By-law breaches – cop it sweet or cop it hard?

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If it’s true that justice delayed is justice denied, then there’s a lot of denial going on in strata.

Taking a complaint against a neighbour – or even responding to a complaint against you – can take months to resolve, regardless of where you are in Australia.

In most jurisdictions, the emphasis on trying to keep squabbling neighbours out of lawyers’ offices has put the emphasis on mediation and problem solving through communication and compromise.

Which sounds great, except it masks any sense of there being clear consequences for persistent bad behaviour.  And the resulting delays undermine the rights of apartment residents to live in peace and quiet under a set of rules that everyone accepts and obeys.

In NSW, for instance, if your strata committee refuses to deal with a noisy neighbour – and many, quite wrongly, do – you’ll have to go through mediation before you can even apply for a tribunal hearing.

The disruptive resident then discovers they don’t even have to turn up for the mediation, a decision that has zero consequences, sending a clear signal that this is no big deal.

The resulting tribunal hearing – if the victim doesn’t just give up beforehand – can be delayed and the result appealed.

So if you get into a stoush with neighbours over something as basic as excessive noise or parking, it can take almost six months before anything like a final resolution is reached … and you could still end up in court.

That’s months of living close to people who probably resent the fact that you have complained, may not even understand what the issue is and, if they are dragging it out that long, are likely to be disinclined to obey the rules if they can avoid it.

In NSW, it can take three to four weeks to get to mediation before you can go to the tribunal (NCAT) which claims to be meeting its targets of having most cases heard within four to six weeks.

Most, but not all. A spokesman admitted that there are various technical reasons – such as having to inform everyone who may be affected by the case, and requiring provision of the strata roll to do that, that can cause delays.

“In relation to final hearing dates, the timeline can be extended because of parties’ preparation of their case including exchanging evidence,” the spokesman said.

So it could take 10 weeks or more to get your case in front of a tribunal, then you have to wait for the verdict and gear up for an appeal if you think you’ve been dudded.

In Victoria, the Civil Administrative Tribunal’s own website says that it generally takes eight weeks to a final hearing, but that doesn’t take into account the initial complaint process (detailed in Flat Chat back in August), or the time it takes for a verdict or for any subsequent appeals.

In Queensland, a convoluted two-tier, multi-level process leads ultimately to busy magistrates’ courts rather than tribunals. Other states have different outcomes.

There is a simple solution to all this. If Fair Trading in NSW, Consumer Advice in Victoria and their equivalents elsewhere, sent out strongly worded messages that there were potentially serious consequences to bad behaviour, many previously thoughtless residents might pull their heads in.

And what if there was a “cop it sweet or cop it hard” approach, such as used by sporting codes, where unsuccessfully challenging a penalty leads to higher fines and bans?

That might focus miscreants’ attention better than the prospect of meandering through a system that, thanks to delays, sometimes causes more problems than it solves.

This column first appeared in the Australian Financial Review.

 

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