Points North [2003] QBCCMCmr 15 (10 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0702-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4774
Name of Scheme:	Points North
Address of Scheme:	Marine Parade, COOLANGATTA Q 4225

TAKE NOTICE that pursuant to an application made under the abovementioned Act by John Korevaar, the co-owner of lot 133

I hereby order that the application by John Korevaar, the co-owner of lot 133, for an order to proceed with body corporate resolution to rectify the unacceptable noise coming from unit 137 above; in particular for the owners of unit 137 to be instructed to remove the wooden flooring from all areas and reinstall a quality carpet laid on a quality underlay so that we can return to the peaceful enjoyment of our home, is dismissed.

I further order that, within four (4) weeks of the date of this order, the owner of lot 137, James Francis Phelan, shall –

1.	place proper rubber stoppers on all chairs in the dining area and other movable items of furniture;
2.	prepare a polite note referring to the fact of the timber flooring in the lot, and the potential for greater levels of noise transference from certain activities than might be the case with other flooring (eg. carpet) and requesting all occupants -

• Not to bounce any ball or repeatedly drop any object on any part of the floor;
• Not to run in the unit.

I further order Mr Phelan shall provide the note to the letting agent for the lot and instruct the letting agent to provide a copy of the note to all occupiers of the his lot.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0702-2002

"Points North" CTS 4774

The applicant, John Korevaar, the co-owner of lot 133, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

To proceed with body corporate resolution ... to rectify the unacceptable noise coming from unit 137 above ... . I believe that the only solution is for the owners of unit 137 to be instructed to remove the wooden flooring from all areas and reinstall a quality carpet laid on a quality underlay so that we can return to the peaceful enjoyment of our home.

Section 276(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The application concerns allegations by the applicants of noise and nuisance created by the removal of the majority of carpet and the replacement with wood panel flooring by the owner of the lot above the applicants, James Francis Phelan (the respondent). I do not intend to set out either the applicants’ grounds nor the respondent’s submission in response in any detail. It is suffice to say that both contain allegations of the other both regarding the matter in dispute, and also the conduct of the other relative to the dispute. I indicated to the parties both in the teleconference and at the inspection that the question to be determined was whether the floors laid were or were not causing or creating an unreasonable level of noise, such that some rectification was required. This determination would not concern itself with, or be determined by the peripheral matters alleged, and that I did not intend to consider such matters.

In undertaking my investigation of this dispute, I conducted both a teleconference between the parties (held on 28 May 2003) and a physical inspection of the lots involved, and meeting of the parties (held on 8 July 2003). In both forums, I indicated to the parties the procedure that I intended to follow in the determination of the application (see below).

By-laws and Act provisions

The applicants rely on by-law 1 of the recorded by-laws for the scheme headed "Noise". That by-law provides –

An owner or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.

The applicants allege variously that "this noise at times can be clearly heard at night, even in our bedrooms" and "we are suffering additional unwanted noise". Further, the applicants state that the "action of scattering several rugs has made absolutely no difference".

In this application, I have not been referred to the existence of any specific by-law regulating to the installation of hard flooring surfaces. These exist in a minority of bodies corporate, and in my view, provide a much more specific framework for the installation of hard floor surfaces. Usually, such by-laws prohibit the installation of hard floor surfaces, unless the consent in writing of the body corporate committee is first obtained, on the proviso that such consent cannot be unreasonably refused. In my view, the consent of the body corporate should not relate to whether or not to allow hard floor surfaces per se, but to whether it is established to the satisfaction of the committee that the proposed flooring will not create or transmit an unreasonable level of noise. This can be objectively ascertained prior to installation, as manufacturers can be requested to provide written evidence of product type, method of installation, and of levels of noise which will be created or transmitted by their product. In fact, such properties become a selling point for the product, and are particularly important in the case of bodies corporate, where noise levels of such installations as air conditioning condenser units and hard floor surfaces are consistently an issue.

The benefit of such by-laws is that if they are not observed, and a hard floor surface is installed without permission or consent of the body corporate, then there is a clear basis on which a body corporate might seek an order of this office compelling compliance or rectification. Such by-laws provide a very clear basis on which an adjudicator might proceed to determine a dispute, and may avoid the need for expensive acoustic testing.

However, in the absence of such by-laws, as is the case in this scheme, then all that can be relied upon is the usual noise by-law, and as well, the provisions of section 129 of the Act headed Nuisances, quote –

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.

Clearly, this section of the Act, which all owners and occupiers are required to comply with, has implications for the creation of noise which arises in consequence of the installation of hard floor surfaces.

Inspection and testing

As indicated previously, I conducted an inspection of the scheme, and in particular, the relevant lots, and meeting with the parties on Tuesday, 8 July 2003. At that inspection, I met with all parties in the respondents’ lot. However, prior to undertaking inspection of the lot properly, or any testing of noise which I will describe shortly, I outlined clearly for the benefit of all parties the process I intended to follow in investigating the application.

I did this before, and not during or after, the testing had been conducted. The significance of outlining the intended process before conducting the testing is so that the parties know the process intended to be followed, and know that that process is not subject to whim or circumstance or change. It is also to create in the parties both an understanding of how the investigation will be undertaken, and what are reasonable expectations.
At the inspection, I and a member of this office (Holly Burgess) conducted rudimentary testing usual in such disputes. Namely, Ms Brugess walked the floor of the respondent’s unit, and undertook certain actions designed to reproduce usual noises, whilst I and all other parties were in the unit below (the applicant’s unit), listening and discussing aspects of the dispute.

I use the word "rudimentary" to describe the testing employed as, in my opinion, this is all this form of testing can ever be considered. It is easy for parties to argue for or against the relevance or significance of such testing. For example, it is open to state that if you are in a location, intently listening for something, then yes, or course it sounds significant, and that in the ordinary course of people going about their daily lives, it may be not be significantly different to other noises; for example road noises, adjacent building noises. Moreover, ordinarily, the affected person would also be creating their own level of noise (eg. television or music on, cooking, cleaning or general movement throughout the apartment). This is so, however, in my view, alternative arguments can also be advanced. Firstly, the test is conducted during normal daylight hours, when it is usual for there to be other sources of noise. It takes no account of nights, when usually the world is a quieter place, and people are trying to sleep, and noises are seemingly magnified. Moreover, unlike self created noise (eg. TV / music / ordinary activity) over which a person has control and can adjust to their preference, noise generated from hard floor surfaces above are totally outside the control of the affected lot. As well, there is the "surprise" or "shock" factor which I have heard people speak of. Usually without any warning, there can be sudden and jarring noise. For example, all might be quiet and a bottle or plate, or other hard object, is accidentally dropped in the lot above. The affected lot has no warning of this; only the shock or surprise of the event. I accept this can be disconcerting and disruptive for occupiers of the affected lot.

Prior to this testing being conducted, I make it clear to all parties that, notwithstanding the outcome of the testing to be undertaken, I am not prepared to make orders which have potentially significant financial implications on parties without there also being objective expert evidence to support the applicant’s position, in particular, the allegations regarding noise. It is almost invariably the case that applications of this nature are not supported by a report from an acoustic or noise engineer. Whilst such reports are expensive, it is not a reasonable expectation in my view that an adjudicator be expected to make orders with potentially significant financial implications, without there being objective expert evidence to support a conclusion of unreasonable noise. The rudimentary testing employed by this office is not sufficient in my view to establish this.

Consequently, I now have adopted the approach (which I outline to the parties before the testing for the reasons set out above) of undertaking the described "rudimentary" testing, but limit the results of such testing to two possible uses. Firstly, for me to make a determination of whether there is a reasonable basis to order that proper acoustic tests be undertaken. In essence, I am determining whether there is a prima facie case on which to proceed further. If I am satisfied that such a case exists, then I indicate to the parties that the next step for me is to require the applicant, at its cost, to obtain a report from an acoustic or noise engineer. If the applicant should decline this request to provide the appropriate report, then I consider that the application should be dismissed on the basis that there is insufficient evidence to support the order(s) being sought by the applicant.
Alternatively, if on the basis of the rudimentary testing, I am not satisfied that there is sufficient evidence of noise to warrant the obtaining of an expert report, I indicate to the parties this conclusion, and that I intend to dismiss the application for this reason. I might further indicate at this point factors supporting this conclusion, and any other factors I consider relevant to mention.

If testing is to be proceeded with, then I indicate to all parties that in the context of my final determination, and with the benefit of the expert report, I may revisit the question of which party should reasonably bear the costs of obtaining the report. There are any number of possible outcomes at this stage both in terms of who should be ordered to pay the costs of obtaining the report, and also, what should be done to rectify noise if objectively, this is found to be in excess of reasonable levels.

However, parties should understand that an adverse report does not automatically mean that I will order re-carpeting of the lot in question (which is the usual solution sought by an applicant). It is not this black and white in my view. Rather, it is a question of degree. Depending on the extent to which noise is above what is considered to be reasonable levels, which the report will indicate, it might be ordered that certain lesser measures are appropriate (for example, rubber stoppers applied to chairs or doors, the purchase of rugs or mats for specific floor areas, the counselling of occupiers about particular aspects considered to be generating adverse noise).

The position in the event that expert testing of noise levels is carried out is by no means certain. This is a relevant consideration in regard to my other use of the results of the rudimentary testing; namely to facilitate discussions between the parties on site regarding the level of noise, and what possible solutions might exist short of the ultimate solution of re-carpeting. If the parties are willing during the meeting to enter discussions regarding other possible solutions, then I am happy to actively facilitate those discussions, even going so far as to indicate what I consider to be reasonable or unreasonable expectations. In my experience, this has often resulted in a compromise position being reached, which avoids the need for acoustic testing, and further determination, and further, avoids the uncertainty for all parties inherent in this in terms of both cost and outcome. I further consider that the active involvement of an objective third party (in this instance, the adjudicator) assists this process.

So, to reiterate, as is explained prior to the testing being conducted, my purpose in conducting the "rudimentary" form of testing described above is twofold –

• to determine whether there is a prima facie case for requiring a party (usually the applicant) to obtain an acoustic engineer’s report; and
• to facilitate open discussion or negotiation between the parties with the view to finding an agreed solution.

The rudimentary testing will not be relied upon, of itself, to base a determination that carpet should be re-laid, which is the usual order sought in these cases. I would only be prepared to order to this effect with the benefit of an adverse acoustic engineer’s report, and further, in the event that no other reasonable solution was available.

Determination

The testing undertaken was firstly to inspect the respondent’s lot, and to ascertain the extent of wooden flooring which had been laid, and quality (from a visual perspective) of the laying. I noted that the respondent had caused timber flooring to be laid in all the living areas of the unit including dining, lounge, and hallways. Over this flooring, the respondent had caused several mats or rugs of varying sizes to be laid.
These rugs covers large areas of the lounge and dining rooms and were closely spaced along the hallways. After initial inspection, Holly Burgess remained in the respondent’s lot for the purpose of undertaking activities whilst both the respondents and the applicants accompanied me to the applicants lot in order to experience the effects of activities in the lot above. These activities included repeated walking throughout all areas of the respondent’s lot containing wooden flooring, the dropping of magazines on the floor, and the pulling out of a dining chair. This was the initial testing undertaken.

What could be heard in the applicant’s lot was in my view very minimal. The walking could hardly be heard, and the dropping of the magazine and pulling out of the chair could not be heard. In this context, I queried the applicants if this was the level of noise of which they were complaining. Their response was to the effect that no, they wouldn’t complain of this. The noise was much worse. During this time, a clearly audible noise could be heard. I queried the parties as to the cause of this noise and was informed it was someone using a garbage disposal chute on the floor. I made the point that the noise created from this activity was considerable more discernible than any noise presently being created in the lot above.

The applicants also sought that other activities be undertaken including the bouncing of a tennis ball, and large basket or rubber ball, running across the timber floors, tapping of a foot on the floor, and finally, the pull out of chair across the timber floors. I agreed to have Ms Burgess bounce a tennis ball on the floor, to tap repeatedly on the floor with her foot, and finally to pulling a dining chair across the timber flooring. I refused to have Ms Burgess run across the floor or to bounce the rubber ball as requested.

The results of the bouncing of the tennis ball was more discernible, but nevertheless in my view, were very much at the lower end of the spectrum of what might be considered an unreasonable level of noise. Other noises could still not be discerned (eg. the pulling of the chair across the floor) and the foot tapping could only faintly be heard.

Following the second round of testing, I indicated to the parties that I intended to dismiss the application. I concluded that there was not a sufficient level of noise created by the testing to warrant expert testing being undertaken. I indicated my thoughts to the parties on the relative levels of noise created, and that these finding were not sufficient to justify a conclusion that the level of noise was unreasonable. I further concluded that that was no evidence that the flooring had been poorly laid, as was alleged in the applicant’s grounds. To the contrary, the floor appeared to be to be professionally laid in a quality manner. The level of noise transference suggested to me that the method of installation included some form of insulation layer (a floating floor system). Moreover, the data supplied by the respondent regarding the performance of the flooring system in an apartment context appears to be within reasonable limits.

Finally, I indicated that whilst I intended to dismiss the application, I was prepared to order that the respondent place proper rubber stoppers on all chairs in the dining area and other movable items of furniture. The current stoppers on the dining chairs appeared to be hard plastic. Further, I intend to order that the respondent prepare a polite note to be provided to the letting agent for the lot and instruct the letting agent to provide a copy of the note to all occupiers of the respondent’s lot. The note should refer to the fact of the timber flooring in the lot, and the potential for greater levels of noise transference from certain activities than might be the case with other flooring (eg. carpet). The note should then request all occupants -

• Not to bounce any ball or repeatedly drop any object on any part of the floor;
• Not to run in the unit.