In general law, a nuisance is anything done by someone that interferes with the peaceful enjoyment by others of their property. An example would be loud music at midnight. In a body corporate where people live in close proximity to each other (especially in apartments) the obligation to avoid creating a nuisance is more important than ever.
Nuisance is specifically prohibited by section 167 of the BCCM Act. The occupier of a lot must not use or permit the use of a lot or common property to create a nuisance or hazard, or unreasonably interfere with the use or enjoyment of another lot or common property.
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The word ‘unreasonable’ is important. There are many reasons why some things might be reasonable at some times, and unreasonable at others. An example is a commercial body corporate. It is expected that businesses will receive foot traffic, deliveries, and will otherwise make noise. These would be unacceptable in a small residential body corporate, but in a commercial body it would be fine so long as the noise is reasonable for their use.
What if a by-law restricts noise after a certain period of time? If someone is making unacceptable noise after 10pm if a by-law says noise should be minimised after 10pm, then a contravention notice should be issued as that is much easier to prosecute than nuisance.
However, that doesn’t mean that any noise before 10pm is okay. It is entirely possible during the middle of the day for people to cause a nuisance to others. For example, one person throwing a party at noon on common property may still cause a nuisance to other people in the complex by noise or cigarette smoke. It is also possible that someone who lives above you might be making so much noise that your house reverberates with constant thuds during the middle of the day. This may also be unreasonable, even if no by-law explicitly restricts such a thing.
The way to take action for nuisance between lot owners is to attempt self-resolution. Sometimes you can just talk with the other person to ask them to be more respectful of you. Sometimes this is enough: people live together in a body corporate, so there will need to be some give and take, live and let live from time to time, so a nuisance might only be temporary and not repeated.
If that does not work, the Commissioner’s Office offers a conciliation service. This service should be followed to attempt resolution. If the other person shows up you can then talk the issue out and hopefully come to an agreement. If conciliation does not work, then your recourse is through the adjudication process. If the level of nuisance is very high, it might be possible to seek interim orders to have it stopped until the adjudicator can hear from all parties. Once all parties have made submissions, then the adjudicator will finally determine the issue. Once an order is made, if it is in your favour to stop the nuisance, then that order is enforceable in the Magistrates Court. A contravention of that order could incur a fine of up to over $50,000.
This article is intended as general information only and should not be relied upon as legal advice. For specific legal advice please contact us here.
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