Mactaggarts Place [2001] QBCCMCmr 426 (2 August 2001)

P J HANLYREFERENCE: 0505-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16563
Name of Scheme:	Mactaggarts Place
Address of Scheme:	C/- Ernst Body Corporate Management P/L PO Box 7972 GOLD COAST MC QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Mactaggarts Place CTS 16563

I hereby order that, within 6 months of the date of this order, the co-owners of lot 125 shall take all reasonable steps to reduce to an acceptable level the level of impact noise transference from their lot to lot 71,




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0505-2000

“Mactaggarts Place” CTS 16563

The applicant, the Body Corporate for Mactaggarts Place, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the co-owners of lot 125 be directed to remove the hard floor coverings that have inadequate insulation and is of a very low standard and re-lay carpet to the lot or take such other action that will ensure that the noise transference to the lot below is reduced to an acceptable level.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that on 25 May 2000 it received a complaint from the owner of lot 71, concerning noise transference from lot 125, which is the lot above lot 71. The applicant further stated that the owners of lot 125 had been advised previously by the resident manager not to install the proposed wooden flooring, as it was likely to cause excessive noise transference to the lot below. The applicant further states that the owners of lot 125 have been requested in writing to remedy the problem, failing which an order would be sought from this office. Prior to lodging the application, the committee resolved, on 28 August 2000, to engage a suitably qualified person to investigate the state of the insulation between floors.

The owners of lot 125 were invited to respond to the application. A submission dated 6 October 2000 was received from Matthew Logan, one of the co-owners. Mr Logan stated that he and his co-owner are happy to relay the floor with appropriate cushioning, which he stated the floor layer had acknowledged was not adequate, but he wanted to be assured that, having re-laid the floor with acceptable cushioning, there would be no further complaint from the body corporate.

I note that the Standard Module regulates this scheme and that the community management statement recorded on 20 December 1999 contains the relevant by-laws. By-law 51 deals with the installation of hard floor coverings, and provides as follows:

“Ceramic tiles, marble or other stone and any other similar material may only be laid or fixed in a lot after consent in writing to do so has been obtained from the committee, and any conditions set out in the consent must be complied with to prevent in particular, the transmission of noise from the lot to other lots or the common property. Further, if after installation, with consent or otherwise, noise transference is evident, then, at the direction of the committee the lot will be reinstated to its original condition or the occupant must comply with any direction given by the committee to mitigate the noise disturbance.”

Following the committee’s decision to engage a suitably qualified person to report on the state of the insulation between floors, a report was provided by Ross Palmer, of Palmer Acoustics (Australia) Pty Ltd (Palmer Acoustics). That report, dated 6 June 2001, found that “the effect of installing the hard floor surface (in lot 125) has been to increase the impact noise levels by close to 15 dB”. However, the report also noted that even in a lot with a carpeted floor, (lot 71), “the carpeted floor is only achieving a modest level of isolation (IIC 49). Typically carpet on concrete can have an IIC of close to 70 where as bare concrete (no ceiling under) has an isolation of close to 35. The loss in performance for the carpeted floor in this case is due to resonance’s (sic) in the floor structure in the 100 to 250 Hz frequency range. These resonance’s (sic) set the levels of isolation achieved.” In closing, Mr Palmer further noted, “under the BCA there are currently no criteria for impact isolation although the BCA does set an intention to protect the health and amenity for building occupants. Recent proposals for revision to the BCA have nominated a minimum laboratory IIC 50 for floors in apartment buildings.”

I spoke with Ross Palmer by telephone on 13 July 2001 in relation to the apparent inadequacy of impact isolation provided by the installed floors at Mactaggarts Place, in particular in lots 125 and 71, and the means by which that might be addressed. Mr Palmer suggested that the owners might wish to speak with Mr Steve Marlor, of Winstone Wallboards, a business with expertise in the field of sound control. I took the opportunity to speak with Mr Marlor on 1 August 2001. He advised me that he is presently in discussion with the resident manager in relation to the poor level of insulation which exists between all floors in this scheme, and a possible remedy for that problem. I spoke with Mr Gerard Murphy on 1 August 2001, and he confirmed that some preliminary discussions with Mr Marlor were taking place, but that the body corporate had not made any final decision as to the manner in which the current problem is to be overcome. Of course it is entirely a matter for the body corporate, and for individual owners, to decide as to whom they will engage to address any problem of inadequate noise isolation which is found to exist within the scheme.

It is apparent from the report dated 6 June 2001 from Palmer Acoustics that the problem of noise isolation is not confined to lot 125. It is also apparent that there are no BCA criteria for impact isolation, although there is said to be an intention to set a minimum laboratory IIC 50 for floors in apartment buildings.

I have a number of concerns with this application. Firstly, by-law 51 refers to “ceramic tiles, marble or other stone and any other similar material”. I do not consider that wooden flooring can be categorised as a similar material to ceramic tiles, marble or other stone. If the body corporate had intended wooden flooring to be covered by by-law 51, then, in my view, wooden flooring should have been included in the wording of the by-law. On this basis, therefore, I am not satisfied that the owners of lot 125 actually required the consent of the body corporate to lay the wooden flooring.

However, the owners of lot 125 have acknowledged that the flooring has been laid without the appropriate cushioning, and the report from Palmer Acoustics confirms that the effect of installing the wooden flooring has been to increase the impact noise levels by close to 15dB. Section 129 of the Act provides that the occupier of a lot must not use, or permit the use, of a lot in a way that interferes unreasonably with the use or enjoyment of another lot included in the scheme. The owner of lot 71 has had occasion to complain to the body corporate about the increased level of noise from lot 125 after the installation of the wooden flooring. I am therefore satisfied that the owners of lot 125 must take steps to reduce the level of impact noise from their lot to an acceptable level.

That leads to a further difficulty, in that there are currently no BCA criteria for impact isolation, even though Mr Palmer states that there have been recent proposals for revision to the BCA. In these circumstances, I am unable to stipulate what is an acceptable level. I consider that the owners of lot 125 will simply have to obtain expert advice, and demonstrate that they have taken all reasonable steps to reduce the level of impact noise to an acceptable level.

I propose to allow a period of six months within which such steps shall be taken, to provide an adequate time frame for the owners of lot 125 to explore their options. I have also allowed such a long period of time because the body corporate appears to be taking steps to address the problem within the whole building, although a final solution may be some way off. I consider that it would not be just and equitable to impose too tight a time constraint on the owners of lot 125, when their problem seems, at least in part, to be attributable to a general deficiency in the building itself.

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