An NSW Lot Owner is wondering whether the apartment neighbours piano playing is a breach of the peaceful enjoyment bylaw.
Question: Our neighbour has recently been playing their piano for hours every day. Is this a breach of the peaceful enjoyment bylaw and how can we make this stop?
We have been living very happily in our apartment for 6 years. Recently, the apartment directly above us regularly plays their piano. The noise vibrates through their floor / our ceiling so loudly, it is absolutely driving us mad.
We contacted our strata manager and the secretary of the Strata Committee. They issued a Breach of By-Law 1 to the owner. I have also contacted the owner and explained the situation.
The owner has refused to adhere to the ByLaw.
My daughter studies every night after work and all weekend. This has totally disrupted her studying and she is now having tension headaches all the time.
We received an email from our Strata Manager yesterday passing on a request from the owner of the upstairs apartment saying they wanted to play the piano a few hours every evening and then for 4 hours on a Sunday afternoon. Obviously, this is unacceptable to us – we have to live in our unit.
I have asked a motion be put on the agenda for the next Strata Committee meeting but this is on in a few week’s time. In the meantime, what steps can I take and what is the Strata Manager and Strata Committee obliged to do in this situation.
Answer: Fortunately, the strata manager has issued a notice to comply with the peaceful enjoyment bylaw as the owners corporation should be enforcing the by-laws.
Fortunately, the strata manager has issued a notice to comply with the peaceful enjoyment bylaw as the owners corporation should be enforcing the by-laws. Now that the alleged breaches have continued, the Owners Corporation should make an application to the Tribunal for monetary penalties with penalty units ranging from 10-20 penalty units equating to $1,100 – $2,200. Alternatively, you may apply for Mediation followed with an Application to NCAT.
Based on the case law, it would seem that the amount of piano practice sought by the owner and the stated deleterious effects on your daughter would likely be excessive and amount to nuisance and/or breach of by-law 1.
In one case, the Tribunal was asked to make Orders to require that the piano playing Lot must close all windows and doors whilst the piano is being played, restrict the hours, duration and volume in which the piano can be played and also that soundproof material be installed before the piano is played.
The Tribunal declined to restrict the Respondent’s use of her lot in such a manner but made Orders that the piano lot not breach the nuisance provisions of the strata legislation and held:
“Whilst to effect compliance it may be necessary for the Respondent to install soundproof material or restrict the times and other conditions which operate when the piano is played, it is a matter for the Respondent as to exactly how compliance is achieved”.
So, in the above case, the piano playing was held to constitute a breach of the nuisance provisions on the legislation but the Tribunal would not go so far as to stipulate how compliance with those provisions would be achieved.
In a breach of by-law 1 case on appeal, it was held that a 9 year old child learning the piano and playing for no more than an hour a day usually after school and before 7.00 pm would not be considered by a reasonable person result in noise that was likely to disturb the peaceful enjoyment of another resident. The Member continued “I too am of the view that activity such as the practice of musical instruments should be accommodated. However, this is subject to such practice being for reasonable periods such as 1 hour or less a day. The respondents should be aware that it may be that even the piano practice if the duration of it is extended or if the frequency is increased may well amount to noise which was likely to disturb the peaceful enjoyment of another resident”.
These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
This post appears in Strata News #216.
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