The Yuletide season is upon us again! For many this means family, friends, church services, good food, drink and, generally, good times as we celebrate the end of another hopefully productive year and reflect upon the year to come.
For others however, the forecast is not so rosy. The festive season can also result in excessive noise, unusual and even offensive smells, smoke, dust, hazards and generally bad behaviour by fellow lot owners or occupiers within a strata scheme which may prevent you and your family and friends from celebrating in the way you would like.
It must first be said that the Strata Schemes Management Act 2015 (NSW) (SSMA) was not primarily designed to address criminal behaviour within a scheme. Should offensive conduct or other behaviour by others within the scheme escalate or put you, family or friends at risk, there should of course be no hesitation in reporting the behaviour to the Police without delay.
It may be helpful to also report the matter to the owners corporation through its strata managing agent or strata committee in order that a further supporting complaint can be made to the Police.
Nuisance at common law and under the SSMA
An action for nuisance is available at common law. Generally speaking to establish nuisance, the following elements will need to be made out:
- the plaintiff owns or has the right to possess the property interfered with; and
- the interference with the plaintiff’s enjoyment or use of the property was caused by the defendant; and
- the interference caused by the defendant was substantial and unreasonable (see Hardgrave v Goldman  HCA 56).
Fortunately, section 153 of the SSMA also addresses nuisance and requires that a person must not use (or permit to be used) a lot or the common property in a manner that causes a nuisance or hazard to the occupier of any lot or that unreasonably interferes with the use or enjoyment of that lot. Any cause of action for breach of this section would need to be taken by a lot owner or occupier in the New South Wales Civil and Administrative Tribunal (Tribunal).
The lot owner or occupier may be able to seek an order that a person or persons be restrained from engaging in activity that brings about the interference or an order to undertake steps to abate the interference. They may also add the owners corporation as a respondent to the claim seeking orders that the owners corporation enforce its by-laws. Any breaches of these orders may result in a monetary penalty upon further application.
Of course, by-laws are part and parcel (pardon the pun) of a strata scheme and by-laws relating to noise, obstruction to common property and the behaviour of owners, occupiers and invitees are readily available as a means of regulating behaviour and are generally worded in a way that reflects the elements of nuisance at common law and under the SSMA.
The SSMA provides for the issuing of a notice to an unruly individual or individuals to comply with a specified by-law and, in the absence of compliance, an owners corporation can apply to the NSW Civil & Administrative Tribunal for a monetary penalty to be applied.
Local Court and Council
Section 268 of the Protection of the Environment Operations Act 1997 (NSW) provides that the occupier of any premises may apply to the Local Court alleging that that the premises are affected by “offensive noise” and an order that the noise be abated within a specified time and/or an order directing that the offensive noise be prevented from reoccurring.
Furthermore, a report to the local Council may result in a visit from an officer or inspector, which may result in any nuisance being dealt with. Unfortunately, this may not always bring about a final resolution to an issue and further actions such as those set out in this article may be required.
As the saying goes, sometimes the best defense is a good offense!
Lot owners of a scheme that experience ongoing nuisance causing behaviours and/or damage to common property may wish to consider raising motions for the owners corporation to specially resolve to install a security camera which may have the twofold effect of acting as a deterrent and providing important evidence in proceedings in the Tribunal or even to the Police.
Other measures such as the installation of lighting in otherwise dark areas or the passing of by-laws requiring owners/occupiers to apply to have access to certain areas within the scheme may also act as a deterrent or, at least, limit any nuisance or provide useful evidence is required.
Commencing proceedings in the Tribunal or other appropriate jurisdiction can be time consuming and expensive and will often require costly expert evidence to show that the interference was substantial and unreasonable.
Sometimes, if it is safe to do so, it is easier to simply speak with the offending individual and draw their attention to the issue. If the particular offending individual or individuals are leasing a lot, call to the property manager may be sufficient to bring about an end to the torment. Alternatively, a call to your friendly strata managing agent may ease the burden and they may offer to take the matter into their capable hands.
If all else fails however, an owner or occupier should not hesitate to seek legal advice in relation to any of the above and other available actions.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Author: Tom Waugh