This QLD article is about receiving a noise complaint and the body corporate’s obligation to test noise levels.
Table of Contents:
- QUESTION: We share a main bedroom wall with our neighbour’s living room. We hear their television, sometimes until 3 am. It disturbs our sleep. What can we do?
- QUESTION: I’ve lived in my unit for over 8 years with no problems. I’m in QLD and have recently received a noise complaint about the flooring. I’ve been told I need to get an acoustic test at my cost. Is this correct?
- QUESTION: What is the definition of excessive noise? How can my dog, who might have barked for less than 1 minute, be classed as excessive noise?
- QUESTION: As a lot owner, am I able to get the body corporate to test noise levels to ensure adequate installation is installed in the walls?
Question: We share a main bedroom wall with our neighbour’s living room. We hear their television, sometimes until 3 am. It disturbs our sleep. What can we do?
We have owned our unit in a hundred-unit complex for fifteen years. We share a main bedroom wall with our neighbour’s living room. Over the last couple of years, noise has become a problem. Maybe that is due to new technology, i.e. large smart televisions, sound bars and video games.
The neighbour’s television sits alongside our shared wall. We experience noise transfer, sometimes until 3 am. The base, in particular, is quite loud, as well as muffled voices, and it disturbs our sleep.
We mentioned this problem to the neighbour on three occasions over the last eighteen months, and they promised to install a soundproof wall. So far, this hasn’t happened. The noise disappears for a while, only to return. What can we do?
Answer: As friendly conversation hasn’t worked, you probably need to try a more formal approach.
This is likely to be a breach of by-law issue. Most body corporate by-laws start with a noise by-law. The default schedule 4 by-laws state:
- Noise: The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.
Your by-laws will probably state something along these lines. If you don’t have a copy, you should be able to get one from your body corporate manager or the secretary of your scheme.
The by-law doesn’t mean that there should be no noise transference between lots – that’s not possible – but it considers whether the noise one person makes interferes with another’s ‘peaceful enjoyment’ of their lot.
‘Peaceful enjoyment’ is an interpretive concept; different people will have different standards regarding an acceptable noise level. Establishing a threshold for when an agreed baseline has been breached can make dealing with noise issues complex.
In this case, you have approached the neighbour, and it seems they have acknowledged the issue, albeit they haven’t done anything to resolve it. The onus, then, is on you to see if you can lead the neighbour to change. As friendly conversation hasn’t worked, you probably need to try a more formal approach. Maybe issue a letter to the neighbour or have a solicitor draft one for you. The letter should state the problem, what you expect they do to resolve it, and a timeframe for that resolution. Your neighbour isn’t obliged to respond or rectify based on a letter alone, but by issuing one, you are starting a formal process of notification and, hopefully, resolution.
Your correspondence doesn’t say, but have you approached the body corporate about the issue? You should, and if the body corporate agrees, it could issue a breach of by-law notice to your neighbour. To formalise the process, you could issue the body corporate with a BCCM Form-1: Notice to body corporate of contravention.
For its part, the body corporate may ask you for some evidence of the disturbance. For noise complaints, this isn’t always easy to provide, but you could keep a diary or make audio recordings via your phone. If the matter is serious enough, you could engage an audio specialist to take the recordings. This can be expensive, but they can help provide definitive proof.
If you raise the issue in this way, hopefully, your neighbour will take action to ease the situation – as they have indicated they could add some soundproofing or move the television, if necessary.
If not, you may have to proceed with the issue by making a complaint through the Commissioner’s office. There is some argument here that the body corporate should do this – it has evidence that its by-laws are being breached and should act accordingly. However, in neighbour vs neighbour disputes, I generally think it is best if the individuals pursue the matter. You are the person experiencing the problem, and you are the person best placed to demonstrate and argue for resolution. You are more likely to get a positive outcome by making your argument than leaving it to others.
If your neighbour receives a notice from the Commissioner, you would again hope that would prompt them to self-rectify. If not, the matter can be proceeded to a mediation and ultimately an adjudication. If you are going down this road, you must have as much clear evidence as possible – the diary and sound recordings mentioned previously. If you are having a he said, she said discussion, it can be hard to come to any conclusion.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924
This post appears in Strata News #669.
Question: I’ve lived in my unit for over 8 years with no problems. I’m in QLD and have recently received a noise complaint about the flooring. I’ve been told I need to get an acoustic test at my cost. Is this correct?
I have owned a unit for around 8 years and changed nothing. The unit has laminate-style flooring throughout. I’m in QLD and have recently received a noise complaint. The Strata Manager said I need to do a noise test at my own cost.
This seems unreasonable, especially if the flooring is noise compliant and I’ve received no noise complaints over the past 8 years. Can I be forced to do an acoustic test at my own cost?
Answer: Start by trying to get a better understanding of what has caused this problem.
It sounds odd that the body corporate has requested you to undertake testing as an initial step in this matter, but perhaps there has been a longer process to get to this stage.
There are a number of different options for you in this circumstance, but if it was me I would start by trying to get a better understanding of what has caused this problem. As you state, your flooring hasn’t changed and there haven’t been any complaints for a long period of time, so why is this issue arising now? Has there been a change in your circumstances that could have led to greater noise transference? Maybe you have new neighbours that are more sensitive than the previous ones? Something must have happened to lead to the noise complaint and it’s important to establish what that is. Talk to your body corporate manager about it or ask your neighbours. It never hurts to show that you are a good citizen and amenable to working out a reasonable resolution as the first option.
After that, you need to look at your legal position. Start by checking the by-laws. Are there any requirements in these that indicate it is your responsibility to undertake testing? Many noise by-laws are fairly basic. The default schedule 4 by-laws state:
- Noise: The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.
If you have something that reads similar, it would usually be the responsibility of the complainant to demonstrate that their use of the lot was being interfered with. Have you been presented with any evidence that this is the case? What quality is that evidence? If nothing substantial has been presented then ask for that as the next step. If reasonable evidence has been presented then you might have to consider how to rectify the problem or what would happen if you don’t.
Some by-laws are more complicated than the standard example. They may include provisions that owners undertake testing although this is usually in relation to a change of flooring. Check the language of the by-law carefully. Go back to the body corporate manager and ask them to demonstrate exactly why it is your responsibility. Maybe engage a strata solicitor to represent you if you feel strongly enough about the matter.
Ultimately, your choice is to undertake the testing or not. If you chose to do it you might want to set out your terms in advance over who does the testing what the standards are and who pays for it. If you do the tests and your apartment is found to be at a reasonable level it would seem fair that you are compensated for this.
If you choose to do nothing, the ball passes back to the body corporate or the owner who has made the noise complaint. They may issue you with a breach of by-law notice. They may seek legal redress and if the matter goes far enough there may be a judgement against you. However, if they follow this path they need to provide credible evidence that you are in breach of the by-law and that may not be easy. There is no definite outcome so all you can do is work through the possibilities and try to come up with a best case solution for all.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924
This post appears in the December 2022 edition of The QLD Strata Magazine.
Question: What is the definition of excessive noise? How can my dog, who might have barked for less than 1 minute, be classed as excessive noise?
What is the definition of excessive noise?
We’ve received a breach for our dog barking. I’m trying to understand how my dog, who might have barked for less than 1 minute, could have breached this bylaw.
Answer: The problem with this type of noise is in determining what constitutes “nuisance,” “interference,” or “unreasonable.”
Dog noise in high rise buildings has three levels of control;
Queensland Government –
Dog Barking
The law says that if a domestic animal (usually a dog) barks excessively, an abatement notice (i.e. a notice requesting that they cease the noise) can be given to the dog’s owner if the problem can’t be resolved directly.
Local Government (Brisbane City Council, for example)
Animal Noise
It is perfectly normal and reasonable for animals to make noise from time to time, just as children make noise when they play outside. In Brisbane, animal noise such as a barking dog, a squawking parrot, or the trilling call of a guinea hen is considered a nuisance when it unreasonably disrupts or inhibits activities at adjoining premises or nearby residential land.
Under Council’s Animals Local Law 2017 (the local law), a person must not keep an animal if it causes a noise nuisance. In determining whether a nuisance has occurred, an authorised person can consider a number of factors. These include:
- whether complaints have been received from multiple persons, occupying separate dwellings in the same or adjoining streets as the noise
- the frequency and intensity of the noise
- the time and duration of the noise, specifically
- where the noise is made for more than a total of six minutes in any hour from 7am to 10pm on any day
Body Corporate By-Laws (these often over-ride both State and Local Authority controls)
By-Laws do not normally address dog noise specifically; however, they often require that an “occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property”.
The problem with this type of noise is in determining what constitutes “nuisance,” “interference,” or “unreasonable.” The result is the same as the human response to noise; there is no one black or white answer. These are all subjective terms that require an “expert” or “authorised” person to make a judgement. These are not easy matters to argue in court.
Ross Palmer Palmer Acoustics E: ross@palmeracoustics.com P: 07 3193 0500
This post appears in the May 2021 edition of The QLD Strata Magazine.
Question: As a lot owner, am I able to get the body corporate to test noise levels to ensure adequate installation is installed in the walls?
I am an owner of a townhouse with shared walls on both sides. All the townhouses have wooden floorboards and a wooden staircase. I have two issues regarding noise in my townhouse.
The first issue is that rental tenants with an 18 month old child have moved into one of the townhouses adjacent to ours.
The second issue is the stairs that run up along either side of my unit. You can hear every single step every time someone uses the stairs, to the extent that it sounds as if someone is in my house using my own staircase. Also when people talk on the stairs (which are internal staircases connecting the levels in each townhouse that are tri-level) you can hear word for word in my apartment.
As an owner, am I able to get the body corporate to test noise levels to ensure adequate installation is installed in the walls?
Answer: As evidence, make a log of the times and some degree of measurement of the noise.
Where this one sits is that:
- The body corporate has an obligation to reasonably enforce by-laws; and
- The by-laws will be breached (depending on their wording) if the noise unreasonably interferes with the use and enjoyment of your lot.
So for the body corporate to be able to enforce the by-laws they need evidence. Normally that will need to come from you as the complainant. It is not necessarily the body corporate’s obligation to gather its own evidence on your behalf. Proving that noise unreasonably interferes can be sometimes difficult so it is an easy argument for the body corporate to justify that they aren’t willing to take the risk of trying to enforce the by-laws when they aren’t satisfied they have enough evidence to be successful in the first place.
So what we would suggest is taking a log of the times and some degree of measurement of the noise. You can then send that to the body corporate and ask them to take by-law enforcement action. The alternative is to ask them to send around a note reminding occupiers of the noise that can be created on the stairs and early in the morning.
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #148.
Read next:
- QLD: Q&A Noisy floorboards upstairs disturb our peace
- How to deal with noise complaints when living in a Strata Community
Still after more about the body corporates obligation to test noise levels or even more general articles about strata in Queensland? Visit Strata Noisy Neighbours OR Strata Legislation Queensland
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