Property dispute - No recourse

Discussion in 'Legal Issues' started by David JOHNSON, 6th Mar, 2020.

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  1. David JOHNSON

    David JOHNSON Member

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    Location:
    Newcastle
    Hi all,

    I am new here, and I am at wits end about any recourse I have living next to a graffiti 'artist' who continually engages in spray-painting a temporary wall (6m X 2m) in his backyard adjacent to my pool. I have contacted the NCAT, Local Council and the EPA all of which have washed their hands of it. I have a son who suffers from a congenital heart defect and pulmonary issues which apparently has no bearing on the tenants right to enjoy his spray-painting which wafts continually over my fence staining my pool and lingering for extended periods. My pool was recently re-painted at a cost of $4500 which now is stained from the overspray. I now restrict my children from playing outside and in our pool depending on when the neighbour is engaging in the quite enjoyment of his property.

    Recently, NCAT stated that because I am neither the owner/landlord of the property they have no interest in having the matter heard. Both the owner and property manager stated that the tenant has been given express permission to 'practice' his graffiti so long as it doesn't damage their own property. As such, there has been no breach of the agreement between the two parties.

    Newcastle City Council state that this is a matter for the Environmental Protection Agency, and the Environmental Protection Agency state this matter is 'too small' and is to be dealt with by Newcastle City Council. Afterward, the Newcastle City Council then stated that it was a civil matter only.

    I have 'had words' with the tenant and recommended he put the mural in his bedroom or garage to which he replied, 'Its too big' and 'the paint would be no good for his health' in an enclosed environment.

    It is my understanding that under the NSW Tenants Rights and Obligations the landlord must take reasonable steps to prevent the tenant of the landlord from interfering with the another tenant/landlord's 'quiet enjoyment' of their own property. This means that if the landlord is aware that their tenants are interfering with the quiet enjoyment of the premises by the affected landlord, then they must take action to stop or prevent their tenant/s from doing so.

    The NCAT (well, a Senior Registry Officer) state this only applies to a tenant/landlord relationship. She stated that if I pursued the matter it would be dismissed on the day and I would be wasting my time and money.
    I argued that there is a breach of tenancy/landlord obligations toward me to which she denied.
    She was rather aggressive and pushed the fact I should withdraw the matter.

    Following this conversation, and after submitting $50 for the application fee I withdrew the matter as I believed she may also have some bearing on the case.

    Does anyone have any recommendation on what I can do next?

    Find below an excerpt of the events which I have sent to all departments;

    I recently purchased my property and moved in March 2019. Shortly after we moved into the premises, the neighbour began playing extremely loud offensive music to the tune of Niggers With Attitude (NWA) 'F%$k the Police' which on occasion would continue until 1:00am. There doesn't seem to be too much other than this tune on his track list, and anything that is played 'flat out' and can be heard quite clear from the bedroom of my children.

    On one occasion, this same tune was played repeatedly and became louder as I assume he had a portable speaker and placed it on/over the backside fence. This ceased at around 1am. The following day I was in my backyard and there was a strong smell of paint which was wafting over the side fence. I then stood on a step ladder and saw the neighbour crouched and was spraying a graffiti mural (similar to graffiti located on trains and office buildings) which is suspended at the rear of his backyard. The mural is quite large and about five (5) to six (6) metres in length and two (2) metres in height.

    I then yelled, 'Can you please do that another time?'

    He replied, 'F#$k you'.

    Not wanting to cause any further confrontation, I then retreated inside.

    A number of days afterward, I was at work when my wife decided to use the pool. She stated that there was a strong smell of paint fumes and then began attempting to speak with the neighbour.
    The painting continued and she was forced to return inside the house to avoid the fumes.

    She attempted to speak to the neighbour to no avail.

    That night our water mains were turned off (twice) at the mains tap at the front of the property (the second occasion my mains tap handle was removed). My wife was home alone at home with the children, while I was at work on afternoon shift.

    Upon my return home, I decided to wait in my vehicle to see if I could see anything.

    At 10:50pm I then saw the neighbour step off his front verandah and he proceeded to walk toward my water mains tap which is located closer to the boundary edge of our properties. He snuck in between trees close to out joint boundary, and came close to the water mains before looking over at my vehicle. At this time, I believe he saw me and then turned and returned inside his house. The following day I had to retrieve a 'blue loo' toilet cake from the bottom of my pool. It remains a mystery how this made it into my pool.

    On this day, I approached the neighbour upon his return home from work and advised him that I had seen him walking toward the front corner of his property near my water mains tap. I further advised him that my water mains had been turned off twice and that I saw him walk toward the tap. He denied the allegations.

    I then purchased a number of cameras from Bunnings at a cost of around six hundred ($600) to eliminate any further discrepancies.

    A number of days later, I reported this matter detailing these incidents to LJ Hooker (Maitland).
    About 5:00pm on Saturday the 28th of December 2019, I was in my pool with my brother, my wife and two (2) kids and I again could smell paint fumes which were coming from the neighbours property. My pool is located close to the fence about two (2) metres from the neighbour's graffiti mural.

    I proceeded to get a step ladder and I looked over the fence to see the neighbour and two (2) other males who were in the act of spraying graffiti over the mural. There was a large amount of paint wafting through the air.

    I said, 'Can you give this a rest while I swim on my pool. My wife and kids are trying to have a swim'.

    He said, 'You do this every year'.

    I said, 'I haven't been here for a year yet. My son has a heart condition and we don't want him breathing this in. Can you give it a rest?'

    He said, 'F&*k off. I don't give a s*&t.

    This was the last conversation I had with him that night.

    This spray painting continued from 5:00pm and ceased at 9:30pm when we relented and went inside our house. At this time, the group also ceased painting and also turned flood lights off returning inside their premises. The painting was to such an extend that it took three (3) to four (4) men, four (4) hours to complete this 'artwork'. This is an indication of the level of fumes and paint wafting over the pool during the four (4) hour period.

    I had a further phone conversation with the Property Manager who summed up that the owners of the property have no issue with the spray-painting at the property. They further stated that as long as there is no damage to their own property, he was free to continue.

    On Friday the 10th of January 2020, I received a further response from the property manager stating they would be taking no action with regard to the neighbour's behaviour as there was no evidence of his actions (despite the fact there is a large mural clearly visible in his backyard).

    I am becoming quite angry and distressed at the level of disrespect from the neighbour especially after I have reiterated the fact that these fumes are harmful firstly to my son (suffering from cardiac issues) and also others in the vicinity which has been met with complete disdain.

    About 5:00pm on Wednesday the 4th of March 2020, I again had a conversation with the neighbour with regard to his excessive spray-painting as I could smell paint fumes while my children were playing outside. My children were becoming distressed at the level of fumes and covering their nose and mouths. His reply was, 'I've read the EPA and I'm allowed to do this as long as I don't use a spray gun'. When asked once again if he could cease he replied, 'No. I won't'.

    We had a further conversation to which he stated he makes money from the 'artwork' and stated he needed to practice. I suggested that he move the mural into his large double (extended) garage or inside his house to which he refused. He said, 'Its too big'.

    I again advised him of the fact that these paint fumes are detrimental to the health of my children and I, to which he replied, 'Its probably no good for me either'.

    To indicate the level of spray-painting being conducted, I believe over the period of twelve (12) months the mural has been painted over and re-started about twelve (12) times.

    The EPA has strict guidelines for the purpose of industrial and residential spray painting and provides a reporting function for issues surrounding residential properties with regard to overspray and/or fumes. Not withstanding the fact that substantial spray painting activities should be carried out in a well-ventilated area with the use of extraction fans, Safe Work Australia Code of Practice (Spray Painting and Powder Coating) also note that;

    ' A person undertaking spray painting has the primary duty to ensure, so far as is reasonably practicable, that other persons are not exposed to health and safety risks arising from the undertaking....'

    And further states that;

    'A person conducting an undertaking involved in spray painting must eliminate risks associated with this work, or if that is not reasonably practicable, minimise the risks so far as is reasonably practicable'.

    Regulation 49 with regard to Exposure Standards enforces that;

    'A person conducting an undertaking must ensure that no person at the site is exposed to a substance or mixture in an airborne concentration that exceeds the exposure standard for the substance or mixture. Exposure standards represent the airborne concentration of a particular substance or mixture that must not be exceeded. There are three types of exposure standard:
    1. 8-hour time-weighted average,
    2. peak limitation, and
    3. short term exposure limit.

    Exposure standards are based on the airborne concentrations of individual substances that, according to current knowledge, should not cause adverse health effects nor cause undue discomfort to nearby persons. Chemicals with workplace exposure standards are listed in the Workplace Exposure Standards for Airborne Contaminants. These exposure standards are also available from the Hazardous Substances Information System (HSIS) on the Safe Work Australia website. The HSIS database contains additional information and guidance for many substances. Although exposure standards may also be listed in Section 8 of the SDS, you should always check the Workplace Exposure Standards for Airborne Contaminants or HSIS to be certain. Guidance on interpreting exposure standards is available in the Guidance on the Interpretation of Workplace Exposure Standards for Airborne Contaminants. To comply with the WHS Regulations, monitoring of workplace contaminant levels for chemicals with exposure standards may need to be carried out'.

    Additionally, under the NSW Tenants Rights and Obligations the landlord must take reasonable steps to prevent the tenant of the landlord from interfering with another tenant/landlord's quiet enjoyment of their own property. This means that if the landlord is aware that their tenants are interfering with the quiet enjoyment of the premises by the affected landlord, then they must take action to stop or prevent their tenant/s from doing so.

    There are no set lists about what would constitute 'interfering' with another's quite enjoyment of the property, but the neighbour has done quite well to engage in a number of actions which could be deemed breaches, including;
    1. using a premises contrary to the tenancy agreement,
    2. engaging in anti-social behaviour,
    3. creating excessive noise, and
    4. causing excessive dust.
    What amounts to 'reasonable steps' of the landlord will depend on how serious the interference is by the neighbours. In this particular instance, I would argue that continued engagement of Malicious Damage and exposing others to Health and Safety risks (paint dust and overspray) to be 'serious' interference in the quite enjoyment of my own property.

    NSW Legislative bodies would no doubt deem circumstances of 'aggravation' exist due to the fact that the victims are children (one with an existing serious heart defect), and the fact that the neighbour has knowledge of this fact but continues engaging in these offences regardless.

    Aggravating circumstances refers to factors that increase the severity or culpability of a Criminal Act. Some generally recognised 'aggravating circumstances' include the victim's age, physical illness, offenders lack of remorse, and prior conviction of another crime. The neighbour has met some substantially intrinsic criteria with ease.

    It is for the benefit of both the landlord and the neighbour to appreciate what is envisaged by 'quite enjoyment' and to be aware of what may be required in order to comply with the obligation and associated legislation.
     
  2. SeafordSunshine

    SeafordSunshine Well-Known Member

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    Dear David,
    I am not a solicitor.
    Who is this person buying their spray paint from?
    They may also be culpable if they are aware of the harm this person is doing.?
    Police might already know about your neighbour?
    I hope this helps,
     
  3. Redwing

    Redwing Well-Known Member

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    Here's hoping you get some valuable feedback from the forum, I've no idea

    Other than moving, have you looked at what legal action can be taken...State Administrative Tribunal?
     
  4. The Y-man

    The Y-man Moderator Staff Member

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    Unfortunately, moving might be the only path of least stress......

    The Y-man
     
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  5. Joseph

    Joseph Well-Known Member

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    Sounds like a nightmare. Does he wear a mask when spraying? Return the favour with fog machine + liquid ass and hope it drives him out or reconsiders his behaviour?
     
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  6. PurpleTurtle

    PurpleTurtle Well-Known Member

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    Mount some big fans on top of the fence to blow it all back?

    Sorry, sounds like a frustrating experience and I don;t know what to do.
     
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  7. TMNT

    TMNT Well-Known Member

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    sorry to hear,
    i just dont understand why some people have to be complete "dicks" in life
     
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  8. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    Solution 1: Install a flame of remembrance on the fenceline to commerorate the fallen alongside your pool of reflection. And then wait patiently for natural selection to work

    Solution 2. Its a business. Council aproval is needed. Council has more weight with these sorts of issues. Unfortunately the recording of evidene wont record odour. If you can have someone attest to the issue it may carry weight if its confirms this emission of tolulene vapour that is found in paint. Council officers may even assist you with the issue and may mediate. Meet with them and discuss what they will need.

    Solution 3 is likely the most appriopriate but may involve initial cost if it needs to escalate to 4. Seek a private nuisance hearing based on the nature of the nuisance ie odour, emissions and paint residue and health effects with a community justice centre (NSW). If that fails then

    Solution 4. A private nuisance order is a supreme court common law action and is raised by filing a claim. I sought one for a major supermarket and it was upheld with full costs awarded and I was given an injunction which was served on the land owner and council as they had seemed reluctant to enforce nsw laws and prosecute breaches ande enforce orders that would have stopped the nuisance. An injunction may assist to reinforce the issue. Private Nuisance in NSW - Environmental Defenders Office
    Police will enforce an injunction if given a copy of the orders and then are satisfied the breach has occurred. Police can then inssue penalty notices too.
     
    Last edited: 6th Mar, 2020
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  9. significance

    significance Well-Known Member

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    Would it be worth investing a couple of hundred dollars in an air quality logger to measure the VOCs in the fumes? You would then have hard evidence about whether it is causing hazardous air quality for vulnerable people like your son (as opposed to just an aesthetic smell problem), so the council might be more willing to act.
     
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  10. Gen-Y

    Gen-Y Well-Known Member

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    Mount a fan that blows all the smell back towards them.
    Drop a carcass or chicken manure of sort right next to the fence of activity.
     
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  11. David JOHNSON

    David JOHNSON Member

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    I thought I was living in a parallel universe for a while there. I think I'll chase all options at this stage. Police will be one.
     
  12. ellejay

    ellejay Well-Known Member

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    I think for the sake of my mental health I'd just have to sell up and move away. It's not worth the stress. I understand it's not that simple though. Shame on the landlord of that property.
     
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  13. David JOHNSON

    David JOHNSON Member

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    We only just bought it. I'd like to think that I could get some great responses on here and send them to LJ Hooker.
     
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  14. ellejay

    ellejay Well-Known Member

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    Agreed, and I assume the person who sold it to you knew about this crap.

     
  15. David JOHNSON

    David JOHNSON Member

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    Certainly did. They said they had no issue with it. I imagine they didn't want to say anything due to the retribution.
     
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  16. David JOHNSON

    David JOHNSON Member

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    Judging by the 'conversation' I had with the neighbour two days ago it was a 'love' job with both the Real Estate and the Landlord.

    He dropped their names and said they don't have a problem with it. That's where the issue is, the Property Manager is towing the line because the Landlord/s want him in there.
     
  17. The Y-man

    The Y-man Moderator Staff Member

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    Sorry - for some reason I assumed you were also renting. Real pain if you have been sold this..... difficult to do DD on too.....

    The Y-man
     
  18. TMNT

    TMNT Well-Known Member

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    and this is why the "system/law" sux, OP has to spend all his time and resources running around filing complaints, doing air quality tests, getting footage just to get the guy to do something simple stop painting so close to the pool or during certain times, and im sure he cant claim costs either

    edit: OP, why dont you buy a 20 yr old mower from gumtree, that blows a lot of smoke, and start mowing the lawn close to his bedroom window while making sure the smoke goes in that general direction?
     
    Last edited: 6th Mar, 2020
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  19. David JOHNSON

    David JOHNSON Member

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    My sister says she has a large industrial fan. I'm going to set it up next time he sprays and blow it all back over.
     
  20. David JOHNSON

    David JOHNSON Member

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    The 'Senior Register Officer' at the NCAT also continually stated (very rudely) that I don't really have a leg to stand on because the NCAT will only deal with issues between the landlord/tenant and vice versa.

    Tenants appear to have more rights than landlords.