Lo v Aree [2024] NSWCATAP 159

Lo v Aree [2024] NSWCATAP 159

The appeal failed because the Tribunal's findings that the appellant's lot breached By-law 19 were supported by the acoustic expert report and the first respondent's unchallenged evidence, and were logical and rational. By-law 19 was not confined to noise transmitted to immediately adjoining lots; its text referred to disturbing the peaceful enjoyment of the owner or occupier of another lot. The Tribunal's references to nuisance, s 153 of the Strata Schemes Management Act 2015 (NSW), and rr 57 and 58 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) were not material to the findings or outcome. The Regulation had not been raised below, but no practical...

Jurisdiction
Australia
Judgment Date
14 August 2024
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Decision Involving the Strata Schemes Management Act 2015 (nsw) / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused and the appeal otherwise dismissed.
Legal Topics
['strata by Laws' 'floor Coverings' 'noise Transmission' 'construction of by Law' 'leave to Appeal' 'procedural Fairness' 'fresh Evidence']
['land Law' 'strata Title' 'civil and Administrative Procedure'] ['strata by Laws' 'floor Coverings' 'noise Transmission' 'construction of by Law' 'leave to Appeal' 'procedural Fairness' 'fresh Evidence']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Decision Involving the Strata Schemes Management Act 2015 (nsw) / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ["Whether the Tribunal erred in finding that noise transmission from the appellant's lot and inadequate floor covering breached By-law 19." 'Whether By-law 19 applied only to noise transmission into adjoining lots or to another lot generally.' 'Whether the Tribunal erred by referring to nuisance and s 153 of the Strata Schemes Management Act 2015 (NSW).' 'Whether references to rr 57 and 58 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) involved denial of procedural fairness or affected the decision.' 'Whether leave to appeal should be granted under cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW), including on the basis of fresh evidence.']

Ratio Decidendi

The appeal failed because the Tribunal's findings that the appellant's lot breached By-law 19 were supported by the acoustic expert report and the first respondent's unchallenged evidence, and were logical and rational. By-law 19 was not confined to noise transmitted to immediately adjoining lots; its text referred to disturbing the peaceful enjoyment of the owner or occupier of another lot. The Tribunal's references to nuisance, s 153 of the Strata Schemes Management Act 2015 (NSW), and rr 57 and 58 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) were not material to the findings or outcome. The Regulation had not been raised below, but no practical...

Court Disposition

Leave to appeal refused and the appeal otherwise dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is otherwise dismissed.']