Tag Archives: noisy tenants

Owners beware of noisy tenants

A recent decision of the Local Court in Jean Whittlam v Sara Hannah & John Hannah [2011] Downing Centre Local Court 63913/11 has received significant press attention suggesting the case represents a panacea for lot owners affected by offensive noise from short term tenants.


Mrs Whittlam lived in a unit in Double Bay.   Mr and Mrs Hannah owned the unit directly above Mrs Whittlam’s unit. They did not live in the unit but let it out as furnished rental property. There were numerous different tenants changing regularly. There was a consistent problem with the noise created by those tenants.   Mrs Whittlam took proceedings against the owners of the unit for orders pursuant to section 268(4) of the Protection of the Environment Operations Act 1997. That Act permits the Local Court to make an order in favour of an occupier of premises affected by offensive noise against the person alleged to be making or contributing to that noise or the occupier of the premises from which the noise is emanating.   The Court may make an order directing the offender to abate the offensive noise within a time specified in the order or an order directing the offender to prevent a recurrence of the offensive noise.

The Magistrate found in the circumstances of this case that the landlord was a person contributing to the noise of the occupier.   She did so because they were able to control who they leased to and for how long and because they could terminate the lease if breaches occurred.

Having found that the application was properly brought against the owners and having found that offensive noise did exist, Her Honour considered the remedies which were sought by Mrs Whittlam.   Those remedies orders that the owners must:

  • Install new floor coverings with an appropriate acoustic rating.
  • Install hydraulic door closers on all doors in or to the lot.
  • Install rubber feet on all of the legs of the furniture within the lot.
  • Not cause or permit any musical instruments or electrically amplified sound equipment to be used in such a manner that emits noise that can be heard within a habitable room in Mrs Whittlam’s lot whether or not a door or window was open and during specified hours.

The Magistrate made the second and fourth orders.

It is worth noting that the claim was made by Mrs Whittlam that the short term tenancies were illegal, presumably as they breached an instrument issued pursuant to the Environmental Planning and Assessment Act 1979.   Where that is the case powerful prohibitive orders preventing, for example, short term leasing in breach of the Act, can be obtained from the Land & Environment Court pursuant to section 123 of that Act. Appropriate by-laws may also render a breach of the Act a breach of the by-laws thereby permitting the matter to be dealt by the Consumer Trader and Tenancy Tribunal.

Whittlam’s case now extends the range of options that may be considered by aggrieved owners corporations or lot owners.

Many thanks to J.S Mueller and Co Solicitors for providing this article.

Come in and feel the noise: landlords to pay for rowdy tenants

Photocopies sticky-taped to city lamp posts offering dirt-cheap, shared-room rentals in luxury apartments could soon be a thing of the past after a landmark court ruling.

Previously, landlords who crammed partying backpackers and students into houses and apartments could ignore complaints about noise, passing them back to tenants who changed so often no one could be held responsible. But in a game-changing move, a noise-abatement order has been served on the owners, rather than their tenants, of a Double Bay apartment. The downstairs neighbours had complained for years of noise and disturbance.

Anyone breaching a noise-abatement order can face fines of up to $5500 as well as charges of contempt of court that could lead to jail terms.

For Jean Whittlam, 71, and her son Anthony, 41, the noise-abatement order marks the end of a five-year battle with the owners of the apartment above their flat in New South Head Road, Double Bay.

“We’ve been told this is the first time anything like this has ever happened,” said Mr Whittlam, who said the upstairs flat had been run as a backpacker flophouse. “It’s great… It gives all of us hope.”

Landlords John and Sarah Hanna, who own more than 100 properties in the eastern suburbs, denied the allegation.

“It’s an insult to call the tenants of this flat backpackers,” Mrs Hanna, 76, said. “They were educated people from good families who just happened to be English and Irish.”

However, Jean Whittlam claimed in court that the Hannas’ tenants were often shouting and singing at night, slamming doors, playing soccer at 2am, swearing, partying and playing loud music.

The Hannas’ lawyer disputed that the owners could limit the noise because they did not live in the apartment, but the magistrate, Harriet Grahame, ruled they were responsible because they could control who they leased the apartment to, for how long and, if necessary, make physical changes to the property to decrease noise.

Colin Grace, of Grace Lawyers, whose firm represented the Whittlams, said this was a landmark decision. “It means if a landlord has been told about a problem with their tenants but does nothing about it they effectively ‘adopt’ the problem and are responsible for it.”

Recent changes in the tenancy laws allowing landlords to demand written consent before tenants can sublet mean owners have even less excuse for not knowing who lives in a property.

SMH 7th May 2011