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tmsolicitor October 21, 2020

#4 Some referencing so far:


Elsom &Taylor– Parker v Coroneos [2016] NSWCATCD 47
https://www.caselaw.nsw.gov.au/decision/578f1992e4b058596cb9da2e
Huntington & MacGillivray v Strathfield Municipal Council [2005] NSWLEC 391 
https://www.caselaw.nsw.gov.au/decision/549f81383004262463ab3654

tmsolicitor October 21, 2020

#3   If it is discrimination against children, I am thinking that may be $5-10K penalty against the strata committee and or the fragile tenant in the Anti Discrimination Board or the Human Rights Commission.   

My thinking is - if you don't like kids - you get a free standing house. And good luck with the mortgage and commute too. But I may have more to say on this after a bit more legal reading.

tmsolicitor October 21, 2020

#2 What is reasonable noise for a kid? I mean the range of child personalities and physical profile. Not all sleep well, not all digest well. As for sleep - controlled crying is proven to be cruel to a child's physiology so those little darlings might sleep all night and rob banks and steal cars later on (!?). 

Now I have seen a few court decisions now for the last 10 or 20 years at NCAT and Land / Environment Court. As before, decisions don't have much patience for complaints based on "unpleasant" or "inconvenient" or "uncorroborated" noise. I saw one suggesting 10dba above background is okay for a childcare centre near residents, which might transfer to strata. But expert measuring would be needed to show above that. 
I also think right to "peaceful" in bylaws might confused with "quiet enjoyment" which is not about noise really but more exclusive use, no trespassing, no co-opting the strata unit for something else. A little noise does not affect the objective legal test of habitability. Hello hearing protectors at the hardware store.

tmsolicitor October 21, 2020

I have age 1 and 4 and a neighbour is giving us the wind up, but the strata are controlled by the grandparents of ours, so its a good hand to play. 


I am doing some legal reading and have some free advice as I go. Happy to share. 

NCAT and courts in general are dismissive of "inconvenient" and "unpleasant" noise as not affecting habitation. The test of reasonable noise is probably contextual to that building. Our's is a service lane with really loud garbage trucks (at least 3 per day different companies, different items), leaf blowers, the usual out door kids playing noises. Often ours.  

"Intrusive" and "offensive" noise guides of the EPA and Local Council are not enforceable regulation. So this bylaw of "peaceful enjoyment" may be objective not subjective. Then we consider anti discrimination law for children to be so.