Family Lodge [2009] QBCCMCmr 193 (20 May 2009)

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

I hereby order that, within one month, Teresa Patterson, owner of lot 9 (respondent) must cover all of the new tiles in the living room, dining room and in the kitchen with rugs or rubber matting that are at least 10mm thick (except where there are furnishings that cannot reasonably be expected to be moved). There must be no gaps between rugs large enough for any tiles to be visible.

I further order that, subject to the following order, the respondent must maintain an arrangement with the body corporate and any occupier of unit 9 by which the occupier agrees to maintain the rugs and matting on the floor in compliance with the above order and agrees to a committee member entering lot 9 to check this compliance upon any occasion that that committee member has been invited into lot 3 below and has heard noise that provides the committee member with a reasonable basis for believing this arrangement is not being complied with. This committee member must not be an occupier of lot 3 or a family member of an occupier of lot 3.

I further order that, at any subsequent time that the respondent installs new flooring (other than carpet and underlay) in the living room, dining room and kitchen the respondent must first provide the body corporate committee with a letter from an acoustical engineer who is a member of The Association of Australian Acoustical Consultants confirming that the proposed new flooring will almost certainly achieve a L_nT,w rating less than or equal to 55. Further, the respondent must ensure that the installation of the new flooring is installed in accordance with the specifications provided to that acoustical engineer. Upon installing this new flooring the respondent can cease maintaining any arrangement pursuant to the above order.

I further order that the parties are granted leave to apply for further orders or directions if the need arises.

Family Lodge Community Titles Scheme (Family Lodge) is a 12 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 Family Lodge (applicant) seeking orders against the owner and occupier of lot 9 (respondents). The applicant says that the owner of lot 9 installed a tiled floor without body corporate approval or any acoustic underlay. It is submitted that significant noise results to the occupiers of unit 3 below.

The applicant provided an acoustic engineers report from TTM Consulting (GC) Pty Ltd. This report indicated an L_nT,w of 70-71 for the tiled area. It also stated:

"To achieve a reasonable degree of impact isolation, one of the following methods would be required in Unit 9:

Covering the entire traversable floor area of Unit 9 with rugs (minimum thickness of at least 10mm) would also achieve the desired result, although these could be removed by any future occupants, and as such may not offer a permanent solution.”

The applicant says that the owner of lot 9 should be required to carry out one of the recommendations a), b) or c) above.

The owner of lot 9 has responded to the effect that the occupant of lot 3 is unduly sensitive to noise and has unrealistic expectations of the degree of peace and quiet that can be expected in a unit. Further, that she has acted in good faith to carry out the recommendation to cover all traversable floor area with rugs and rubberised soundproofing matting and this should be the end of the matter.

Based on the above submissions, I asked the occupier to provide photographs of each room showing the floor coverings. These photographs showed a number of mats on the floor but some significant expanses of tiles where no mats were visible.

Subsequently the owner of lot 9 sent in some additional photographs stating that some additional mats had been purchased which left very few exposed tiles. These photographs did show some additional mats in the living area but with some gaps around the mats where tiles were still visible. In particular, a significant number of tiles remained visible in the dining and kitchen areas.

On 8 April 2009 I held a teleconference with the owner of lot 9 and with the occupier of lot 3 who was also representing the body corporate. At this teleconference I discussed the submissions generally, the acoustic report, the AAAC Star Rating Guide[1] (the acoustic rating guide) and the photographs provided by the owner and by the occupier of lot 9.

At this teleconference the applicant confirmed that the only noise concerns were in relation to the newly tiled area of the kitchen, living and dining area. The applicant further emphasised a desire for a permanent solution as recommended in a), b) or c) of the acoustic engineers report. In contrast, submissions on behalf of the owner of lot 9 were to the effect that she should be entitled to cover the entire traversable floor area of Unit 9 with rugs. Reliance was made on the statement in the acoustic report indicating that this would achieve the desired result.

Some discussion was had regarding the applicant’s desire for a permanent resolution to the dispute, the undesirability of placing mats that could be moved by a tenant, and the applicant’s concern that it would be necessary to restart the entire dispute resolution process if the mats were moved. However, the representative of the owner of lot 9 indicated that this owner was prepared to reach an agreement with any occupier that required the occupier to maintain the mats in place and by which the occupier would allow reasonable access to ensure this was the case.

On 15 April 2009 I spoke with the acoustic engineer who had prepared the report in respect of lot 9. This engineer indicated that his preferred minimum rating of L_nT,w 55 to 60 was calculated on an assessment of the building and testing and would be reasonably possible to achieve for hard flooring. He also indicated that better than this minimum rating would be achieved by covering the entire traversable floor area with rugs 10mm thick but that this would require the rugs to be anywhere it was possible to walk or drag a chair.

On 26 April 2009 I sent a letter to the parties outlining the further information provided by the acoustical engineer, some preliminary views I had reached, and some draft orders. Responses on behalf of the owner of lot 9 indicated that this owner preferred a solution providing for the use of rugs and proposed some minor changes to he draft orders. A response from the applicant was to the effect that orders providing for a permanent solution in terms of replacing the floor would be preferred.

There is no registered by-law for Family Lodge that sets a limit for acoustical performance of hard flooring. The general by-laws simply limit noise likely to interfere with the peaceful enjoyment of others. However, it is alleged that the acoustic performance of the new tiles in the kitchen and living areas of lot 9 is so poor that normal activities of the occupier cause a noise nuisance and unreasonable interference with the enjoyment of the lot below. No orders are sought to restrict the occupier from carrying out normal activities. Rather, orders are sought to require the owner of lot 9 to replace the flooring with the alleged poor acoustical performance.

The first issue that arises is whether the acoustic performance of the tiles is unacceptable.

In a complaint of this nature it can always be argued that the occupier of lot 3 is unusually sensitive to noise or the occupier of lot 9 is unusually noisy. However, the acoustical engineer’s report provides an objective measure of the performance of the tiles independent of other factors. I have reviewed this report in the context of the acoustic rating guide.

The acoustic engineer’s rating of 70-71 L_nT,w is very poor and worse than the figure for a two star unit as listed in the guide. I am therefore satisfied that normal use of unit 9 results in noise nuisance to, and unreasonable interference with, occupiers of lot 3 below. I am further satisfied from photographs and submissions that occupiers can reasonably have expectations of a 3 to 4 star acoustic rating for the building rather than a 2 to 3 star rating. This does not mean that an occupier will not hear any noise from an adjacent unit. However, footsteps from the unit above should not be clearly audible.

I accept the acoustic engineer’s recommendations as outlined in the report. The preferred solution to the dispute appears to be that the owner of lot 9 adopts one of the recommendations a), b) or c) as described in that report. However, I also accept that covering tiles that are traversable (or have movable furniture) with rugs or rubber matting that is at least 10mm thick will achieve a satisfactory rating provided there are no gaps around or between the mats.

The present situation is very unfortunate as it appears that the owner of lot 9 simply did not foresee that the installation of tiles would result in significant noise transmission through to the lot below.

My concern is that, as it stands, the acoustical performance of the tiles is so poor that the occupiers of lot 9 are consistently contravening the legislation any by-laws simply by normal use of the lot. In these circumstances I do not consider it practicable to make orders trying to restrict the behaviour of any occupiers of lot 9. Rather, I am satisfied that it is just and equitable to require the owner of lot 9 to take steps to remedy the situation.

I consider that it is fair to allow the owner of lot 9 to choose how she is to remedy the situation. I am also aware that she has arranged for a substantial number of rugs and rubber mats to be placed on the tiles in question. However, I also accept the applicant has legitimate concerns about the temporary nature of remedying the situation through the use of rugs and the difficulty in ensuring compliance with such an order. I further note the earlier problem where the owner of lot 9 had submitted that all traversable floor area of lot 9 had been covered but photographs provided by the occupier showed that significant areas of tiles were not covered at the time the photographs were taken.

I therefore proposed making an order that would allow the owner of lot 9 to use rugs provided the owner of lot 9 maintained an arrangement with the body corporate and any occupier of unit 9 by which the occupier agrees to maintain the rugs on the floor and agrees to a committee member entering to check this compliance on hearing noise that indicates the arrangement is not being complied with. Admittedly, an order of this nature is somewhat cumbersome and requires a level of cooperation between the occupiers of lot 3, the occupiers of lot 9, and the committee. However, it is possible that no inspection of lot 9 will ever be necessary. Further, if a couple of inspections indicate that noise is occurring despite the rugs being in place then the parties can move on to consider questions of whether the occupiers of lot 3 are unusually sensitive to noise or whether the occupiers of lot 9 are unusually noisy.

The representatives for the owner of lot 9 have suggested that the order be varied to allow for the owner or owner’s representative to attend any inspection. However, I am not satisfied that it is just and equitable to vary the order in this regard. This would make the inspection process even more cumbersome and remove the benefit of the inspection if suspicions arose that the owner of lot 9 had contacted the occupier and delayed the inspection until mats could be replaced. The owner of lot 9 is correct in asserting an interest in seeing any breach of agreed arrangements with the occupier but any committee member would presumably be willing to provide a statutory declaration or could be served with a subpoena if necessary.

Ultimately I consider it to be a just and equitable resolution to the dispute to allow the owner of lot 9 to install rugs and mats subject to a committee member being able to inspect if necessary. If a significant number of inspections are required then I would have concerns about the practical appropriateness of the order. I will therefore give the parties leave to apply for further directions or orders if there are continuing problems. Alternatively, it may be simpler if the owner of lot 9 simply replaced the tiled flooring and I have also made an order to require that any replacement flooring have a suitable acoustic performance. However, I am not satisfied that it is appropriate to require the owner of lot 9 to replace the floor given the large number of rugs and mats that have already been purchased by the owner of lot 9 to minimise impact noise.

[1] Guide to Acoustical Star Ratings produced by the Association of Australian Acoustical Consultants http://www.aaac.org.au/au/aaac/downloads.htm, Star Rating Guide, 13 November 2007.

Number of Scheme:	9465
Name of Scheme:	Family Lodge
Address of Scheme:	22 - 24 Duet Drive MERMAID WATERS QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Family Lodge [2009] QBCCMCmr 193 (20 May 2009)