[andyj]

Thanks Whale and Missy,

I will give the council another try. I don’t know if banging, thumping and door slamming would come under the POEO 1997 but I will ask to speak to someone more senior. The rotters above have been making this incessant noise for almost 3 years now. I am getting close to giving up and selling out. Pity because I have a really nice unit..

Cheers

Andyj

[andyj]

Hi Gurus,

I rang (a Sydney Metro♦) council today regarding ongoing noise from my strata neighbours. I was looking at getting a noise abatement order from my local council. I was told that they could only issue a noise abatement order if the noise was construction related (ie noise from a construction site) or was emanating from an industrial site. I had the impression that they could issue orders against noisy strata dwellers??

Pls advise

♦ name of Council removed – Whale.

[andyj]

Hi drshelley,

This is exactly what happened in my case, where the owner installed cheap underlay and cheap carpet. Like you, I still have disturbing noise emanating from above 24/7. I believe that you obtained orders from the Tribunal to the effect that “the respondent is to cover all floor areas with the exception of wet areas with carpet and underlay if sufficient quality to ensure no transmission of noise from that lot to the lot below (etc) within 60 days.”. It is pretty clear that they have not complied with the orders handed down by the tribunal as you are still disturbed by noise. I would seek legal advice and pursue penalties.

My Owners Corporation has lodged an application against the tenants above for excess noise and nuisance (by-law 1 and s117(1)(a)) and have advised me to wait for that application to be resolved before I pursue the owner for not complying with the orders I got which were “The respondents shall comply with by-law 14 and specifically shall ensure the floor space within lot 8 is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of lot 8 noise likely to disturb the peaceful enjoyment of the owner of lot 6”. Each day the elephant waltz starts at 5am and continues till 2am, however the owners corp wants to hammer the tenants first for door slamming and banging around in general.

It amazes me that despite orders and the threat of penalties some owners and strata dwellers think that their home is their castle and they can do as they please and damn anyone else in the strata.

Please keep the flat-chat community posted with how you go!!!

Cheers

andyj

[andyj]

@PatriciaSC said:
Hi everyone. I had a good outcome at NCAT on 13 March in a similar matter.

I searched thoroughly and found out that there was a precedent where, at a hearing for a penalty for non-compliance with an adjudicator’s orders, a tribunal member had instead made an alternative order under s187 and made an order under s138.

So at my “application for a penalty” hearing, I asked for the same ruling, i.e. and alternative ruling under s138, By-Laws.

The ruling I asked for was from a precedent, and was that “the respondent is to cover all floor areas with the exception of wet areas with carpet and underlay if sufficient quality to ensure no transmission of noise from that lot to the lot below (etc) within 60 days.” And I am happy to say that was the order the Tribunal member made in my case. So I am very happy about that.

The problem of people ripping out quiet carpet and installing floating timber floors with inadequate underlay is a big problem.

If you need any links to what I found please let me know.

All the best with your plight Drshelly and AndyJ

Patricia

 

Hi Patricia,

 

Could you please post the links to the web sites and cases that you used to prepare your case. I would like to seek similar orders as the carpet and underlay the owner has installed upstairs is not suppressing the transmission of noise. Last night and this morning (as is usual most days) all I could hear were thumps and bangs

 

Cheers

 

AndyJ

 

[andyj]

@JimmyT said:

Even so, the CTTT order is about stopping the noise, not laying down insulation and they should consider whether it is worth risking having to go back and do it all over again,  After all, it was so-called “experts” who told them the current insulation would be fine. Attempting a solution is not the same as solving a problem.  If it doesn’t worrk, all it means is you didn’t try hard enough and that’s exactly how NCAT will see it if the problem continues.

Jimmy is spot on the mark here. The CTTT usually does not specify a product to solve the noise problem and it would be risky to agree to any specific solution as it may not solve your noise issue. In my case the owners have put in cheap carpet and cheap underlay. This has reduced the noise, but not eliminated the daily disturbing thumps on the floor above. So its back to NCAT for me. Nothing beats  quality thick carpet and thick quality underlay.

[andyj]

Hi Jimmy,

 

Thanks for your prompt reply.. and your ongoing expert advice

The Orders from the tribunal member were:

“By consent the respondent agrees to comply with the orders of the adjudicator”

It is noted that by consent that the respondent has agreed to remove all floorboards but for the kitchen area”

The orders of the adjudicator are: “The respondents shall comply with by-law 14 and specifically shall ensure the floor space within lot 8 is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of lot 8 noise likely to disturb the peaceful enjoyment of the owner of lot 6”

These orders do not apply to floor space in lot 8 comprising a kitchen, laundry, lavatory or bathroom”

 

My arguments that the kitchen area is mixed use is based on the ruling of Member A Borsody in Kelly v Lane NSWCTTT 438 7 August 2006 last 3 paragraphs url: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCTTT/2006/438.html?stem=0&synonyms=0&query=kelly%20v%20lane

The remaining timber flooring in the overhead unit has a dining area as well as a kitchenette.

cheers

andyj

[andyj]

Hi drshelley, PatriciaSC and gurus,

 

Last year after a protracted period of successful adjudication, appeal by owner and finally prevailing at the tribunal. I managed to get the owner to remove the floorboards from the living and bedroom areas of the unit above.

Despite a prior agreement between us to also have the floorboards removed from the mixed dining/kitchen area, the upstairs owner reneged on the deal at the final tribunal hearing.

He has installed cheap carpet and cheap 5mm underlay. Although the noise from the now carpeted areas has gone from what one visitor described as “horrific and audible from a neighboring country” , to simply annoying, I still can hear the tenants thumping on the floor for much of the morning and evenings. The sound is best described as a deep drumming thud.

The mixed use kitchen/dining area is as noisy as ever.

Since he has installed carpet I am assuming my chances of getting a penalty would be unlikely (comments welcome).

The Tribunal member said that I would have to put in a separate application for adjudication regarding the mixed kitchen dining area. Do I need to go to mediation again with the owners.

I have tried to have a nice chat with the tenants with 2 other owners present (who supported my claims of continuing noise). However the tennants said that they were not making any noise and were always in bed by 10pm (a blatant lie as we can see their lights on every night until well after midnight).

My next door neighbor also said to them that she was in my unit 10min prior and could hear the thumping, which they denied

drshelley you mentioned a minimum standard mandated by the AAAC which I would be delighted if you could share with me. As we are experiencing similar noise issues I would be delighted if we could share information offline such as our adjudication orders and tribunal orders as well as any other advice.

Jimmy can you please share my email address with drshelley

Cheers

hanging in there for a harmonious outcome andyj

 

[andyj]

dnighttime.

 

I am deeply sorry to hear of your experience. I can empathize with your plight as I have had to endure a young family using a timber floor for 2 years 24/7. I am sorry to hear that you are selling up and moving on. It is a great shame that you did not get the outcome you deserved at the CTTT. I can only hope that the new Minister for Fair Trading looks over the plethora of inconsistent judgments made by the various members of the Tribunal and puts in guidelines for future rulings.

Best wishes for the future

 

andyj

[andyj]

Hi drshelley,

My understanding is that the discussions at mediation are supposed to be confidential and not used in future submissions. Dont worry too much about the claims made by the respondant at this stage, the adjudicator will consider all submissions. In my case the respondant tried to accuse me of intimidation against thier tenants but did not provide any evidence. I am assuming you have some supporting doccumentation from visitors and neighbours who have experienced the noise transmission. I dont think the CTTT can issue orders akin to an AVO and require you not to contact the other party. I would hardly think that two visits over an 8 month period would amount to harrasment. I would wait for the adjudicators orders and then if necessary appeal any decisions you are not happy with.

 

Hope all goes well. Keep us posted

 

[andyj]

Ancestor,

Your post has me a little perplexed. dnighttime  already had a favorable  ruling from an adjudicator and went for a penalties hearing for non-compliance at the CTTT before a Tribunal member to have the orders  enforced. It was at the penalties hearing that the member issued a decision that the installation of a rug and runner meant that the other party had complied with the adjudicators orders and dismissed the penalties application. dnighttime is now in the unfortunate position of having to appeal the penalties dismissal before the District Court. dnighttimes avenues at the CTTT regarding this matter are exhausted and the matter needs to be appealed to a higher court. Why are we still discussing having this resolved at the CTTT. Your post is confusing at best. I am not a lawyer and this is not legal advice, however my gut feel based in this thread is that dnighttime will have good grounds for appeal. I cannot find any reference in the SSMA 1996 nor the model by-laws to say that the BCA re noise transmission is relevant. It simply refers to a subjective statement that the noise should not disturb the peaceful enjoyment of another lot. I agree that dnighttime should get sound legal representation as the District Court is a costs jurisdiction and should dnighttime prevail can be awarded costs and possibly damages. the converse is true should dnighttime not prevail. Can we be clear that the next avenue is a higher court and not muddy the waters with further talk of hearings at the CTTT

 

  

[andyj]

Hi dnighttime,

I am totally appalled to hear how this has turned out. The only advice I can give you at this point is to appeal the decision.

 

Unfortunately the CTTT web site states :”If you want to appeal a Tribunal Member’s decision made following the hearing of a strata and community schemes matter, you will need to appeal against the decision to the District Court of NSW.”

“

Appeals may be made to the District Court of NSW under section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001. 

The grounds for an appeal to the District Court is that the CTTT made an error when it decided a question with respect to a matter of law.  Appeals to the District Court must be made within 28 days from the date the CTTT’s order is made.”.

 

An alternative is to Appeal to the Supreme Court as follows:”

Appeals may be made to the Supreme Court of NSW under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001. 

The grounds for an appeal to the Supreme Court include that there was a denial of procedural fairness or that the CTTT did not have jurisdiction to make the order.”

I would strongly advise seeking sound legal advise before you proceed.

You have my deepest sympathies.

[andyj]

Hi Jimmy and learned Strata Gurus,

 

My neighbor has attempted mediation regarding continued disturbances from occupants of the lot above mine  (respondent failed to respond to mediators requests to attend mediation) and is soon to submit an application for adjudication. He has asked for the file numbers of my tribunal application re the timber floor that was causing issues in the same lot. Would it be wise reference the orders I obtained against the owners floor in his application regarding ongoing noise. Would this likely help with his application or hinder his chances. I am also affected by the continuing noise and am grateful he has decided to address this matter.

 

Pls advise

 

andyj

[andyj]

Hi drshelley,

I simply gave the adjudicator a cover page (or 2) explaining my situation and the affect it was having on me, supporting stat dec’s and a detailed excel spreadsheet that:

 recording the date, the time the noise commenced, the time the noise finished, the type of noise eg stomping on floor over living area, what I did about the noise (eg spoke to neighbor, went out to avoid noise, earplugs, got witness statements from neighbor to verify it was happening), a column where I signed to attest to the noise and a column where the witness could sign.

My submission totaled about 35 pages…

 

Best of luck and keep us posted

 

Cheers

[andyj]

dnitetime, drshelley,

 

All the best at the tribunal re your floor noise matters. I am shocked to hear of some of the responses you have had from the tribunal members. Mine were mostly supportive. I now have carpet above in the living and bedroom areas (albeit a cheap install) that has significantly reduced the impact noise that sent my blood pressure through the roof for almost 2 years. This has cured 80% of the problem and I have a neighbor who is willing to mop up the residual 20% with a separate application to OFT re by-laws 1 and s117 (1)(a)(c) SSMA 1996 to address the residual behavioral issues of the occupants.

There are good tribunal members and with some patience and perseverance I am confident you will prevail. Hang in there the SSMA is on your side….

Keep us posted

Cheers

[andyj]

To avoid offending the hanging of clothing by-law I just dry my washing on a clothes horse in the spare bedroom with the windows ajar. A gentle westerly breeze does the job in a few hours and no one is the wiser .

[Author]

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