Newstead Terraces [2006] QBCCMCmr 442 (10 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0293-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33392
Name of Scheme:	Newstead Terraces
Address of Scheme:	20 Newstead Terraces NEWSTEAD QLD 4006

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

Simon Damien Sincock and Claire Leba Baddouche, the owners of lot 38

I hereby order that the application for the following order: We would like the noise to cease or reduce significantly to acceptable levels for the type of development we reside in. The expert report attached details the works required to achieve acceptable noise levels, namely, to carpet the living area to the unit above or to use adequate sound insulation beneath the tiles of the unit’s floor. (See report attached) is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0293-2006

"Newstead Terraces" CTS 33392

Scheme

"Newstead Terraces" Community Titles Scheme was registered as a building format plan of subdivision on 8 December 2004 comprising 61 lots and common property. It is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

Application

This application is brought by the owners of lot 38, Simon Damien Sincock and Claire Leba Baddouche (the applicants) against the owners of lot 51, Renee House and Janine Margaret McPhee. The applicants seek the following order:

We would like the noise to cease or reduce significantly to acceptable levels for the type of development we reside in. The expert report attached details the works required to achieve acceptable noise levels, namely, to carpet the living area to the unit above or to use adequate sound insulation beneath the tiles of the unit’s floor. (See report attached)

In their grounds, the applicants state as follows.

Unit 51 has installed tiles to the floor living area. As a result, the impact noise has filtered into the concrete slab between the unit levels and creates substantial noise and reverberation throughout unit 38. This noise and reverberation seriously diminishes the applicants’ living to the point where it forces them out of their unit and they have difficulty sleeping whilst there is movement above them. The noise is the result of simply walking with no shoes from unit 51.

The applicants have contacted the owners of lot 51 regarding the problem and no action has been taken. A contravention of by-laws notice was issued against the owners of lot 51 on 28 March 2006.

The applicants believe that the noise clearly interferes with the peaceful enjoyment of their lot and is therefore in breach of by-law 1 – Noise.

They state that they have contacted the body corporate to enforce the noise by-law and the noise still remains, hence their application to this office.

The applicants attach a report from Savery & Associates Pty Ltd Acoustic and Environmental Consultants which they say supports their claim. The essence of this report is that the impact sound level measured in Unit 38 by Palmer Acoustics (Australia) Pty Ltd is higher than expected for a luxury apartment and that impact sound intrusion from Unit 51 is likely to cause valid noise annoyance to the occupants of Unit 38.

Submissions

Submissions were sought from the committee, all owners, and the owners of lot 51, in particular. Two submissions were received, one from the owner of lot 14, Mrs Sincock, supporting the applicants. The only other submission received was from the owners of lot 51. Their submission was to the effect that:

•	There is no jurisdiction to determine this dispute on the basis that the applicants have failed to particularise any action by the occupiers of unit 51 that creates noise as provided for in by-law 1 and that ordinary day to day activities, like walking barefoot in one’s unit, clearly does not fall within the ambit of the by-law. Further, the owners of lot 51 are not the occupiers, therefore they cannot be accused of contravening the by-law.
•	The applicants intimated to one of the owners of lot 51 that if he had known that unit 51 had tiles, he would never have had a timber floor laid in his unit.
•	A report from Palmer Acoustics (Australia) Pty Ltd dated 7 April 2005 concluded that the floor impact isolation in Unit 51 can be described as up to the industry standard and that no correction was required for ambient noise level.
•	The desk study prepared by Savery & Associates Pty Ltd for the applicants fails to address the actual sound levels in the applicants’ unit. In particular, they state that Mr Palmer states that despite the AAAC Star Ratings, the industry standard in reality in Queensland is the only realistic relevant measure and that an Lnw of 59 certainly conforms therewith.
•	The owners of lot 51 are also the owners of lot 60, in which they reside. Unit 60 has the exact same tiles as unit 51. Directly beneath unit 60 is unit 49 occupied by Mr Kieran Malmerog. Mr Malmerog has advised that he has never been annoyed by noise from the unit above.

The applicants exercised their right to inspect the submissions and made a reply.

Jurisdiction

This is an application by owners of a lot against owners of another lot and is therefore within the dispute resolution provisions of the Act^[1].

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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Determination

The basis of the applicants’ claim is that the owners of lot 51 have breached the applicable noise by-law for the scheme.

By-law 1, as recorded in the Community Management Statement for Newstead Terraces, registered on 15 March 2006 provides as follows:

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.

There is no definition of "occupier" in the by-laws themselves. In Schedule 6 of the Act, the term is defined to mean:

(i)	a resident owner or resident lessee of the lot, or someone else who lives on the lot; or
(ii)	a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot

The owners of lot 51, against whom this application is made, are not the occupiers of that lot. As such, they cannot be regarded as having breached by-law 1. I have considered section 167 of the Act which deals with nuisances but note that it also applies only to "occupiers". I note that the applicants have since caused the body corporate to issue a Notice of Continuing Contravention of a Body corporate By-Law (dated 2 June 2006) to the occupiers of Lot 51. However, this application is not brought against the occupiers of lot 51. Having failed to establish a breach of any by-law or the legislation by the persons against whom this application is brought, I have no choice but to dismiss the application.

In doing so, I wish to make the following comments in relation to the by-laws adopted by Newstead Terraces.

Firstly, several by-laws, (for example, 1. Noise, 20. Alterations to the Lot, 21 External Appearance and Window Coverings 22. Acoustics) refer only to "occupiers". The subject matters of these particular by-laws are generally applicable not only to "occupiers" but also to "owners" and should refer to both. Some by-laws (for example, 32. Exclusive Use – Car Parking; 33. Exclusive Use- Storage Space, 40. Gas Supply) specifically refer to "owner" and "occupier" and are therefore applicable to both. Others apply only to occupiers and are drafted as such.

Secondly, if Newstead Terraces is in fact a "luxury" development as the applicants contend, such that a lower floor impact sound rating of between Lnw 50 dB and Lnw55 dB is required, then this should be specifically provided for in the scheme’s by-laws. Owners should be given the opportunity to decide this matter for themselves.

In the circumstances, I recommend that the body corporate review its existing by-laws at its next general meeting.

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^[1] See sections 226 and 227(1)(a) Act