17 April 2018
As apartment living continues to grow in Western Australia, problems associated with living in such close proximity are arising. These issues are many and varied; they include passive smoking, noisy children and potential loss of amenity when apartments are used for short-term accommodation. The Western Australian Government is addressing these issues through reforms to the Strata Titles Act 1985 due in Parliament in mid-2018. Similarly, the Design WA initiative is a suite of planning policies ensuring good design underpins all development in Western Australia. Stage one of the Design WA policies are due to be finalised in 2018.
Census 2016 found that families with children form a substantial part of the apartment living population. This is supported by anti-discrimination laws which generally prohibit apartments from only being available to certain age groups. However, apartment living raises difficulties of parenting noisy children while trying to be a ‘good neighbour.’ Schedule 2 By-Laws of the Strata Titles Act prohibit children from playing on common property without effective adult supervision. However, this does not address noise emanating from within individual apartments. In response to this, Draft State Planning Policy 7, part of the Design WA initiative, recognises the need for ‘appropriate levels of acoustic protection’ to optimise amenity for occupants, visitors and neighbours. This is reinforced by the Draft Apartment Design Policy which sets out design guidance to ensure ‘acoustic privacy’ such as orienting windows and doors away from noise sources, and locating living and bedroom areas away from lifts and communal stairwells. Developers will need to be aware of these requirements which are further supported by the technical standards of the Building Code of Australia.
The State Planning Strategy 2050 recognises health and well-being as an important objective which results from a safe built environment. Passive smoke emanating from neighbouring apartments is a recognised health risk. Rather than introducing a standard by-law banning smoking in strata developments, the Western Australian government proposes to introduce a reasonableness test for by-laws and provide penalties for breaches of any by-laws as part of the reforms to the Strata Titles Act. This will allow individual developments to deal with smoking via by-laws tailored to the meet the needs of the particular development. In addition, requirements under the Building Code of Australia regarding adequate air quality and ventilation will also be front of mind for new developments. Developers will need to closely look at this issue in the light of legal responsibilities to ensure safe air quality.
Accommodation sharing sites such as AirBnB have proved a lucrative source of income for some apartment owners, but a cause of much consternation for neighbours and strata managers. Whether short term accommodation is permitted can significantly affect the return on investment for an owner. Some local governments have dealt with this issue by banning short term accommodation under their planning schemes. However, if short term accommodation is permissible under the planning scheme, then consideration will need to be given to strata by-laws to provide any restrictions. This course of action was supported in Byrne v The Owners of Ceresa River Apartments, where the Court of Appeal of the Supreme Court of Western Australia upheld a strata by-law limiting the occupation of a strata lot to the usual or settled place of abode of the occupier, thereby indirectly preventing short-stay accommodation in the apartment complex.
Apartment living is set to increase in Western Australia given the current number of apartments already under construction. The State Government and the Supreme Court have gone some way to addressing issues of living in close proximity and 2018 will be a pivotal year as these initiatives are introduced and enforced. For developers, addressing matters such as noise, passive smoking and short-stay accommodation are important not only in terms of legal responsibility but also, the successful marketing of their ventures.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.