Gough and MCCASKIE

[2014] WASAT 154

GOUGH and MCCASKIE [2014] WASAT 154

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 154
Published:	14/11/2014
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:1164/2014	Heard:	7 NOVEMBER 2014
Coram:	MS L WARD (MEMBER)	Delivered:	7/11/14
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	CHARLOTTE GOUGH SARAH MCCASKIE
Catchwords:	Strata titles ­ Undue noise ­ Neighbour's car starting before 7 am on weekdays ­ Four­second duration ­ Not undue noise ­ Possible breach of Environmental Protection (Noise) Regulations 1997 (WA) relevant but not determinative ­ Factors relevant to undue noise
Legislation:	Environmental Protection (Noise) Regulations 1997 (WA), reg 7, reg 14 Environmental Protection Act 1971 (WA) Liquor Control Act 1988 (WA) Liquor Licensing Act 1988 (WA), s 117, s 117(1) State Administrative Tribunal Act 2004 (WA), s 98 Strata Titles Act 1985 (WA), s 83, s 83(1), s 42(2), Sch 2 By­law 12, Sch 2 By­law 12(b)
Case References:	Fraser and The Owners of Morgan Mews Strata Plan 45385 [2011] WASAT 102 OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen & Anor [2006] WASCA 270
Orders	On the application heard before Member Lisa Ward on 7 November 2014, it is ordered that:,1. The application is dismissed.
Summary	The applicant seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) for the respondent/owner of Unit 5 to comply with Sch 2 By­law 12(b) of the Strata Titles Act 1985 by ensuring that the respondent's car does not make undue noise. ,The applicant seeks an order that the respondent park her car 'elsewhere'.,The applicant relied on her own observations and expert evidence from an acoustic engineer who visited the property and undertook noise emission testing of the respondent's car. The expert evidence indicated that the noise in the master bedroom and the second bedroom were 2 decibel and 13 decibels higher respectively than the relevant assigned level under the Environmental Protection (Noise) Regulations 1997 (WA). The applicant says that her sleep is affected by the noise from the car waking her up in the morning.,The respondent did not dispute that noise was emitted from her car, as with any car, when the engine is started. However, the respondent claimed that the noise from her car was no louder than any other car in the complex. She said that the lack of complaints about her car from any other people living in the complex was a strong indication that the noise caused was not undue. In addition the duration of the noise was for a matter of seconds on some weekday mornings and it could not therefore be considered to be 'undue noise'. The applicant relied on her own observations of the noise and those of her partner and her neighbour. ,The fact that the noise measured by the expert exceeded the levels designated under the Environmental Protection (Noise) Regulations 1997 was a relevant factor but not determinative of the matter. The applicant's application is under the Strata Titles Act 1985 not the Environmental Protection Act 1971 (WA). 'Undue' noise is not a defined term under the Strata Titles Act 1985 and, accordingly, its ordinary meaning is applied. ,The Tribunal was not satisfied that the noise was undue noise for the purpose of the Strata Titles Act 1985, especially given its four second duration and the fact that the noise occurred in a carport during routine use. Accordingly the application was dismissed.,The reasons for decision were delivered orally on 7 November 2014. The reasons have been edited and citations added.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : GOUGH and MCCASKIE [2014] WASAT 154 MEMBER : MS L WARD (MEMBER) HEARD : 7 NOVEMBER 2014 DELIVERED : 7 NOVEMBER 2014 PUBLISHED : 14 NOVEMBER 2014 FILE NO/S : CC 1164 of 2014 BETWEEN : CHARLOTTE GOUGH

Applicant

AND

SARAH MCCASKIE
Respondent

Catchwords:

Strata titles ­ Undue noise ­ Neighbour's car starting before 7 am on weekdays ­ Four­second duration ­ Not undue noise ­ Possible breach of Environmental Protection (Noise) Regulations 1997 (WA) relevant but not determinative ­ Factors relevant to undue noise

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA), reg 7, reg 14

Environmental Protection Act 1971 (WA)
Liquor Control Act 1988 (WA)
Liquor Licensing Act 1988 (WA), s 117, s 117(1)
State Administrative Tribunal Act 2004 (WA), s 98
Strata Titles Act 1985 (WA), s 83, s 83(1), s 42(2), Sch 2 By­law 12, Sch 2 By­law 12(b)

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant seeks an order under s 83(1) of the Strata Titles Act1985 (WA) for the respondent/owner of Unit 5 to comply with Sch 2 By­law 12(b) of the Strata Titles Act1985 by ensuring that the respondent's car does not make undue noise.

The applicant seeks an order that the respondent park her car 'elsewhere'.
The applicant relied on her own observations and expert evidence from an acoustic engineer who visited the property and undertook noise emission testing of the respondent's car. The expert evidence indicated that the noise in the master bedroom and the second bedroom were 2 decibel and 13 decibels higher respectively than the relevant assigned level under the Environmental Protection (Noise) Regulations 1997 (WA). The applicant says that her sleep is affected by the noise from the car waking her up in the morning.
The respondent did not dispute that noise was emitted from her car, as with any car, when the engine is started. However, the respondent claimed that the noise from her car was no louder than any other car in the complex. She said that the lack of complaints about her car from any other people living in the complex was a strong indication that the noise caused was not undue. In addition the duration of the noise was for a matter of seconds on some weekday mornings and it could not therefore be considered to be 'undue noise'. The applicant relied on her own observations of the noise and those of her partner and her neighbour.
The fact that the noise measured by the expert exceeded the levels designated under the Environmental Protection (Noise) Regulations 1997 was a relevant factor but not determinative of the matter. The applicant's application is under the Strata Titles Act 1985 not the Environmental Protection Act 1971 (WA). 'Undue' noise is not a defined term under the Strata Titles Act 1985 and, accordingly, its ordinary meaning is applied.
The Tribunal was not satisfied that the noise was undue noise for the purpose of the Strata Titles Act 1985, especially given its four second duration and the fact that the noise occurred in a carport during routine use. Accordingly the application was dismissed.
The reasons for decision were delivered orally on 7 November 2014. The reasons have been edited and citations added.

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : In person

Solicitors:

Applicant : N/A
Respondent : N/A

Case(s) referred to in decision(s):

Fraser and The Owners of Morgan Mews Strata Plan 45385 [2011] WASAT 102
OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen & Anor [2006] WASCA 270

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 The applicant owns and lives in Unit 6 in a 38 unit strata complex known as St Albans Villas in Rockingham. The respondent owns and lives in Unit 5 of the complex. Between Units 5 and 6 is a carport area with room for two cars. The carports form part of the lot of the respective lot owner. Units 5 and 6 both have two bedrooms. The second bedroom of each unit is located at the end of the respective carports. A window from the second bedroom opens onto the carport. The front door of Unit 6 also opens into the carport area.

2 The applicant complains about the noise made by the respondent's car when she leaves for work before 7 am on at least three weekdays. The respondent drives a four cylinder 1999 Subaru Forester. The applicant claims that the noise of the respondent's car starting near her bedroom window disturbs her sleep by waking her up. The applicant is now sleeping in the lounge room of Unit 6.

3 The applicant seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) for the respondent owner of Unit 5 to comply with Sch 2 By­law 12(b) of the ST Act (referred to below as by­law 12) by not making any undue noise in or about Unit 5, and in particular by not starting her car in her carport before 7 am on any morning.

Attempts to resolve the issue

4 The Tribunal notes that throughout the application process, the respondent has offered to park her car between Units 4 and 5 for the majority of the time. The exceptions envisaged by the respondent when she would park in her carport include, for example, inclement weather and when she needs to carry luggage to and from her car. However, the applicant says that due to the undue noise from the car, the respondent should not be permitted to park in the respondent's carport at any time. Accordingly, as the parties were unable to resolve the matter, it proceeded to final hearing on 7 November 2014.

5 While the parties disagree as to when the applicant's concerns about the noise from the respondent's car commenced, the Tribunal accepts that the first written complaint about the noise from the respondent's car was made by the applicant to the strata manager on or about 5 March 2014. Since that time the parties, via the strata manager, have attempted to amicably resolve the applicant's concerns about car noise. For example, the respondent has replaced her muffler on or about 5 April 2014. Also, she has most often parked in the area between Units 4 and 5, with the consent of the owner of Unit 4. Despite the respondent's efforts, according to the applicant, the noise from the respondent's car starting in the morning remains undue noise when it is started in the respondent's carport near to the applicant's second bedroom window. The applicant says that her sleep is affected by the noise of the respondent's car starting near her unit in the morning.

6 The essential facts of the matter are not in dispute and are as set out above.

Issue for determination

7 The issue in dispute and which requires determination by the Tribunal is: Does the respondent make undue noise when she starts her car in her carport on weekday mornings, contrary to By-Law 12?

8 If the noise is undue noise, then the Tribunal will examine if it should exercise its discretion under s 83 of the ST Act and make the order requested.

9 Before considering the issue for determination, the Tribunal will set out the relevant statutory scheme which it is required to apply, and it will summarise the positions of the parties.

Relevant statutory scheme

10 The application proceeded in the Tribunal on the basis that the 'standard by­laws' apply. That is, the provisions set out in Sch 1 and Sch 2 of the ST Act applied to the strata complex in question, as per s 42(2) of the ST Act.

11 By­law 12 of Sch 2 to the ST Act relevantly states as follows:

Additional duties of proprietors, occupiers, etc.

A proprietor, occupier or other resident shall not ­

…

(b) make undue noise in or about any lot or common property[.]

12 Under s 83(1) of the ST Act, the Tribunal's general powers to make an order for the settlement of a dispute include it exercising its discretion to make an order against one proprietor on the application of another proprietor, as is the case in this application.

Positions of the parties

13 The applicant relied on an independent expert to give evidence in support of her claim of 'undue noise' from the respondent's car starting, namely, Mr George Watts, an acoustic engineer at Herring Storer Acoustics.

14 The expert evidence indicated that the noises in the master bedroom and the second bedroom were 2 decibel (db) and 13 db higher (respectively) than the relevant assigned level under the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). Accordingly, the applicant submitted that based on the measured noise levels, it was 'undue noise'.

15 The applicant has also submitted a medical certificate dated 26 August 2014 from Dr Philip Wu, a general practitioner at the Murray Medical Centre, which states:

Ms Gough's neighbour's noise disruption has caused her insomnia and anxiety in the last three years. This has been detrimental to her health and [is] affecting her functioning including work and ability to concentrate.

16 Dr Wu was not called to give evidence and, accordingly, he was not subject to cross-examination by the respondent. The Tribunal is able to attach little weight to the applicant's medical certificate in these circumstances. In addition, the Tribunal is not satisfied that the applicant's medical certificate is relevant as to whether or not the noise is undue noise. The alleged effect of noise on a particular individual is not relevant to whether or not By-law 12 has been breached by the respondent.

17 The applicant also relied on the statement from Ms Gatenby who resides interstate and who stayed with the applicant in July 2014. Ms Gatenby states that on more than one morning during her stay she experienced a 'sudden interruption to her sleep' around 6 am when the respondent's car was started. The respondent advised the Tribunal that Ms Gatenby was not required to be made available for cross-examination. The Tribunal attaches some weight to the statement given by Ms Gatenby in relation to the car noise made in July 2014.

18 The respondent did not provide any expert evidence. However, the respondent did call two witnesses who both live in the complex; namely, her partner, Ms Kirsty Mounsher, and her neighbour in Unit 4, Ms Wendy Ching. Both Ms Mounsher and Ms Ching support the respondent's claim that the noise from her car starting is not undue noise. The respondent also relied on a previous strata decision of the Tribunal, Fraser and The Owners of Morgan Mews Strata Plan 45385 [2011] WASAT 102 (Fraser), at [4] and [39] to support her claim that the starting of her car in her carport is 'well within the realm of daily activities' and was below the threshold of 'undue noise' required by By-law 12.

Final hearing on 7 November 2014

19 The parties both gave a mixture of evidence and submissions at the final hearing on 7 November 2014. Mr Watts, Ms Ching and Ms Moushner were also called by the relevant parties. The Tribunal informed all witnesses that while they would not be on oath in the Tribunal, under s 98 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it was an offence to give false or misleading information to the Tribunal.

20 The Tribunal has read and considered all of the documents provided to it by the parties. The parties' documents were marked as exhibits as follows:

• Exhibit 1 ­ applicant's bundle of documents received on 1 October 2014;

• Exhibit 2 ­ respondents' bundle of documents received on 27 October 2014; and

• Exhibit 3 ­ second copy of Mr George Watt's report annexed to his witness statement received on 30 October 2014.

21 Each witness, apart from Ms Ching, gave evidence in person before the Tribunal and was subject to cross-examination. Ms Ching gave evidence over the telephone.

22 Both Ms Mounsher and Ms Ching gave credible and relevant evidence to the effect that the respondent's car starting in the morning did not wake them. Ms Ching's evidence was that when the respondent's car is parked between Units 4 and 5, it is only about 2 metres from her bedhead.

23 The Tribunal attaches great weight to the testimony from both of the witnesses called by the respondent, especially the evidence of Ms Ching, who is the respondent's neighbour, and who is considered by the Tribunal to be impartial, relative to the parties to the application.

24 The expert evidence is considered by the Tribunal below.

Expert evidence

25 The applicant called Mr George Watts, an acoustic engineer at Herring Storer Acoustics. Mr Watts graduated from the University of Western Australia in 2000 with a Bachelor of Engineering with Second Class Honours. He is a member of the Australian Acoustical Society and is an approved noise officer.

26 Mr Watts provided the Tribunal with a written report dated 30 September 2014. Mr Watts has been employed by Herring Storer Acoustics since 2002. Herring Storer Acoustics is a consulting firm specialising in acoustics and noise control, and is a member firm of the Australian Acoustical Society.

27 The Tribunal accepts that Mr Watts is an expert for the purpose of measuring noise.

28 Mr Watts applied the Noise Regulations to assess the noise level impact of the respondent's car starting in her carport.

29 The Noise Regulations prescribe standards for noise emission: see reg 7. In particular, noise emitted from any premises, when received at other premises, must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind.

Method of testing

30 Mr Watts used two sound level meters to assess the noise levels. The accuracy of the equipment used by Mr Watts was challenged by the respondent. However the Tribunal accepts Mr Watt's evidence that while there is an error in his written report in respect of identifying the correct calibrator equipment, this error, which he termed a 'typographical error', does not affect the testing of the noise level inside Unit 6. The testing of the noise outside the unit is used to track the performance and is not relied on for the purpose of the Noise Regulations.

31 The respondent also raised a query as to how the dog barking in Unit 6 and the car driving by Unit 6 would affect testing. Mr Watts agreed that such noises would affect the testing. However Mr Watts said that the testing in Unit 6 was not carried out while these events occurred.

32 While the respondent raises several valid queries in relation to the method of testing, the Tribunal is satisfied that Mr Watts has addressed these concerns under cross-examination. Accordingly, the Tribunal accepts the methodology of testing and the accuracy of the equipment used by Mr Watts.

Results of testing

33 A measurement of 65 db and 76 db was recorded by Mr Watts in the master bedroom and the second bedroom respectively. The noise levels in the master bedroom and the second bedroom exceeded the relevant assigned level for evening and night periods, which includes any time before 7 am, by 2 db and 13 db respectively. Mr Watt's evidence was that due to the short duration of the noise, namely, less than nine seconds duration, the LA Max was the assigned level used. The respondent's car was reverse parked in the carport during the testing; that is, the exhaust of the respondent's car was nearer the second bedroom of Unit 6 than the common driveway. This meant that the noise readings were several decibels higher than if the engine was closest to the second bedroom of Unit 6.

34 In addition, the applicant's car was not in the driveway when the testing was carried out. Mr Watts said that the readings may be slightly different as a result, perhaps two decibels lower; however, the effect of the second car would be minimal due to the design of the carport space. Mr Watts described the carport space as being of a very poor design acoustically. Mr Watts said that the level of reverberation in the carport space was large. This was due to all of the 'hard surfaces' in the area like the floor, walls and the roof. These hard surfaces allowed noise to bounce off a range of surfaces a number of times.

35 Mr Watts agreed in cross-examination that it was possible that most cars would exceed the assigned level and could breach the Noise Regulations, given the design of the carport space. Mr Watts proffered an opinion in relation to the relative noisiness of Subaru Foresters in general due, he says, to the design of the exhaust system. However, the Tribunal considers that this aspect of Mr Watts' evidence, as he himself correctly pointed out, was outside his area of expertise. Further, it appeared to the Tribunal that Mr Watts had assumed that the respondent's car was turbo charged, which is not the case. Accordingly, no weight is attached to this particular aspect of Mr Watts' evidence.

36 Mr Watts suggested that the best way to ameliorate the effect of noise in the double carport space was to consider either double glazing the windows or installing a solid barrier between the carport driveways.

37 Mr Watts' evidence was that the noise meter readings exceeded the assigned level under the Noise Regulations on the day on which the testing was carried out, namely 24 September 2014.

38 The Tribunal will now consider the issue for determination.

Does the respondent make undue noise when she starts her car in her carport on weekday mornings, contrary to By-law 12?

39 The fact that noise is made when a car is started is not disputed by the parties. However, the mere fact that noise is made is not, by itself, sufficient for the Tribunal to find that By­law 12 is breached. The ST Act does not prohibit noise in or about a lot. Rather, the ST Act implicitly accepts that some noise will be made by occupiers in or about a lot. The test is whether or not the noise is undue.

40 'Undue' noise is not a defined term under the ST Act and, accordingly, its ordinary meaning is applied. The Macquarie Dictionary Online (2014) accessed on 7 November 2014, states that 'undue' means:

1. unwarranted; excessive; too great: undue haste.

2. not proper, fitting, or right; unjustified: to exert undue influence.

3. not yet owing or payable.

41 The term 'undue noise' did receive some consideration in the Frasercase referred to above. The Tribunal adopts the general observations in relation to undue noise in Fraser at [4] and [39]

42 Also, the WA Court of Appeal considered the word 'unduly' in OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen & Anor [2006] WASCA 270 (OSB). In OSB, the Court of Appeal considered whether the level of noise and disturbance from a licensed premise was undue in the context of s 117 of the Liquor Licensing Act 1988 (WA) (LL Act). In OSB, the Court of Appeal found that the noise level was not undue and the complaint of the neighbours about noise was dismissed.

43 Relevantly, in OSB, the Court of Appeal found that the word 'unduly' in s 117(1) of the LL Act required the Court to determine whether, in the circumstances of the case, the activity complained of was disproportionate and that the measure was 'not the sensibilities of a particular individual, but rather what is reasonable in the given circumstances': OSB at [74].

44 Although OSB dealt with a different legislative context, namely, the LL Act (now the Liquor Control Act 1988 (WA)), in the Tribunal's view the comments in OSB in relation to 'undue' are equally applicable to By­law 12.

45 Accordingly, the test as to whether or not a noise is 'undue' noise requires a consideration of what is reasonable in the circumstances of the particular case.

46 In this application, the applicant relied on the expert evidence of Mr Watts. In effect, the applicant submitted that, as the decibel reading was greater than the assigned noise level under the Noise Regulations, it was therefore undue noise. Ms Gatenby's statement supported the applicant's submission that the noise was undue during her stay at Unit 6 in July 2014. The Tribunal accepts the entirety of Mr Watts' evidence in relation to the acoustic testing and the results of that testing.

47 However, the question to be decided by the Tribunal in this case is not that of whether the noise level of the respondent's car starting was in accordance with the Noise Regulations. Although that may be a relevant factor, it is not determinative. The test to be applied by the Tribunal is that set out in By­law 12, not the Noise Regulations. The Noise Regulations set out the requirements which must be met for the purpose of the Environmental Protection Act 1971 (WA).

48 By­law 12 has a different test to that of the Noise Regulations; namely, 'undue noise'. Unlike the Noise Regulations By­law 12 does not specify a particular decibel level.

49 The Tribunal notes that it is open to the strata company to pass a by­law, if it was so inclined, specifying a particular decibel level which must not be exceeded in the carports throughout the entire complex.

50 Therefore, although the Noise Regulations requirements appear to have been contravened, this does not automatically mean that By­law 12 has also been breached.

51 The question of whether the relevant by-law is breached depends on the consideration of the whole of the evidence of a particular case.

52 What is undue noise is essentially a question of fact and degree, and requires weighing the respective rights of the parties. Obviously it is a balancing act between the applicant's preference not to be awoken by a car starting near her unit before 7 am and the respondent's need to start her car in her carport.

53 It is a question of fact as to whether the noise is 'undue' noise. When assessing whether a noise is 'undue', noise some of the factors which are relevant for the Tribunal's consideration include:

• the volume of the noise;

• the intensity or duration of the noise;

• the time of the noise;

• the places where the noise is emitted and received; and

• any other circumstances in which the noise is emitted.

54 Applying the relevant factors to the circumstances in this case;

The volume of the noise

55 The Tribunal accepts that the noise has an assigned level which exceeds the Noise Regulations and that this is a highly relevant, but not determinative factor which goes towards the noise being undue noise.

Its intensity or duration

56 In this case, the intensity or duration of the noise is very short. The respondent's evidence, which has not been challenged by the applicant or by Mr Watts, is that she 'timed the cranking of the car from start to engine ignition at four seconds'. The duration of the noise in question is miniscule. The Tribunal accepts Mr Watts' evidence that the duration of the noise meant that the LA Max was the relevant assigned level and that, therefore, the duration has been factored into the noise level readings and that this factor is relevant for the purpose of the Noise Regulations. However, the noise complained of is a one off starting of the car, a mere four seconds out of an entire 24 hour period. The short duration of the noise is a factor to which the Tribunal attaches great weight to as it tends to indicate that the noise is not undue.

The time of the noise

57 The timing of the car starting before 7 am is a relevant factor which may go towards the noise being undue. The 7 am start time is recognised under reg 14 of the Noise Regulations which deals with 'Equipment used on residential premises', as the commencement time for 'specified equipment' on Monday to Saturday inclusive. Although, of course, the Noise Regulations and the times specified therein are a relevant consideration they are in no way binding or determinative of the application of By-law 12 under the ST Act.

Place

58 The place where the noise occurs is a factor which is highly relevant in this application. The conduct complained of occurs in a carport which is owned by the respondent who is lawfully entitled to use the carport for the purpose of parking her car. Starting a standard four cylinder car in a carport is a routine daily activity.

59 Mr Watts acknowledged the existing poor acoustic design of the carport. He stated that, given the design of the carport, it was possible that all cars starting in the carport would exceed the Noise Regulations.

60 Further, the location of the carports close to the bedrooms of the unit would no doubt have been abundantly clear to the parties prior to the purchase of their respective units. It is not surprising that the owner of Unit 5 uses her carport as a place to park her modest 1999 four cylinder Subaru Forester.

Other circumstances

61 The other circumstances which are relevant include the fact that no other residents complain of the noise in a relatively large complex. The lack of complaints tends to indicate that the noise is isolated and specific to a location. By-law 12 does not require consideration of a particular individual's sensitivity to noise; rather, it requires an examination of all of the circumstances.

62 Those people closest to the noise include the respondent's partner and her neighbour, Ms Ching. Ms Ching says that she has not heard the respondent's car at any time, including when the respondent has parked in front of her unit, Unit 4.

63 Further, the respondent has taken steps to assuage the applicant's concerns about noise by promptly replacing her muffler and parking elsewhere whenever she can. According to Ms Ching, the respondent was 'worried that [she] may have been disturbing her as well'. This indicates to the Tribunal that the respondent is genuinely concerned for her neighbours and appreciates the importance of common courtesy and basic goodwill between neighbours: see Fraser at [34].

Conclusion

64 The Tribunal has considered all of the above factors and the evidence before the Tribunal, including the relevant decibel readings measured by Mr Watts and the applicant's evidence of the noise, which must be balanced against the evidence from the respondent and her witnesses. This is a delicate balancing act, between competing interests. However, based on the evidence before the Tribunal it is not satisfied that the starting of the respondent's car before 7 am on weekdays, a process which takes four seconds and which takes place in a carport, can be considered 'undue' noise when all of the facts and circumstances are considered. Such a noise is not in the Tribunal's view, unwarranted, excessive or too great. The Tribunal accepts that the starting of a car in a carport is very much within the realm of a daily activity contemplated for a carport in a strata complex. The Tribunal also accepts that it is possible that a different type of vehicle parking in the carport ­ for example, a motorbike, V8 car or a turbo charged car ­ may result in a different outcome.

65 As set out above, By­law 12 prohibits noise which is undue in or about lots. By­law 12 does not prohibit noise contemplated as being within everyday activities, especially when the noise is of such an incredibly short duration.

66 The Tribunal is not satisfied that By-law 12 has been breached.

67 Accordingly, it is not necessary for the Tribunal to consider if it should exercise its discretion under s 83 of the ST Act and make the order requested. The application is therefore dismissed.

Order

The Tribunal makes the following order:

1. The application is dismissed.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS L WARD, MEMBER