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Home » Bylaws » Bylaws NSW » NSW: Noisy Pipework – Who Must Maintain It?

NSW: Noisy Pipework – Who Must Maintain It?

Published October 13, 2023 By Allison Benson, Kerin Benson Lawyers Leave a Comment Last Updated November 7, 2023

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This NSW article is about maintaining noisy pipework in a strata building.

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In the recent case of Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15, a lot owner sought an order from the Tribunal for the Owners Corporation to carry out work to a common property wall and its enclosed pipework to prevent or reduce noise transmission into the bedroom of his lot from the bathroom of an adjoining lot. The Tribunal agreed that the wall and the pipework located within it was common property.

In referring to the cases of Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 and The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130, the Tribunal stated that an owners corporation has a strict duty to repair and maintain common property. This would include maintaining the common property in a condition which allows it to serve its purpose.

In the present case, the pipework exists for the purpose of supplying water to a bathroom in the lot adjoining the applicant’s lot. The Tribunal stated that it is a necessary implication of that function that this is not done in a way that creates offensive noise in an adjoining lot. Given that offensive noise was being transmitted, there was evidently a malfunction in the pipework and this made the pipework not “serviceable” for the purposes of section 106(1) of the Strata Schemes Management Act 2015.

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The Tribunal rejected the Owners Corporation’s argument that the noise transmission was a nuisance caused by the adjoining lot which did not involve the Owners Corporation. This is because there was no evidence that the occupants of the adjoining lot was engaging in conduct other than ordinary use of their bathroom. As such, no unreasonable use of the adjoining lot’s bathroom was established on the evidence before the Tribunal.

As such, the Tribunal concluded that the Owners Corporation’s duty to maintain the pipework in good and serviceable repair was enlivened by the malfunctioning pipework. In refusing to carry out remedial works to prevent the offensive noise transmission by the malfunctioning pipework, the Owners Corporation was in breach of its obligation to repair and maintain the common property and an order was made requiring the Owners Corporation to carry out the necessary remedial works.

An interesting point to note was that the Owners Corporation objected to the scope of work obtained by the applicant on the basis that it was invasive and disruptive (the Owners Corporation had not submitted its own scope of works). The Tribunal held that the Owners Corporation was not released from its duty to maintain common property simply due to the disruption and inconvenience that may be caused to lot owners during maintenance works.

This case serves as yet another reminder to owners corporations that it must be vigilant in identifying and performing its strict duties to maintain common property.

Jasmin H.Singh & Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

This post appears in Strata News #669.

Have a question or something to add to the article? Leave a comment below.

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Read next:

  • NSW: Q&A Defamation in Owners Corporations Communication
  • NSW: Q&A Which ByLaws Apply to Our Strata Scheme?

This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyer website.

Visit our Strata By-Laws and Legislation OR NSW Strata Legislation pages.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

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About Allison Benson, Kerin Benson Lawyers

Allison is a strata lawyer who has provided general strata advice, acted in strata disputes (including building defect disputes) and worked with clients in preparing and enforcing by-laws and strata management statements, since 2008. From 2012 onwards, Allison has acted exclusively on behalf of owners corporations and lot owners in respect of both strata and community association disputes and building and construction disputes.

Allison has extensive experience in commercial litigation and dispute resolution, having represented clients in contractual claims, interpretation of by-laws and rules, Home Building Act claims and levy recovery claims at all levels of court proceedings, including in the Court of Appeal and in the former CTTT (now the NSW Civil and Administrative Tribunal known as NCAT). Allison’s knowledge across a variety of strata schemes matters enables her to advise owners corporations, lot owners and other interested parties on a range of issues and to represent their interests both informally and before the courts.

Allison is a member of the Australian College of Community Association Lawyers (ACCAL), the Newcastle Law Society and the Society of Construction Law Australia. She holds a Bachelor of Laws (Hons) from Macquarie University and a Bachelor of Business from the University of Newcastle.
Allison's LinkedIn Profile.
Allison is a regular contributor to LookUpStrata. You can take a look at Allison's articles here .

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