Question: My neighbour has a water fountain in her yard next to my patio. It is like listening to someone urinating into a toilet bowl 24/7. Although the level of noise isn’t excessive, could this be considered a nuisance?
My neighbour has a water fountain in her yard next to my patio. The fountain runs 24/7. Although I have asked her to move the fountain and even offered to assist with the relocation, she refuses. Our strata manager has contacted the lot owner who claims her doctor said the sound of the fountain would be relaxing for her.
It is like listening to someone urinating into a toilet bowl 24/7. Strata management is unable to offer any other solution, feeling they have hit a wall with this owner. I am aware of NCAT but I’m unsure if the noise level is what EPA would deem excessive.
Answer: It is possible with the proper evidence in support that you could be successful in having the hours of operation of the water-fountain restricted, having it altered to reduce nuisance or having it decommissioned altogether.
Your case may lie within the nuisance provisions of the strata legislation:
153 Owners, occupiers and other persons not to create nuisance
- An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
- use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
…
Smoking, odours, light from external sensor downlights have all been held to constitute a nuisance in those particular situations. It is possible with the proper evidence in support that you could be successful in having the hours of operation of the water-fountain restricted, having it altered to reduce nuisance or having it decommissioned altogether.
Was the water fountain installed after the registration of the strata plan? If so, it is likely that a by-law would have been required and that by-law should have made provision that it does not cause nuisance, water egress etc, in which case, you could rely on the breach of by-laws provisions under the legislation.
Arguably, also, the sound from the water fountain may constitute “noise”. Noise is variously defined as a “sound” especially one that is loud or unpleasant or that causes disturbance. In other words, just because the noise is not unbearably loud, it might be proven that it causes you disturbance or that it is unpleasant for you.
Conversely, there is a lot of case law that suggests that strata living requires a “high” degree of tolerance.
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