By Tom Bacon - Principal, Strata Title Lawyers
Living in an apartment building brings with it all forms of minor inconveniences.
Compromises are often required as part of everyday life, as residents are required to live and put up with noise and reduced expectations of privacy, in return for the convenience of living in mixed-use neighbourhoods.
However, there has always been a difficulty in how to resolve issues between neighbours when everyday minor inconveniences stray into major problems and major nuisances and hazards. The owners’ corporation (OC) is not the best arbiter of these disputes, because often it can become a matter of “he said/she said” and there is a lack of objective evidence as to the true level of noise and behaviour.
However, recently an owner took another owner to VCAT and was successful in obtaining damages of $9000 for breach of rules relating to noise and nuisance. The building was a mixed-use retail-residential complex called “The Orchid” located in West Melbourne.
The applicant claimed that she had been subjected to unacceptable noise coming from the unit above, and that rubbish had been thrown onto her balcony by the owner above, who lived there with his wife and three children, aged eight, five and four. The owner had been served with three Notices of Breach by the OC, but the nuisance and noise had continued, eventually forcing the applicant to vacate her apartment and lease it out.
However, before the applicant moved out, she was forced to install a retractable awning on the balcony to prevent objects being thrown (at a cost of $3500) and to install sound insulation in the ceiling of her apartment (at a cost of a further $4000). There were further costs incurred in obtaining acoustic engineers reports and advice as well.
The VCAT member made findings that indeed there were several incidents where children were screaming on the balcony, and that objects had been thrown onto the applicant’s balcony, including food, toys and liquids. The VCAT member further found that the applicant’s decision to spend money on the awning and ceiling insulation, and to ultimately vacate the apartment due to the nuisance was “understandable and not unreasonable.”
The incidents of noise and throwing of objects had continued over a 14-month period virtually unabated. In the circumstances, VCAT was readily able to find that the claim for nuisance was successfully proven, and that the damages claim was reasonable.
The case illustrates that lot owners and residents should not have to put up with objectively unreasonable behaviour from other residents and lot owners. A person’s right to quiet and peaceful enjoyment is never absolute, given that we live in a world where construction noise, traffic noise and ordinary noise coming from other apartments and buildings is a common occurrence.
However, where that noise and nuisance crosses the threshold into unreasonable noise and nuisance, then the law shall respond accordingly, and where damages are not appropriate, VCAT and the courts might even grant injunctions to prevent the noise and nuisance also •