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Topic
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What are the chances at NCAT over lights in common areas which are intrusive in your property and causes a disruption to your sleep plus general nuisance. Has anyone ever experienced something similar?
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To clarify, are we dealing with lighing at the Strata Plan you are at? Or a neighbouring Strata Plan or Torrens Title? And are the lights in question the usual strata poly-sphere lights or directional spot lights.
Where I am, we put a piece of opaque card inside a light fitting on the side facing a unit that was bothered by the light. Simple and cost nothing.
The obvious question is have you asked the Owners Corporation to adjust the lights
The adjustment can be physical (ie moving the direction they point) or changing the timing.
If you have asked, and the answer is no, then its pretty bad of the committee or the OC.
Perhaps its a cost issue for the OC. Have you considered paying for the redirection or reprogramming of the lights?
Perhaps its a safety or security issue. You may have to do some homework to convince the committee that neither of these is unsolveable.
Any thing is possible in NCAT, but I dont recall any specific part of the legislation that deals with this.
Have you tried mediation. I think it would be the most effective way in this case.
The first step in an NCAT action is compulsory but free mediation at Fair Trading. That should get the problem resolved and if it doesn’t then you have taken the necessary first step. In fact, just getting a notice that they are being invited to attend mediation gets most strata committees’ attention.
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Sage-grouse. Your actions here are very straightforward.
It sounds like you’ve already raised this with the OC. Do you have their refusal in writing?
Here’s what I’d do.
- Email: Dear OC, I have previously raised the issue about the common property light interfering with the peaceful enjoyment of my lot. I would like to kindly request that you [insert whatever solution you have]. This is a very easy fix and will cost you next to nothing.
- Sit back and wait.
- If, after 14 days, you’ve had no response, or a “get lost” response, you can proceed to mediation. It’s free, but the process is slow. Stick to the facts. It doesn’t have to be an essay. “There is a common property light shining into my lot and causing me distress and loss of sleep. It is a very easy fix. I have raised this with the owners corporation on a number of occasions and they have declined to act on the matter.”
- The OC will receive the mediation request via your strata manager or whoever you nominate to act on the OC’s behalf. They can either decide to agree to meditation, or they can decline it.
- Hopefully, they will decline mediation. This gives you the green light to go straight to NCAT.
As always:
- Keep calm
- Stick to the facts
- Document EVERYTHING
- Be clear about what you want
Good luck! Keep us posted!
It sounds like you’ve already raised this with the OC. Do you have their refusal in writing?
The timing on that is critical. If you get a rejection, or no response within two months, you can proceed to Fair Trading as outlined above. I suspect the relevant section of the Act would be S.232 (2) – for failure to fulfill their responsibilities (which you might mention in your letter).
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@Sage-grouse, this is great news! You are now free to go straight to NCAT and lodge your application.
To answer your question about the chances at tribunal. Hard to say. I’m also not a lawyer, but I would think this would loosely fall under section 153 of the SSMA, also known as the “nuisance” provisions of the Act.
https://classic.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s153.html
That’s why I’d word my email with the phrase “peaceful enjoyment”.
s1(c): “(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.”
It’s a long shot but it can’t hurt to try.
If the OC chooses to engage a lawyer then those costs are born by all owners, if your action is successful then you would be excluded from contributing to those costs. The OC can only put all costs on you if the tribunal makes a costs order, which is rarely done by the tribunal (but always a risk).
You might write to the committee and aske them to explain to the other owners about the costs that they are going to have to pay when they lose this fight. If this was happening to me I would write something like:
“Please discuss at your next committee meeting and explain to all owners in the scheme that you intend to embark on a legal challenge that is likely to cost them (but not me) a lot of money.
“Under Section 90 of NSW Strata Law, expenses from a failed legal challange against an owner must be paid out of a special levy from which the owner who wins the case is excluded.
“Also, you may not charge me with “costs” as they can only be ordered by a tribunal under very specific and narrow circumstances, as defined by Section 60 of the Civil and Administrative Tribunal Act (2013) and explained by this factsheet, none of which will apply here.
“I think it’s only fair to other owners that you inform them of the potential consequences of this clear attempt to bully me into accepting your inaction, in refusing to fix a problem that would cost you very little to remedy.
“Those consequences include a special levy to pay for your legal adventures, to which I am not required to contribute. Owners have a right to know what you are planning to gamble their money on.
“They should also be advised that it would be a lot less expensive just to fix the problem than fight the issue, lose the case, have to bear the expenses, then have to fix it anyway.”
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