84 The Spit [2002] QBCCMCmr 63 (7 February 2002)

RA MeekREFERENCE: 0538-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13472
Name of Scheme:	84 The Spit
Address of Scheme:	84 Parkyn Parade MOOLOOLABA QLD 4557

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Eldershaw Holdings Pty Ltd, the owner of lot 27

RA MeekI hereby order that within one (1) month of the date of this order, the owner of lot 28 Rockerfeller Estates Pty Ltd shall remove the timber cover strip which it has caused to be placed along the outside of the staircase abutting the common dividing wall separating lots 27 and 28 so as to prevent contract between the stairs and the common wall.

I further order that a 20mm gap be maintained at all times between the staircase and the dividing wall.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0538-2001

“84 The Spit” CTS 13472

The applicant Eldershaw Holdings Pty Ltd, the owner of lot 27, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We seek an order on Rockerfeller Estates Pty Ltd to modify the newly constructed staircase so that a clear separation of 20 mm is provided between the staircase and the party wall between units 27 and 28 within 14 days. This clear space is to be maintained at all times free of any obstruction.

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. These are known to the owner of lot 28, Rockerfeller Estates Pty Limited (Rockerfeller) in consequence of the application process.

The dispute concerns an aspect of certain improvements which were made to lot 28 by Rockerfeller. In a letter of 4 April 2001 by the chairperson (who is also associated with the owner of lot 27, Eldershaw Holdings Pty Ltd), the chairperson stated in part –

Steel-framed staircases are notorious for transmitting noise and vibration into adjoining units. Your existing proposal requires direct fixing of the staircase to the party wall adjoining unit 27. This will result in disturbance to the residents of unit 27. Before seeking body corporate approval it would be advisable to redesign this structure to ensure full isolation and separation of the party wall. Full Engineering plans and certification of the staircase and the proposed floor extension over the void are required.

Rockerfeller’s builder replied to the chairperson in the following terms –

Structural drawings by Cardno MBK detailing the steel framed stair case have been enclosed showing a 20 mm gap between the stair case and the existing party wall. The stair will be an independent structure with no fixing to this particular wall. All structural work when completed will be inspected by Cardno MBK and a structural certificate of compliance will be submitted to the body corporate on completion.

One of the Engineer’s drawings (no. 2030/90-1) shows the staircase with a notation on the drawing “20 mm gap to wall”.

The applicant’s grounds state in part –

A stay in our unit ... from 23^rd to 25^th August, 2001, was disturbed radically by people using the staircase in unit 28. Noise and vibration transfer was horrendous when people used the staircase. On investigation, it was discovered that the Builder had extended (widened) the steel stringer by epoxy-gluing timber strips on the staircase abutting the party wall for the full length of that stringer (approximately 4 metres long). The 20 mm gap required to isolate the staircase was bridged. When the staircase is used, the inherent flexing and rubbing against the wall transmits the noise of every footstep through the hollow party wall.

Rockerfeller’s architect (in correspondence to the applicant dated 31 August 2001) responded to the matter in the following terms –

We note that the 20mm gap ... relates to the clearance between a structural member and the party wall and we confirm that the steel plate stair strings have been installed with min 20mm clearance to the wall ... . The selected timber beading fixed to the strings is also clear of the party wall. Structural Engineers do not indicate non-structural elements on their drawings, and hence there is no reference to this timber bead on their drawings. ...

Rockerfeller responded to the application by way of submission. It refers to certain aspects of an inspection undertaken of the staircase by the body corporate committee. The submission states in part –

Due to the thick new carpet on the step we say that any suggestion that noise and vibration has “horrendous” is completely untrue. The builder has built the stairs fully in accordance with the details approved, with 20mm clearance to wall from the staircase. ... the timber beading strips are clear of the wall and sufficiently clear to achieve isolation of the stairs. ...

The body corporate committee has made a submission “in full support of the application by Eldershaw Holdings Pty Ltd”. It states –

Rockerfeller Estates are in deliberate breach of a condition agreed to before committee approval of renovation in relation to the separation of the staircase from the party wall dividing units 27 and 28. ... Five member of the committee inspected unit 28 on Wednesday 26^th September 2001 with a Consulting Engineer engaged by the body corporate and the builder, Mr Warren Quinn. ... The committee agrees that the timber beading attached to the steel staircase is for all practical purposes against the party wall. ... The Engineer has provided a report. A copy of which is attached.

A report by Don White & Associates Pty Ltd, Consulting Engineers dated 26 September 2001 addressed to the body corporate committee was provided as part of the committee submission. The White report makes the following “observations” –

The approved drawings for the new staircase show that the 250x10 steel plate stringer adjacent to the common wall is to be separated from that wall by 20mm. This separation could not be confirmed at the time of the inspection as a timber cover strip has been fixed to the top and bottom of the stringer.

It was observed that when a person ascended and descended the stairs quickly the sideways movement of the staircase resulted in the cover strip making contact with the common wall. Occupants of the adjacent bedrooms of unit 27 can hear the noise of the impact. Although noise is not significant during daylight hours, the noise is sufficient to at times awake a sleeping person at night.

The White report provides the following “possible remedy”.

It is believed removal of the cover strips and hence possible contact with the common wall, would limit the transmission of noise to unit 27 to an acceptable level. The cover strips could be fixed to the wall, but maintained clear of the stringer to conceal the gap between the stringer and the wall.

In the circumstances, I am satisfied that –

• Part of the approval of the renovation given by the committee was the creation / maintenance of a 20mm gap between the staircase erected and the common dividing wall between lots 27 and 28;

• For whatever reason, possibly aesthetic, a timber cover strip or beading has been added to the line of the stringer such that the gap between the stairs and the common dividing wall is lost;

• That the loss of the 20mm gap is causing noise and vibration to be transmitted to lot 27 via the common wall.

I intend to order, in accordance with the “possible remedy” suggested in the White report, the removal of the timber cover strip so as to prevent contract between the stairs and the common wall. I further intend to order that a 20mm gap be maintained at all times between the staircase and the dividing wall. If Rockerfeller wishes to maintain the timber beading feature then it will need to move the stringer so as to allow for both the feature and the minimum 20mm gap.
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