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.

What Members Say

"The whole strata community owes a huge debt of gratitude to you and the OCN executive. Much appreciated."

Robert, Darlinghurst

"I am very pleased with my membership of OCN, the discussions through sharing emails is very valuable in increasing my knowledge of strata living, the laws and EC responsibilities. I think I am better armed to tread the minefield of the managing agent responsibilities and the necessary action of the EC to monitor the contradictory interests of the agent."

Jim, Wollstonecraft

"I so appreciate being part of the OCN email forum. It provides a great opportunity for sharing ideas and learning"

Ingrid, Neutral Bay

"I must say that I have enjoyed and found consolation in the discussions that have been part of the email chain (forum). I did attend one general meeting and found that it was informative and the people "running the show" were knowledgeable and dedicated to the tasks that had taken on. In short, well done. You and the committee have and continue to support the Strata Community in a very professional manner."

Greg, Parramatta

"Nothing is easy in Strata World and we have been in building defects “mode” for some years – hopefully almost at an end but that process has been most demanding and difficult but again – greatly helped by the experience and wise counsel of other members of OCN."

Pat, St Leonards

"Keep up the good work, as many (if not most) strata schemes need your help, advice and representation at all levels of government."

Jann and John, St Ives

"I belong to OCN because of its professionalism.  I have found the meetings I have been to extremely well presented, to the point, and of course very topical and informative. Speakers on the whole certainly know their topic.  My role of Secretary last year was certainly assisted with the coverage regarding TPG & other subjects. Member newsletters are also of benefit as the topics are specific to strata matters."

Graham, East Balmain

I have enjoyed attending the quarterly OCN meetings and the exchange of emails between other Executive Committee Members and think OCN is playing an increasingly important role as a voice for strata dwellers and representing us at Government level. I wish the organisation continuing success in the future."

Pauline, Kings Cross

"The [forum] response to my question was amazing and really useful.  The OCN community is wonderful so thanks."

Jenny, Killara

"I would like to thank you all for the important effort that you are all putting in to look after apartment owners and tenants. It is so valuable and you are heroes. I would not have been able to deal with my duties as a strata chairman without your advice and assistance." 

Angela, Mascot

"The OCN is invaluable – many thanks."

Bill, Surry Hills

"OCN is proving invaluable"

Sue, Neutral Bay

"Thanks to all at OCN for your continuing efforts to keep us up to date with current strata information and advice...it has been very helpful to us"

Kate, Coogee

"When my wife & I first encountered a problematic Executive Committee I heard that OCN was a great help (from a Strata manager whom I knew) so we both joined and have gratefully used the on-line information sources. We continued to happily rely on OCN’s assistance when we progressed to Committee status & later as Chair & Secretary of our Committee. I still use OCN in my current role as Treasurer."

Peter, Chiswick

"Thanks to OCN for being such a rich resource of trustworthy information about strata matters."

Peter, Chiswick

"I wanted to extend my personal thanks for the very informative & interesting event today. The OCN team did an outstanding job in the organisation of this event & I enjoyed it thoroughly. The quality of speakers, the flow of conversation & interaction from the attendees - first class …& of course, the amazing Jimmy T - always a delight."

Sue, Epping

"OCN does a great job in providing a really valuable service to Strata owners."

Lois, Wollongong

"I am sure my appreciation of your good works is echoed by many in the Stratasphere. Keep up the good work."

John, Elizabeth Bay

"Once again, being able to discuss such things through this forum, helps clear the mind, puts things into perspective and helps one to understand their rights and to form a strategy if needs be. As a simple EC member trying to do what is in the best interests of lot owners, I truly value OCN and am grateful."

Pamela, Point Lookout

"The OCN is probably one of the best, most informed and most informative groups I have been involved with."

Alan, Maryville