Sanchelsea [2005] QBCCMCmr 482 (26 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0277-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7431
Name of Scheme:	Sanchelsea
Address of Scheme:	146 Pacific Parade NORTH KIRRA QLD 4225

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

Gerald Bowen, the Owner(s) of lot 11:

I hereby order that the application seeking the removal of the tiled floor and installation of carpet or other suitable floor covering in Lot 19 of the Sanchelsea Community Titles Scheme, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0277-2005

"Sanchelsea" CTS 7835

This application seeks an order of an adjudicator under the Body Corporate and Community Management Act 1997 (Act):-

"For the removal of a tiled floor (in Lot 19) and carpet or other suitable floor covering to be laid."

The Applicant (Gerald Bowen) the owner of Lot 11 seeks this order against Robert Howard (the Respondent) the owner of Lot 19.

Jurisdiction:

This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

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 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.

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 section 243 of the Act, a copy of the application was provided to the Respondent and all other owners within the scheme with an invitation to them to respond to the matters raised in the application. The Respondent has provided a submission to the application.

The brief facts of the matter are as follows. The Sanchelsea Community Titles Scheme has an operative by-law (By-Law 1) which prohibits causing a noise nuisance to others within the Scheme.

The Applicant alleges that he has suffered from reduced peaceful enjoyment of his Lot because of a noise nuisance which comes from the tiled floor in Lot 19, the lot directly above his. He states that in November 2003 the Respondent caused tiles to be laid within their Lot. The Applicant alleges further that despite his efforts to resolve the issue with the Respondent the problem remains.

The audible noise as described by the Applicant includes foot steps, pulling and pushing of furniture, washing machine, television and stereo noise. It would appear that the Applicant’s view is that most any activity conducted with Lot 19 is the cause of a noise nuisance within the Applicant’s Lot.

The Applicant alleges that he has served the Body Corporate with a Notice to Body Corporate of Contravention of a Body Corporate By-Law (the Contravention Notice) seeking the Body Corporate to act on his complaints however no action has been taken. The Applicant has filed a dispute resolution application with the Office of the Commissioner for Body Corporate and Community Management (the Office) in an effort to resolve this matter.

Finally, the Applicant raises generally the issue of whether the Respondent sought the necessary approval for the installation of the tiles however makes no reference to any statutory requirement (section of the Act or applicable by-law) which may have been infringed in not doing so.

The Respondent has provided a lengthy submission in reply to the application. The Respondent gives certain responses to the allegations of the Applicant. Initially the Respondent advises that the noise complaints commenced in October 2003 whereas the tiles had been laid in January 2003 some 9 months prior. Further, the Applicant alleges that padding has never been placed under furniture legs whereas the Respondent advises otherwise. The Applicant advises that the tiles in the lot above cover the whole floor whereas the Respondent advises that this is not the case with three areas/rooms in the Respondent’s Lot not being carpeted. Finally, the Applicant alleges that the Respondents daughter creates noise in her room with her hard heeled shoes whereas the Respondent advises that his daughter’s usual footwear is slippers.

The Respondent also states that he believes there are no by-laws or other rules which may apply regarding the installation of the tiles within his Lot.

The Respondent also outlines allegations regarding the Applicants conduct/behaviour during this period of time. I only mention this so as to confirm that this material is irrelevant to the matters in dispute here and will not be taken into consideration.

Investigations:

As noise nuisance disputes are difficult to objectively assess based solely upon the written submissions of parties an inspection was conducted on 24 August 2005. In the company of another officer I conducted a simple assessment of the noise that is transmitted through the floor/ceiling between the subject lots.

During the assessment I noted that carpet runners were in place in the Respondent’s Lot. These were located in the hallway and entry area of the Lot. I had the entry area runner removed for the purposes of the assessment which involved the officer walking around the Lot three time with shoes on and then three times with no shoes on while I ‘listened’ in the Applicant’s Lot below.

I heard two foot steps during the whole process which took about 3 minutes. These appear to have been while the officer was in the entry area of the unit. These steps were difficult to hear at best. I could hear no other steps during the balance of the assessment process. I mentioned my impressions to the Applicant who agreed. He then stated that the shoes worn by the officer were not high-healed shoes. I later inspected the officer’s shoes and discovered that they were healed shoes with rubber soles.

Determination:

"Sanchelsea" is a community titles scheme which is now regulated by the (new) Act. A new community management statement was lodged in 2000 which brought the Scheme under the regulation of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). The Scheme is a registered building unit plan of subdivision which is now known as a building format plan.

Section 184 Compliance

Section 184 of the Act requires the lodging of a Notice with the body corporate of a scheme regarding a by-law contravention prior to a dispute application being made to the Office. I note the Applicant has complied with this requirement and the application may therefore proceed.

Noise Nuisance

Nuisance within the Scheme is regulated under section 167 of the Act and By-Law 1 which is contained in the community management statement registered for the Scheme. In essence these provisions impose an obligation onto lot owners and occupiers to not act in a fashion or cause noise which will interfere with other lot owner’s use of their lot or of the common property.

Noise nuisance disputes are difficult to determine objectively without an independent assessment of the noise in question. Such a report might include the results of testing undertaken and the comparison of these results against standardised figures of acceptable noise levels. This process can ‘inform’ and support the assessment undertaken by the adjudicator. No such report has been provided for consideration in this matter.

In an effort to assess the noise nuisance I attended to the Scheme on 24 August 2005. The processes followed and my observations mentioned above. In summary I found there was little if any noise being transmitted through the floor/ceiling. Based on this assessment I am unconvinced that a noise nuisance exists between the Applicant’s and Respondent’s Lots.

I would however point out that some noise was heard and that was from the area where no carpet runner was in place. It would appear that the carpet runner is an effective noise dampening ‘tool’ which the Respondent should consider using to minimise even lower volume noise.

Installation of Tiles

The Applicant raised the issue that the Respondent installed the tiles into his Lot without Body Corporate approval. As would be expected improvements to common property (or improvements which will affect common property) must get body corporate approval before these proceed. A simple example of this is where an air conditioning compressor is to be installed onto common property and it only services the one lot.

There is a common misunderstanding that all improvements to a lot require body corporate approval. Approvals need only be given if the by-laws or Act or regulation module require it. In the case of installing tiles into the Respondents Lot no approval is required. On this basis I am unable to entertain the Applicant’s suggestion that the installation proceeded without the proper approvals being sought.

Despite these comments it must be stated that any improvements to a lot must be carefully considered before they proceed as they may indirectly be caught by other requirements under the Act etc. For example a body corporate has an obligation to maintain common property in good condition. If an improvement contemplates the removal of internal walls it would be reasonable for the body corporate to require the lot owner to secure an engineers report as to how the improvement will affect the common property roof within the scheme. Therefore the body corporate would ‘approve’ the improvements.

A further example is one similar to the current application. Where improvements ‘cause’ a substantiated nuisance then the ‘perpetrators’ may be required to remedy the cause which might involve the expensive process of removing the tiles and re-installing carpet.

Orders:

I hereby order that the application seeking the removal of the tiled floor in Lot 19 and installation of carpet or other suitable floor covering in Lot 19 of the Sanchelsea Community Titles Scheme, is dismissed.

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