2nd Avenue [2007] QBCCMCmr 182 (28 March 2007)

Last Updated: 12 April 2007

REFERENCE: 0915-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5755
Name of Scheme:	2nd Avenue
Address of Scheme:	C/- Body Corporate Services Pty Ltd, Level 1, 45 Nind Street SOUTHPORT

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

Mr Carmelo & Mrs Annunziata Scuteri, the Owners of lot 82 (unit 29D)

I hereby order that the owners of lot 84 (unit 30F) are to place thick, or rubber-backed mats in hallways, stairwells and other "high traffic" areas of their lot, so that noise transference to lot 82 below, is minimised.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0915-2006

"2nd Avenue" CTS 5755

Application

The applicant has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1. That the owner of lot 84 be ordered to replace the hard surface flooring with carpet; or
2. If the above is not possible then the owner be ordered to place large carpets (mats) on the tiles to absorb some of the sound. One of the mats to be placed at the bottom of the stairwell leading from the first to the second floor.

Background

2nd Avenue Community Title scheme consists of 84 lots on a Building Format Plan (previously known as a Building Unit plan) and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

The applicants state that although they have resided in the building for an extended period of time, they have only recently begun to experience a noise disturbance from lot 84 which is located directly above their lot. Lot 84 is a large open plan unit, in which new ceramic tile flooring was laid during 2005.

Following a complaint by the applicants, the body corporate replied on 28 August 2006, as follows:

Your letter regarding noise emanating from the penthouse was tabled and discussed at the recent committee meeting. The meeting acknowledges your complaint and advise that information has been received that soundproofing compound was laid beneath the tiles prior to the floor being laid.
The Committee advise that the requirements by you are follows:
Engage a sound engineer to test the sound levels and if found to be unacceptable an application can be made to the Commissioner for body Corporate and community management.

The applicants subsequently obtained a report dated 8 December 2006 which included the following details:

• Acoustic testing was conducted on 4 November 2006 for the purposes of determining the acoustic impact rating of the tiled/ concrete slab floor system between source unit 30F (lot 84 on level 30) and receiver unit 29D (lot 82 0n level 29);
• Unit 30 is a penthouse apartment and as such has a different floor layout to 29D below. Impact tests were conducted with respect to the receiver living and master bedroom areas of 29D which are below the living areas of lot 84;
• The tapping machine impact source was positioned in the living room of unit 30F in positions above the receiver rooms;
• Tests were also conducted on a rubber backed carpet mat;
• The results of the tests were as follows:

Floor Covering	Source Area	Receive Area	L’nT,w	Field IIC
Bare Tile	Unit 30 living	Unit 29D living	67	35
Bare Tile	Unit 30 living	Unit 29D Master Bedroom	69	38
Carpet Mat	Unit 30 living	Unit 29D Master Bedroom	46	62

• Testing was carried out in accordance with the following standards:
ISO 140 – 7:1998- "Acoustics – measurement of sound insulation in buildings and of building elements – Part 7: Field measurement of impact sound insulation of floors;
ISO 717 – 2:1996- "Acoustics – rating of sound insulation in buildings and of building elements – Part 2 impact sound insulation";
ASTM 1007-90 - "Standard test method for field measurement of tapping machine impact sound transmission through Floor- Ceiling Assemblies and associate Support Structures".
• It is widely accepted that there is a difference of 5 rating points between laboratory and field measurements i.e. a laboratory rating of IIC60 would equate to an installed rating of IIC55;
• The impact test results of IIC35 & IIC38 are equivalent to what could be expected for a bare tiled and concrete slab floor system without acoustic underlay;
• A result of IIC62 was achieved where rubber backed carpet mats were placed on the floor;
• If it is desired to increase the impact rating of the floor system one or more of the following methods may be required:
- Covering the floor area of unit 30F with carpet and underlay as listed in the by-law;
- Covering the floor area of unit 30F with carpet rugs with a thickness of at least 10mm;

- Removing the tiled floor system and replacing with a higher quality (I.e. higher rating) acoustic system to achieve the minimum requirements as listed in the by-law.

Although the report states that the scheme by-laws include a specific provision regarding soundproofing, my search of Department of Natural Resources and Water records indicates that the last Community Management Statement for this scheme was lodged with that Department in April 2002, and does not contain a specific by-law regarding soundproofing.

Submissions

Pursuant to section 243 of the Act, submissions were sought from the body corporate and all lot owners.

The Acting Chairperson of the body corporate committee made the following submissions:

• The dispute arose from an owner of the penthouse having replaced the standard carpet floor covers with tiles;
• According to the acoustic testing report the impact test results of IIC35 and IIC38 for the bare tiled floor system do not appear to satisfy the IIC requirements of the scheme by-laws.

Two brief submissions from individual lot owners indicated their support for the application.

The owners of lot 84 made the following submissions:

• The tiles were laid in March 2005 by a previous owner and they took possession in March 2006. However during that one year period no complaints were made;
• They have placed thick rugs on the living room floor and have also placed caps under all chairs and furniture;
• They have advised the letting agent that furniture is not to be moved by the tenants and he advised them that no furniture has been moved;
• They have been advised by the subcontractor that work was done in accordance with manufacturers instructions and that acoustic underlay was used;
• They believe the tiling was done properly and have recently spent $2,000 on rugs.

Jurisdiction

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 Body Corporate and Community Management Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community
titles schemes".

Although the Acoustic Report states that the scheme by-laws include a specific provision regarding soundproofing, my search of Department of Natural Resources and Water records indicates that the last Community Management Statement (CMS) lodged with that Department in April 2002, does not contain a specific by-law regarding soundproofing.

Nevertheless, the CMS dated April 2002 does contain the following by-law:
Noise
An occupier must not create any noise likely to interfere with the peaceful enjoyment of a person lawfully on another Lot or the Common Property.

In addition it should also be noted that section 167 of the Act provides:
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

While it would appear that the current owners of lot 84 were not responsible for laying the floor tiles, this does not absolve them from responsibility for any future nuisance that noise transference through the tiled floor might cause. Having regard to the expert’s report, I consider that the noise transference through the tiled floor as evidenced by the impact test results of IIC35 & IIC38, has the potential to unreasonably interfere with the applicant’s use and enjoyment of their lot.

Although the owners of lot 84 believe that the tiles were laid on soundproof acoustic material, the fact remains that the impact test results of IIC35 & IIC38 are equivalent to what could be expected for a bare tiled and concrete slab floor system without acoustic underlay. In the circumstances I believe that there are two remedies available:

• replacement of the hard surface flooring with carpet (including a good quality underlay);or
• given that the tests conducted on the rubber backed carpet mat resulted in a field IIC reading of 62, an alternative option would be carpeting of the entire unit, or at least placement of thick, or rubber-backed mats in hallways, stairwells and other "high traffic" areas .

I note that lot 84 is a large unit and accordingly, an order to remove the hard surface flooring and replace it with carpet, would be quite onerous and would probably involve a significant amount of noise and dust for the duration of the work. On the other hand, I believe that the concerns raised by the applicant can be remedied by the alternative option of ordering the owners of lot 84 to install carpet in all "non-wet" areas of the unit, or by at least placing thick, or rubber-backed mats in hallways, stairwells and other "high traffic" areas.

In the circumstances, I believe it is just and equitable for me to order that the owners of lot 84 are to place thick, or rubber-backed mats in hallways, stairwells and other "high traffic" areas so that the level of noise transference to other units is within acceptable levels. Of course, given that the concrete slab floor of lot 84 also serves as the ceiling of lot 82, it is not possible to completely remove noise transference between the two units, but I believe that this should bring the noise transference between the units to an acceptable level.