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That great British band The Buzzcocks once sang that for ‘pretty girls, pretty boys’, they need to remember that ‘noise annoys’.
Who knew the band would be so prophetic and sage about a common and tense body corporate issue?
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’.
This article was prepared by Chris Irons, Strata Adviser, Hynes Legal. Hynes provides legal services exclusively in the body corporate space, while Chris, as the former Commissioner for Body Corporate and Community Management, provides a range of alternatives to legal services and for the body corporate sector, such as mediation, best practice training and coaching and information and education services. These are services available to lot owners, committees, body corporate managers, caretakers and other body corporate stakeholders. You can reach Chris at [email protected] or (07) 3193 0500 to discuss proposals suitable for your circumstances.