Not sure why one would take the committee (the OC in fact) to mediation or NCAT on this.
The OC’s ‘duty’ in this matter is where in the Act?
I think you might find there is no express obligation to act on this complaint.
Just as an aside: there is case law (Supreme Court) that says the OC is not mandated to Act on by-law breaches.
Noise nuisance by an animal is in Regulation 36A
36A Keeping of animals—circumstances of unreasonable interference
For the purposes of the Act, section 137B(3), the circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property are—
(a) the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or
(b) ….
The problem here is what constitutes ‘persistent’ and at what point is the degree of unreasonableness a trigger to make an order.
Here we will see noise (member dependent deviation in judgement) as these things are not part of a clear objective test. Different Members would hold different views, i.e. set the bar at different points.
It seems to me to be that the issue for the owner is with the dogs owner, not the OC, as I think it is the case that it is discretionary for the OC to act in such matters. Take the legislation surrounding the breach of a by-law for example, even if the OC is satisfied there is a breach the OC “may” (a discretionary term) act by sending a NTC; there is no obligation to take action.
Jimmy says: “Having it on the agenda is essential so it can be discussed and voted on for the NTC to be legal.”
One would think so but that is not the case.
Many a NTC has been sent absent an agenda item and it has made no difference once the matter landed in NCAT.
In fact the absence of an agenda item for two NTCs was of no concern to a Member who was being asked to removed a few SC members for failure to follow the Act (s 238(2)) (Jones v SP36965 unreported).
The Tribunal’s best effort was to complain about the size of the application which went to lengths to evidence the facts. The Member described the claims as narrative even though there were months of agendas (absent any item relating to the NTCs) and minutes.
It was easy enough to see the NTCs were issued but there was no agenda item for them.
Owners were effectively disenfranchised from Sch 2 cl 9(3) – another matter the judiciary seems to care little about.