What to do next

Unfortunately you’ve encountered inconsiderate neighbours, backed up by a landlord who doesn’t care and likewise his REA.  There are some matters you have raised which are quite interesting, including the laundry on the balcony.  Does that contravene another by-law?  Are these tenants taking in children for reward and running an illegal child care centre, perhaps the council could investigate?

On issuing a notice to comply, this is no use unless it is properly followed up.  The further warning letters are almost useless, they only indicate to these recalcitrant tenants that no-one is going to take any serious action to enforce it.  You have the opportunity to apply for a penalty AND take the matter to the tribunal.  If the notice was approved by the AGM it is up to the Managing Agent and the Executive Committee to follow it through to conclusion.  Lean on them!

Hope you can get a speedy resolution to your difficulties.

I would think that having a laundry on a balcony would not only be a breach of the by-laws but perhaps more importantly, a breach of building regulations.

I suggest you give the Council a call, because if it is illegal (and I think it is) they will be on to the owner very quickly.  That won’t solve all your problems but it will get the ball rolling. 

It sounds like a nightmare, you have my sympathy.

@ktluu78 said:
We have decided to pursue for a penalty to be imposed on the tenant as our first and immediate action. However, we do have a couple of questions.
We undestand from reading the SSMA Act that the pursuit of a penalty comes under section 203 of the act, which reads

Civil penalties for contravention of notice of owners corporation

 (1) The Tribunal may, on application by an owners corporation, by order require a person to pay a pecuniary penalty of an amount of up to 5 penalty units if the Tribunal is satisfied that:

You do realise that only the Owners Corp (or EC or perhaps strata manager) can apply for penalties to be imposed?  That is your first hurdle so the sooner you place a motion before your EC, the better.
 

@ktluu78 said:

If the strata manager is authorised to apply for a penalty and proceeds with the penalty application, are we required to be accessible in the time leading up to or present at the Tribunal?

Check with your SM but if you can provide written confirmation that the NTC has been breached, I think it is a paper adjudication so you will not be required to be there.
 

Dear Ktluu

I empathise with you as we were in the same position – our EC did issue a NTC but our upstairs noise neighbours said that this was unreasonable (we think the noise was unreasonable) so we also personally went down the mediation, adjudication path as well.  It just seems so hard to keep the EC on side – they don’t want to get involved, want to keep ‘happy families’ etc.  Mediation was not successful so we put in a submission, included stat decs from visitors etc that they not only heard the noise but were ‘disturbed’ by the noise as that is the crucial factor.  We had a lengthy noise log and we also made qualifying statements as to why there were gaps eg on holidays.  Their submission which was prepared by a solicitor, was full of lies and more lies but we could do nothing about that.  What I think is unfair in this process is that the CTTT/NCAT makes a requirement that all owners receive a copy of the applicant submission which means that the noisy neighbours (the respondents) can nitpick all your points in their submission.  In our situation they said we complained all the time about noises (a lie), we were cranky bullies (a lie) we made personal attacks on them (more lies) and they even asked for an order for us to stop harassing them and an order that we put extra insulation in our ceiling (?to stop their noise).  

The noise log should show the date, times, type of noise and how it disturbed you – eg woke you up, can’t work on computer or do craft etc.  The main think is that you showed how you are ‘disturbed’ – just hearing the noise is not enough.  Statement from visitors, neighbours etc has a big bearing as well.

Good luck.

Dear Ktluu

First of all because I think this is what you want to know – we were successful at adjudication.  Our noise events did include much thudding, thumping, scraping of furniture, running, dropping of toys – I think the noise was louder in our unit than theirs.  They have a 2yr old (almost) who throws bottles out of the cot, pulls things over etc etc. 

We went down both roads – ie NTC from OC which they thought was unreasonable – they requested ?professional mediation, so we obliged and personally went down that path too.  The OC seem to get cold feet as do most other owners who don’t want to get involved (quite amazing really).

Mediation was not successful so we put in a submission for adjudication – 35 pages including a lengthy noise log which we started almost 2 years ago but early on we were not diligent in keeping this as we were naively hoping that they would understand how noisy it was for us and replace the carpet.  We have lived in our unit for 9 years, 7 of which were peaceful with no noise – then came the timber floors.  Even though they only walk in bare feet we hear the doof-doof of their footfall all the time – it is relentless.  We put in our submission that the noise was invasive, pervasive and loud throughout our unit.

We received the result last week after a wait of over 3 months.  We had stat decs from visitors and even a friend who heard the noises through the phone.  Originally they wanted us to pay for an acoustic test which we would not as the husband had heard his wife walking in bare feet, so any other noise would be louder than than. However, in the end they did get an acoustic test done and although it met the BCA it did not meet the minimum level of the acoustic engineers requirements – this was a factor in the decision.   We went for an order against the by-law for treatment of floors (14 in the SSMA Act).   As my earlier post, you must describe how it disturbs you – be emphatic about this.  That is what relates to the by-law – the  noise through the floorspace must disturb you.  Of course, it does but you must describe it – don’t get emotional just stick to the facts.  They had asked for an order that we put insulation in our ceiling but the adjudicator denied this order saying that ‘we had not contributed to their noise’.  They also wanted an order that we do not harass them but the adjudicator does not have jurisdiction on this – we had visited them twice to complain so I don’t think harassment would stack up.

Hope all this helps.  They have been given 2 months to rectify the situation – unfortunately the adjudicator cannot say how they do it, except that ALL the floor must be treated – fingers crossed they replace with carpet.

Could you contact the occupier before you to get a stat dec about the noise – this might be helpful as will the other letters you have – this all supports your side enormously.

Let us know how you are going