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Two points – the CTTT hasn’t existed under that name for several years. The Tribunal is now called NCAT (NSW Civil and Administrative Tribunal). Also, it doesn’t issue directives on hypotheticals or points of principle – everything is supposed to be decided on a case-by-case basis, according to the law.
Before you go too far down the strata law slippery slope, have a word with the neighbour and ask them if there’s anything they can do to limit the noise. Rubber mats would be a start.
If they are uncooperative, the relevant law consists of three parts – State laws on noise, strata laws on nuisance and the scheme’s by-laws.
State Environmental Protection Authority laws basically restrict intrusive noise from being created before 7 am on weekdays and 8 am at weekends. Have a look at this document and download the related neighbourhood noise link for more information.
Section 153 of the strata Act relates to nuisance which can include noise and vibration if it disturbs the “peaceful enjoyment” by other residents of their lots. This is a restriction that’s related to the disturbance rather than any time limits (as you will read from some tortuous legalistic arguments elswhere on this Forum). It’s harder to prove but if there is noise and there’s enough of it to disturb people, then you can seek orders at NCAT.
And finally there are your by-laws which may or may not refer to noise and may do so in a way that’s specific to your block. Every scheme can have different by-laws but the “model” by-laws say this:
An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.
If have been told by a Fair Trading mediator that if you don’t have a by-law about an issue on your books, then the model by-laws apply by defaullt. And if you do have a by-law and it’s being breached then the strata committee or strata manager should be issuing notices to comply (although they may want to have a word with the mad exerciser first, too).
Pursuing this on the basis that a garage is an inappropriate place to exercise is probably the least likely route to success, unless you have some official document that says the garage can only be used for parking cars and nothing else.
Hope this helps.
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Absolutely. And even if the crack is the cause and water is running down into it, the crack cuuld be running UP from the OP’s floor. Which brings us back to the question of who pays and how much is each owner liable for? This one could run and run.
Seriously, though. The two owners need to get together and share the cost of exploration and remediation with maybe a mediation to sort out who is responsible for what. CAV should offer that service but it sounds from other posts like they are overwhelmed with work.
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something seems to be missing here but this is the second page – Click on the page number above to read the whole thread
JimmyT
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That’s another interesting difference between NSW and Victoria law. I don’t think that distinction is made in NSW. The OP’s problem is exacerbated by the fact that the crack starts in her upstairs neighbour’s wall, meaning it can’t be fixed without their approval and, one would assume, financial assistance.
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Can I breach my strata manager??
Your committee can instruct him to follow a course of action and if it’s legal and he fails to do so you have grounds for sacking him.
Official complaints about strata managers go nowhere. They are a protected species and regardless of how crap the worst of them are at their job the worst they get from NSW Fair Trading is a talking to over the phone.
There are some really good strata managers in NSW and some shockers, but none of them have ever lost their licence for being terrible at doing their job.
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AFAIK the airspace on an apartment lot balcony is the same as the airspace inside an apartment lot.
I’m not 100 per cent sure about this, but Vic law and NSW law differ on so many things I wouldn’t take it for granted. In any case the strata manager’s “air space” argument is spurious since section 153 of the act refers to nuisance from inside units too, and NSW strata law allows owners to regulate what people do on their balconies through by-laws
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So we have to wait until the AGM in March.
The committee can call an Extraordinary General Meeting (EGM) whenever they want. In any case, it’s hardly a “long bow” if Section 153 specifically mentions smoking as a nuisance. You’re right, your strata manager wants to do the least work and just collect their fees. Just remember that he’s supposed to do what the committee wants, not the other way around.
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if, according to the Strata Manager, the balcony “airspace” isn’t common property and in fact part of the lot itself, then Section 153 definitely applies.
True. But the balcony air space IS common property, only with exclusive use by the resident of the unit. Your assessment of his professional commitment sounds spot-on.
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Secondly, my strata manager is a useless piece of excrement and we are stuck with him for the next 18 months.
If your strata manager is incompetent, and you can prove it, then you can sack him or at least ask his firm to give you someone else.
The strata manager has quoted us $1,100 to execute and adopt a new bylaw (does that sound about right?).
Our sponsors Bannermans have a DIY by-law service that costs $299 while registration is about $600 (and there may be a process fee if they do it for you). So you could save a few dollars on your strata manager’s charges but, to be fair, their fees aren’t too far off the scale. The thing is, do you trust them?
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…our strata manager …advised that even though the external parameter of the balcony is common property, the airspace isn’t; and as such the lot owner is free to smoke out there regardless of how it impacts other residents.
Your strata manager needs to go back to strata school. Balcony common property is treated slightly differently from other common property such as hallways, in view of the fact that what goes on there generally only affect the people living in the unit. But of course the air space is common property.
So a by-law that said no smoking on common property – which most schemes have – wouldn’t necessarily apply to balconies.
However, you can pass by-laws controlling the use of balconies, from the colour and construction of furniture, to blinds or awnings, whether or not barbecues are allowed and the drying of laundry. In short, anything that can be seen from outside or affects other residents can be controlled by by-laws … including smoking.
As you will see from the extract (above) from section 153 regarding nuisance, smoke penetration from another unit – yes, even inside the unit – or balcony can be regarded as a nuisance and is therefore against strata law (never mind by-laws).
How do you deal with it?
As Flame Tree suggests, try a polite note asking your neighbour to smoke in a part of her balcony so that the fumes don’t drift into yours (which may change as wind direction changes).
If they respond negatively – “I know my rights” etc etc – point out that they are in breach of the Act and get your committee to tell your strata manager (or someone in their office who knows what they’re doing) to send them a letter quoting Section 153 and informing them that affected residents would be able to seek orders at NCAT requiring them to do whatever it takes to remove the source of the nuisance – in this case, smoking.
Ignoring NCAT orders can lead to hefty fines.
At the same time you could propose to your next AGM that your scheme creates a “safe smoking” area for residents which is permitted under the Act provided the smoke from it doesn’t drift into common property or apartments.
Once you have that in place, you could think about creating a no-smoking on balconies by-law (although you could do that without having a designated smoking area).
But just in case anyone thinks Section 153 is a “silver bullet” have a look at this case where a couple who had been ordered to stop smoking on their balcony won an appeal against the order because insufficient evidence was offered. Also, there was no by-law in place, despite the government giving strata schemes every encouragement to create no-smoking by-laws.
It’s an interesting read. It establishes tha smoke drift is a “nuisance” in legal terms and that by-laws would have been valid. But the way it was presented in the first place, the case was flawed. So maybe a carefully worded by-law may be the best next step.
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Smoke from BBQ’s and smoking are the same ‘nuisance’ not always policed within bylaws.
Not strictly true. Despite Fair Trading’s media advisers telling us that smoke from balconies would be banned in the “new” NSW laws that came in in 2016 – sparking “they’re coming after your barbie” scare stories – when the law landed it referred only to “smoke from smoking”.
Section 153, “Owners, occupiers and other persons not to create nuisance”, says: “Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.”
I wish barbecue smoke was included but the meat-burners of the world get hysterical if you even hint that they may not have the right to fill your apartment with their stink.
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If these times are not the same then there are times when one says can and one says can’t – that’s contrary.
No, it’s not. It’s just different. I’m sorry you can’t follow the logic here. If the government says you can’t make a noise within a certain period and your strata committee says that, in this building, you also can’t make a noise in an expanded period that includes the regulated period, that is not contrary. A contrary by-law would be one that says you MUST make a noise in the regulated periods.
In any case, hobby renovators and other people using power drills and saws in a strata scheme, at times when their neighbours are entitled to rest and relax, are selfish assholes. Thankfully we can pass by-laws that set the community’s standards for this behaviour. They might differ from scheme to scheme but they are perfectly valid.
Maybe there’s no by-law in this case – your extract doesn’t say – but the model by-law about not disturbing the peaceful enjoyment of the resident in another lot will apply in any case. Nine to five limits on noise are pretty standard in strata schemes, if the Member was looking for a guideline in the absence of a by-law.
In effect you are suggesting that even though there is entitlement to operate tools as per the Regulation a by-law can infringe on that entitlement.
You call it an entitlement, I call it a limit. In any case the EPA regulation is for general housing everywhere. Of course by-laws can restrict behaviour that would be allowed elsewhere – that because strata living is different.
If people don’t have the decency to consider their neighbours then you have to make reasonable rules the nudge them in the right direction. I really don’t see what the problem is and no amount of equivocating is going to convince me (and I suspect the majority of readers) that I am wrong.
If the road outside your block has a speed limit of 50kph and the roads inside the scheme have a limit of 30 kph, that’s not contrary.
If the government says you can’t smoke in public spaces and your by-laws say you can’t smoke on common property (which is not a public place) then that is not contrary.
People are allowed to let their children play where they want – in strata, the by-laws say they must be accompanied by an adult. Not contrary.
JimmyT out!
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Can a NCAT Member write a decision that operates contrary to a State Regulation?
This is not contrary to the state regulations, it expands on them for the purposes of protecting the rights of strata owners to the peaceful enjoyment of their lots. Many if not most strata schemes have by-laws that forbid excessive noise at any time of day. Some have by-laws specific to, for instance, construction or renovation noise.
The Tribunal ruling would be contrary to EPA regulations if it said the residents COULD make noise during the prohibited times. That’s not what this ruling does.
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When I raised this issue myself here in Flat Chat some time back Jimmy drafted a potential motion about staying dry until all the formal business of the meeting had been concluded.
I remember that. The problem is that the OP’s meetings take place in a licensed premises – you can’t stop people drinking outside the meeting.
Perhaps the solution would be to impose a “lock-out” so that anyone who leaves the meeting after it’s started can’t get back in. But that wouldn’t take into account late-comers and weak bladders.
A polite request backed up by the chair’s iron fist might do the trick. Standing orders, enshrined in a by-law, allowing inebriated members to be “named” in minutes might deter the tipplers too.
But I don’t think the idea that decisions made under the influence of alcohol are legally suspect is real – otherwise half the wedding engagements, business lunch agreements and Acts of parliament would be in doubt.
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