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Noise in Strata

Noise issues are likely to be enhanced even more during the COVID pandemic, where there are more people at the building than usual because they’re working from home, self-isolating or vulnerable.

Then there’s the thorny issue of how to deal with noise and nuisance issues from the younger members of our strata community. Children and teens might be adorable, but sometimes their behaviours are not. If they’re not at school, or they’re not engaging with home-schooling as optimally as one might hope, there’s the distinct possibility of increased noise and nuisance as a result. After all, what else is a bored child going to do?

Lest I be accused of focusing too much on the youth of today and their ills, another noise issue likely to be coming up during COVID is hard flooring. Again, if people are at home more often and working from home for long periods, perhaps they’re walking across their hard flooring more often and this in turn creates noise for people in the apartments beneath.

Body corporate legislation provides for both the tools and processes to deal with noise and nuisance. Here’s my stepped approach to it:

 

STEP 1: TALK

Go and talk to whoever is responsible for the noise. Tell them what’s going on in a friendly / gentle fashion. You’d be surprised how often a noisemaker isn’t aware of the problem, and at that point it ceases. If we’re talking noisy and nuisance children, that’s a different prospect and you might be better off first speaking to their parents.

The only qualifier on talking? Only do so if it is safe. If you think it would be unsafe to knock on your neighbour’s door, don’t do it. There’s probably also a step 1(a) here, which is to contact police if the noise or nuisance is happening late at night or, in the case of COVID, is happening in breach of social distancing guidelines.

 

STEP 2: PUT IT IN WRITING

The logical next step if step 1 hasn’t worked or if it worked for a while then the problem started up again. Be clear what your concerns are and articulate not just those concerns but a possible solution. Avoid a threatening note which says something like ‘YOU BETTER STOP MAKING NOISE OR ELSE’ and instead, try a note in which you are specific about the noise, when it happens, how often (Is it every night? Certain nights? Certain times?) and what impact it has on you. Add words about how it would be great if the noise could be reduced at times of the day when it has the most impact on you.

 

STEP 3: FOLLOW THE LEGISLATED PROCESS

Steps 1 and 2 are essential to demonstrating you have tried to resolve the issue yourself. That’s required by law if you move to steps 3 and 4. Step 3 is where things get formal and this involves enforcing a by-law or pursuing a nuisance breach. Either way you’ll need evidence, and in the case of noise that would be a log or copies of email exchanges about the noise. You might also have emails from neighbours backing you up. If you’re the committee, you might have a register of complaints about the noise or a report from the onsite manager about it.

By-law enforcement requires following the prescribed process under the Body Corporate and Community Management Act 1997, while nuisance is more involved. It’s not simply a case of feeling that someone or something is a nuisance. There are some judicial benchmarks around what is and isn’t a nuisance in this context. Have a look here and here at some of Hynes’s previous articles on the topic.

 

STEP 4: TIME TO MAKE A DECISION

Time to walk the talk. If you’ve gone through the previous steps and things are still not resolved, or parties are refusing to do anything about the situation, you are now faced – whether you’re an owner, occupier or committee – with having to make a decision: do you pursue this further or not? If the answer if yes, you will need to file an application with the Commissioner’s Office. Needless to say, but it’s worth noting for the record, if the answer is no, the problem remains and is likely to continue unchecked or even get worse, with the very small chance it might get better or just go away.

If things do get pursued, it may take some time. It’s not simply a matter of filing an application with the Commissioner’s Office and getting an outcome the next day. We may be talking a matter of months, a lot of process and a considerable amount of time and money. If it goes to an adjudication, every owner in the scheme will get a chance to have their say about the problem and you really want to keep that in mind – do you want to put this situation out on the public record like that?

 

Putting those steps aside, let’s take a moment to quickly look at the flooring and nuisance kid scenarios specifically.

Flooring problems generally occur when current flooring is ripped up and hard flooring is installed. Often a by-law will be in place requiring any new flooring to comply with an acoustic standard, which might be a good preventative measure. If your body corporate doesn’t have this in place, it can consider a new by-law to this effect. Better to address the problem at this point because if it does go to adjudication, an adjudicator can order the removal of the hard flooring, which is a very costly and stressful situation. As well, consider if there might be some mitigation which can be put in place, which might include casters under furniture, foam in door frames and similar, practical measures designed to reduce noise transference. Refer to previous adjudicators’ orders for more details. Some orders go to considerable lengths to talk about acoustic standards. Importantly, adjudicators’ orders have found that even though people are going about their daily business and not doing anything out of the ordinary, that still doesn’t absolve them of being responsible for the nuisance caused by hard flooring. Another way of putting it: just because you’re not walking on stilettos on your hard flooring every 30 seconds doesn’t mean you aren’t responsible for the noise emanating from it.

Now to noisy kids. By-laws apply to all occupiers at a scheme and by-laws don’t talk about age limits. So that captures children and their conduct. But let’s think about that for a moment. Do you really want to be in the business of launching proceedings against a child, their parents, or both? Certainly, there have been adjudicators’ order in this regard. It’s just that I think a pause is advisable at this point. Think about how things are going to be in the future if you do pursue things. Remember also, kids are noisy – that’s just how they are. All the more reason to focus on steps 1 and 2 rather than steps 3 and 4.

Remember too that just because something is happening in a body corporate doesn’t make it a body corporate issue to resolve. If a child should be at school, that’s an issue for the Education Department and if someone, child or not, is breaching social distancing guidelines, that’s a police matter. If there’s any activity occurring such as vandalism or theft which is part of the nuisance, that’s definitely a call to police.

Ultimately, you want to get to a point where the noise and nuisance is either eradicated or manageable enough for everyone to get along. And you want that with the least intrusion possible, for the sake of all concerned. Hynes can assist in a few ways. As Strata Adviser, I provide mediation and best practice services for owners, committees and caretakers facing these issues, and on the legal side of things our practitioners can advise on by-law reviews or initiating proceedings if need be. Hopefully these efforts can help you move from ‘noise annoys’ to a state of another Buzzcocks song: ‘Everybody’s Happy Nowadays’.

For more on Noise in Strata check out the webinar on the Hynes Facebook page, where Chris and Frank discuss the complexities of dealing with noise in strata. The webinar offers some how-to solutions to deal with unwanted noise in strata complexes.

This article was contributed by Chris Irons, Strata Adviser – Hynes Legal.

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  1. Robert Kerr

    I have gone through a nightmare situation where I have had 2 sets of tenants leave my Sydney apartment due to the building acoustics & noise from the unit above. The first tenant who was MD of a small private equity fund broke lease due to the old creaking floorboards ( which are throughout the building ) plus the noise from the family ( kids playing cricket down the corridor, etc ) in the unit above ( one of 2 top floor units ). We did raise a petition to the Owners Committee and Strata Managers which was joined by tenants from other units but was to no avail. The second tenants were a couple on a month to month lease and left in May this year due to the unit above having approx 7 occupants over a lengthy period of time who had both unruly behavior and a dog which ran up and down the unit corridor with a young child plus friends. My agents have just relet the property with a $ 190 reduction in weekly rent. The Body Corporate is not interested as it used to be headed by another top floor unit owner ( less effected by the creaking boards) & the Strata Agents, in my opinion, were more interested in keeping the head of the Body Corporate ” on side “. I have a report from a well recognized Acoustics Consultant confirming the noise levels do not comply. However Strata have closed the matter with a report from a strata lawyer which I believe is flawed as it omits a number of issues such as the petition and advised this is only a matter between my self and the upper floor unit owner. I have spent significant time and energy on this issue and believe there must be some way of resolving the issue of these old buildings with creaky floorboards and non compliant noise levels.

    1. Chris Irons, Strata Adviser, Hynes Legal

      Hi Robert, while my article might have some useful guidance for you, it is based on Queensland legislation. You might be best served seeking advice from a NSW practitioner

  2. Sue

    I have a problem with units above me. I have the balcony level and they keep on throwing debris on our balcony. I have emailed my body corporate so many times but replies are very minimal. I have damaged goods resulting. We had a video of offender but my body corporate issued a breach. How can I recoup the expense.

    1. Chris Irons, Strata Adviser, Hynes Legal

      Hi Sue, if a breach notice has been issued and the problem is still continuing, you will need to enforce by-law or nuisance provisions through the Commissioner’s Office. Recouping the expense may be a different matter. I recommend you seek some legal advice about your situation.