Tarcoola [2006] QBCCMCmr 724 (15 September 2006)

Last Updated: 29 March 2007

REFERENCE: 0520-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24652
Name of Scheme:	Grosvenor Apartments - Brisbane
Address of Scheme:	PO Box 7972 BUNDALL QLD 9726

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

the body corporate for Grosvenor Apartments - Brisbane

I hereby order that, within six months, Terrence and Sheryl Stevenson, owners of lot 97 (respondents) must perform any replacement or alterations necessary to the hard flooring they installed in their lot to achieve permanent or semi-permanent flooring in their lot that has a composite Floor Impact Isolation Class rating that complies with by-law 22.5. I further order that, within six months, the respondents must provide to the committee a copy of a report from an acoustic consultant nominated by the committee showing that the relevant flooring complies with by-law 22.5. This is unless otherwise agreed by the committee, for example, if the committee is satisfied that the respondents have restored satisfactory soft floor coverings.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0520-2006

"Grosvenor Apartments - Brisbane" CTS 24652

Application

Grosvenor Apartments - Brisbane Community Titles Scheme (Grosvenor) 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 primarily for residential purposes although three lots are designed for commercial purposes.

This application is by the body corporate for Grosvenor (applicant) seeking orders against Terrence and Sheryl Stevenson, owners of lot 97 (respondents). The body corporate is seeking an order requiring the respondents to meet the requirements of by-law 22.5 regarding the installation of hard flooring.

Background

Alleged contravention of by-law

The body corporate says that it approved installation of hard flooring by the respondents on 1 November 2002 subject to the installation complying with by-law 22.5. At that time, by-law 22.5 of the Grosvenor stated:

Installation of Hard Flooring

(a) Installation

An Occupier shall not install or cause to be installed or place in or upon any part of the Lot hard flooring such as timber, tiles, marble or any similar material (the "works") unless the Occupier has first obtained the written approval of the Committee of the Body Corporate.

(b) Conditions

Where the Committee grants consent to the installation of the works, in addition to any other conditions the Committee may impose, the following conditions shall also apply:

(i)	The Floor Impact Isolation Class ("FIIC") of the works when completed, shall not be less than the following performance specification:

AREA	FIIC
Kitchen	60
Lounge/Bedrooms	77

(ii)	Following the installation of the works, the Occupier shall at its cost have the FIIC determined by a field test conducted by an accredited acoustic consultant approved by the Committee. The Occupier will provide a copy of the consultant’s report to the Committee within seven (7) days of receiving same.
(iii)	Where the FIIC of the completed works is less than the level detailed in By-Law 2.5(b)(i), the Occupier must, within a reasonable time, at its cost, cause the removal of the works and/or have any necessary procedures or additional works undertaken in order for the works to comply with the requirements in By-Law 22.5(b)(i). Following any such remedial action being taken, the provisions of By-Law 22.5(b)(ii) must again be complied with by the Occupier.
(iv)	Where the works are installed and the FIIC complies with the requirements of By-Law 22.5(b)(i) and any other conditions imposed by the Committee, the Body Corporate or its representative shall notify the Body Corporate’s insurers of the installation of the works and the Occupier will be liable for any increase in premium as a result of the installation of the works.

(c) Compliance with conditions

An Occupier must comply with any conditions imposed by the Committee of the Body Corporate when granting its consent including any conditions which are imposed by the Committee of the Body Corporate to prevent any noise arising in any way out of the installation or use of the works from being transmitted from the Lot to another Lot.

(d) Compliance with by-law 2.1

The granting of any approval by the Committee of the Body Corporate does not in any way relieve an Occupier of his or her responsibility under by-law 2.1.

(e) Reinstatement

In the event that an Occupier fails to comply with the terms of this by-law 22.5, then an Occupier will at his or her expense remove the works from the Lot upon receiving written notice from the Committee of the Body Corporate to do so or otherwise must comply with any reasonable direction given by the Committee of the Body Corporate to mitigate any noise.

By-law alleged to be unreasonable

The owners of another lot subsequently brought an application alleging that the FIIC rating of 77 required by by-laws 22.5 was too onerous. This was based on a report indicating that a rating of 77 was impossible to test for because ambient noise levels would make verification testing impossible. It was argued that this level could not be achieved by any floor covering in the apartment and the actual structure of the building would need to be upgraded. The respondents were successful before a specialist adjudicator in establishing that a rating of 77 was not practically achievable and the adjudicator made an order that the rating for areas other than the kitchen be reduced to FIIC 67 and that the by-law also be amended to allow for exemption from the specified ratings in special circumstances.^[1] Owners subsequently voted on some further amendments to by-law 22.5 and, since 16 September 2005, by-law 22.5 has provided as follows:

Installation of Hard Flooring

(a) Installation

An Occupier shall not install or cause to be installed or place in or upon any part of the Lot hard flooring such as timber, tiles, marble or any similar material (the "works") unless the Occupier has first obtained the written approval of the Committee of the Body Corporate.

(b) Conditions

Where the Committee grants consent to the installation of the works, in addition to any other conditions the Committee may impose, the following conditions shall also apply:

(i)	The Floor Impact Isolation Class ("FIIC") of the works when completed, shall not be less than the following performance specification:

AREA	FIIC
Kitchen	60
All other internal areas	67

(ii)	Following the installation of the works, the Occupier shall at its cost have the FIIC determined by a field test conducted by an accredited acoustic consultant approved by the Committee. The Occupier will provide a copy of the consultant’s report to the Committee within seven (7) days of receiving same.
(iii)	Where the FIIC of the completed works is less than the level detailed in By-Law 2.5(b)(i), the Occupier must, within a reasonable time, at its cost, cause the removal of the works and/or have any necessary procedures or additional works undertaken in order for the works to comply with the requirements in By-Law 22.5(b)(i). Following any such remedial action being taken, the provisions of By-Law 22.5(b)(ii) must again be complied with by the Occupier.
(iv)	Where the works are installed and the FIIC complies with the requirements of By-Law 22.5(b)(i) and any other conditions imposed by the Committee, the Body Corporate or its representative shall notify the Body Corporate’s insurers of the installation of the works and the Occupier will be liable for any increase in premium as a result of the installation of the works.

(c) Compliance with conditions

An Occupier must comply with any conditions imposed by the Committee of the Body Corporate when granting its consent including any conditions which are imposed by the Committee of the Body Corporate to prevent any noise arising in any way out of the installation or use of the works from being transmitted from the Lot to another Lot.

(d) Compliance with by-law 2.1

The granting of any approval by the Committee of the Body Corporate does not in any way relieve an Occupier of his or her responsibility under by-law 2.1.

(e) Reinstatement

In the event that an Occupier fails to comply with the terms of this by-law 22.5, then an Occupier will at his or her expense remove the works from the Lot upon receiving written notice from the Committee of the Body Corporate to do so or otherwise must comply with any reasonable direction given by the Committee of the Body Corporate to mitigate any noise.

Present application

The background to the present application is that the body corporate gave approval to tiles installed by the respondents subject to the installation complying with by-law 22.5 as it was at the time. The body corporate says it has never received an acoustic report showing that the FIIC of the completed works complies with by-law 22.5. There is evidence of some negotiations and ongoing disputes between the body corporate committee and the respondents regarding this matter, although it was resolved to defer any action for some time pending resolution of other disputes. The present dispute could not be resolved between the parties and a determination is now necessary.

Submissions

The body corporate’s main submissions were to the effect that:

• The respondents have installed hard flooring that does not meet the requirements of by-law 22.5;
• An approval was given on 1 November 2002 but specifically stated that the approval was "subject to the installation complying with Body Corporate By-law 22.5"; and
• The respondents have not provided an acoustic report showing that the hard flooring does meet by-law 22.5.

The respondent’s main submissions were to the effect that:

• Mirvac developed buildings have a minimum FIIC of 55;
• There is no evidence that measurements have been taken to ensure the building meets this standard and any level of FIIC greater than 55 exceeds the design requirements;
• The committee has engaged in false and misleading conduct by holding themselves out as experts in setting FIIC levels but failing to disclose a number of existing hard floorings do not met those levels and failing to set reasonable FIIC levels;
• The body corporate failed to obtain expert advice about FIIC levels, established unreasonable levels, and set in place a flawed process in that you do not realise the required levels are not achievable for the floor in question until you have installed the new flooring. The appropriate process would be to measure the FIIC of the existing floors, after having removed any carpet, and then calculate the potential composite FIIC level;
• The FIIC of the existing floors may vary in different places;
• The committee has allowed someone located immediately above the car park to have hard floors without meeting the FIIC levels in the by-laws but this ignores the effect on adjacent owners; and
• The respondents have been disadvantaged due to the delay and have now let out their unit for an undefined period. Consideration of these circumstances are requested if any restoration of flooring is required in the unit.

Only two other owners have made submissions. One of these wishes the present by-law to be enforced and refers to a failure by the respondents to have the by-law amended to their favour in 2004. The other submission opposes the application on the basis that the present by-law is unrealistic in terms of the FIIC rating required.

Decision

By-laws for the scheme

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). Further, by-laws cannot be inconsistent with the Act and an adjudicator can order a by-law be removed if it is oppressive or unreasonable (Act 180, Schedule 5 Item 20).

Requirement to comply with by-law 22.5

The respondents’ submissions are largely misconceived and without substance. The core of the application is relatively simple. The committee approved hard flooring installed by the respondents provided they could demonstrate it met certain FIIC levels, the respondents have not demonstrated it meets these levels, and the respondents should therefore be required to demonstrate it meets these levels or install flooring that does.

The matter is perhaps complicated by the earlier application that resulted in one of the original FIIC ratings being declared to be unreasonable and required the by-law to be amended to incorporate a less stringent FIIC ratings.^[2] However, this amendment could only be more favourable to the respondents and the respondents have failed to even argue that their flooring meets these new ratings. In short, the approval was subject to the respondents ensuring their flooring met a certain FIIC level and the respondents have failed to show their flooring meets that level or a lower level in a subsequent by-law. The respondents should therefore be required to alter their flooring if necessary to meet the FIIC requirements in the current by-laws.

I am not persuaded by arguments to the effect that the committee has misled owners about the difficulty of achieving the FIIC levels and that the entire process was flawed. Owners as a whole vote on the adoption of by-laws. It is up to individual owners to ensure they comply with the particular by-laws. The respondents’ could have chosen to first remove their carpet and measure the FIIC level of their exiting floor and then determining the likely composite FIIC rating before installing the new flooring. Alternatively, the respondents’ could have sought assurances from persons supplying or installing the floor that the new flooring would meet the required FIIC rating. Ultimately, it was up to the respondents to ensure that any hard flooring they installed complied with the FIIC level specified.

The respondents have not provided any evidence that satisfies me that the FIIC rating in the present by-law 22.5 is unreasonable. Further, I see no merit in the submissions to the effect that the respondents should be given some special dispensation because owners who installed hard flooring before there was any by-law regulating the matter do not have to comply with the same FIIC rating or that another owner located above the car parking area does not need to meet the same standard.

However, I do take note of the significant delays in enforcing the by-law against the respondents and the respondents’ having now let out their unit for an undefined period and requesting this be considered if any restoration of flooring is required in the unit. For this reason, I consider it just and equitable that the respondents’ be given an extended period of six months to make any alterations necessary to comply with by-law 22.5.

Order

In conclusion, the respondents have failed to show that the hard flooring they installed complies with the FIIC rating required by the by-laws. It was the respondents’ responsibility to take steps to ensure that any flooring they installed was compliant with the by-laws. The respondents should therefore replace this flooring with carpet or take any other appropriate steps to ensure their flooring meets the FIIC rating of by-law 22.5.

For these reasons, I make the order above.

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^[1] Application 0709-2003, Grosvenor Apartments – Brisbane, Richard Perry (Specialist Adjudicator), 16 November 2004.
^[2] Application 0709-2003, supra.