3.11.1 A recent local court landmark case | Owners Corporation Network

3.11.1 A recent local court landmark case

A recent local court ruling clarifies that owners are responsible for ensuring that their tenants comply with noise requirements.

NSW case Jean Whittlam v Sara Hannah & John Hannah [2011] Downing Centre Local Court 63913/11.)

 

Date: 5 May 2011

Owners Beware of Noisy Tenants!

A landmark case has the potential to change the way owners conduct business and select their tenants.

In the case of JEAN WHITTLAM v SARAH HANNAH & JOHN HANNAH the applicant was successful in obtaining orders for noise abatement pursuant to s 268.4 of the Protection of the Environment Operations Act of 1997.

The Magistrate first had to determine who the respondents were; and secondly if there was a case of offensive noise. The results have serious implications for owners who lease their properties.

Let’s summarise the key points of the case:

1. Who are the respondents – the owners or the tenants?

The Hannah’s, who are the owners of the apartment where the alleged offensive noise was coming from, were not living in the apartment at the time. They had sub-let the apartment to short term backpackers, advertising the apartment on the internet. Normally the court case is against the offenders of the noise, not the owners. So in the first instance, the Magistrate had to ascertain who the repondents were – the Hannahs as owners, or the noisy backpacker tenants.

“I am satisfied that pursuant to the fairly wide definition in the Act the Hannahs are property respondents. The Hannahs are able to control who they lease to and for how long. They can terminate leases if breaches occur. They can vet tenants, and if necessary, make physical changes to the property to decrease noise” (Magistrate Grahame)

2. The main issue was: Is the noise complained of offensive pursuant to the definition in the Act?

Mrs Whittlam's evidence disclosed intrusive noise over a long period, seemingly perpetrated by tenants of Mr and Mrs Hannah, or their invitees. Specifically, there was shouting and singing at night; banging and slamming of doors; playing soccer at 2am; swearing; intrusive music late at night and early in the morning; and party noise late at night and early in the morning.

“It is suggested by the applicants that too many people have been crowded into a small space, generally, that the Hannahs have made certain commercial decisions for the profitability of their investment, where they have created an environment where noise has been ongoing and inevitable. They have been unresponsive to complaints and thus their contribution to the noise.

After hearing all the evidence, I accept Mrs Whittlam's evidence that there has been significant noise emanating from the premises on a regular basis since 2006. The noise she described, particularly the timing and level, indicate the noise is offensive.” (Magistrate Grahame)

The Magistrate made the following orders: an order in relation to a hydraulic door closer on the front door of the Hannah’s apartment; an order in relation to the musical instruments and electrically amplified music be confined to 8am-12 midnight Friday and Saturday, and 8am–10pm other days.

The Magistrate also ordered that costs should be paid to the applicant, because of the way the respondent ran the case – at all times the respondent denied noise and denied that it was offensive, this was the main issue that took up time on the case.

Implications of the case

The implication of the outcome of this case is that property owners must change their business practice and ensure that they find suitable tenants who will not disturb others with offensive noise.

In this case, if future tenants breach the orders regarding noise and the Police are called in by neighbours, significant on the spot fines will be issued to the Hannah’s as owners of the offending apartment. Suddenly choosing the right people to lease your property is more important than ever.