Thirty-Four [2005] QBCCMCmr 11 (11 January 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the

I hereby order that within one (1) month of the date of this order Philip Maxwell and Carol Irene McDOUGALL, the co-owners of Lot 4, must reimburse the body corporate the amount of the fee paid to Ron Rumble Pty Ltd for acoustic tests carried out regarding the transmission of noise from their lot to Lot 3 below.

I further order that within three (3) months of the date of this order Philip and Carol McDougall must remove all tiles from the floor of their lot that were laid in mid-2003 in replacement of carpet and must then replace those areas with carpet, such that the floor comprises the same cover of tile and carpet that was previously in place.

However, the order to remove the tiles will be stayed if within two (2) months of the date of this order Philip and Carol McDougall have submitted a written application to the body corporate committee under By-law 3(i), accompanied by such product material explanation and detailed tender for work to replace the tiles by laying them with a suitable acoustical barrier and adhesive such that normal use of the floor will not result in an unacceptable level of noise to Lot 3 below, and subsequently –

• if the committee approves the application by being satisfied that sufficient steps have been taken in the proposed work so that the tiled floor will not create unacceptable noise in Lot 3, then the stay of order will continue so long as Philip and Carol McDougall act promptly to have the new tiles laid, keeping the committee advised of the continuing progress of work; or

• if the committee refuses the application then the stay will no longer operate and the tiles must be removed and replaced by carpet as required in the above order as soon as possible but no later than two (2) months after the committee’s refusal.

And further, the committee must at all times keep the owner of Lot 3 informed of all decisions and progress in this matter including the supply of copies of any relevant documents.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0748-2003

"Thirty-Four" CTS 13647

It was initially determined by the Commissioner that the parties be referred to the Dispute Resolution Centre of the Department of Justice and Attorney-General, for the dispute to be mediated. Mediation through the Centre was attempted with the following persons participating: Graham Cavaye, treasurer representing the applicant body corporate committee; Phillip McDougall a co-owner of Lot 4 and respondent; and Judith Free the owner of Lot 3 and the party most likely to be affected by the order. The attempt failed and the dispute was referred back for departmental adjudication. Despite the applicant not having made an application for an interim order, I thought it necessary and issued the following Interim Order 748-2003 on 16 June 2004 for the reasons given in the Statement of Reasons –

JURISDICTION:
Under this same heading in the Statement of Reasons to my interim order, I found jurisdiction to exist in the following words –

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 –

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

APPLICATION AND SUBMISSIONS:
Under this same heading for the interim order, I stated –

Since the interim order was issued in June 2004, there has been a considerable delay in both of the parties carrying out the tasks required of them under that order.

In respect to the interim order requirement for the body corporate (committee) to engage a suitable acoustics expert to carry out relevant noise tests, the committee initially experienced difficulties in locating a willing and qualified service provider. On 29 June 2004 Cavaye telephoned this office seeking assistance in meeting its responsibility under the order. He was informed that this office cannot supply the name of a suitable person as this office must remain independent, however he was advised to contact one or more of the following professional associations for assistance: Association of Australian Acoustical Consultants; Association of Consulting Engineers; or Institution of Engineers.

The committee was eventually able to engage Ron Rumble Pty Ltd, Consulting Acoustical & Vibration Engineers of Spring Hill, which carried out the appropriate tests on 3 September 2004. The results of the testing are discussed under the following heading "Determination".

In respect to the interim order requirement of the respondent McDougalls to disclose certain tiling details, namely a description of the tiles and the adhesive agent and any acoustical barrier used in the laying of the tiles, on 9 July 2004 they emailed this office advising that no architect was engaged to oversee the renovations but that –

By letter dated 22 July 2004 this office replied to the McDougalls, on my instructions, requesting they provide details of the 0-

On 31 August Phillip McDougall wrote saying he only just received the above letter from this office. He said that the tiling supplier, Metro Tiles of Bundall –

McDougall went on to say that he was most unhappy that Cavaye had called him a liar in front of Mrs McDougall and Judith Free during my visit to the scheme and has asked for a written apology. He said that while he has agreed to the acoustical engineer carrying out the tests the following Friday 3 September, he would withdraw his cooperation for the testing if he had not received an apology by the Thursday before. This office telephoned McDougall on 3 September advising that the body corporate was seeking to discharge its duty under the interim order in having the testing done; he said that he realised this but was not happy in having to attend his lot to allow access for the testing to be done and would consider his position.

The testing was subsequently carried out on Friday 3 September by Glen Copelin of Ron Rumble Pty Ltd, who compiled a report on the testing dated 17 September 2004. A copy of the report ("the Report") was supplied to me, in accordance with the terms of the interim order, under covering letter from the committee chairperson, John Andrews, dated 22 September.

Under covering latter dated 28 October 2004, I forwarded a copy of the Report to the respondent McDougalls and to Free inviting both of them to "study and comment on the test results and the report generally (with their professional assistance if thought necessary) and make a submission to me if they so wish, to be taken into account in my determination of the dispute."

Phillip McDougall subsequently made a submission, as did Free after being contacted as to the desirability of her commenting on the testing and findings of the Report.

DETERMINATION:
"Thirty Four" was registered as a building units plan (now termed a building format plan) on 27 August 1974 and comprises 9 residential lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

In the Statement of Reasons to the interim order I commented that there are two aspects to this dispute – firstly, whether the by-laws were breached in the laying of the tiles, and secondly, whether the tiles are going to be the cause of unacceptable noise to the owner occupier of the lot immediately below, Judith Free in Lot 3, whose complaint partly prompted this application.

I shall deal with both aspects in turn, considering the evidence offered in the application, the submissions and the expert opinion of Ron Rumble Pty Ltd against the requirements of the legislation, followed by a summary of my findings and the order I consider complies with the overarching duty of an adjudicator under section 276 of the Act to make an order that is just and equitable in the circumstances.

1. By-Law 3(i) of the Body Corporate:
The relevant by-law, By-law 3(i), in stating "Except with the prior written approval of the Committee no proprietor shall Replace or cause to be replaced any flooring surface or material with a different type of surface or material." It is one of a series of by-laws (3(a) to (j)) which prohibits owners from carrying out various improvements to their lot, or alterations or additions to the lot, such as varying the paint colour, enclosing the balcony, installing an externally visible air-conditioner, etc. All of these by-laws are common in luxury apartment buildings such as "Thirty Four" – the relevant by-law is obviously designed to prevent soft floor coverings such as carpet, vinyl or cork being replaced by wood or ceramic tile, both of which can transmit unacceptable noise through to the occupier of the lot below.

Section 169(1)(b)(i) of the Act provides that a body corporate may make by-laws for the "regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme" This is a wide by-law making power available to the body corporate and would include a by-law regulating a change in the structure or furnishings of a lot that could adversely impact on another occupiers use and enjoyment of their lot – see section 167 of the Act which provides –

By-law 3(i) is a by-law concerning the use of a lot for the purposes of ensuring that a nuisance is not caused to another lot occupier. It is a by-law that a body corporate may make in exercising its powers under section 169(1)(b)(i) of the Act.

Section 59(2) of the Act provides that each member of the body corporate, registered proprietor and occupier of a lot (and others) is bound by the community management statement ("CMS") of the body corporate; subsection (3) states that the binding nature of the CMS is as effective as if those bound had signed the statement under seal. Section 66(1)(e) of the Act requires that the body corporate’s by-laws must be contained in the CMS unless they are the statutory by-laws contained in schedule 4 to the Act.

Accordingly, the McDougalls, despite their minuted complaint to the committee at its meeting of 30 June 2003 that they had not received any copies of the by-laws, were at all times since purchase bound by the by-laws including By-law 3(i). Also, I pointed out in my reasons to the interim order the following in respect to by-laws –

As reported in the reasons to the interim order (see extract under above heading "Application and Submissions"), the respondents claim they received verbal approval for carrying out various improvements to their lot, including the tiling, from the then chairperson, John Andrews, prior to the renovations commencing in March 2003. In his letter of 6 July 2003, Philip McDougall ("McDougall") does admit that he was not specific in detail and there may have been some misunderstanding between Andrews and himself. Because of the absence of any written record of the meeting, the conflict in the recollections of McDougall and Andrews cannot be resolved. However, as I stated previously a chairperson has no unilateral power under the legislation either to give approval to any owner to carry out an improvement that affects common property (in this case replacing the external windows) or to give an approval to a proposal required by a by-law to be given by the committee or body corporate (in this case the tiling) – only the committee or the body corporate in general meeting, depending on the nature of the decision, may make such decisions. There is no claim of a representation made by the committee to the McDougalls that Andrews spoke for it in the matter.

There is evidence that before the tiler commenced to lay the tiles it was made known to both the McDougalls and the tiler that there needed to be approval in accordance with the by-law. It seems that the tiling was commenced regardless of the complaint from Free, however after a meeting with Andrews, McDougall instructed the tiler to stop continuation of the floor tiling.

Following the meeting of 30 June 2003, McDougall states that he understood he would be given the committee’s response to continuing the tiling within 48 hours (by a Wednesday); the committee denies this, saying that it only undertook to reach a decision within 48 hours. It claims having posted its response early on the Thursday morning and in the normal course of post McDougall would have received it the next day. However, having received no response by the Wednesday, McDougall had already instructed the tiler to recommence the work which he did. The response of the committee was that McDougall had not obtained prior approval for the tiling and it did not approve the laying of tiles in the "former kitchen, former dining room, part of the lounge and part of the corridor" and the tiles already laid in those areas should be removed and an alternative proposal made to the committee. McDougall’s response is reported in my reasons to the interim order (see extract) as is the committee’s next step in serving a "Notice of Continuing Contravention of a Body Corporate By-law" for breach of By-law 3(i).

It seems to me that the McDougalls needed to have taken greater care in finding out at the outset of their proposed renovations just what formal requirements were required of them by the body corporate, and in this regard the following points are relevant –

In summary, I am of the view that the McDougalls acted in breach of By-law 3(i) and even when they had an opportunity to avoid the breach (on the initial complaint of Free before the tiles were laid) or to avoid continuing the breach (by not continuing to lay the tiles after the committee said it was going to decide their proposal), they failed to do so. I realise that at the relevant time all of the materials were on site, as was the tiler, and the completion of the renovations by laying the tiles would have been an attractive course to follow, self-justified with general conversations perhaps taken as specific approvals and a time limit perhaps taken in its most beneficial interpretation.

2. Tiles as a Source of Noise Nuisance:
I have already referred to the two sources regulating the behaviour of owners and others concerning noise nuisance. I shall repeat them here –

The question here is whether the tiles as laid are likely to cause a level of noise to Free, as the occupier of Lot 3 directly below and the person likely to be most affected, that causes –

In the interim order I sought two pieces of information in regard to the tiles as a noise source. Firstly, I required the body corporate have an expert evaluation done as to the level of impact and other normal domestic noise transmission, and this has been supplied in the Report by Ron Rumble Pty Ltd ("Rumble"). Secondly, I asked the respondent McDougalls to supply details of the tiles, the fixing (adhesive) agent used, and any acoustical or other barrier used as an underlay to the tiles (see extract of interim order above).

I shall deal with the second matter first, namely whether an acoustic barrier was installed in the tiling or not.

In their submission of 27 December 2003, the McDougalls only reference to noise reduction is in the paragraph discussing the 48 hour decision issue, where they say "...so tiling resumed (over acoustic underlay, as had always been our intention, to minimize noise)." However, there was an earlier reference in an email from McDougall wishing to "...bring you up to date...", when, as previously referred to, both the tiling supplier and the builder laughed when he told them of his dispute, with the builder reportedly stating that "there can be no problem with noise". It seems to me that there is a conflict in these remarks – first that the builder saw no noise problem in the tiling yet an acoustic underlay was said to be used. The respondents have never supplied details of the acoustical underlay used as required by the interim order. From the expert tests and observations it appears most likely that no acoustic barrier was used and the tiles were merely fixed directly to the concrete slab floor by normal adhesive. In regards to the tiles themselves, there was never any suggestion that the tiles themselves had an "acoustic rating" – only their description was required in the interim order.

The builder should have been aware that there are products and methods of laying available that can lessen the transmission of noise – this is especially so when the floor is a concrete slab and forms the ceiling of another dwelling directly below. This is evident from similar disputes brought before this jurisdiction where tile underlay-barriers and the adhesive itself have sound deadening qualities specially used to avoid noise problems to others, especially the occupants directly below.

In regard to the tests carried out, McDougall makes the pertinent point that the Report acknowledges that there is no statutory standard in Queensland which test results of noise transmission can be measured against and therefore, "...how is it possible for any conclusion to be derived from the tests that were carried out?" The answer to that question is that not every event is the subject of a statutory standard but this does not preclude my having to reach a decision in adjudicating this and any dispute I have power and the obligation to determine - I must adjudicate the matter in the best way that I can including importantly assessing evidence of an expert nature.

In this instance, the testing company Rumble, an acoustical and vibration engineer, is a member of a group which calls itself the Association of Australian Acoustical Consultants ("AAAC") which has determined for itself appropriate noise standards for different circumstances for various types of dwellings. In the absence of any Queensland standard, members have set suggested standards in a document titled "Acoustical Star Ratings for Apartments and Townhouses" (which would include hi-rise community title schemes such as this) which accompanied the Report to the body corporate.

The two measurements of significance are shown at page 3 of the Report and are the FIIC (Field Impact Isolation Class test) figure, and the L’n,w (Weighted Normalised Impact Sound Pressure test). The FIIC is determined according to the American Standard and the L’n,w according to an International Standard.

To assist in understanding the standard measures and the test results, I had a conversation with the person carrying out the test, Glen Copelin of Rumble. He said that in the absence of accepted statutory requirements in Queensland, test results must be necessarily qualified and should be viewed as a range rather than an absolute value.

Referring to the group’s standards, the star rating for "Thirty-Four" would, from my reading of the guidelines, be 5 star, though, giving the respondents the benefit of any doubt, I would prefer a 4-5 star rating range.

For the FIIC test, the higher the value on the decibel scale the lower the transmission of noise (ie the higher the better). As an example, Copelin said that carpet on a floor has a test value of around 70dB. The test result (page 2 of report) in the respondent’s lot was only 40 for the dining room, signifying that the impact isolation rating of the tile floor is very low. By way of comparison, in Order 673-1999 it was reported that Mirvac hi-rise projects have a recommended minimum FIIC of 55; the design standard adopted by RFA Acoustic Design Pty Ltd as reported in the reasons to that order for prestige apartment projects, was equal to or greater than 60.

For the L’n,w test, the lower the value then the lower the transmission of noise (ie the lower the better). The test score for the dining room was high at 70, signifying a poor result for low impact isolation performance. If this building is taken as a 4 to 5 star rating one, then a 45 – 50 score would be acceptable.

Understanding the standards and measurements is a difficult area for persons without skills in acoustic principles, but it is enough that the test results put the tiled floor of the McDougalls outside of what is an acceptable level of noise in a building such as "Thirty Four".

Summary:
In summary, my findings are that the McDougalls were in breach of By-law 3(i) from the outset, and even if they were able to prove conclusively that they relied on the apparent authority of Andrews giving approval for the tile replacement, then they failed to avoid the breach when Free complained before laying commenced, and failed by continuing the breach after the committee said it was going to decide the matter in 48 hours. I have explained these issue fully above.

In regard to the noise qualities of the tiled floor, the test results show that the noise is quite beyond what is an acceptable level in the circumstances of the building. I am aware, and said so in my Reasons to the interim order, that the McDougalls have a policy of removing their footwear upon entering their unit, which also applies to visitors, this does not take into account that the lot may be later sold or let to persons who observe no such rule (nor could or would I make an order that future owners must observe such a rule).

While I dislike making an order that results in the waste of property, I can see no alternative to my ordering that the tiles must be removed, at least from those areas that were previously not tiled, and replaced by carpet so that the McDougall’s lot is restored to its previous state.

Of course the McDougalls may decide to subsequently make application to the committee for approval to lay tiles with an adequate acoustical barrier (underlay material and/or adhesive) that with normal use will only result in an acceptable level of noise to the lot below (Free). In catering for this eventuality, I have qualified my order for removal of the tiles to stay the removal if within the period of two months from the date of the order the McDougalls have submitted a formal application to the committee for just such a change providing the application is bona fides in being accompanied by such product material explanation and tender as satisfies the committee. However, unless the committee approves the proposal within 3 months of the date of this order, and the McDougalls commence the work within 2 months of the approval, then the order must operate and the McDougalls remove the tiles immediately. The effect of the stay will be to allow the present tiles to stay in place for a reasonable period to allow the McDougalls time, if they so desire, to arrange for a tiler to lay tiles with a satisfactory noise transmission level.

In any case, I have ordered that the McDougalls must reimburse the body corporate the cost of the fee paid to Ron Rumble Pty Ltd for the testing.

Number of Scheme:	13647
Name of Scheme:	Thirty-Four
Address of Scheme:	34 Sandford Street, ST LUCIA QLD 4067

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 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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Thirty-Four [2005] QBCCMCmr 11 (11 January 2005)