Raby Bay Quays 1 [2001] QBCCMCmr 562 (9 November 2001)

RA MeekREFERENCE: 0303-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17001
Name of Scheme:	Raby Bay Quays 1
Address of Scheme:	12 Esperance Court CLEVELAND QLD 4163

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Alan Jonathan Wesley George and Sheila May George, the owners of lot 18



RA MeekI hereby order that the application by Alan Jonathan Wesley George and Sheila May George, the owners of lot 18, for an order that the proprietors of lot 22 lay in the lounge/dining room area commercial grade felt underlay and carpet at their expense within one month from the date of the Order, is dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0303-2001

“Raby Bay Quays 1” CTS 17001

The applicant Alan Jonathan Wesley George and Sheila May George, the owners of lot 18, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the proprietors of lot 22 lay in the lounge/dining room area commercial grade felt underlay and carpet at their expense as specified in attached letter from Building Certification of Australia Pty Ltd dated 14 May 2001 within one month from the date of the Order.

Section 223(1) 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)).

I do not intend to restate the applicant’s grounds in any detail, since these are known to the other party in consequence of the submission process. Likewise, the applicants are aware of the contents of the respondent’s submission, and have exercised their right of reply regarding this.

As part of the investigation of this matter, I and a fellow adjudicator from this office (David Reardon), undertook a physical inspection of both the applicant’s and respondent’s lots, and undertook a meeting of the parties, on Wednesday, 7 November 2001. I requested the assistance of a second person in undertaking the inspection so that I could conduct tests by way of having one person walking in the unit above, lot 22 owned by Seng Guy Wong and Leonie Patricia Wong (the respondents) whilst the other person listened in the lot below (the applicant’s lot), in the presence of both the applicants and Mr Wong, the male respondent.

The testing was conducted in the first instance by David Reardon whilst I listened with the parties below. The procedure was then reversed and David listened and I walked around the lot above. Both David and I wore our shoes whilst walking across the tiled areas, and at the request of Mr Wong, removed shoes whilst walking on the carpeted areas. The testing was of the areas most complained of or referred to by the applicants, including the entry, the kitchen, the dining area and finally that part of the lounge room that serves as a transit or passageway between the lounge/dining/kitchen and the bedroom and other areas of the lot (the transit area).
The footprint and layout of the two lots is identical. From initial discussions at the applicant’s lot, in the presence of Mr Wong, the applicant’s indicated that they believed that the floor coverings at the applicant’s lot had been altered at some time following the making of the application. In particular they considered that a larger area of the respondent’s floor had originally been tiled and that part of the tiled area had somehow been covered for the purposes of both the photos taken and provided as part of the respondent’s submission, and also for the purposes of the inspection.

Mrs George indicated to me that from her recollection from a visit to the respondent’s residence, she believed that a larger area was tiled then that shown in the photos. In particular, Mrs George thought that the tiled area had included much of the transit area. Mr George believed that the photos supported this alleged change in that the original tiling / carpeting of the units had been done with a border row of tiles around the boundary walls of the lounge room with the carpeting forming a large island in the middle. Mr George suggested that the photos showed the carpet in the respondent’s lot as going right to the wall. Mr Wong denied that his flooring had been changed in any way in consequence of the application. Mr George also expressed some concerns at my proposed method of testing. I indicated that it was for the parties to provide as part of the application, or their submission, any material (including expert reports) on which they sought to rely. That my role as adjudicator was not to undertake any independent expert testing (eg sound or noise transference tests) as part of my investigation, but rather to consider any material in this regard provided by the parties. Further, I indicated that my qualifications for resolving the dispute were that I was a lawyer admitted to practice for some 14 years. That rather than undertake any independent testing, that I would consider the reports provided by the parties and accord to those reports the significance I considered they warranted.

Upon attendance at the respondent’s lot, it was clear that the tiled border existed and that the carpeting did not extend to the walls as suggested by the applicants. Moreover, the carpeting extended right across the transit area. The tiled areas of the respondent’s lots were confined to the entry, the kitchen and the dining areas. A large rug had been positioned under the dining table. Between the entry and the dining area, in the traffic area between kitchen and lounge, a smaller rug (approximately .8 x 1.2 m) was positioned, and finally, in the entry, a half circle rug of perhaps 1 metre width had been positioned. There were a pair of shoes on this rug and Mr Wong indicated that the occupiers of the unit did not wear shoes in the unit, but rather removed them at the door.

In relation to the carpeted area throughout the lounge and transit area, it was clear that it was one piece of carpet, or at least laid at the one time. There was no indication whatsoever that any recent change had been made. I specifically sought to check if the carpeting was removable with tiling underneath by pulling at a corner were it met with the tile border. The carpet did not pull up easily and was clearly stuck down. Moreover, the surface under the small area of carpet I did manage to pull up was of a different colour to the tiled area. The tiles did not continue under the area of carpet.

In their grounds, the applicants state that they “established” that the unit above was “extensively tiled in the lounge / dining room area”. They further state “We observed that a large part of the lounge / dining room area is tiled”. From my inspection, it is clear that this is simply not the case. Moreover, I am not prepared to accept the applicant’s subsequent assertion or belief that the carpeting in the respondent’s lounge room has been altered for the purposes of responding to the application. I am satisfied that the respondent’s lot has not been altered, or recarpeted for the purposes of the application.
Both parties have provided “expert” reports in support of their position. The report provided by the respondents by a Jim Huet of Aspley Building Consultants is so based on irrelevant opinions, sympathetic observations of the respondents, offensive observation of the applicants, simply irrelevant content, and so devoid of reference to the real reason the report was supposedly commissioned (ie. the issue of noise transference) as to not warrant consideration.

The applicants provided a report by Bob Sternberg, Building Consultant of Building Certification of Australia Pty Ltd. That report states in part that –

... However it is noted that the unit above has removed the carpet from living areas and installed ceramic floor tiles. The impact sound therefore increases which is causing distress to yourselves. ... We confirm on inspection that the sound levels are very distinct and is causing distress to your amenity.

I note that Mr Sternberg did not inspect the respondent’s unit, and his report was based on information provided to him by the applicants, and gained at the time of his inspection of their lot. I consider Mr Sternberg’s statement regarding removal of the carpet to be supposition, and based on information provided by the applicants. I have already noted that the tiled area of the respondent’s lounge room was not as substantial as the applicant’s believed.

I consider that Mr Sternberg’s statements are statements of opinion only. Moreover, to an extent, they are statements of empathy for the applicant’s position. The statements are not based on any scientific or objective standard, and I consider the report seriously deficient in this regard.

I note the terms of the supplementary building inspection report provided by Mr Sternberg. I note the following statements –

No testing by instruments was performed during this time. (page 2) ...

The presence of audible foot traffic during my inspection, over and above the other noises ... leaves me in no doubt that scientific testing would result in a failure of STC 45 levels being achieved. (page 2) ...

The use of a qualified sound engineer and testing equipment was not utilised, in my assessments. (page 3)

The existing transmission of impact noise currently exhibited in this unit is not considered to achieve the levels expected of STC 45. (page 3) ...

All inspections were carried out on a visual basis only. (page 4) ...

Statements 1, 3 and 5 evidence the lack of any scientific or technical testing being carried out. Statements 2 and 4 can only be considered as statements of opinion. Even if I accept the opinion proffered, the issue is still very much one of degree, and there is no evidence provided to show the extent to which the level of noise transference might exceed the suggested standard. In the circumstances, I am not prepared to accord the applicant’s report any weight. I consider the report deficient in what it presumably sets out to achieve – to provide some objective measure of noise transference.

I continue with the applicant’s own evidence. The applicant’s state –

If we are sitting in our lounge / dining room we can clearly hear people walking across the lounge / dining room upstairs. Other noises we can identify are dining room chairs being pulled out and pushed in, things being dropped onto the floor and the vacuum cleaner going across the floor. However the walking is the real problem and creates a real “thump, thump, thump” noise. At times the noise is so bad that we are forced to move to our outside balcony to get away from it. ... The noise factor and the unresponsive attitude of Mr & Mrs Wong are causing us a great deal of stress. We have also experienced more minor noise from the dishwasher and washing machine in unit 22.

The respondents have stated in response –

... we maintain that we do not undertake any excessive noisy activities in our unit over and above usual activities of a family. We reject the suggestion that we have to carry out costly and unnecessary renovations to our unit when the unit was purchased in an “as is” condition, and no alterations were undertaken since our purchase.

At the inspection, my colleague and I conducted the walking tests as described above. The applicants state that “the walking is the real problem”. As stated above, both my colleague and I kept our shoes on while walking on the respondent’s tiled areas. Mr Wong stated that his family always remove their shoes when in the unit, although the applicants rejected this, stating that they had heard the sound of high heal shoes. In addition, the applicants made the point that there were several occupants in the respondent’s lot, thus increasing the number of persons walking around.

Both my colleague and I concluded that whilst foot traffic could be heard, particularly when shoes were being worn, that the noise transference or reverberation to the applicant’s lot was not excessive or unreasonable. Moreover, this was reduced to be almost inaudible when shoes were removed, and when walking across the carpeted transit area. Certainly, we did not conclude that the applicant’s allegation of a “thump, thump, thump” noise associated with walking was accurate. The walking, at least at the time of the inspection, could be described as a low level background noise. I will add that the testing I and my colleague undertook was conducted in a controlled, and consequently quiet environment, where there was no other noise being created in the applicant’s lot (ie. no TV, music or other appliance being operated) and where all parties – the applicants, Mr Wong and the adjudicators – were specifically listening for any sound being created from the lot above.

The applicants rely on the terms of by-law 2 of the recorded by-laws which provides that an occupier must not create a noise likely to interfere with the personal enjoyment of a person lawfully on another lot or the common property. Further, the applicants allege a breach of section 129 of the Act which states –

129 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The respondents, both in their submission, and at the inspection, indicated that they were not undertaking “any excessive noisy activities in our unit over and above usual activities of a family”.

At the time of the tests, the applicants did indicate that the walking was of greater magnitude and intensity at other times, particularly between approximately 6 and 8.30 in the evening. Whilst I acknowledge that this might increase the noise somewhat, with four people arriving home, talking, coming together, preparing food, and relaxing in the unit, I cannot conclude that the walking per se is unreasonable.

I am simply unable to agree with the applicants that the noise created by the walking was such that it was “likely to interfere with the personal enjoyment of a person lawfully on another lot or the common property”. Moreover, I am unable to conclude that the respondents are creating a nuisance in their lot which interferes unreasonably with the use or enjoyment of another lot. Whilst the level of noise was obviously of concern and stress to the applicants, I cannot conclude that the basis of their objection is a reasonable one. I can only conclude that the applicants have an increased sensitivity to the noisy, possibly enhanced by the alleged failure of the respondents to respond appropriately to their concerns regarding this matter.

I note the applicants also refer to more minor noise from the dishwasher and washing machine. Whilst in the respondent’s lot, I observed that the dishwasher was in operation. I did not mention this observation upon returning to the applicant’s lot. Whilst in the applicant’s lot, I did not hear the operation of the dishwasher in the respondent’s lot, nor was the operation of the dishwasher noted by the applicants.

I will also mention two other aspects, which whilst not determinative of this application, are relevant. The first is that the respondents state that they did not install the tiles in the dining area, but that the tiles were in place when they purchased the lot. Secondly, there is no by-law recorded for this scheme regulating the installation of hard floor coverings (ie. ceramic tiles or timber flooring). Consequently there is no question that the respondents, or their predecessor in title failed to observe the conditions of any by-law in installing the additional tiles that have been installed.

Whilst I have concluded that the respondents are not in breach of either the relevant by-law or section 129 of the Act, nevertheless it is clear that the circumstances on which this application is based is causing distress to the applicants. Whilst I consider that the applicants must now consider their position in consequence of the outcome of this application, in the interests of harmony, I request the respondents to make every endeavour to minimize the level of noise transference from their lot to the applicant’s lot. In particular, I request the respondents to observe their stated position that they do not where shoes within their lot. I further consider that the respondents should not remove any of the three rugs which they have currently placed over parts of the tiled areas. Finally, to be aware of the possibility of noise transference arising from certain activities (eg. cleaning), and restrict these activities, if possible, to times of least impact to the applicants. n