Spa on the balcony

A lot of issues here and a lot of different steps to get to a solution.

First, start with your Owners Corp Rules.  What do they say about noise.  In the absence of a specific rule about the ‘peaceful enjoyment of your lot’ then the standard or model rule applies (I have reproduced it below).  That’s your starting point for a complaint.  

You’ll find the Model Rules for Victorian strata HERE but remember, they only apply if your own scheme’s rules don’t cover the specific issues.

Under strata law in Victoria, if you make a complaint to the owners Corp or Executive committee and they decide to do nothing about it, they have to send you a letter explaining why. 

There is a three-stage complaints procedure in Victoria, which is spelled out HERE.  It requires using the scheme’s internal dispute resolution process (if you have one) but let’s assume for the sake of argument that the spa-loving chairman is disinclined to help, in which case you would take your complaint to Consumer Affairs Victoria using THIS FORM.

The first step with CAV is conciliation but if that fails, only the Victorian Civil and Administrative Tribunal can issue orders telling residents to change their behaviour (at the risk of being fined).  You’ll find all the information you need for pursuing this at VCAT HERE.

And there is another way. The idea that the spa party can disturb their neighbours until midnight is so old fashioned it sounds like it came from a re-run of Number 96. In fact, they are breaking the law.

Under Victoria’s Environment Protection (Residential Noise) Regulations 2008 the spa pump should not be operating after 10pm and before 7am Mondays to Fridays and before 9am on weekends and public holidays.

Also, your neighbours should not be yakking away during those hours either, as you will see from reading this webpage published by the Victoria’s Environmental Protection Authority.

It spells out that any noise that can be heard inside a habitable room may be breaking the law and, specifically, that includes “a group of people talking outdoors late at night, keeping neighbours awake …”

Have a look at EPA Victoria’s leaflet Annoyed By Noise, which explains how you can involve your local council, the Police and the courts to deal with persistent noise.

Finally, the question of how to get rid of your chairman and owners corporation is political.  The most obvious way is to convince the majority of other owners to elect a different bunch of people at the next AGM.  Usually, telling them that these guys are costing the building money (in legal fees, perhaps?) is a good start to a revolution.  However, given that Victoria still allows proxy farming, whereby the chairman uses his or her position to hoover up enough absentee votes to retain power, that could be easier said than done.

VCAT can issue orders removing the chairman or appointing a strata managing agent to take over specific powers of the Owners Corp but I don’t know if splashing around in a spa at night is sufficient grounds for dismissal (however, blatant disregard for their duties to obey strata law and uphold the by-laws might be).

I also have to ask where your strata manager is in all this?  If you don’t have one, you can apply to VCAT to have one appointed.

Finally, when it comes to finding a lawyer, our sponsors Makinson d’Apice will point you in the right direction (click on the ad above) or you could try Colin Grace at Grace Lawyers who also have an office in Melbourne.

Best of luck but start with the by-laws and work your way from there.  If you don’t get an immediate response, print this out and hand it to them – apparently the Spanish Inquisition got great results just by showing their victims the implements with which they intended to torture them. 

5.1 Behaviour of owners, occupiers and invitees on common property
An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.
5.2 Noise and other nuisance control
(1) An owner or occupier of a lot, or a guest of an owner or occupier, must not unreasonably create any noise likely to interfere with the peaceful enjoyment of any other person entitled to use the common property.
(2) Subrule (1) does not apply to the making of a noise if the owners corporation has given written permission for the noise to be made.

SpaSpray – frankly, I’d be more concerned about the fact that an average spa weighs around 2 tonnes (when full of water and people), so you additionally need to consider: 

1. If the balcony can safely handle the concentrated weight of the spa at its installed position? Your Body Corporate should consult a structural engineer about that.

2. Is the balcony surface waterproof? Only a fully waterproof, sealed, concrete or ceramic floor floor is suitable

3. Is there adequate drainage? This must be sufficient to contain a sudden escape of water and the requisite partial emptying of it (onto the balcony?).

4. Is there adequate ventilation on all sides? Heaters produce condensation.

5. Is the electrical supply safe for outdoor use? 

Perhaps not guidance, but certainly something that your Body Corporate must consider as part of the upcoming discussions and any Consent that it may or may not grant.

Has anyone read the heated discussion on this in the Herald’s  Online Property pages? Issues like this really bring out the morons and strata-haters.  It would be a very different story if the spa parties were happening in the garden tnext to their homes, methinks.