Kalua [2003] QBCCMCmr 416 (11 March 2003)

Last Updated: 10 September 2007

RA MeekREFERENCE: 0591-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10510
Name of Scheme:	Kalua
Address of Scheme:	5 - 13 Parker Street MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Charles Keith, the co-owner of lot 8

RA MeekI hereby order that within one (1) month of the date of this order, the owner of lot 13, Ermelo Pty Ltd (represented by Alan and Janet Olarenshaw) will purchase and install two (2) rugs for placement in the lounge and central dining areas respectively of lot 13. Both rugs will extend to approximately half a metre from the wall or other boundary point thus allowing parts of the tiling to be seen as a feature.

I further order that the owner of lot 13, Ermelo Pty Ltd (represented by Alan and Janet Olarenshaw) will make it a condition of future rental agreements for the lot that the two rugs, or equivalent replacements, remain in their intended locations.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0591-2002

"Kalua" CTS 10510

The applicant, David Charles Keith, the co-owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We seek an order for the floors to be totally recovered with a sound absorbing surface similar to the original covering.

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, whilst there is significant dispute and allegations and counter allegations in the grounds, the submission in response to the application and the reply to that submission, this dispute and allegations relate to peripheral matters. I indicated to the parties 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 accordance with the powers of investigation, and as is usual in applications of this nature, I conducted a physical inspection of the lot (13) owned by Ermelo Pty Ltd (represented in submissions and at the inspection by Alan and Janet Olarenshaw (Olarenshaw)) and of the affected lot, owned by David Charles Keith and Leonie Ann Keith (Keith) the owners of lot 8. The body corporate was also represented at the inspection by the chairperson, and by a member of the body corporate management company.

By-laws and Act provisions

The applicant does not rely on any particular by-law. Rather he refers to noise transmitted being "unbearable" and "clearly audible". Presumably the applicant seeks to rely on the usual prohibition on the creation of unreasonable noise which exists for all bodies corporate in one form or another. In the case of this body corporate, I am informed that the relevant by-law is –

By-law 1 Noise – The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot (or the common property).

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 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 matter, 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 clear implications for the creation of noise which arises in consequence of the installation of hard floor surfaces.

Inspection and testing

I conducted an inspection of the scheme, and in particular, the relevant lots, and meeting with the parties on Thursday, 7 March 2003. At that inspection, I met with all parties on the common property in an area adjacent to the pool prior to undertaking the inspection. Prior to entering either lot and undertaking testing which I will describe shortly, I outlined clearly for the benefit of all parties the process I intended to follow in investigating this 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 (Rowena Wong) conducted rudimentary testing usual in such matters. Namely, Ms Wong walked the floor of Olarenshaw’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" 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, and prior to entering either lot, 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.

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.

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 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

In the circumstances of this application, the parties did agree a compromise solution, and thus avoided a requirement for further expert testing. This compromise was based on both parties adjusting their position somewhat.

The applicant originally consider re-carpeting the only option. However, late in discussions he did acknowledge that the placement of large rugs would provide a solution, and his concerns appeared to shift to the possibility of a change in occupiers and potentially the whole dispute having to be recommenced.

The respondents did acknowledge during the meeting that the sounds / noise transference from above was more significant than they expected, though (not surprisingly) they sought to downplay this aspect.

It was agreed between the parties that within one (1) month of the date of this order, the owners of lot 13, Ermelo Pty Ltd (represented by Alan and Janet Olarenshaw) would purchase and install two (2) rugs for placement in the lounge and central dining areas respectively. Both rugs would extend to approximately half a metre from the wall or other boundary point thus allowing parts of the tiling to be seen as a feature. Based on an estimated tile size of 300 mm, it was calculated that the two rugs purchased would need to be approximately 2.1 x 2.1 and 4.2 x 2.8 metres respectively in size.

As regards the applicant’s concern regarding changes in occupiers of the lot, the Olarenshaw’s agreed to make it a condition of future rental agreements for the lot that the two rugs, or equivalent replacements, remaining in their intended locations. Further, I accompanied the Olarenshaw’s to discuss this aspect with the present occupiers and following relevant matters being explained to them, they indicated their agreement to the placement of the rugs in the lot immediately upon their purchase. n