

Noise as a Nuisance in Strata Properties

section 153 of the Strata Schemes Management Act 2015 (NSW) addresses the importance of maintaining a nuisance-free environment in strata schemes, with a particular emphasis on noise as a potential cause of nuisance.this provision mandates that owners and residents of a lot in a strata scheme must not use or permit the use of their lot, or the common property, in a way that causes nuisance or hazard to others.

Specifically, the Strata Schemes Management Act 2015 (NSW) highlights noise as a common form of nuisance. Excessive noise can substantially disrupt the peace and comfort of other lot occupiers. Common examples of disruptive noise include:

• Loud music
• Ongoing construction works
• Frequent loud gatherings

The Strata Schemes Management Act 2015 (NSW) obliges all residents and users of a strata scheme to be considerate about noise levels, ensuring their activities do not unreasonably interfere with the peace and enjoyment of others in the scheme.This provision aims to foster a harmonious and respectful living environment within strata communities by preventing disturbances like noise pollution.

When Should You Make Noise Complaints in Strata Schemes?

Not all noises constitute actionable noise complaints. To understand if you have a legitimate ground for making a noise complaint, you must consider if the noise satisfies the objective test laid down by the courts and whether you have sufficient evidence to make your case.

objective Test to Determine if Noise is Actionable

The case Andelman v Small [2020] NSWCATAP 32 examined by the NSW Civil and Administrative Tribunal (NCAT) provides crucial insights into the objective test for determining if noise is actionable in nature. This case centred on a noise complaint within a strata scheme, which became particularly relevant as more people began working from home during and after the coronavirus pandemic.

the complaint originated from a downstairs apartment owner against the owner of the unit above. At the heart of the dispute was an alleged breach of the Owners Corporation’s floor coverings by-law, which required that:

• Floors in certain areas of each apartment be adequately covered or treated
• Such treatments must prevent noise transmission that could disrupt other residents’ peaceful enjoyment

despite the downstairs owner’s efforts to prove the breach through an acoustic engineer’s report and testimony from a previous tenant, the upstairs owner refused to allow in-situ noise level testing.

Ultimately, NCAT ruled in favour of the downstairs owner, ordering the upstairs owner to comply with the flooring by-law. During this ruling, NCAT elaborated on the “objective test” – a legal standard that determines whether a rule or law has been breached based on:

• Factual, measurable, and observable criteria
• Rather than personal feelings, opinions, or experiences

This objective approach is crucial when assessing whether noise is “likely to disturb the peaceful enjoyment” of other strata residents. Unlike a subjective test that would rely on individual perceptions of the complainant, the objective test requires consideration of autonomous and reliable evidence, including:

• Acoustic engineer’s reports
• Witness testimonies
• Other relevant measurable evidence

These factors are evaluated against a standard reflecting what would likely disturb a reasonable person in a similar situation. The objective nature ensures a fair assessment that focuses on verifiable noise impact rather than personal sensitivities or tolerances.

Need for Supporting Evidence to Prove Your Case

Just as a noise issue satisfies the objective test,it is indeed not sufficient for NCAT to rule in your favour. Like any other strata dispute, you require cogent and relevant supporting evidence to back your claims.

In O’Riordan v Chu [2023] NSWCATCD 61, a noise dispute occurred between two lot owners in a strata building-an upstairs and a downstairs resident. the conflict dates back to 2019, when the upstairs resident, the Applicant, first reported disturbances from the lot below, occupied by the Respondent.

By 2021, the Applicant escalated the matter to NCAT, seeking compliance with a nuisance-related by-law and Section 153 of the strata Schemes Management Act 2015 (NSW). The case centred on two key questions:

• Whether the installed floor tiles effectively mitigated noise
• Whether the Respondent’s use of their lot constituted an unreasonable nuisance under the Strata Schemes Management Act 2015 (NSW) and strata by-laws

While deciding the case, NCAT made notable observations about the evidentiary requirements for proving a nuisance under the Strata Schemes Management Act 2015 (NSW).

the Applicant submitted evidence in two main forms:

1. Noise diary as lay evidence:
   • NCAT found this diary did not convincingly demonstrate excessive or unreasonable noise transfer
   • It provided limited insight into the magnitude or impact of the sounds
   • the diary lacked context about other potential noise sources like voices, music, or television, which could have influenced the perceived disturbance
2. Acoustic report as expert evidence:
   • While the report detailed noise transmission, it did not include specific details regarding the volume of noise made by various activities in situ
   • This lack of detailed data made it difficult for NCAT to assess the significance of the noise transmission
   • without this context, NCAT could not determine whether the noise constituted a nuisance

NCAT’s decision underscores the importance of providing detailed, contextual, and conclusive evidence when alleging a nuisance under the Strata schemes Management Act 2015 (NSW). It illustrates that both the quality of lay evidence and expert evidence are crucial in establishing the presence of an actionable nuisance in strata disputes.

Dealing with Noise from Common Property: Is the Owners Corporation Liable?

While it is clear that you might have an actionable claim against your neighbours if there are undue levels of noise causing disturbance, what about a scenario where the noise emanates from common property? Is the Owners Corporation liable in such cases?

Well, yes.The case Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15 addresses this question through a dispute regarding the responsibility of the Owners Corporation for maintaining noisy pipework in a strata building.

Case Details

In this case, a lot owner experienced noise issues due to pipework in a common property wall adjoining their bedroom and the bathroom of a neighbouring lot. The owner sought an order from NCAT for the Owners Corporation to carry out work on the common property wall and its enclosed pipework to reduce noise transmission.

Tribunal’s Determinations

NCAT made several important determinations:

• The wall and the enclosed pipework were indeed common property
• Drawing from previous cases like Seiwa pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 and The Owners-Strata plan No 33368 v Gittins [2022] NSWCATAP 130, an Owners Corporation has a strict duty to repair and maintain common property
• This maintenance must keep common property in a condition that allows it to fulfil its intended purpose

Key Observations and Ruling

NCAT observed that:

• The primary function of the pipework was to supply water to the bathroom in the adjoining lot
• the transmission of offensive noise indicated a malfunction
• This malfunction rendered the pipework not “serviceable” under Section 106(1) of the Strata schemes Management Act 2015 (NSW)

Consequently,NCAT concluded that the malfunctioning pipework activated the Owners Corporation’s duty to maintain it in good and serviceable repair. The refusal of the Owners Corporation to carry out remedial works constituted a breach of its obligation to repair and maintain the common property.

This case symbolises the importance of the Owners Corporation’s responsibilities in maintaining common property, especially in addressing issues that affect the quality of life of its residents, like noise transmission through malfunctioning common elements.

Dealing with Noisy Neighbours in a Strata Community

Addressing and resolving noise issues requires a strategic approach. There are various avenues available to deal with noise issues. 

Time Restrictions in NSW for noisy activities in Strata

In New South Wales, the Environmental Protection Authority (EPA), in collaboration with local councils and the NSW police, sets and enforces regulations to control noise from residential activities. The following table outlines the specific time restrictions for common noise sources and the right authority to approach if issues arise:

Source of Noise	Restrictions	Contact for Complaint
Power tools and equipment (like lawn mowers, leaf blowers, chainsaws, air compressors, swimming pool pumps)	Prohibited before 8 AM and after 8 PM on Sundays and public holidays.	Local council or police
Musical instruments and devices producing amplified sound (such as radios, TVs, tape players, home theater systems)	Prohibited before 8 AM and after midnight on Fridays, Saturdays, and days before a public holiday; Prohibited before 8 AM and after 10 PM on all other days	Local council or police
Air conditioning units and heat pump water heaters	Prohibited before 8 AM and after 10 PM on weekends and public holidays; Prohibited before 7 AM and after 10 PM on all other days	Local council or police
Motor vehicles (excluding when entering or exiting residential premises)	Prohibited before 8 AM and after 8 PM on weekends and public holidays; Prohibited before 7 AM and after 8 PM on all other days	Local council or police

Stricter By-laws

The distinction between reasonable and excessive noise within a strata scheme is largely determined by the Owners Corporation.To achieve this, the corporation often creates and enforces specific by-laws.

There is a set of model by-laws available on the fair trading website. These model by-laws:

• Serve as guidelines or templates for strata schemes
• Can be adopted in their original form
• Or modified by the owners to better align with their occupants’ lifestyle and requirements

Though, any adopted by-laws must:

• Avoid being harsh, discriminatory, oppressive, or unduly restrictive
• Include fair provisions concerning occupancy, including considerations for children
• Balance the interests of all residents within the strata community

By ensuring that by-laws are fair and reasonable, the Owners Corporation can effectively manage noise levels and maintain harmony among residents.

Road to Dispute Resolution: Complaining About Noise Issues

Dealing with a noisy neighbor in a strata scheme involves a step-by-step approach:

• speak to the Resident: The first step is to have a pleasant conversation with the neighbour causing the noise. Often, they may not be aware that they are disturbing you. Giving them a chance to address the issue is important. However, it’s also necessary to understand that not all noises necessarily break the rules, and while your neighbour may consider your complaint, they might not be required to stop the noise fully. Familiarise yourself with local council rules and strata by-laws to determine if the noise is indeed a violation.
• Use the Internal resolution Process: If the issue persists, look into the internal resolution process of your strata scheme.Contact a member of the strata committee or the strata manager for information on the dispute resolution process specific to your scheme.
• Contact the Owners Corporation: If you are unable to identify the source of the noise or if speaking to the resident doesn’t resolve the issue, reach out to the strata manager or the secretary of the owners corporation. Tenants should contact their landlord or leasing agent to have them raise the complaint on their behalf.
• issue a Notice to Comply: The strata committee or managing agent will investigate the noise complaint against the by-laws. If a violation is found, they can issue a ‘notice to comply’ to the resident. This notice warns that further noise issues may lead to action by the NSW Civil and Administrative Tribunal.Use the official form to issue a Notice to comply.
• External Resolution: If your scheme lacks an internal resolution process or if it proves ineffective, parties involved in the dispute can contact NSW Fair Trading. They offer a free mediation service to resolve issues between strata residents, owners, and managers.
  Each step offers a progressively formal approach to addressing and resolving noise issues within the framework of strata living, ensuring a peaceful coexistence among residents.

Noise Issues in Strata? We are here to Help.

Dealing with noise in strata buildings requires understanding the legal framework under the Strata Schemes Management Act 2015 (NSW), particularly Section 153 regarding nuisance. Establishing that noise is actionable involves meeting an objective test and providing sufficient evidence, as highlighted in recent case law. Both residents and Owners Corporations have responsibilities, and various steps, from direct communication to formal dispute resolution processes, can be taken to address noise issues effectively.

If you are experiencing ongoing noise problems in your strata scheme and require assistance navigating the legal complexities or dispute resolution pathways, Contact PBL Law Group. Our expert NSW strata lawyers can provide tailored advice and portrayal to help restore peace and quite to your living environment.