Acacia Avenue Apartments [2008] QBCCMCmr 195 (13 June 2008)

Last Updated: 27 June 2008

REFERENCE: 0245-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30814
Name of Scheme:	Acacia Avenue Apartments
Address of Scheme:	4 - 6 Acacia Avenue SURFERS PARADISE QLD 4217

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

James Clarey, the Owner of lot 5, acting on behalf of the body corporate

I hereby order that the application for an order that “no tiles be allowed to be laid above floor level including Unit 5.” is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0245-2008

“Acacia Avenue Apartments” CTS 30814

APPLICATION

This is an application dated 20th March 2008 by James Clarey, (the Applicant) co-owner of Lot 3, against Emanuel Hirakis, (Mr Hirakis) owner of Lot 5 in the scheme for an order that “no tiles be allowed to be laid above floor level including Unit 5.”

The Applicant is also the chairperson of the scheme and it is clear that the application intends to be an application made by the body corporate. It is signed both by the Applicant and James Archibald (Mr Archibald) who is a committee member. Section 4(b) of the application which asks the status of the applicant, has been completed showing boxes ticked on behalf of “an owner”; “the body corporate”; ”the committee”; “an occupier” and “ a committee member.” The Applicant may in fact wear all those hats. I am therefore treating this application as made both by the body corporate, a legal entity in its own right, and Mr Clarey, as joint Applicants, even though there is no evidence of a committee resolution that this application for adjudication be made by Mr Clarey as chairman.

The application also sought an interim order that no tiles be laid in unit 5 pending the “adjudicator’s hearing within three months.”

On 9th April 2008 I dismissed the application for an interim order, with written reasons.

Mr Hirakis also made an application to be allowed to lay tiles. (Reference 0298-2008) In the interim order I said that both applications would be dealt with together as far as was possible. On 15th April 2008 Mr Hirakis withdrew his application.

JURISDICTION

“Acacia Avenue Apartments” CTS 30814 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 12 lots in the scheme created under a Building Format Plan of subdivision.

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 authorization 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)).

SUBMISSIONS

The Applicant stated that in March 2008, he had reason to believe that Mr Hirakis was about to lay tiles in Unit 5. The Applicant says that Mr Hirakis has now laid tiles and that the body corporate is looking into making a further application for conciliation.

The body corporate has resolved that no tiles be laid in first floor units because of the concern about the increase in noise which might flow from such an action, partly because of the poor construction of the building, and partly because all the units are small and noise from one will impact on others. The Applicant says that the developer stipulated “no tiles,” and also that “eleven out of twelve owners have agreed” that there should be no tiles laid above ground floor level.

The Applicant provided copies of the following documents:

• Minutes of the annual general meeting held on 28th November 2007 (bearing no apparent reference to this matter);
• a copy of a “flying minute” of the committee dated 29th January 2008 which states that “it was agreed back in April 2007 that there was to be no tiles or Timber Flooring laid above ground floor. It was reconfirmed in minutes of 14th January by Unit owners present. We have further discussed this and once again we agree to go with the Body Corporate that Tiling and Wooden Flooring is not to be permitted above ground floor. There is no exception.” This document was signed by 7 persons apparently representing the committee.
• Minutes of an extraordinary general meeting of 14th January 2008 showing two sets of “additional agenda items to be considered” as submitted by Mr Philip Byers, item 8 of the second set of motions being entitled - “ Re: Floor coverings. It was discussed at previous meeting that due to no sound proofing between units that no timber flooring or tiles are to be approved. Only ground floor units.” (sic) (There is no record of the votes on this motion, or if this was a motion put to the meeting);
• A copy of Schedule 2 of the Body Corporate and Community Management Act 1997 stated to be the by-laws for the scheme.
  

Mr Hirakis submitted at the interim order stage of this application that he has not started to lay tiles in his unit but that he would like to do so. He has researched the impacts of tile-laying and sound absorption underlays, and he believes that there is nothing in the scheme by-laws which prevents him from laying tiles. He had by the time of the interim order removed the carpet, the skirting boards and the old tiles. He stated that the kitchen, hall and entry floor of all units were tiled by the developer with no provision made for acoustic insulation. He proposed to use approved acoustic underlay to the manufacturer’s specification.

He wrote to the body corporate on 21st January 2008 asking permission to tile but received a reply from the body corporate manager on 23rd January that the body corporate could not approve his proposal. The body corporate manager enclosed a copy of a document bearing a section about “Noise Issues” in community titles schemes. It said that this was a copy of “various questions relating to noise issued under the Body Corporate and Community Management Act.” The body corporate manager also sent Mr Hirakis a copy of the by-laws "setting out rules in regard to noise....” He was told not to proceed with the tiling, and had not done so prior to the interim order being dismissed.

Since that interim order being made, the Applicant was concerned that certain documents (the additional material) provided either with the application for conciliation or ostensibly with the application for adjudication, perhaps via the body corporate manager, had not arrived at this Office and not been seen by me. These documents were supplied by the Applicant and the Applicant was asked to distribute the additional material to all lot owners as part of the application, which he duly did.

The additional material consisted of 16 pages, 8 of which had not previously been considered. Those 8 pages included a letter dated 20th January 2007 from the body corporate manager to the owners of Lot 10, turning down Unit 10’s request to lay timber floor coverings; a copy of part of an information certificate, presumably intended for use by the subsequent purchasers of Lot 10, and signed by the body corporate on 23rd January 2008, stating under the section about improvements made to the common property by a lot owner which must be maintained by a lot owner, inter alia “No tiled or timber flooring is allowed”; a page from an unidentified document containing three paragraphs, one about budgets, one about poor building maintenance and one about routine maintenance which as far as I can see do not relate to the laying of hard surfaces in first floor units; a copy of a webpage about the health benefits of carpet as opposed to hard flooring; a two-page copy of another webpage about house dust mites and carpet emissions; and a third page from the same website about health considerations when choosing flooring.

In accordance with section 243(2)b) Act submissions were invited from all lot owners.

Mr Hirakis made a further submission on 21st April 2008 that he had prior to purchasing Lot 5 spoken to Mrs Archibald in the unit below, and she had shown him her tiles and he told her of his intention to do the same thing. My Byers, the then chairperson, gave him a copy of the by-laws and told him there was nothing in the by-laws to stop him from tiling.

Mr and Mrs Archibald, owners of Lot 1 made a submission opposing the laying of tiles or wooden floors in Unit 5. Mrs Archibald denies that she knew that Mr Hirakis was proposing to buy Lot 5, or that he intended placing tiles on the floor. They say that Mr Byers, who was not chairperson at the time, nor on the committee, had no authority to say what he did to Mr Hirakis. The body corporate sent a letter to Mr Hirakis within a few days of him owning the unit, telling him that he was not allowed to lay tiles. He was also provided with minutes of meetings where the body corporate had decided that no tiles could be laid in first floor apartments. He has had three letters sent to him and there are 10 out of 12 owners agreeing that Unit 5 should not lay tiles or wooden flooring.

Mrs Archibald provides copies of letters from the body corporate to Mr Hirakis refusing permission to lay tiles and dated respectively, 21st January 2008, 23rd January 2008, and 30th January 2008 and referring to By-Law 1 about noise.

Peter Byers, owner of Unit 12 says that he was the developer of the scheme and until November 2007, the chairman of the committee. He denies that the building was poorly constructed or that that “eleven out of 12” owners have voted against tiling. He has never done so, and as the developer he has never stipulated: “no tiles.” He has not instigated the “no tiles” policy, and does not believe it true that in April 2007 “it was agreed that there was to be no tiles or timber flooring laid above ground floor” as stated in the application. He says that Unit 5 has tiles in the entry area and kitchen which is over Unit 1, and he has heard no complaints about noise. The same situation applies to unit 9 which is over Unit 5. He believes tiles can be applied according to manufacturer’s specifications and cause no trouble in high rise buildings.

Brent and Wendy Dobrow, of units 7 and 11 “want to register a ‘no’ vote” to having tiles/wooden flooring on the upper levels. Blair Harris of Unit 6 opposes the laying of tile or wooden floor in Unit 5, and signed the same “pro-forma” letter prepared for lot owners to sign on 19th April 2008; as did Jodie Lee Turner, owner of Unit 4; Ivan and Maureen Turner owners of Unit 9; Andrew McLaughlan owner of Unit 10; and Tony Zanetic, owner of Unit 8.

DETERMINATION

As I stated in the reasons for decision in the interim order, unless there is a by-law for the scheme preventing the laying of specific types of flooring, neither the body corporate, nor the committee has the power to dictate to a lot owner what he can or cannot do with regard to the furnishings and coverings chosen for his own freehold lot.

It does not matter whether there has been a motion passed at a general meeting or by the committee, not that this body corporate has demonstrated that such a motion has been put to the vote, either by the committee or at a general meeting. Even if it had, it would be invalid. A body corporate cannot require the inside of a lot to be furnished in a certain way. Some schemes have by-laws saying that the committee would consider favourably certain types or specifications of flooring, an outright ban running the risk of being an unreasonable by-law, but without any mention whatsoever in the by-laws about flooring, the body corporate has no authority to make such policies.

The by-laws for this scheme were examined at the interim order stage. There are 12 by-laws recorded on the first community management statement for the scheme, recorded in the Land Title Registry on14th November 2002, and they are ostensibly the same as those set out at Schedule 2 of the Act with the addition of the exclusive use by-law referring to Schedule E of the community management statement. By-law 1 refers to Noise and states:

“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.”

As stated in the interim order, if the coverings chosen by Mr Hirakis result in unacceptable noise, then the body corporate may enforce its noise by-law ( By-Law 1) by taking steps as set out in the legislation, that is, sending to him a continuing breach of by-law notice and asking him to remedy the problem. The committee does this if it has reasonable grounds to be believed that the noise emanating from Mr Hirakis’ unit is unreasonable. Mr Hirakis must then take steps to abate the noise, ie. by putting down rugs, and if there still remains a dispute about noise, then the parties may bring the dispute to this Office for conciliation or adjudication.

However, this is not a dispute about noise. This is a dispute about whether Mr Hirakis, and any other lot owner above the ground floor, should be allowed to lay tiles or wooden flooring. The body corporate has absolutely no say in this decision, and it is the lot owner’s decision alone. Any owner must of course proceed knowing that whatever coverings he or she chooses, those coverings will be put to the “noise” test, but that is their decision.

The additional material about the health benefits of carpet, and the fact that the body corporate refused the request of the owners of Lot 10 to have tiles, makes no difference to the relevant law. There is no requirement in the legislation or in the scheme by-laws for any owner to seek the permission of the body corporate in order to lay tiles.

This application is dismissed.

The body corporate might wish to consider creating a by-law about wooden floors or tiles in upper units. Such a by-law would be part of the community management statement for the scheme and be registered in the Land Title Registry.

In the meantime, all lot owners may put down whatever floor coverings they please in their own homes. And all lot owners must observe By-Law 1. That is to say, whatever floor coverings are chosen, the owner or occupier must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or common property. This Office has dealt with many cases of noise, and in the circumstances of multiple occupancy of a building, there is bound to be a certain amount of noise which is considered reasonable. The standard is not that the occupier of a lot makes no noise at all which can be heard in another lot or on the common property. The complainant must demonstrate that the noise emanating from the lot is unreasonable. The body corporate might bear this in mind if it is now considering a further application for conciliation regarding Unit 5’s tiles.