This was the question determined by NCAT’s Appeal Panel on 3 June 2020 in Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 (03 June 2020).

In the first instance, the appellants sought orders from the Tribunal to improve the alleged noises, smells and vibrations from the café below them in their three lot mixed-use strata scheme. The y alleged a breach of section 153 of the Strata Scheme Management Act 2015 which provides that ‘an owner, occupier or other person must not use or permit their lot to cause a nuisance to the occupier of any other lot’.

Each party employed their own acoustic engineers as expert witnesses.  Although they provided contradictory reports, both considered whether the noise complained of was “offensive” within the definition in the Protection of Environment Operations Act 1997 (NSW) (PEO Act), referred to guides and policies of the Environment Protection Agency (EPA), and also cited Noise Guide for Local Government and Noise Policy for Industry (NPFI).  Interestingly, the expert reports did not refer to section 153 of the Strata Scheme Management Act 2015 (NSW).

In considering the case the Appeal Panel referred to The Owners Strata Plan 2245 v Veney [2020] NSWSC 134 [at 46] where it was held that ‘nuisance’ should be interpreted in accordance with the common law meaning of an actionable nuisance’ and also the finding of Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 [at 903] that a ‘useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.’

The Panel noted two elements for actionable nuisance which were:

  1. there must be noise heard by the appellants in the use of their lot which emanated from the cafe. This could be established by the appellants’ subjective evidence.
  2. there must be evidence to satisfy the Tribunal that the noise caused by the cafe was excessive or unreasonable and caused inconvenience beyond what other occupiers in the vicinity could be expected to bear, considering the prevailing standard of comfort of the time and place. This is an objective test.

The Panel noted that the definition of offensive noise in the PEO Act was relevant to establishing the second element for an actionable nuisance in respect of noise and stated that the relevant evidence of a reasonably acceptable standard of noise emission in our society, particularly as it affects others requires assessment of whether the noise is: (i) harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted; or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted.

The appellants claimed that the Tribunal at first instance had failed to consider the criteria set out in section 153 of the Act and had treated the NPFI as being determinative of the issue.  The Panel declared that these guidelines were a reasonably acceptable standard of noise emission in society, that the guidelines were not determinative but provided evidence such that ‘nuisance’ in the sense of section 153(1) was not established.  The appellants also claimed that the Tribunal failed to take into account the subjective evidence of the appellants’ sleep disturbance and continuous night time noise.

As noted above, both parties provided expert witnesses to adduce evidence of the second element which was referenced through established guidelines from EPA and NPFI.  As such, the Panel held that the appellants’ subjective experience … would be insufficient to discharge the practical onus they bore to lead evidence that the noise constituted an actionable nuisance, given the Tribunal’s conclusion as to the expert evidence. Essentially, the appellant’s subjective evidence was not enough to establish that they had suffered from an actionable nuisance given the findings of the expert evidence , therefore they failed the objective test and the appeal was dismissed.

Article authors: Rhonda Webster and Allison Benson