Who should apply for Mediation resulting from Noise (New Floor)

The problems with leaving it to individual owners to deal with noise issues – or any other  problem, for that matter – is that it very quickly becomes very personal.  Also, arguments about noise carry a lot less weight if the owners corp or executive committee are not supporting the complainers.

That said there is a growing and disturbing trend of “I’m Alright Jack” attitudes in ECs – the opposite of EC members using their privileged positions to pursue legal action –  where the EC members say they aren’t suffering therefore it can’t be too bad a problem.  There’s also a trend of penny-pinching to keep the levies down (now there’s a false God that gets way too much worship).

I took this very issue to a senior member of Fair Trading and this was his response:

The by-laws are binding on all owners/occupiers and it is the responsibility of the owners corp to oversee and enforce via Notice to Comply/Penalties or mediation/NCAT

So they are an EC and/or general meeting issue. The EC may decide that certain behaviour does not constitute a breach, but they can’t say they are not responsible for administering by-laws.

I’d suggest an owner write to sec requesting a motion be put to EC meeting (or general meeting) to pursue a by-law breach (including notice to comply/penalty and mediation/NCAT – this is to give them full authority to pursue whatever action may be required if the person in breach does not respond).

Alternatively, an owner affected by the breach, or any other owner or tenant really, can apply for mediation themselves against the person in breach – to mediate, then seek orders if necessary.

So you see, the individual approach is there as a fall-back if the EC route isn’t available (for instance, if the miscreant is running the EC).  But the every man and woman for themselves attitude just doesn’t fly.

One more thing, I think it would be very helpful if every Owners Corp had a set of protocols, backed by a by-law, that spelled out what the steps would be in the event of a noise or any other complaint.  As part of that, you may well decide that a complaint that hasn’t been made by more than one resident and hasn’t been witnessed by another resident would be taken as a personal dispute between two residents.  

In this case, where you have two owners both making the same complaint, I would be telling the EC they aren’t going to save money by doing nothing. They can either do something about it or face the hassle and expense of defending a Section 138 adjudication (compelling an Owners Corp to fulfill its obligations) and then have to do it anyway. Double the hassle and double the cost.

By the way, as I have said on this forum before, anyone who is on an EC with the intention of blocking efforts to help members of the community, just to save money, should be tarred and feathered (or at least Facebooked)!