An NSW Lot Owner is wondering whether the apartment neighbours piano playing is a breach of the peaceful enjoyment bylaw.
Table of Contents:
- QUESTION: I am a piano player living in a NSW strata apartment building. I have received two noise breaches for nuisance about the piano music, claiming I play excessively. This is not correct. What can I do?
- 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?
Question: I am a piano player living in a NSW strata apartment building. I have received two noise breaches for nuisance about the piano music, claiming I play excessively. This is not correct. What can I do?
I am a piano player living in a NSW strata apartment building. I have received two noise breaches for nuisance, both of which claim that I play for ’12 hours each day, causing considerable disruption to other residents’.
It does appear that there is no real definition of what a nuisance is, but that strata law seems to favour the complainant – even though environment, planning and council regulations are quite specific with regard to musical instruments.
I play for about an hour a day, generally between the hours of 10 am and 7 pm. Following the first breach, I added additional sound insulation, and sought specifics from strata and other residents on particular times or issues that were problematic. 4 other residents indicate that they loved it, but I received no further feedback until the second breach notice this week, again claiming I play 12 hours each day and asking me to practice elsewhere or install headphones – both untenable options.
I have no desire to disturb my neighbours – and have made reasonable attempts to address any issues. Nevertheless, strata law seems to err on the side of the complainant, even though the claims, in this case, are both unsubstantiated and highly exaggerated.
It seems my only option is to wait until I am served a notice to appear at the NCAT, given I am still unaware who the complainant is. Can you suggest any other solutions for how I can resolve this issue? Or am I in the wrong?
Answer: We recommend you approach strata for a viable solution
Rather than wait for the matter to escalate and potentially be fined and then re-fined if you breach the by-laws within 12 months, we recommend you approach strata for a viable solution eg restricting times and hours of practice, installing floor coverings, window furnishings, acoustic insulation, using the mute pedal etc to minimise any potential disturbance. You may wish to propose a by-law regulating the playing of musical instruments (let us know we can direct you to an appropriate lawyer).
There is a NCAT 2018 case in which it was held that the Tribunal DID NOT have the jurisdiction to restrict the Respondent’s (piano player’s) use of her lot in such a manner. There is also the difficulty of enforcement of orders of this nature, wrote the Tribunal. It is considered, however, that the Tribunal is entitled to make orders requiring the Respondent’s compliance with both the by-law and section 117 of the Act.
“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”.
There is also a 2003 CTTT case which held:
Although the standard By law 1 is framed in strict terms of “not creating noise” this cannot mean that occupiers are at the complete mercy of their neighbours in regard to noise. The Act requires the injection of some objective qualification about the nature of the noise. In a strata scheme, it is inevitable that there will be some give and take about the ordinary noise producing activities of everyday life such as the playing of musical instruments, television sets, swimming in pools and the like.
Despite the above, as we are not lawyers, we are unable to determine whether or not there have been cases of higher authority to displace or override this position. But the test appears to have been how reasonable you have been in terms of time and duration of practice, choice of repertoire (ie presumably nothing too dissonant or percussive) and attempts to attenuate noise and appease your neighbours. For your own records, you should keep timesheets of date, time and duration of practice and repertoire.
Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440
This post appears in Strata News #478.
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”.
Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440
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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