Introduction

Living in a strata building can be quite the adventure, especially when noise issues pop up more often than not. According to the Strata Schemes Management Act 2015, Section 153, it’s super important to keep things peaceful and quiet where you live. This rule isn’t just about being considerate with your noise—it’s got all the nitty-gritty details for dealing with noise problems legally. Discover the art of managing noise in strata life, from getting a handle on what actually counts as a noisy neighbour backed by real legal cases to sorting out these sticky situations step by step. Dive into these insights and find out how strata folks can keep their digs as serene as a calm ocean breeze. It’s all about living happily together, free from unnecessary racket.

Noise as a Nuisance in Strata Properties

Section 153 of the Strata Schemes Management Act 2015 (the Act) 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 Act highlights noise as a common form of nuisance. Excessive noise, whether from loud music, ongoing construction works, or frequent loud gatherings, can significantly disrupt the peace and comfort of other lot occupiers. The Act 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

In the case of Andelman v Small [2020], the NCAT discussed the objective test for determine if a noise is actionable in nature. The case revolves around a noise complaint in a strata scheme, exacerbated by the increase in people working from home during and post the coronavirus pandemic. The complaint was made by a downstairs apartment owner against the owner of the unit above. The central issue was the alleged breach of the owners corporation’s floor coverings by-law. This by-law mandated that floors in certain areas of each apartment be covered or treated adequately to prevent noise transmission that could disrupt the peaceful enjoyment of other residents. Despite efforts by the downstairs owner to prove the breach, including an acoustic engineer’s report and testimony from a previous tenant, the upstairs owner denied access for in-situ noise level testing.

The NCAT ruled in favour of the downstairs owner, ordering the upstairs owner to comply with the flooring by-law. While deciding the case, the Tribunal discussed the “objective test” which to a legal standard that determines the breach of a rule or law based on factual, measurable, and observable criteria, rather than personal feelings, opinions, or experiences. This test is crucial in assessing whether the noise is “likely to disturb the peaceful enjoyment” of other strata residents. Unlike a subjective test, which would rely on the individual perceptions of the complainant, the objective test requires to consider evidence that could independently and reliably measure or assess the noise level. In this case, it included the acoustic engineer’s report, testimonies, and other relevant evidence, all evaluated against a standard that reflects what would likely disturb a reasonable person in a similar situation. The objective nature of the test ensures a fair and unbiased assessment, focusing on the verifiable impact of the noise rather than personal sensitivities or tolerances.

Need for Supporting Evidence to Prove Your Case

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

In O’Riordan v Chu [2023], 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. In 2021, the Applicant escalated the matter to the NSW Civil and Administrative Tribunal, seeking compliance with a nuisance-related by-law and Section 153 of the Act. The case revolved around the effectiveness of the installed floor tiles in mitigating noise and whether the Respondent’s use of their lot constituted an unreasonable nuisance under the SSMA and strata by-laws.

While deciding the case, the Tribunal made significant observations about the evidentiary requirements for proving a nuisance under the Act. The Applicant submitted a noise diary as lay evidence to document various incidents of noise. However, the Tribunal found that this diary did not convincingly demonstrate excessive or unreasonable noise transfer. The diary provided limited insight into the magnitude or impact of the sounds, and it lacked context about other potential noise sources like voices, music, or television, which could have influenced the perceived disturbance.

The Applicant also provided an acoustic report as expert evidence. The Tribunal noted that while the report detailed noise transmission, it did not include specific information regarding the volume of the noise made by various activities in situ. This lack of detailed data made it difficult for the Tribunal to assess the significance of the noise transmission and whether it constituted a nuisance.

The Tribunal’s decision underscores the importance of providing detailed, contextual, and conclusive evidence when alleging a nuisance under the SSMA. 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 is undue levels of noise causing disturbance, but what about a scenario where the noise emanates from a common property? Is the owners corporation liable in such cases? Well, yes. The case Haramis v The Owners – Strata Plan No. 51923 [2023] addresses a dispute regarding the responsibility of the owners corporation for maintaining noisy pipework in a strata building.

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 neighboring lot. The owner sought an order from the Tribunal for the Owners Corporation to carry out work on the common property wall and its enclosed pipework to reduce noise transmission. The Tribunal determined that the wall and the enclosed pipework were indeed common property. Drawing from previous cases like Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] and The Owners-Strata Plan No 33368 v Gittins [2022], the Tribunal emphasised that an owners corporation has a strict duty to repair and maintain common property in a condition that allows it to fulfill its intended purpose.

The Tribunal observed that the primary function of the pipework was to supply water to the bathroom in the adjoining lot. However, the transmission of offensive noise indicated a malfunction, rendering the pipework not “serviceable” under Section 106(1) of the Act Consequently, the Tribunal 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 theatre 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 owner’s corporation, often through the creation and enforcement of by-laws. 
There is a set of model by-laws provided on the fair trading website, which serves as a guideline or template for strata schemes. These model by-laws can be adopted in their original form or modified by the owners to better align with the specific lifestyle and requirements of their strata scheme’s occupants. However, it’s important that these laws are not harsh, discriminatory, oppressive, or unduly restrictive, particularly concerning who can occupy the lots, including provisions related to children. This ensures that the by-laws are fair and reasonable, balancing the interests of all residents within the strata community.

Road to Dispute Resolution: Complaining About Noise Issues

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

• Speak to the Resident: The first step is to have a friendly 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 completely. 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.

Addressing noise problems in strata buildings effectively requires not just an understanding of the legal framework but also a strategic approach to evidence collection and dispute resolution. While residents have various tools at their disposal, such as stricter by-laws and EPA-enforced time restrictions, sometimes professional guidance is needed to navigate these complex issues.

If you’re facing persistent noise problems in your strata property and need assistance, our team at PBL Law Group is here to help. We specialise in strata law and can provide expert advice and representation to ensure your concerns are addressed effectively and your rights are protected. Don’t let noise disturbances disrupt your peace; contact us today.