In the recent decision of the Appeal Panel of the NSW Civil & Administrative Tribunal (NCAT) in Andelman v Small [2020] NSWCATAP 32, the Appeal Panel considered the provisions of by-law 14 requiring all floor spaces except kitchens, laundries, toilets and bathrooms are covered or otherwise treated to the extent sufficient to prevent that transmission from the floor space of noise likely to disturb the peaceful enjoyment of the occupant of another lot. In the case the owner of the lot below was complaining of noise for the lot above.

The Appeal Panel reiterated that the test under by-law 14 “is whether the noise being transmitted is “likely to disturb the peaceful enjoyment” of the lot beneath, not whether the noise is “normal living noise”, or “excessive” or caused by high heels or bouncing balls.” The test is objective. This does not mean that subjective evidence, such as evidence of the occupant, will not be considered by the Tribunal., it just means that the Tribunal then had to consider objectively whether by-law 14 was breached.  While expert testing had not been conducted in the upstairs lot the expert had provided evidence as to the noise levels. While the expert’s evidence was not considered “as weighty” as a report following testing using his equipment and expertise his observations, together with the evidence of the lot owner and the former tenant was sufficient to establish that the noise was sufficient particularly where the actions of the upstairs lot owner had prevented the expert conducting tests.

Lessons to be taken from this case are that the subjective evidence can establish a breach of the objective test and that what is sufficient evidence will vary from case to case.

If you have a noise issue start documenting the times, dates, duration and type of the noise and where it can be heard from and seek legal advice.