Bayview Tower [2005] QBCCMCmr 56 (2 February 2005)

Number of Scheme:	5458
Name of Scheme:	Bayview Tower
Address of Scheme:	21 Bayview Street RUNAWAY BAY QLD 4216

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

I hereby order that the application for orders to the effect that the owner of unit 78 above be required to replace the sound proofing underlay for their wooden floor with a better quality product is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0608-2004

"Bayview Tower" CTS 5458

Bayview Tower Community Titles Scheme (Bayview Tower) is a 110 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Mervyn and Ann Austin, owners of lot 74 (applicants) seeking orders against Elisha Hanel, the owner of lot 78 (respondent).

Prior to the application, the respondent replaced some of the carpeted areas of her unit with a floating wooden floor. The applicants claim that there are unacceptable levels of noise transference through this new wooden floor and seek orders requiring the respondent to replace the sound proofing floor underlay with a better quality product. Alternatively, the applicants seek orders that the respondent restore carpet to the relevant areas.

At the time the respondent installed the floating wooden floor, by-law 28 provided:
Refurbishment – Floor Coverings

On 8 October 2004 an amended by-law 28 was recorded for Bayview Tower, stating:
Refurbishment – Floor Coverings

The legislation provides that an occupier must not cause a nuisance or interfere unreasonably with the use or enjoyment of another lot (Act, 167).

The applicants made submissions to the effect that they can hear the footsteps of the occupiers of the unit above from the moment they step out of bed in the mornings. Even though the respondent has only modified the floor in the living and kitchen areas, the applicants say that they think the floor has altered the acoustics of the unit so that footsteps from the bedroom are now audible from below.

The respondent’s submissions are to the effect that they are very careful not to make noise that disturbs the applicants. This includes attaching felt to the bottom of furniture and not wearing shoes on the wooden floor. They say that they have installed the floor using underlay of an appropriate standard as recommended to them by the salesperson.

I inspected both units accompanied by another member of this office, Matthew Sarna. Matthew Sarna walked around unit 78 with the occupants of that unit while I listened for any noise from footsteps from the applicants’ unit 74 below. Some noises from footsteps were audible but footsteps were not clearly audible in the sense that it was not easy to pinpoint the exact position of the persons above or determine the exact number of persons above. Interestingly, footsteps were audible from persons walking on the original carpeted area as well as the new timber floor. I also noted that the noise from the occupants of unit 78 opening the sliding door onto their balcony was more clearly audible than noise from persons walking on the wooden floor.

Obviously it is more convenient for both parties if the best possible soundproofing is used, in which case occupants need to be less careful about making noise that may interfere unreasonably with the enjoyment of the neighbouring unit. However, I am not satisfied that the occupants of the respondent’s lot are making sufficient noise that they could be said to be contravening the Act. Further, it does not appear that merely walking on the wooden floor creates sufficient noise to amount to a contravention of the Act.

The applicants have expressed a concern that the respondent is selling her unit and that future occupiers may make excessive levels of noise. This is not something about which it is appropriate to make any orders at this stage. If this is the case then the applicant’s would need to bring an application at the time seeking to limit noisy behaviour or require those occupants to install better soundproofing.

The applicants have made submissions to the effect that the respondents have installed parquetry flooring with an inferior sound deadening underlay that does not meet the requirements of by-law 28. The applicants have suggested that the respondent should have used "ABA Soundproof Underlay" which they say has been used elsewhere in the building. A brochure for ABA Soundproof Underlay indicates that the Field Impact Isolation Class (FIIC) rating for this underlay ranges from 55 to 60 and exceeds Building Code of Australia guidelines. This brochure also indicates that the underlay has a powder and liquid component and is for use under hard floor coverings such as ceramic and stone tiles.

Submissions on behalf of the respondent are to the effect that ABA Soundproof underlay is not suitable for installation under a wooden floor but that they used a suitable sound proofing underlay called "Softlon tuff" underlay. The respondent sought permission of the committee to install the flooring by letter dated 11 December 2003. The respondent says that a copy of the leaflet outlining the specifications of the underlay was attached with the letter. The respondent has provided copies of two letters from the body corporate manager confirming the committee’s approval for installation of the floor. These letters are dated 17 December 2003 and 6 January 2004. The second of these letters states that the approval is subject to appropriate sound deadening underlay being installed.

The respondent has also provided a letter from Jeff Corfield, the State Manager of Unique Timber Floors. This letter says that this company has used the same grey Softlon-Tuff underlay that was used in the respondent’s home in numerous multi unit dwellings in Queensland and Victoria, that this brand and type of underlay has been accepted by the body corporate of a client whenever they have made a request to install a floating floor, and that they have never had any problems using the product to date. Technical information provided with the submissions indicates that the FIIC rating of Softlon Tuff installed under a 14mm pre-finished timber floor mounted on a 180mm post tensioned slab is 56.

There are two common measures for structure borne noise including footsteps on hard floors, scraping chairs and dropping objects. The international standard is the weighted normalised impact sound pressure level (L_n,w). Under this standard, the lower ratings indicate the better sound insulation. For example, a well-insulated floor that transmits very little sound may have a L_n,w of 40 whereas a floor that transmits sound more easily may have a L_n,w of 60. In contrast, the FIIC rating follows an American standard that is roughly in an inverse relationship with the L_n,w where subtracting either value from 110 will indicate the other. Under the FIIC system a higher rating will indicate the better sound insulation. For example, a well-insulated floor with a low L_n,w rating of 40 would be expected to have a high FIIC rating of 70 while a floor that transmits sound more easily with a high L_n,w of 60 would be expected to have a low FIIC rating of 50.

The Building Code of Australia now contains minimum sound installation standards for applicable buildings constructed after the commencement of those standards. These include a requirement that floors in relevant buildings must have a L_n,w of 62 or less.^[1] This is roughly equivalent to a FIIC rating of 48 or higher.

While the Building Code of Australia only contains minimum standards, the Association of Australian Acoustical Consultants has released a star rating system designed to give vendors and purchasers a means to evaluate the acoustical quality in apartments above those minimum standards. These include a suggested L_n,w of 55 or less for three star buildings and a suggested L_n,w of 45 or less for five star buildings.^[2] This is roughly equivalent to a FIIC rating of 55 or higher for three star buildings and 65 or higher for five star buildings.

Material describing the underlay described by the installer of the floor indicates that the installed floor is likely to have an overall FIIC rating of around 56 and that the Softlon Tuff Underlay itself has a FIIC rating of 51.

At the time the floor was installed, by-law 28 of Bayview Tower did not specify any minimum FIIC rating for the floor or underlay, only that a sound deadening underlay must be installed. Subsequently, owners have voted to amend the by-laws to specifically require that any underlay at least meet a FIIC rating of 48. The underlay used for the respondent’s floor exceeds this rating.

In these circumstances, the applicants cannot establish any contravention of by-law 28 by the respondent. Further, it is difficult for the applicants to argue that the installation of the wooden floor amounts to the respondent permitting noise likely to interfere with the peaceful enjoyment of their lot given that the FIIC rating of the underlay appears to exceed the FIIC rating agreed by owners in the by-laws as being appropriate for the scheme.

While there is no doubt that the FIIC rating of the respondent’s floor could be higher, the evidence suggests that the FIIC rating of the underlay is better than that required by the present by-law. The committee did not specify any particular type of underlay when approving the installation of the
floor and the letter from Unique Timber Floors indicates that the flooring was laid with a sound deadening underlay. The applicants’ submissions do not satisfy me that the respondent has contravened the by-laws of Bayview Tower.

For these reasons, the application is dismissed.

However, in light of this application, owners may wish to consider whether the by-laws actually require the level of sound insulation that the majority of owners would prefer. If sufficient owners wish to ensure a higher level of sound insulation then they may wish to amend the by-laws in this respect.

^[1] Building Code of Australia, F5.4.
^[2] Association of Australian Acoustical Consultants, Acoustical Star Ratings, Version 9.3 July 2004.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bayview Tower [2005] QBCCMCmr 56 (2 February 2005)