Waterways Apartments [2003] QBCCMCmr 413 (7 March 2003)

Last Updated: 10 September 2007

RA MeekREFERENCE: 0603-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12646
Name of Scheme:	Waterways Apartments
Address of Scheme:	40 Ferny Avenue SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Waterways Apartments

RA MeekI hereby order that, within one (1) month of the date of this order, the owners of lot 21, Kevin James Law and Maxine Jan Strelow, shall -

• arrange for 8 rubber stoppers to be placed on the legs of chairs in the dining and lounge areas;

• arrange that existing rugs in the lounge room would be place under items of furniture, thus lessening their potential to move and cause scraping noises;

• arrange for the purchase of a new rug or rugs for the floors in the dining area and entrance way, for placement particularly under the dining table and all chairs.

I further order that the body corporate should contribute one half of the cost of the purchase of the rugs, on presentation to it by Law of a receipt of other evidence of payment for the rug or rugs.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0603-2002

"Waterways Apartments" CTS 12646

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

That the owner of lot 21 be ordered to remove the tiles from that unit, and that a sound proofing material be installed underneath any tiles relayed or replaced, in accordance with by-law 66.

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)).

The grounds

I do not intend to restate the grounds to this application. I consider these are known to the parties in consequence of the application process and as well, nothing in the grounds is in significant dispute, such that I need to make any determination of which material to accept. In accordance with the powers of investigation, and as is usual in applications of this nature, I conducted a physical inspection of the lot owned by Kevin James Law and Maxine Jan Strelow (Law) the owners of lot 21, and of the affected lot, lot 18, owned by Malcolm Walter Box and Tanya Louise Box (Box). The body corporate was also represented at the inspection by two of its committee, one of whom was Mr Box, and the building manager, "Suzie" who also lets the lot for Law was in attendance.

The By-law

At the outset, I want to reiterate what I stated at the inspection. Though the body corporate application is based on the provisions of by-law 66 headed "Flooring – Tiling, Timber, Material other than carpet" I consider that this by-law is not applicable to Law. The by-law provides that an occupier must not replace the original floor coverings with tiles, timber or other material besides carpet including the entrance foyer, bathroom, kitchen and laundry areas, except with the consent in writing of the committee.


It was acknowledged by all parties that Law had not laid the tiles now being complained of. Rather, the tiles had been laid by the previous owner and the body corporate had failed over a reasonably significant period of time to enforce, or have the previous owner, comply with the by-law. That owner then sold, and Law inherited the problem. Whilst Law might have become aware of the "problem" prior to purchase through conducting a body corporate records search, I doubt that Law would have been able to terminate the contract on this basis. Moreover, even if Law had terminated, the problem would have continued. The body corporate would still have needed to have the original owner comply with the requirements of the by-law. It is not reasonable in my view that an owner in the position of Law should now be required to fully rectify a problem not of his making.

In my view, the body corporate through its failure to properly and in a timely manner enforce its by-laws, has significantly contributed to the current dispute all parties now find themselves in. I made these thoughts or views clear at my inspection, and further indicated that in the circumstances, I considered that the body corporate should be responsible to contribute towards the costs of rectifying the dispute.

Inspection and testing

At the inspection, I and a member of this office (Rowena Wong) conducted rudimentary testing usual in such matters. Namely, Ms Wong walked the floor of Law’s unit, and undertook certain actions designed to reproduce usual noises, whilst I and all other parties were in the unit below, listening and discussing aspects the dispute. I use the word "rudimentary" as this is all this form of testing can ever be. 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 one, cooking, cleaning or general movement through out 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.

I also say "rudimentary" testing, as in applications of this nature, I am not prepared to make orders which have significant financial implications on parties without there being objective expert evidence to support the applicant’s position. It is almost invariably the case that applications of this nature are not supported by a report from an acoustic or noise engineer. Whilst these 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.
Consequently, I now have adopted the approach 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 of insufficient evidence to support the usual orders sought by the applicant.

If testing is 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.

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, 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 of expert testing of noise levels 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 at this point 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 reach, which avoids the need for acoustic testing, and further determination, and 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.

Determination

At the inspection, after outlining to the parties how I intended to proceed with my investigation of this dispute, and my views on the responsibility of the body corporate in this matter, I was able to facilitate discussion between the parties on possible alternative solutions.

It was agreed that Law or his agent would arrange for 8 rubber stoppers to be placed on the legs of chairs in the dining and lounge areas. It was further agreed that existing rugs in the lounge room would be place under items of furniture, thus lessening their potential to move and cause scraping noises. It was further agreed that a new rug or rugs would be purchased for the floors in the dining area and entrance way, for placement particularly under the dining table and all chairs. In regard to the purchase of rugs, it was determined by me, on the basis that it was just and equitable that it be so, that the body corporate should contribute one half of the cost of the purchase of the rugs. To this end, the body corporate should pay to Law one half of the cost of the rug or rugs purchased on presentation to it by Law of a receipt of other evidence of payment for the rug or rugs. Whilst it is more difficult to order to this effect, if not impossible, the discussions certainly included reference to the review of potential future occupiers and their suitability.

Finally, it was determined that the position should be reviewed by the parties, not including this office, after a three month period had elapsed from the application of the new arrangements. It was determined that the parties might agree between themselves at this stage that re-carpeting of either half or the whole of the unit was necessary, in which case, I indicated that I considered that the body corporate should contribute one half of the cost of re-carpeting.


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