Tenant wins appeal after tribunal overlooked her CCTV evidence of night-time driveway noise (NCAT, 2026)

What happened

The tenant rented social housing at Gosford under a written residential tenancy agreement made on 15 December 2021. The landlord was NSW Land and Housing Corporation. Alongside the home was a driveway that was not part of the premises she rented, but was property the landlord controlled. The driveway had a crack in it, and cars passing over the crack made a loud thump. Her bedroom was next to it.

She said she had first reported the noise in November 2024, that from about March 2025 she was being woken most nights, and that the worst disturbances were a neighbour's nightly newspaper delivery by car and a neighbour coming and going by car at about 5am. She started keeping CCTV recordings and had footage from June 2025 onwards, in which the thump can be heard, sometimes as a double thump. She said the noise was loudest as cars drove out. She told the tribunal that at first she thought it was temporary, but after months it began to have a serious effect on her.

She applied to the tribunal on 16 September 2025 and filed her written evidence on 13 November 2025, including a written statement and CCTV footage on a USB stick covering June to October 2025. She also put in emails she had sent the landlord, including footage sent on 3 September 2025, a quote from a local concreter, an email on 14 October 2025 saying the interim work had not fixed the noise, and six emails on 11 November 2025 attaching footage taken both before and after the repair work.

The landlord relied on documents rather than witnesses: an internal report and two internal emails saying the minor cracking had been repaired and the driveway was safe and functional, a contractor's report of work done on 13 October 2025 to grind the crack down to remove a trip hazard, before and after photographs, and a council page about noise enquiries. The Appeal Panel noted that none of this material dealt with whether the noise was still happening. At the first hearing the landlord's representative said she had only read the file that morning, told the tribunal the grinding work had been done on 21 October 2025 rather than 13 October, said the landlord accepted the tenant was losing sleep, and said the work that could be done had already been done. There was no dispute at that hearing that the tenant had been regularly disturbed by noise in the early hours.

What each side wanted

The tenant asked for two things: an order that the driveway be repaired so it stopped thumping when cars went past, and compensation of $3,360 for the previous six months plus $140 a week refunded until the driveway was fully repaired, worked out at about $20 for each night she was woken. The landlord's position was that it had carried out repairs that fixed the problem, that it had received no complaints since the October 2025 work, and that the main cause was the neighbour's newspaper delivery, which it did not control. On appeal, the tenant did not simply argue the facts had been decided wrongly. She argued the tribunal had failed to deal with significant evidence she put in, had failed to explain how the evidence led to its conclusions, and that its decision was legally unreasonable. The landlord argued the tribunal had said it read and considered all the evidence, that its reasons met the minimum acceptable standard, and that the tenant was trying to re-run her case.

What the tribunal decided

After a hearing on 20 March 2026 the first tribunal dismissed the quiet enjoyment claim, in written reasons dated 25 March 2026, for two reasons: that the tenant had not proved the disturbance was more than a "mere inconvenience", and that she had not identified what further steps the landlord should have taken.

The Appeal Panel allowed the appeal. It ordered that the tenant's claim for breach of the right to quiet enjoyment be sent back (remitted) to the Consumer and Commercial Division of the tribunal for a fresh hearing and a new decision by a differently constituted tribunal, on the evidence the parties file and serve under the directions and rules for that hearing.

No money was ordered either way. The Appeal Panel said the new hearing would need to consider the current state of the noise, the tenant's request for an order to repair the crack if the noise is still happening at the time of the new hearing, and her compensation claim, including how much, if she proves the landlord is liable.

Why the tribunal decided it that way

Section 50 of the Residential Tenancies Act 2010 (NSW) gives a tenant the right to quiet enjoyment of the premises. Subsection (2) says a landlord or agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the premises. Subsection (3) is narrower: it says the landlord must take all reasonable steps to make sure the landlord's other neighbouring tenants do not interfere with that peace, comfort or privacy. The first tribunal decided the case under subsection (3), treating the problem as the neighbour's newspaper delivery. The Appeal Panel said subsection (2) looked like the more relevant provision, because the landlord controlled the driveway. It also said section 63, the duty to provide and maintain the residential premises in a reasonable state of repair, did not apply here, because the driveway was not part of the premises that were rented.

An appeal to the NCAT Appeal Panel under section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) can be brought as of right on a question of law; on other grounds, permission is needed. An appeal is not a chance for the losing party to run the case again. The Appeal Panel accepted that the tenant's grounds raised questions of law, because failing to consider key evidence and submissions can amount to a denial of procedural fairness, a failure to actually exercise the tribunal's power, or a failure to take a relevant consideration into account.

On the evidence, the Appeal Panel found the first tribunal had said nothing at all about the uncontradicted evidence on how long the noise had gone on, what it sounded like, and, importantly, that it continued after the grinding work on 13 October 2025. The CCTV recordings, which the Appeal Panel listened to itself, were central to the tenant's case and were not mentioned. The finding that no further complaints had been received since October 2025 appeared to come from what the landlord's representative said at the hearing, with no reference to the tenant's later emails and footage. A general statement early in the reasons that all the oral and documentary evidence had been read and considered was not enough to overcome that. This evidence went directly to the three points the claim turned on: whether the disturbance was more than a mere inconvenience, whether the landlord had taken all reasonable steps, and what further step the tenant wanted, which was to have the driveway repaired so the noise stopped.

The Appeal Panel added that, if it were wrong on that first ground, the reasons were in any event inadequate. Section 62(3) of the Civil and Administrative Tribunal Act requires written reasons to set out the findings on material questions of fact and the evidence they rest on, the tribunal's understanding of the law, and the reasoning that led to its conclusions. The Appeal Panel took the view that this applies even when reasons are given voluntarily, as they were here. It did not need to decide the third ground, that the decision was legally unreasonable. It sent the case to differently constituted members in the interests of justice, including the appearance of justice, because of the adverse factual conclusions the first tribunal had reached.

What this means if you are in a similar position

If you are in a similar position, this decision shows two things about how the quiet enjoyment rule in section 50 is applied. The first is that the part of the section that matters depends on who or what is causing the problem. Where the source is something the landlord controls, such as a driveway or other common area, subsection (2) is in play, and it is not answered by saying the noise comes from a neighbour's car. Where it genuinely is another of the landlord's tenants, subsection (3) asks only whether the landlord took all reasonable steps. It also shows that the duty to keep premises in repair is limited to the premises actually rented, so a defect just outside them is dealt with differently.

The second is about evidence and reasons. The tenant's recordings were the thing that spoke to whether the problem was more than an everyday inconvenience and whether it was still happening after the repair. Because the first tribunal's reasons did not engage with that material or explain why it did not lead where she said it led, the decision could not stand. A tribunal does not have to write at length, but it does have to say what it found on the material facts, what evidence those findings rest on, and how it got to its conclusion. Dated records of when the problem occurred, and of what you told the landlord and when, are what makes those findings possible.

This was also an appeal, not a re-run. Disagreeing with how the facts were decided is a different thing from showing that a question of law arises, and the tenant's appeal succeeded because she framed it as the latter. In this kind of dispute most people start with a written notice to the landlord or agent that sets out the problem, what is causing it, how long it has gone on and what they are asking to be fixed, and keep a copy of it, before any application to the tribunal.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and house rentals and bonds.

Source: Reznik v NSW Land and Housing Corporation [2026] NSWCATAP 308 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.