DAVIES and McINERNEY - [2005] WASAT 238

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: DAVIES and McINERNEY [2005] WASAT 238

MEMBER: MR T CAREY (MEMBER)

HEARD: 16 AUGUST 2005

DELIVERED : 5 SEPTEMBER 2005

FILE NO/S: STR 99 of 2004

BETWEEN: DEBORAH DAVIES
Applicant
AND
DENIS VINCENT McINERNEY
Respondent

Catchwords:

Strata titles - Transmission of noise likely to disturb peaceful enjoyment of lot - Whether excessive noise can be eradicated by covering or otherwise treating floor space - Failure of respondent to appear at hearing - Evidence consistent in favour of applicant's case - Strata Plan 43940

Practice and procedure - Matters customarily determined on papers - Desirability of hearing where credibility issue

Legislation:

State Administrative Tribunal Act 2004 (WA), s 84

Strata Titles Act 1985 (WA), s 83(1)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: No appearance

Solicitors:

Applicant: Self-represented
Respondent: N/A

Case(s) referred to in decision(s):

Swannell v Lilliman [2004] WADC 72

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, the owner and resident of a lot in a strata complex, sought an order that the owner of the lot immediately above her own take necessary action to prevent noise being transmitted to her lot. The noise complained of was primarily the result of normal activity on ceramic tiles in the living area of the upstairs lot.
The applicant filed documents detailing her own observations and submissions, and statements were received from other witnesses. In view of the possible credibility issue, the Tribunal listed the matter for a hearing. The applicant attended with a witness and the strata manager, but the respondent did not attend. The consistent evidence was of a noise problem likely to disturb the applicant's peaceful enjoyment of her lot, which might be alleviated or eliminated by the laying of carpet on the tiled area. The Tribunal made an order substantially in the terms sought.

Introduction

The applicant is the owner and occupier of lot 1 in a 20 lot strata development situated at and known as 22 Knutsford Street, North Perth. The strata scheme was registered as Strata Plan 43940 on 22 September 2003. The applicant's lot is on the ground floor, and she has lived there since October 2003. Although in some parts extending to a second storey above ground level, the applicant's lot has one lot only (lot 3) immediately above it. Lot 3 is owned by the respondent, and during the period of the applicant's residence in her lot, a number of different tenants have occupied the respondent's lot.
The applicant's application, originally to the Strata Titles Referee and now to this Tribunal, is brought under s 83(1) of the Act (settlement of disputes – rectification of complaints), and seeks an order in the following terms against the respondent:
"To ensure that all floor space within the lot (other than that comprising kitchen, laundry, lavatory or bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the (applicant)."
The applicant has adopted, in respect of the order sought, the language of by‑law 10 of the standard Schedule 2 by‑laws which are applicable to the strata scheme. She claims that she has been subjected, since moving into lot 1, to disturbance to the peaceful enjoyment of her lot resulting merely from normal activity in, in particular, the living area of lot 3. In addition, the applicant alleges to have been adversely affected by the selection of tenants in the respondent's lot in terms of their behaviour, and in particular at night. Some of that behaviour has excited the interest of the police, and, in one case, resulted in criminal proceedings against one of the tenants. For about the last four months a new tenant has occupied lot 3 and the applicant has had no such complaints in relation to her behaviour.
The applicant readily acknowledges that it is necessary for her to establish breaches of by‑law 10 in order to make good her application. As was pointed out by Mazza DCJ in Swannell v Lilliman [2004] WADC 72 at [16], there are two issues which need to be proved in order to find a breach of the by‑law. First, the decision‑maker had to be satisfied that the noise which was transmitted was likely to disturb the peaceful enjoyment of the proprietor concerned. Second, the transmission of the noise must have been caused by the other proprietor's failure to cover, or otherwise treat the floor space to prevent the transmission of noise. I would, with respect, rephrase the second issue slightly to a consideration of whether the excessive level of noise might be eradicated by the other proprietor covering or otherwise treating his her or its floor space.
I will deal with each of those issues, in light of the evidence which has been produced and submissions made, in turn. Before doing so, I want to make some comments on procedural matters, both in relation to this type of application, and in relation to this matter specifically.

Procedural matters

In Swannell v Lilliman (supra) Mazza DCJ was concerned with a decision of the Strata Titles Referee to grant an order in similar terms to that which the applicant seeks. The Referee in that matter had determined the matter on the papers. On appeal, his Honour found the Referee had fallen into error by reversing the onus of proof in requiring the lot proprietor in the position of the respondent in the present case to establish that the existing floor covering in his or her lot complied with the by‑laws. Mazza DCJ at [20] made the following observations regarding the manner in which the Referee had proceeded in the matter before his Honour:
"Earlier in my decision, I recognised that the Referee has the power to determine applications without a hearing. I fully accept that the Referee's jurisdiction to determine disputes under the Strata Titles Act requires him or her to act quickly, without undue formality and expense, and that most disputes can be resolved without the necessity for a hearing. However, it seems to me in this case credibility was a factor that was at the heart of the dispute. There were issues which had to be decided such as whether the noise was excessive, was the respondent overly sensitive to noise considering that apartment living is inevitably going to involve occupants hearing something of each others activities, at what times of the day was noise transmitted to the respondent's premises and the like. The Referee did not have the benefit of any independent expert evidence, nor did he have statements from others bearing out or contradicting the party's cases. In my view, the Referee should have at least required the parties to attend before him to give sworn evidence which would have given him an insight as to the credibility of the protagonists."
With these words clearly in mind, the Tribunal determined in this case that there should be a hearing as part of its determination process, and a hearing occurred on 16 August 2005. Notices of the hearing went out to the applicant and the respondent, another proprietor (Ms S Saunders) who filed a response in circumstances which gave rise to some controversy and whose statutory declaration was subsequently filed explaining her position, the strata company, the strata company secretary, and Mr L Goodman, the strata manager. Only the applicant and Mr Goodman appeared at the hearing, together with one witness for the applicant.
The respondent did not appear, as he has not appeared at an earlier directions hearing. Notice of the hearing was sent to the respondent at the address shown for him on the title of his lot, which was the same address to which a notice inviting a submission was sent by the Strata Titles Referee, in respect of which an Australia Post advice receipt is on the Tribunal file. I note that should it be felt necessary, the respondent can avail himself of the avenue provided by s 84 of the State Administrative Tribunal Act 2004 (WA) to apply to the Tribunal for review of a decision if a person affected did not appear and was not represented at a relevant hearing.
Mr Goodman appeared for the strata company, but also to answer allegations against him by the applicant, which might be described as going to the issue of Mr Goodman's impartiality, and by Ms Saunders, in relation to the preparation of her initial response to the application. Ms Saunders had alleged that she was confused as to the nature of the submission that she was asked to sign by Mr Goodman, and was unaware that a typed document introduced by "The application is opposed for the following reasons" followed by 11 numbered points would be annexed to the submission proper. I have not found it necessary to adjudicate on those matters, but I have found some information provided by Mr Goodman to be of assistance.

Has there been transmitted from the respondent’s lot to the applicant's lot noise likely to disturb the peaceful enjoyment of the applicant?

In her application filed with the former Referee on 27 August 2004, the applicant complained of the noise in the following terms:
"The noise coming from lot 3 is so unreasonable and unbearable I am unable to sleep in my unit below (lot 1). I have tried earplugs, sleeping tablets which do not help. I now have to sleep at my daughter's house and am under strain through sleep deprivation and stress. My health is suffering, I have had to take sick‑leave from work and am worried about retaining my job which I have had for 7½ years. I feel homeless and I hate being in my own home. I can hear the tenant upstairs showering, going to the toilet, flushing it, dropping things on the floor, dragging out chairs, walking around, talking, opening and closing doors etc – practically everything he does, I can hear."
In a submission filed with the Referee dated 23 November 2004, the applicant provided the following further detail of her complaint:
"I can hear people walking on the tiled floor, dropping things on the tiled floor, pulling out chairs to sit on … it is made worse when it goes on all night and I am exhausted the next day. All I want is to be able to go to bed at night when I want and not have to wake up because the tenant upstairs has decided to stay up all night or he has friends over that decide to stay there until midnight or later. I can't go to bed or get any sleep until the tenant upstairs does. I am on edge every night wondering if I will have a full night's sleep or any sleep at all. I can't even catch up on sleep on the weekend because the current tenant has his friends over every Sunday morning at 6 am for breakfast after a night out."
This submission, in particular, has as its focus the particular problems posed by the activities at night of one of the respondent's former tenants. The reference to "the tiled floor" is to, or at least includes, the living area of lot 3, and the submission is relevant to that extent.
The applicant provided a letter from Ms G Parker to support her claims. Ms Parker said that she is a friend of the applicant and that in the previous 12 months she had stayed in her house overnight on about six occasions. She also visits her most week‑ends. The letter described the noise problem as follows:
"On the nights that I have stayed over it is virtually impossible to get any sleep if the tenant in unit 3 is awake all night, or even if the person gets up and down through the night. The noise level seems to be actually noisier than if the person is in the same room as me because there is an echoing hollow effect which makes the noises seem louder than normal. It sounds like the person upstairs is actually living in the same unit as Debbie because the noise is as loud (or seems louder) than if the person is in the same room in unit 1. It is very disturbing to hear, as I can tell what the person upstairs is doing every time he or she moves. I can hear them walk up the stairs, open the sliding door, put the kettle on, walk to and fro across the floor, sometimes take their shoes off and throw them on the floor. I can hear money dropping out of their pockets onto the floor, the pulling out and scraping of chairs from the dining table, cutting up food on a bread‑board, opening the cupboards to get dishes out. It is also not very comfortable to hear them go to the toilet … during the daytime the person in number 3 can be heard making phone calls, constantly walking in and out to their balcony and back, washing dishes, the washing machine, the vacuum cleaner. Talking to their friends that have come over for a visit. The list goes on. I can hear exactly every single thing the person upstairs is doing. There is no relief from it. It is not like you can hear them one day and not the next, it is constant …
I could not live in Debbie's unit downstairs. It is as if someone is living in her unit with her the noise is so bad. It's like an invasion of privacy. You can't relax there – if you decided to sit on the couch on a Sunday afternoon and watch a movie on the TV, you have to put up with someone upstairs clattering around. …"
Again, accepting all of the instances of noise transmission recounted by Ms Parker at face value, some of them tend to support that contravention of Sch 2 by‑law 10 has occurred, whilst some do not.
Ms Saunders, the caretaker at the strata complex, volunteered the following information:
"…prior to purchasing unit 11, where I now live, I used to live in unit 1 and also used unit 1 as an office. I can verify that during my time in the unit, I found it to be exceptionally noisy and so much so at times I did not rent out unit 3 which is located above unit 1, to ensure I would not be disturbed …"
Ms Saunders verified having received calls as the caretaker from the applicant regarding noise coming from lot 3, and having been notified on occasions that the applicant was to stay with her daughter away from her lot at times to catch up on sleep.
At the hearing, the applicant stated that she had experienced excessive noise since she moved into lot 1 in October 2003. She readily conceded that the problems were worse prior to the current tenant of the upstairs unit moving in some four months ago. Since the current tenant moved in, the applicant has been able to rely upon not being disturbed from approximately 10 pm when the tenant usually goes to bed. However, the problem of recurring excessive noise from everyday activities such as scraping associated with moving a table or chairs and things being dropped on the floor persists. She mentioned that when on weekends she hears the tenant walking around in her lot, she has put music on in order to neutralise the noise.
The applicant describes her hearing as normal but not exceptionally good, and attributes the problem to the concrete ceiling in her lot and ceramic tiles on the living area floor of lot 3. She described the echo effect to which Ms Parker made reference associated with such normal activities as a person taking his or her shoes off. There is a less serious problem in the two bedrooms of the lot, which, according to the applicant, are covered with carpet which appears old and worn. She said that although she could still hear movement of people when they were in the bedrooms, it was not to the same extent as the noise emanating from the tiled area, and was "muffled". Particularly given the habits of the new tenant, the problem of real ongoing concern to the applicant concerned the acoustics of the tiled living area.
The applicant has discussed the noise issue with the new tenant upstairs, who participated in a practical demonstration when she (the tenant) was in the applicant's lot and the applicant moved around in lot 3. According to the applicant, the tenant was "amazed" at the level of noise and invited suggestions about how the problem might be addressed.
The applicant said that she had lived in an apartment block a number of years ago in which people had occupied the floor above hers, and that the level of noise was nothing like that which she currently encounters.
The applicant called as a witness Detective Michael Bone, an Acting Detective Sergeant currently attached to the Metropolitan Investigating Unit. Detective Bone tendered a written statement which referred to an operation in which he was involved requiring his attendance at and near the applicant's strata complex, including several visits to the applicant's lot. In oral evidence, Detective Bone said that he had visited the applicant's lot on four or five occasions on the weekends between 5 pm and 9 pm, and was able to discern, and clearly identify, noises from the upstairs unit including conversation and footsteps. Detective Bone said that, based on his 18 years experience in the police, the noise levels were "out of the ordinary" when compared with many other apartment‑type buildings which he had occasion to visit.
Mr Goodman provided some background information regarding the strata building. He said that the building was constructed approximately eight years ago for short‑term accommodation use, and was owned by the owner of an adjacent hotel. In Mr Goodman's words, the quality of the building leaves "something to be desired". Again, in his words, there is "ample evidence" of a "noise attenuation problem". Mr Goodman suggested that the building, whilst it may have been suitable for its previous use, underwent no modification at the time of its changeover to strata in September 2003, and that this may be the root of the current problem. Mr Goodman repeated contentions made in his written statements to the Tribunal that there has been no scientific measurement of the extent of the problem, nor any expert assessment of how it may be improved, and that these were in his opinion necessary before any final decision about the matter was made.
I have already alluded to the respondent's failure to attend the hearing. Had he attended, the respondent would have been in a position to challenge or rebut the evidence of the applicant and her witnesses in relation to the noise issue. Had he done so, there may then have been a question as to the propriety of the Tribunal accepting one version over the other, and expert evidence may in those circumstances have become necessary. However, the evidence of the applicant, Ms Parker, Ms Saunders, Detective Bone and Mr Goodman has been all one way, in Mr Goodman's case with his marginal qualification regarding the desirability of technical assessment of the extent of the problem. I was impressed by the quality of the applicant's evidence, which presented a wholly plausible account, while making allowances where necessary, for example, in dealing with the extent of the problem emanating from the bedrooms. Mr Goodman raised the issue of the potential implications for the strata complex of a favourable decision on the application. Although such repercussions can often play a role, and sometimes a significant role, in the reasoning of decision‑makers, in the present case their significance is marginal, and arises most directly in informing the analysis as to whether there has been a breach of the by‑law. It is not so much a case of what might be the effect for other lots in the complex, as much as what is the noise level in lots in this complex in comparison with noise levels found in apartment type accommodation generally that is significant. In that regard, I note and accept Mr Goodman's assessment that the facility of the building had not kept pace with its change of use to strata.
I find on the evidence that the noise transmitted from the tiled living area of lot 3 to lot 1 is likely to, and does, disturb the peaceful enjoyment of the applicant. No such finding is made in relation to noise transmitted from the two bedrooms of lot 3.

Could the excessive level of noise be eradicated by the respondent covering or otherwise treating the floor space of lot 3?

The applicant’s preference for remedial action by the respondent was to have a carpet with good quality underlay in the whole of the living area and bedroom. In light of the limitation on my finding regarding undue noise to the living area of lot 3, consideration of the action to be taken to resolve it must necessarily be similarly limited.
Subject to his reservations as to the non‑measurement of the extent of the problem, Mr Goodman said he thought that installation of carpets in the tiled living area would help alleviate the situation. He said that he was informed a property manager of his company had asked the respondent to install carpets in his lot but that request was rejected.
Once again, in relation to this issue, I feel obliged to point out that had the respondent wished to contest the applicant's assertion that carpet was the best alternative to eliminate or alleviate the problem, he would have been able to do so by attending the hearing and producing any evidence he wanted to produce. He has chosen not to do so.
The evidence before me and the application of common sense lead me to conclude that the problem of the transmission of excessive noise to the applicant's lot will be reduced, if not eliminated, by laying a carpet with a good standard underlay in the whole of the tiled living area. In my view, this finding is a sufficient basis to make an order in the applicant's favour.
The applicant is not entitled, as she accepted at the hearing, to relief in respect of areas where no breach of the by‑law can occur, even if undue noise (in terms of its nature or timing) has been transmitted from those areas to the applicant's lot. Such areas include the areas specified in the by‑law of kitchen, laundry, lavatory and bathroom.

Orders sought and made

In consequence of my above findings, the applicant is entitled to an order under s 83(1) of the Act. As I stated earlier, the order sought according to the application was a formulaic one deriving from the by‑law. Such an order is made, with the additional reference, as an indicative example of what would constitute compliance with the order, to the laying in the living area of a carpet with a good standard under‑lay. In light of my findings above, although the respondent may choose to do so, he is not required to replace the carpets in the bedrooms.
In her application, the applicant sought a requirement for compliance with the order within a few weeks. Particularly given the time which has now elapsed, I regard this to be a reasonable requirement, and the order stipulates a date by which the necessary action is to be taken. The application also referred to the respondent bearing the costs (which I read as a reference to the costs associated with the floor treatment), but I regard this as implicit in the terms of the order.

Order

The Tribunal orders:
1.The respondent must, on or before 7 October 2005, take action to ensure that all floor space within lot 3 (other than that comprising kitchen, laundry, lavatory and bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietor in lot 1. The laying of wall‑to‑wall carpet with a good standard under‑lay in the living area of the lot would be sufficient to comply with the order.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER