Raffles at Runaway Bay [2002] QBCCMCmr 628 (15 October 2002)

RA MeekREFERENCE: 0319-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17200
Name of Scheme:	Raffles at Runaway Bay
Address of Scheme:	18 Jennifer Avenue RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Richard Lisle Rudolph, the co-owner of lot 10

I hereby order that flying minute of 15 January 2002 by the committee of Raffles At Runaway Bay not to grant permission to the owner of lot 10 to tile the inside of that lot, is invalid and of no effect.

RA MeekI further order that the owners of lot 10, Richard Lisle Rudolph and Karen Michelle Slipais, are entitled to tile the inside of their lot without further reference to the body corporate, provided that the tiling does not result in a nuisance being created to occupiers of other lots in consequence of unreasonable levels of noise being generated from the tiles having being laid.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0319-2002

“Raffles at Runaway Bay” CTS 17200

The applicant, Richard Lisle Rudolph, the co-owner of lot 10, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I wish to tile the inside of my apartment using sound cushioning under tiles. This went to vote at body corporate meeting on 15/1/2002 and motion was defeated 1 yes 2 no. I want this overturned as it relates to internal renovation to the interior.

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)).

In the supporting grounds, the applicant states that they

... intend to tile the whole apartment. We wish to use a soundproof underlay. This includes a 10mm mat and sound proof adhesive that is layed (sic) under the tiles. It is recommended in multi-level and commercial construction sites.

By flying minute of 15 January 2002, the committee resolved not to grant permission to the owner of lot 10 to tile the inside of their unit. The committee has responded to the application via the body corporate manager. The submission states that the committee “would like a final ruling from the commissioner’s office regarding individual owners installing tiles within their unit as an improvement”. The submission further states –

The discussion at the last committee meeting when the committee’s decision to defeat the motion ... to install tiles, was due to the breaching of by-laws “NOISE”. The committee is reluctant to give approval to owners subject to the noise factor and disturbance to other occupants residing in units below tiled lots.

If the committee could be guaranteed that a company could provide a totally sound proofing underlay, the committee would have no objections for owners improving their lots with tiles. ...

The relevant plan shows the applicant’s lot 10 is located on the third level (level C) of a four level development. It is bounded by lots 9 and 11 on level C, by lot 3 seemingly directly below on level B, and by lot 18 above on level D.

The committee appear to have become involved on the basis of by-law 4 headed “Maintenance of lots”. That by-law requires an owner or occupier to maintain in good condition any improvement constructed or installed on the lot. “Improvements” are defined in the by-law as being –

... walls, windows, garage roller doors, doors, fly screens, gates, walkways, paths, driveways, yard, lawn, landscaping, garden, plants and irrigation, and drainage facilities within a lot.

I do not consider that floor tiling is within this definition, and consequently conclude that the by-law does not apply to the proposed tiling of internal floors.

I have considered the remaining by-laws for their applicability. By-law 3 headed “General Appearance of Lots” provides that no structural alteration shall be made to any lot “without the prior written consent of the committee”. I do not consider the laying of floor tiles to be a structural alteration to a lot. Moreover, laying floor tiles is not within the scope of any of the examples set out in the by-law.

I conclude there is no by-law which prevents an owner proceeding with the installation of floor tiles in their lot, or which requires an owner to obtain body corporate approval for the same. Given this, I consider that an owner is at liberty to proceed with such a proposal.

However, I consider that any owner proposing the installation of floor tiles within a lot should do so only on the basis of full investigation of noise insulation properties and techniques and the application of the same to the installation.

This office has in the past ordered the removal of floor tiles and other hard floor surfaces in circumstances where the surface was laid without relevant approval (which would not be the case here) or where the surface was laid without proper preparation and sound insulation technologies such that the installation of the surface was found to be a nuisance to other owners or occupiers.

The by-laws include a by-law dealing with “Nuisance” (16). This by-law refers to “no loud noises” ... “likely to interfere with the peaceful enjoyment of the proprietors or occupiers of other lots”.

As well, section 129 of the Act headed “Nuisance” provides –

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.

This section has been applied to the situation of “nuisance” created by the laying of hard flooring surfaces.

I note the applicant has included with his application material relating to “Aba” Soundproof Underlay. This office gives no warranty or recommendation regarding any product of any kind. I recommend to the applicant that he work backwards in a sense. Rather than starting with a proposed product, I suggest he investigate the level of sound insulation he will need to achieve in order to be sure that the laying of the proposed floor will not create a nuisance (noise) to occupiers of other lots.

There are objective measures available of what level of sound transference could be regarded as reasonable. Once this level is determined, I suggest that the applicant then ascertain what insulation products are available which will satisfy or fall within the maximum reasonable level of noise transference. Further, I recommend to the applicant that he seek to obtain some form of guarantee from the manufacturer or retailer that the product will meet the required level of sound insulation. Finally, I suggest that the applicant ensure that whatever product is chosen, that it be professionally installed in accordance with specifications.

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