Belray Lodge [2007] QBCCMCmr 369 (18 June 2007)

Last Updated: 6 July 2007

REFERENCE: 0982-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9813
Name of Scheme:	Belray Lodge
Address of Scheme:	QUEENSLAND

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

the body corporate

I hereby order that, within three months, Emmanuel Giouzeppos, owner of lot 11 (respondent) must permanently alter the flooring of the kitchen and living areas of his lot. This alteration must improve the acoustical performance of the floor so that occupiers of the unit are not likely to create noise that interferes unreasonably with the use or enjoyment of the lot below simply by moving chairs or walking across the floor.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0982-2006

"Belray Lodge" CTS 9813

Application

Belray Lodge Community Titles Scheme (Belray Lodge) is an 11 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 the body corporate for Belray Lodge (applicant) seeking orders against Emmanuel Giouzeppos, owner of lot 11 (respondent). The body corporate is seeking an order that the owner of lot 11 make the floor of the unit soundproof.

Decision

Applicable law

The legislation includes a provision that 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 causes a nuisance or hazard or interferes unreasonably with the use or enjoyment of another lot included in the scheme (Act, 167).

Excessive noise from normal use

There is ample evidence that noise emanating from lot 11 unreasonably interferes with the use or enjoyment of the lot below. This includes a letter from a committee member, a person who cleaned the lot below, a real estate agent, a person who visited the unit below to measure for drapes, and a person who attended the unit to perform some repairs.

Palmer Acoustics Australia Pty Ltd (Palmer) has conducted a Field Impact Insulation Test and provided a report that indicates the tiled floor covering the majority of lot 11 has a noise insulation performance that is very poor and may even fail the basic performance requirement under the Building Code of Australia. Having said that, the report indicates that the noise insulation performance of the wooden floor in the bedrooms probably meets at least a basic level of noise insulation even though the level of insulation is probably significantly poorer than the original carpeted floor.

Submissions from the respondent support submissions from the former occupier to the effect that the occupiers did not make any unreasonable noise and the occupier of the unit below was complaining unreasonably. Based on the acoustical report from Palmer I am prepared to accept that the former occupier did not create unreasonable noise but the poor noise insulation performance of the tiled floor resulted in normal use of unit 11 unreasonably interfering with the use and enjoyment of the lot below.

The report indicates the bedroom floor has an acceptable acoustical performance so that it would at least be possible for reasonable occupiers to minimise noise so that any transmission, while still potentially audible, does not unreasonably interfere with the use or enjoyment of the lot below. However, based on the acoustical report and the above submissions, I am satisfied that any normal use of the kitchen and living areas of lot 11 will result in the occupiers creating noise that will, contrary to the legislation, interfere unreasonably with the use and enjoyment of the lot below (Act, 167).

In particular, there are complaints indicating clearly audible footsteps, scraping chairs, and audible voices travelling through the floor. The submissions do not show complaints with sufficient particularity to indicate that the tiled floors within the bathroom and toilet areas are a problem. However, the complaints indicate that the tiled floor in at least the kitchen and living area should be replaced as the noise transmission is unreasonably interfering with the use and enjoyment of the lot below.

Replacement of floor

The respondent has stated that the tiles were pre-existing and the only change made by the respondent was replacement of carpet with timber flooring in the bedroom and hallway areas. It is unfortunate if the respondent has bought a unit that has inherent problems in the form of poor noise insulation performance of the floor. However, this is not a good reason for a floor to remain where the acoustical performance of the floor is so poor that walking across it normally will cause a nuisance or interfere unreasonably with the use or enjoyment of the lot below.

An adjudicator must make an order that is just and equitable to resolve a dispute about a claimed contravention of the Act (Act, 276). In the circumstances it is more likely than not that the poor acoustical performance of the floor will result in occupiers of lot 11 causing nuisance or interfering unreasonably with the use or enjoyment of the lot below. I am satisfied that by allowing the unit to be occupied with the tiled floor in its present state the respondent is responsible for and effectively promoting a contravention of the Act. I therefore propose to order that the respondent take steps to have carpet or vinyl flooring laid over the tiled floor areas of the living and kitchen area of his unit or otherwise permanently alter these areas of flooring so that occupiers of the unit are not likely to create noise that interferes unreasonably with the use or enjoyment of the lot below simply by moving chairs or walking across the floor.

Order

For these reasons, I make the order above.