This article about dealing with residential noise and construction noise in strata after the COVID-19 order has been supplied by Allison Benson, Kerin Benson Lawyers.
With the coronavirus restrictions, many people are now either working from home or at home much more than previously. One side effect has been that the noise from nearby construction sites and the neighbours home renovations has started driving some of us up the wall. What can you do? The answer is it depends if the noise if residential or from a construction site as there are different restrictions that apply. This post discusses residential noise sources. My previous post deal with construction noise.
General residential noise restrictions are contained in the Protection of the Environmental Operations (Noise Control) Regulation 2017. This Regulation sets out time restrictions when specific noises should not be able to be heard within a habitable room in a neighbour’s residence. Note that habitable rooms are generally any rooms other than a garage, storage area, bathroom, laundry, toilet or pantry. These restrictions are:
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| Noise source | Time restriction |
| Power tools and equipment (this would include pool pumps, lawn mowers, leaf blowers, electric or pneumatic tools) | Sundays & Public Holidays: not before 8 am or after 8 pm Any other day: not before 7 am or after 8 pm |
| Music instruments and sound equipment (this includes TV’s, CD’s, DVD players, home theatre systems and other sources or music) | Friday, Saturday & the day immediately before a Public Holiday: not before 8 am or after midnight Any other day: not before 8 am or after 10 pm |
| Air conditioners and heat pump water heaters | Weekends and Public Holidays: not before 8 am or after 10 pm Any other day: not before 7 am or after 10 pm |
| Cars and other motor vehicles (except when entering or leaving the property) | Weekends & Public Holidays: not before 8 am or after 8 pm Any other day: not before 7 am or after 8 pm |
Related articles:
- NSW: Q&A Is piano playing for hours a day a breach of our peaceful enjoyment?
- NSW: Q&A Stopping a Low Frequency Fan Noise within our Apartment
- NSW: Q&A Keeping Noise in Carparks to a Reasonable Level
This Regulation also sets restrictions on other noises, for instance, car alarms, depending on the car’s year of manufacture should be limited to between 45 – 90 seconds of continuous or intermittent noise unless the car was manufactured before 1 September 2009 and has been broken into, the windscreen or windows damaged or it has been involved in an accident. A similar restriction with different time frames applies to building alarms.
The Regulation sets a system of notices and offences for people who breach these restrictions. The penalties are $200 for individuals and $400 for corporations with courts being able to impose a maximum penalty of $5,500 on individuals and $11,000 on corporations. To start this process complaints must be made to either your local council or to the police.
In strata and community title schemes it is also highly likely that there are noise restrictions in your scheme’s by-laws or management statements. Restraints in by-laws may be general or in the context of flooring or hard surface flooring. For instance, the Strata Schemes Management Regulations 2016schedule 2 model by-law 1 states:
“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.”
Similarly, schedule 2, model by-law 14 relates to floor coverings and imposes a requirement that the majority of floors in a lot are sufficiently covered to reduce noise transmission that would disturb the peaceful enjoyment of an owner or occupier of another lot.
The fact that the scheme’s by-laws or management statements may restrict noise gives lot owners and occupants another means to take action. That may be through requesting the owners corporation issue notices to comply or the association to issue breach notices and these types of disputes may end up in the NSW Civil & Administrative Tribunal (NCAT).
This post appears in Strata News #342.
Read next:
What Can I Do About Noise? Construction Noise!
What can you do about noise during the COVID-19 lockdown? It depends if the noise is residential or from a construction site as there are different restrictions that apply. In this post, I will deal with noise emanating from construction sites starting with the situation normally and the situation now that Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 is in effect.
Pre-COVID Order – i.e. before 2 April 2020
Your local council, the Environmental Protection Agency (the EPA) and if needed the police are the key enforcers in respect of construction noise.
Most development work will be regulated by your local council so the first step should be to look at the development consent conditions imposed on the construction site by your council.
The development consent from council will regulate the hours of work and when certain types of work can be conducted. This may not assist much, however, there is a big difference between a requirement for tools down until 8 am versus tools down until 7 am. In most cases, the development consent can be obtained from a search of on your local council’s website, or, failing that, you could contact its planning team.
If work is starting before permitted hours or continuing after hours or you believe the noise is excessive then a complaint should be made to your council in writing specifying times, dates and the nature of the complaint. If this does not resolve your issue I suggest you seek legal advice regarding potential further steps as you may also have a case against the noise maker and the owner of the site in nuisance.
If the construction noise is coming from work undertaken by a public authority then the EPA is generally the appropriate body to make a complaint to.
The EPA’s Interim Construction Noise Guideline contains general guidelines for work start times. They are not mandatory but are a helpful guide and are used by councils in determining development consent conditions. The guidelines include (but are not limited to):
| Construction noise source / Work Type | Time restriction guidelines |
| Normal construction noise | Sundays & Public Holidays: no work permitted Saturday: not before 8 am or after 1 pm Any other day: not before 9 am or after 5 pm |
| Blasting | Sundays & Public Holidays: no work permitted Saturday: not before 8 am or after 1 pm Any other day: not before 9 am or after 5 pm |
The link to the guideline can be found here: Interim construction noise guideline
If the construction noise is coming from within a lot in your scheme, you should also consider your scheme’s by-laws or management statement. Generally, they will have by-laws regulating noise and any works by-laws or consents will generally also have terms in relation to noise during the construction work. These restrictions can be enforced at a scheme level and by the NSW Civil & Administrative Tribunal (NCAT).
After COVID-19 Order – 2 April 2020 until further notice
In response to COVID-19 and concerns about keeping construction going, the NSW Government passed the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 which is from 2 April 2020 in effect. This means that if a site has a development consent then the days upon which construction on that site can be undertaken has been increased – all that the builders need to do to be able to work on a Saturday, Sunday or Public Holiday is to:
- comply with the conditions of consent that restrict the hours of work on any other day (i.e. Monday to Friday); and
- not conduct rock breaking, rock hammering, sheet piling, pile driving or similar activities during the hours that it would not be permitted under the normal conditions of consent; and
- take all feasible and reasonable measures to reduce noise.
There are some conditions which require social distancing measures and for the construction to comply with all other development conditions however it appears that for those living near construction sites, noise may be an issue for the foreseeable future, with little recourse to remedies.
Stay tuned: In next week’s post I will deal with noise emanating from other homes such as power tools, air conditioners etc.
This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.
This post appears in Strata News #339.
Have a question about construction noise after the COVID-19 order or something to add to the article? Leave a comment below.
Read next:
- NSW COVID-19: Shutting Facilities Even Though Residents are Practising Social Distancing
- NSW: Q&A Noisy Neighbour, Renovations and Construction Noise
- NSW: Q&A Noise Complaint Letter to Strata
Allison Benson
Kerin Benson Lawyers
P: 02 4032 7990
E: [email protected]
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.
Visit our COVID-19 and Strata, Strata Noise & Neighbours OR NSW Strata Legislation pages.
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I’ve got a gardner starting work at 7am on a Sunday at the lot next to me and claiming he is allowed to work that early now because of the new ‘COVID Tradie rules’’. Not sure he qualifies?
We lived in Rhodes, from the last 6 months, there is a huge construction site doing rock crashing , earth moving right next to our living building.
Although builders following the working hour regulations, however the rock digging/high pitch machinery noise is unbearable for the last 6 months. We would like know what we options do we have.
Thanks
Hello,
We are in a situation in which strata undertakes works on the balconies in our building and it is extremely noisy. Would it be possible under the circumstances to reduce the rental for uninhabitable premises proportionately to the days in which the works are undertaken, particularly as we are all working from home these days.
Thank you
Hi Xenia
Information about arrangements with your property manager/landlord are outside the scope of this site. We suggest you contact a tenancy service to assist with this query. All the best.
Thankyou for your write up. Its a sorry state of affairs. Can barely use half my apartment due to noise from a neighbouring site, was bad enough before covid19.
In regard to the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020, what is the legal basis whereby this order has been made? it contradicts the EPA interim noise guidelines, and effectively stomps on the POEO act. I assume no regulatory impact statement was done, there is no residential setback, no timeline for it to end, nothing. I’ve complained to my local MP and the minister for planning, and was given form filled responses about how its a ‘need’.
I was woken up on Sunday morning at 7:30am with the builders at Croydon Public School using a bobcat to clear construction waste into bins. They’ve been working all morning so far.
I’m working from home now and have to put up with this noise all week.
This is just completely wrong!
Hi Stephen
The following response has been provided by Allison Benson, Kerin Benson Lawyers :
I have a lot of sympathy Stephen, having a development going on a couple of doors down myself. Unfortunately, work hours have increased.
My suggestion is to go over to the school and see if you can get the attention of a worker or supervisor and explain that it’s really noisy and ask if they could try to keep the noise down a bit or to just do the noisy work in one hit rather than all day.
It’s worth asking nicely. Best of luck.
Could you please clarify regarding strata residential works. Cosmetic, minor and major works are seldom subject to development consent. As the variation states it applies where the development has “development consent” can I take it that it does not apply to cosmetic renovations etc and the full terms of any ByLaw still apply.
Hi Michael
The following response has been provided by Allison Benson, Kerin Benson Lawyers:
You are correct, the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 applies to work where there is development consent.
The Environmental Planning & Assessment Act 1979 at 1.4 defines “development consent” as meaning “consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate”. At 4.2 it provides that if an environmental planning instrument (think a Local Environmental Plan, SEPP etc) states that specified development may not be carried out except with development consent, a person must not carry the development out unless consent is obtained, it is in force and the development is carried out in accordance with the consent and the planning instrument. It also has the effect that a complying development certificate (also known as a CDC) issued by the consent authority or a private certifier is a development consent for complying development. Complying development is work that complies with pre-determined development standards.
This means that the new provisions in Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 apply to any work that is a complying development or that requires an application for consent. If you are uncertain if your work is exempt, complying or other development then you should check with your local council.
Thank you. Feedback appreciated.
Can a version of this article be provided for Qld’s jurisdiction please?
And some discussion around flooring and sound proofing? And how residents who are being affected by neighbour’s noise (walking, moving furniture, exercising in their home, kids jumping up and down and running around) can deal with these issues where the building has no bylaws or standards for renovations?
Hi Kathryn
We will look into a QLD version of this article for you.
Regarding flooring, you should find this article very interesting: QLD: Q&A The very noisy floor upstairs disturbs our peace
Hi Kathryn
The following response has been provided by Chris Irons, Hynes Legal:
Every scheme registered in Queensland will have by-laws. Whether they deal with noise and renovations specifically is another matter – chances are they will.
Your first step is to ensure you have the current by-laws. These can be obtained from the Titles Office in Queensland. Only the by-laws registered with Titles are the ones which apply to your scheme.
After that, there will be various options you can pursue, depending on what your by-laws say. Regardless of by-laws there are legislative provisions in Queensland around nuisance.
Both the nuisance provisions and process for enforcing by-laws can be technical and prescriptive. With that in mind, your first step, if you haven’t already done so, is to approach the source of the noise and try to work out a solution. You are required by law to at least attempt this. After that, you may need advice on your next steps.