Reply To: Noise (error) in decision making

The Member errs in thinking the hours of operation are the usual hours.
But it also seems there was some operation outside the permitted hours and that that operation was in breach of the Regulation, i.e. it could be heard in another dwelling.

Still there is no basis for the Member to infringe on the entitlement found in the Regulation.
Interestingly the Regulations do not get mentioned in this matter.
The NCAT Members Code of Conduct, and I use those words rather loosely because there is no consequence for failure, requires a Member to “ensure that all decisions and determinations are legally well founded.”

The Regulations give an entitlement but the Member chooses to change that entitlement; where is the foundation to do that?  Not in a by-law.

You might also notice this is another case where a Member is giving effect to a mediation agreement. Well, the parts the Member likes.
It is dangerous to agree to anything at mediation these days as most people would be unaware a Member is likely to take what he / she wants from an agreement and make orders to whatever effect the Member wants.

[2019] NSWCATCD 47:
38. I am satisfied that the use of power tools, especially outside usual hours (9am-5pm) on weekdays, on weekends and at night, is likely to interfere with the peaceful enjoyment of any occupant of Lot 1 and appropriate orders should be made of the applicants. The parties reached an agreement with respect to power tools as set out in the Mediation Agreement. However, paragraph 2 of the Mediation Agreement which has specific restrictions on the days and times of power tool use appears to be relevant to the period of renovations that were taking place in Lot 2 at that time. I accept the respondent’s evidence that those renovations are now complete. So any use of power tools now would be for other projects, of which there is no specific evidence. Paragraph 4 of the Mediation Agreement is a general provision that the Occupant informs the applicants if power tools are to be used for longer than one hour in duration. This paragraph is unclear in its terms – is it continuous use for one hour or if power tools are used for a few minutes over the course of an hour. I consider the term unfairly onerous and unclear, so decline to make an order in the terms of paragraph 4 of the Mediation Agreement.

39. However, as I am satisfied on the evidence that power tools are still being used in the evenings by the Occupant, sometimes late at night and that this usage is likely to interfere with the peaceful enjoyment of the applicants of their lot, I consider the appropriate order to be that the owners and occupiers of Lot 2 are not to use power tools outside the hours of 9.00AM to 5.00PM from Monday to Friday, nor outside the hours of 9.00AM to 1.00PM on Saturdays and not at all on Sundays and public holidays. As occupancy of lots may change over time, and although there was no evidence that the current occupancy of Lot 2 might change at some time in the near or distant future, I do not consider it appropriate to make the time period of the order open-ended and to bind future occupancies. Accordingly, I make the order for a period of 2 years.