This article about noise due to flooring from the lot above has been supplied by Kerin Benson Lawyers.
In the recent decision of the Appeal Panel of the NSW Civil & Administrative Tribunal (NCAT) in Andelman v Small [2020] NSWCATAP 32, the Appeal Panel considered the provisions of by-law 14 requiring all floor spaces except kitchens, laundries, toilets and bathrooms are covered or otherwise treated to the extent sufficient to prevent that transmission from the floor space of noise likely to disturb the peaceful enjoyment of the occupant of another lot. In the case the owner of the lot below was complaining of noise for the lot above.
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The Appeal Panel reiterated that the test under by-law 14 “is whether the noise being transmitted is “likely to disturb the peaceful enjoyment” of the lot beneath, not whether the noise is “normal living noise”, or “excessive” or caused by high heels or bouncing balls.”
The test is objective. This does not mean that subjective evidence, such as evidence of the occupant, will not be considered by the Tribunal, it just means that the Tribunal then had to consider objectively whether by-law 14 was breached.
While expert testing had not been conducted in the upstairs lot, the expert had provided evidence as to the noise levels. While the expert’s evidence was not considered “as weighty” as a report following testing using his equipment and expertise his observations, together with the evidence of the lot owner and the former tenant was sufficient to establish that the noise was sufficient particularly where the actions of the upstairs lot owner had prevented the expert conducting tests.
Key Takeaways
Lessons to be taken from this case are that the subjective evidence can establish a breach of the objective test and that what is sufficient evidence will vary from case to case.
If you have a noise issue start documenting the times, dates, duration and type of the noise and where it can be heard from and seek legal advice.
This post appears in Strata News #366.
Have a question about excessive noise from the lot above or something to add to the article? Leave a comment below.
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.
Read next:
- NSW: Crash, Bang, Sigh! What Can I Do About Noise? Residential Noise!
- NSW: NCAT says Landlords are not responsible for Tenants’ Noise
- NSW: Q&A Noisy Neighbour, Renovations and Construction Noise
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.
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This is a good win for lot owners impacted by other lot noise..
By by-law does the article mean that Strata plan by law, or some nsw Strata schemes section covering By laws.
Hi Steve
The article refers to the Model By-laws which can be viewed under Schedule 2 of the Regulations, in this case By-Law 14:
14 FLOOR COVERINGS
(1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.
(2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.
To see if your scheme has the Model By-laws or has chosen to change the by-laws, you would need to check your owners corporation records. More about by-laws can also be found on the NSW Fair Trading site: By-laws in your strata scheme
We hope this assists. If not, please let us know.
All the best.
we have above somebody who changed their floors years ago, I had a battle via mail where the owner said that is how she brought it and was not going to change, by the way, she does not live but rents it short term. There was some effort in that rugs were put down which did help a little.
All the worry seems to be about the unit under which in this case is also rented, nobody stays longer than they have to and being renters did not want to help my case, so the question is … if somebody lives above the unit that is causing problems and is effected is that considered.
I do not often read of cases like mine actually I have seen none, but when anything heavy hits the floor like people walking with leather shoes, dropping things, sliding chairs, it echos through my place, I know when they go to bed and drop if things like shoes I can count them as they are dropped., and do not get me going on the banging of draws or doors.
Ray
While the consideration of excessive noise is subjective, what can one do about a lot owner who had a timber floor fitted with no noise testing done but then demands that the lot owner above them must comply with noise testing regulations before fitting an exact same floor and raises considerable objections to the lot owner above renovating their unit without meeting strict guidelines which were absolute garbage. It is noted that this bottom lot owner had illegally removed the Vermiculite which is a noise deadener.