On Pacific [2008] QBCCMCmr 343 (22 September 2008)

Last Updated: 14 October 2008

REFERENCE: 1010-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30929
Name of Scheme:	On Pacific
Address of Scheme:	224 Pacific Parade BILINGA QLD 4224

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

Susan Goodfellow, the Owner of Lot 1

I hereby order that the application for orders: That an acoustic engineer, builder and/or any other relevant experts ("the authorised persons") conduct testing of the floor, ceiling and/or other surfaces in units 1 & 3 "On Pacific" Community Titles Scheme CTS 30929 and prepare reports commenting on those findings ("the reports"); That the reports consider, inter alia, the extent and detail of the acoustic design of noise control measures required and involve an on-site assessment and a noise amenity survey of units 1 & 3 "On Pacific" Community Titles Scheme CTS 30929; That the Respondent be required to carry out necessary repairs and/or rectification work to reduce noise interference interfering with the Applicant's enjoyment of her lot in accordance with the reports; The costs of the reports and all necessary repairs and/or rectification work to the Respondent's and/or the Applicant's property be carried out at the Respondent's expense; Further or alternatively, the Body Corporate for "On Pacific" Community Titles Scheme CTS 30929 be authorised to allow the authorised persons to enter the Respondent's lot, to carry out the work referred to in orders 1-4 above and/or to recover the costs of that work from the Respondent; Further or alternatively, the Respondent be required to comply with all relevant by-laws relating to noise and the interference with the peaceful enjoyment of other lots and/or that the Respondent take all reasonable steps to ensure that invitees to the Respondent's lot also act in such a way as not to constitute a breach of the relevant by-laws; The orders sought are made with reference to, inter alia, sections 160-163, 167,182-188 of the Body Corporate and Community Management Act 1997 and section 82 of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 and by-laws 1 and 6 of "On Pacific" Community Titles Scheme CTS 30929. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1010-2007

“On Pacific” CTS 30929

On Pacific community titles scheme (On Pacific) consists of eight lots and common property. The community management statement (CMS) for On Pacific indicates that the Body Corporate and Community Management (Small Schemes Module) Regulation 2008[1] (Small Schemes Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plan 153644.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Susan Goodfellow, Owner of Lot 1 (applicant) on 19 December 2007. The applicant sought orders against Denis Bridges, Owner of Lot 3 (respondent) in the following terms:

1. That an acoustic engineer, builder and/or any other relevant experts ("the authorised persons") conduct testing of the floor, ceiling and/or other surfaces in units 1 & 3 "On Pacific" Community Titles Scheme CTS 30929 and prepare reports commenting on those findings ("the reports");
2. That the reports consider, inter alia, the extent and detail of the acoustic design of noise control measures required and involve an on-site assessment and a noise amenity survey of units 1 & 3 "On Pacific" Community Titles Scheme CTS 30929;
3. That the Respondent be required to carry out necessary repairs and/or rectification work to reduce noise interference interfering with the Applicant's enjoyment of her lot in accordance with the reports;
4. The costs of the reports and all necessary repairs and/or rectification work to the Respondent's and/or the Applicant's property be carried out at the Respondent's expense;
5. Further or alternatively, the Body Corporate for "On Pacific" Community Titles Scheme CTS 30929 be authorised to allow the authorised persons to enter the Respondent's lot, to carry out the work referred to in orders 1-4 above and/or to recover the costs of that work from the Respondent;
6. Further or alternatively, the Respondent be required to comply with all relevant by-laws relating to noise and the interference with the peaceful enjoyment of other lots and/or that the Respondent take all reasonable steps to ensure that invitees to the Respondent's lot also act in such a way as not to constitute a breach of the relevant by-laws;
7. The orders sought are made with reference to, inter alia, sections 160-163, 167,182-188 of the Body Corporate and Community Management Act 1997 and section 82 of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 and by-laws 1 and 6 of "On Pacific" Community Titles Scheme CTS 30929.
   

PROCEDURAL MATTERS

In November 2007 the applicant lodged a conciliation application with Commissioner’s Office in regard to this dispute. I understand that a conciliation session conducted on 3 December 2007 was unable to resolve the dispute. Accordingly this application was lodged.

Under section 243 of the Act, the application was provided to the respondent and the Body Corporate, with an invitation to the respondent, the Committee and all owners to respond to the matters raised by the application. Submissions were made by the respondent, an occupier of Lot 3 and two other owners. The applicant inspected the submissions and made a written reply.[2]

A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the application and submissions and seeking further information from the parties as detailed below.

MATTERS IN DISPUTE

The application relates to noise transmission between the applicant’s Lot 1 and the respondent’s Lot 3, which is directly above Lot 1. The applicant claims the respondent is using his lot in such a way as interfere unreasonably with her use and enjoyment of the lot and/or in contravention of the by-laws. The circumstances of the dispute can be summarised as follows.

The applicant’s solicitors first wrote to the respondent on 26 February 2007 stating that:

• Excessive transmission of noise from Lot 3 had occurred since August 2004, included walking, moving chairs, chopping in the kitchen, dropping utensils and shutting cupboards;
• The noise interferes with the applicant’s use and enjoyment of her lot, and particularly affects the applicant’s terminally ill husband;
• There is no buffer between the concrete and tiled floor in Lot 3, as per building standards;
• The applicant had previously raised the matter with the respondent and the Body Corporate but no satisfactory action had been taken to rectify the matter; and
• The respondent is in breach of By-law 1 and if rectification and repairs to the flooring of Lot 3 did not occur the applicant would lodge a dispute resolution application.
  

On 14 March 2007 the respondent’s son (Kenneth Bridges, an occupant) replied that:

• The circumstances of the applicant’s husband were acknowledged and they wished to limit the level of noise transmission between the lots;
• The applicant had raised noise transference from moving chairs and bouncing balls by telephone some two years previously. Action was taken to put cushioning on the tips of all chairs and ensure balls were not bounced in Lot 3;
• No further approach was made and they were unaware that there was a continuing problem;
• On receiving the letter they put additional thick carpet squares under the dining table and chairs, at the balcony door, and next to main kitchen work area. They also put cushioning stops in all cupboard drawers and replaced some heavier utensils. They also intended to install a quieter kitchen garbage grinder. Finally they noted that they would continue to use timber or other soft surfaces for food preparation;
• The scheme was built in 2002 by Peter Rigby of Benjasser Constructions who completed seven similar developments with no known noise dispute for any of these buildings;
• All units have tiles in the kitchen and dining room, except for timber flooring in Lot 1. All tiles were laid according to building regulations using sound rated glues. The permanent flooring in Lot 3 has not been changed, but unlike the lounge and bedrooms have been carpeted;
• The issue was not raised at any Body Corporate meetings to their knowledge and they had not received any formal or informal notification from the Body Corporate on the issue;
• The unit is only used for 20% of the time by family and friends, and it is never rented; and
• They invited the applicant to talk to them directly about noise at any time.
  

It seems the parties then spoke but were unable to resolve the matter. On 17 April 2007 the applicant’s solicitors wrote again advising that no reduction in noise had been noticed. The letter requested consent for an acoustic engineer engaged to access Lot 3 to test the floor. On 26 May 2007 the respondent declined saying he had done everything in his power, and he did not understand how an acoustic engineer could help.

On 17 April 2007 the solicitors also wrote to the Body Corporate noting that, despite their complaints, the matter had not been discussed or raised a Body Corporate meeting on 5 March 2007. The Body Corporate responded that it was not obliged to get involved in a dispute between two owners. The letter also said they understood that the owners of Lot 3 had done everything possible to rectify the situation, and that they had not altered the original features of the lot.

The application also includes correspondence from an acoustic engineer which outlines the acoustic provisions applicable at the time the plans for On Pacific were approved, and indicating that the plans for this building were approved for ‘deemed to satisfy’ construction which, the letter indicates, covers “...required building techniques, subject to which certain forms of construction are deemed to have particular sound insulation values.” The letter goes on to that “The wall and floor construction indicated on the building plans indicate compliance with the Deemed to Satisfy acoustic provisions...”. However it notes that there is no requirement for on-site verification to ensure acoustic standards are met in practice and the level of performance of Deemed to Satisfy constructions can result in normal speech being just audible, and sounds such as raised speech, television and entertainment systems, footfalls and so on would be ‘clearly audible’.

Finally, the application claims that on or about 13 December 2005 the respondent verbally confirmed to the applicant that there was no proper buffer between the tiles and concrete in Lot 3.

The submissions from the respondent and his son include the following comments:

• They are sorry the matter has come to this and not been able to resolved;
• The alleged noise, if it emanates from Lot 3, is not caused by any unsociable or thoughtless behaviour by the respondent or anyone in the lot;
• All reasonable attempts have been made to reduce noise transmission because they did not want to cause the applicant’s husband any additional stress. This including asking occupants to remove their shoes and spending some $4,000 on various items. Written and verbal instructions are given to all guests to limit noise generation from normal activities;
• The applicant showed no appreciation for what they had done and said it was not enough;
• Although acknowledging his age and potentially failing memory, the respondent can think of no reason why he would have said that there was no buffer between the tiles and the concrete because the lot is as he bought it and he has no idea what is under the tiles;
• The applicant may have a high susceptibility to noise and she is trying to eliminate all noise transmission which, without turning the unit into a sound proof booth, is impossible;
• In February 2006 the Body Corporate discussed noise complaints. The consensus was that unit dwellers had to be tolerant and recognise the rights of residents to live in their own homes, but that all residents should respect the rights and comforts of others;
• A letter from the scheme’s builder is provided stating that the building was constructed as per architectural and engineering drawings, certified by Council and complaint with the Australian Standards Building Code. The letter says they have build several unit blocks with over 40 units and have never had a complaint regarding noise between floors;
• Lot 1 is a ground floor unit that directly faces Pacific Parade and the beach, which exposes it to considerable external noise. The applicant could ameliorate the effect of noise transmission by opening doors and installing carpet.
  

Of the two submissions from other owners, one (Lot 5) says they have not experienced noise from Lot 3 and the other (Lot 6) says they have no problems with excessive noise in the scheme.

In her reply to submissions, the applicant says:

• The scheme was constructed by the respondent in 2002 with the builder and one other (these three persons are listed as the original owners of the scheme);
• She is prepared to pay for an onsite assessment and noise amenity survey;
• She estimates that Lot 3 is occupied for some 50% of the time
• The comments in the submissions by the respondent and his son are disputed;
• She rarely uses air conditioning, and leaves screen doors open during the day; and
• The experience of Lot 5 is irrelevant to the noise transference between Lot 1 and Lot 3.
  

FURTHER INVESTIGATIONS

Given the circumstances, and the applicant’s willingness to pay for an acoustic report, I considered that it would be of assistance to obtain expert reports detailing the existence and extent of any noise transference experienced in Lot 1, the cause and source of any such noise, and measures necessary to control or alleviate any noise. I sought the respondent’s consent for the applicant to access his lot for this purpose. I proposed that the report be obtained by the applicant but that, if appropriate, the respondent could obtain an alternative report at his own expense.

The respondent provided consent to Lot 3 being accessed for the purposes of conducting an on-site assessment and noise amenity survey of Lot 1 and 3. A report prepared by Belleng VDM dated 23 July 2008 was provided by the applicant on 25 July 2008[3].

The report included the following comments and recommendations:

• Background noise levels during occupied periods, during the night and quiet daytime period, are very low. As a result, noise impacts from low-level noise events will be clearly audible.
• The impact noise measured in Unit 1 from the carpeted living room of Unit 3 was inaudible, but the impact noise of tapping on the tiled areas of the unit above was “significant”.
• The noise impact tests in the living areas (including tiled areas) were within the Australian standard criteria for acceptable interior noise levels for floors between dwellings.
• Noise measurements indicate that the construction meets the minimum requirements of the Building Council of Australia (BCA) qualitative standards in Queensland and the existing noise amenity is within the levels defined by the Australian Standard.
• The BCA and Australian Standards are minimum requirements and not best practice.
• Noise control measures that could be considered to improve the noise amenity in Lot 1:
  • ­ Extensive use of carpets, rugs and runners in living areas and the hallway;
  • ­ Fixing rubber stops to kitchen cupboard doors;
  • ­ Isolating kitchen work surfaces with non-hardening caulking and rubber mounts;
  • ­ Introducing an isolation layer underneath the Lot 3 tiled floor and non-hardening caulking at the edges to ensure isolation of the floor from the building structure; and
  • ­ Isolation of the Lot 1 ceiling by construction of a suspended ceiling.
    

At my invitation the applicant made the following further submissions arising from the report:

• The applicant complains of significant noise from Lot 3 on 30 and 31 July, and argues the respondents have done little to alleviate her concerns following receipt of the report.
• She considers that the appropriate control measure is the installation of an isolation layer underneath the tiled floor in Lot 3. Alternatively, the respondents should be required to place extensive carpeting, rugs and runners in the living areas and hallway.
  

The respondent did not avail himself of the opportunity to obtain an alternative expert report and made the following comments about the report and the applicant’s further submission:

• The noise complaints are greatly exaggerated and imply that they have no concern for those around them. No other occupant of the complex has ever complained of noise from Lot 3 and their efforts to avoid noise make living uncomfortable particularly with children.
• The apartment block meets normal building standards in all respects. If an owner wishes to improve those standards they can take necessary action within the Body Corporate rules.
• The recommended suspended ceiling may be the answer but may not be totally effective.
• Any structural change carried out in his lot would have to be carried out throughout the building as noise created anywhere in the building is transferred throughout the building.
• They have carried out all other measures to reduce noise including extensive use of carpets with the exception of a runner in the hallway, and nylon pads on all movable objects.
  

The applicant disputed that the recent noise complaints were exaggerated and rejected claims that sufficient measures had been undertaken to alleviate noise. She argues that she is entitled to relief from the excessive noise transmission that interferes with her use and enjoyment of her lot.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[4]

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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[5] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[6]

DETERMINATION

Orders 1 and 2 and part of order 4 sought by the application relate to the obtaining of expert reports regarding the noise dispute. As the applicant has been provided with the opportunity to obtain such reports, and have in fact obtained a noise impact assessment, I consider that these orders are no longer relevant.

Accordingly, the substantive issue in this dispute are whether the respondent has failed to comply with section 167 of the Act and By-laws 1 and 6 of the CMS (relating to order 3). If these obligations have been breached, the next issue is whether any rectification work or other action is required to reduce any noise interference (order 3 and part of order 4).

The applicant also sought an alternative order (5) that the Body Corporate be authorised to undertake necessary work in the respondent’s lot. The parties have not discussed this issue and no submission has been made by the Body Corporate. If work was required in Lot 3, I have received no indication that there is any likelihood that the respondent would not comply with the order such that there would be a need for the Body Corporate to undertake the work instead. Accordingly I consider that there is no basis to contemplate such orders.

Applicable law

Section 167 of the Act provides (in part) that an occupier of a lot must not use or permit the use of a lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or the common property.

The Community Management Statement for On Pacific includes By-law 1 and 6 which state:

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.

6. Behaviour of invitees

An occupier of a lot must take reasonable steps to ensure that the occupier’s invitees do not behave in a way likely to interfere with the peaceful enjoyment of another lot or the common property.

Sections 182 to 188 of the Act provide the process for pursuing an alleged by-law breach. If an owner or occupier wishes to pursue a by-law breach, their first step is to request (using BCCM Form 1) that the body corporate to issue a by-law contravention notice[7]. If the body corporate fails to advise the complainant within 14 days that a contravention notice has been issued, the complainant can lodge a dispute resolution application against the alleged offender. If the body corporate advises the complainant within 14 days that a contravention notice has been issued, the complainant’s only option is to lodge an application against the body corporate for failing to enforce the contravention notice.

Although the applicant assert in general terms that the respondent has breached the by-laws, and refers to By-laws 1 and 6), she has not completed the preliminary steps required by the legislation before a application regarding an alleged breach of by-laws is lodged. However, as the issues regarding an alleged breach of section 167 of the Act are similar, I will consider the dispute in those terms.

Noise impacts

It does seem likely from the evidence before me that the applicant is experiencing noise transference from Lot 3. It also seems likely that the noises currently complained of relate to the normal and reasonable use of the lot. I have not been provided with any substantive evidence that the any occupants are undertaking any unreasonable or excessively noisy activities. Moreover, in the absence of any specific evidence to the contrary, I accept that it is probable that the respondent has in fact taken numerous steps to try and curb any noise transference.

Commonly disputes relating to noise between apartments arise when there is a change in flooring, for example from carpet to tiles or timber flooring. In this case there has been no such change. It is not apparent that the respondent has acted in any way to contribute to any inherent sound transmission issues. The fact that the original construction did not provide a higher standard of soundproofing is not a matter over which the respondent had, or has, any control[8]. Moreover, if the noise arises from inherent construction issues, it would be expected that occupiers in other lots would also have experienced problems. However no owner in the scheme has given any indication that such problems have arisen.

The applicant has obtained an expert report. Neither party has objected to the contents of the report, and I see no reason not to accept its findings. I would note that, compared with numerous other acoustic reports provided to this Office in similar disputes, this is one of the more comprehensive and clearly presented reports I have seen. I am satisfied, on the basis of the report, that the construction of Lot 3 complied with relevant building standards.

More fundamentally the expert report concludes that the recorded noise levels are within acceptable levels defined by the Australian Standards. It appears from my reading of the report that some relatively low level impact noises in Lot 3 may be more noticeable in Lot 1 because of the very low baseline noise levels. This may be particularly the case given that Lot 3 is unoccupied for somewhere between 50-80% of the time. By this I mean that, because the occupants of Lot 1 are fortunate to have no noise emanating from Lot 3 for a significant proportion of the time, they may find any noise that does occur

As the noise levels have tested to be within the levels defined by the Australian Standards, I simply cannot conclude that the respondent or his invitees are causing a nuisance or an unreasonable interference, contrary to section 167 of the Act. Similarly I cannot conclude that they are breaching By-laws 1 or 6. While I appreciate that the Australian Standards are minimum requirements and not ‘best practice’, I do not consider that it would be reasonable to require the respondent to meet (and potentially go to significant expense to meet) stricter standards than apply to others.

Conclusion

It may well be that the applicant experiences high levels of noise on occasions but she simply has not demonstrated to me that this exceeds any relevant noise amenity standards or that the noise is otherwise unreasonable. There is a certain amount of noise which should be regarded as inevitable in community living as it is not possible to eradicate all noise. It is also possible that some people have a lower tolerance of noise.

While I acknowledge the frustration experienced by the applicant, I do not consider that there is any evidence that the respondent or his invitees have breached the by-laws or nuisance provisions. I am not satisfied that the current occupants are doing anything unreasonable to contribute to noise, but rather are using the lot as would be normally expected. There is no indication that the applicant has interfered with the flooring or other elements of the lot, other than to add carpets. Accordingly I am not satisfied that the applicant has presented sufficient reason why it would be just and equitable to make an order requiring the respondent to take additional steps to soundproof Lot 3.

I would encourage the applicant to consider measures within her own lot to reduce noise, such as carpets and increased soft furnishing or a suspended ceiling. I would also encourage the respondent to continue with all reasonable voluntary measures to assist in avoiding noise transference, including those measures undertaken to date. If the applicant considers an isolation layer underneath the Lot 3 tiles would be of assistance to her, she could also consider negotiating with the respondent to seek consent for those works to be undertaken at her own expense.

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[1] As of 30 August 2008 the new Small Schemes Module came into force, replacing the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 which applied until that date.
[2] See sections 246 and 244 of the Act respectively
[3] An amended report, clarifying references to lot numbers, was issued on 6 August 2008.
[4] See sections 227, 228, 276 and Schedule 5 of the Act
[5] Section 276(2) of the Act
[6] Section 284(1) of the Act
[7] Eg. BCCM Form 10 or 11
[8] Similarly conclusions were reached by PJ Hanly in Dearborn [2002] QBCCMCmr 609 (7 October 2002)