Friday and LUCK
[2014] WASAT 109
•11 AUGUST 2014
FRIDAY and LUCK [2014] WASAT 109
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 109 | |
| 28/08/2014 | |||
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:18/2014 | 30 APRIL AND 19 JUNE 2014 | |
| Coram: | MS L WARD (MEMBER) | 11/08/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | MARGARET FRIDAY CARLA LUCK |
Catchwords: | Strata titles Floor coverings Bamboo flooring Noise transmission Likely to disturb the peaceful enjoyment of another lot Airborne noise or structureborne noise Expert evidence Method of testing Tapping machine or noise meter |
Legislation: | Building Code of Australia, Pt 5F, Pt FV5.1 Environmental Protection (Noise) Regulations 1997 (WA) State Administrative Tribunal Act 2004 (WA), s 98 Strata Titles Act 1985 (WA), s 83, s 83(1), s 42(2), Sch 1 Sch 2 By-law 10 |
Case References: | Swannell v Lilliman [2004] WADC 72 |
Summary | The applicant seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) for the respondent owner of Unit 18 to comply with Sch 2 Bylaw 10 of the Strata Titles Act 1985 (WA) by ensuring that the floor of upstairs Unit 18 is covered to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the occupier of ground floor Unit 8. ,The applicant relied on her own observations and provided statements from several lay and expert witnesses, some of whom gave evidence before the Tribunal. The respondent did not dispute that noise was transmitted between the units. However, the respondent claimed that the applicant had a heightened sensitivity to noise, possibly due to a medical condition, and that therefore the noise was not likely to disturb the applicant's peaceful enjoyment of Unit 8. The respondent did not call any credible evidence to support her claims of heightened sensitivity.,The consistent evidence presented to the Tribunal was that the noise transmitted between the units in question was such that it was likely to disturb the peaceful enjoyment of the applicant. The Tribunal granted the application and the orders sought were granted.,The reasons for decision were delivered orally on 11 August 2014. The reasons have been edited and citations added. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : FRIDAY and LUCK [2014] WASAT 109 MEMBER : MS L WARD (MEMBER) HEARD : 30 APRIL AND 19 JUNE 2014 DELIVERED : 11 AUGUST 2014 PUBLISHED : 28 AUGUST 2014 FILE NO/S : CC 18 of 2014 BETWEEN : MARGARET FRIDAY
- Applicant
AND
CARLA LUCK
Respondent
Catchwords:
Strata titles Floor coverings Bamboo flooring Noise transmission Likely to disturb the peaceful enjoyment of another lot Airborne noise or structure-borne noise Expert evidence Method of testing Tapping machine or noise meter
Legislation:
Building Code of Australia, Pt 5F, Pt FV5.1
Environmental Protection (Noise) Regulations 1997 (WA)
State Administrative Tribunal Act 2004 (WA), s 98
Strata Titles Act 1985 (WA), s 83, s 83(1), s 42(2), Sch 1 Sch 2 By-law 10
Result:
Application successful
Summary of Tribunal's decision:
The applicant seeks an order under s 83(1) of the Strata Titles Act1985 (WA) for the respondent owner of Unit 18 to comply with Sch 2 Bylaw 10 of the Strata Titles Act1985 (WA) by ensuring that the floor of upstairs Unit 18 is covered to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the occupier of ground floor Unit 8.
The applicant relied on her own observations and provided statements from several lay and expert witnesses, some of whom gave evidence before the Tribunal. The respondent did not dispute that noise was transmitted between the units. However, the respondent claimed that the applicant had a heightened sensitivity to noise, possibly due to a medical condition, and that therefore the noise was not likely to disturb the applicant's peaceful enjoyment of Unit 8. The respondent did not call any credible evidence to support her claims of heightened sensitivity.
The consistent evidence presented to the Tribunal was that the noise transmitted between the units in question was such that it was likely to disturb the peaceful enjoyment of the applicant. The Tribunal granted the application and the orders sought were granted.
The reasons for decision were delivered orally on 11 August 2014. The reasons have been edited and citations added.
Category: B
Representation:
Counsel:
Applicant : Mr A Friday (Acting as Agent)
Respondent : Self-represented
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Swannell v Lilliman [2004] WADC 72
Introduction
1 The applicant owns and lives in Unit 8 on the ground floor in a strata complex in Maylands. Unit 8 is situated immediately beneath Unit 18. The respondent owns Unit 18. A tenant lives in Unit 18.
2 The applicant complains about a variety of household noises emanating from Unit 18 and disturbing her peaceful enjoyment of Unit 8. The applicant seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) for the respondent owner of Unit 18 to comply with Sch 2 By-law 10 by ensuring that the floor of her unit is 'covered … to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the … occupier' of Unit 8 (referred to below as By-law 10). The applicant requires that the proprietor of Unit 18 either removes the floorboards or otherwise covers the relevant areas permanently with carpet.
3 According to the applicant, the breach of By-law 10 commenced in about August 2010. At that time, the respondent replaced the carpets in Unit 18 with bamboo flooring. Unit 18 has been rented to a number of different tenants since August 2010 (the relevant period). Despite the changes in tenancy, the applicant contends that the noise issues have not abated.
4 Over the period of the past three and half or so years, the parties have worked very hard in an attempt to amicably resolve the issue of noise transference between the units. For example, the respondent has previously installed a hall runner and mats in Unit 18. The respondent also included in the tenancy agreement that no shoes were to be worn in Unit 18. The respondent maintains that she has used the best quality acoustic underlay beneath the bamboo flooring in Unit 18.
5 Despite the efforts of the respondent, according to the applicant, noise is still transferred to her unit and it does disturb her peaceful enjoyment of her unit.
6 The essential facts of the matter are not in dispute and are as set out above.
Issues for determination
7 The issues in dispute and which require determination by the Tribunal are:
1) Has the respondent ensured that the relevant floor space in Unit 18 is treated to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the proprietor of Unit 8?
2) If so, should the Tribunal exercise its discretion under s 83 of the ST Act and make the order requested?
- Before considering the issues for determination the Tribunal will set out the relevant statutory scheme which it is required to apply and it will summarise the positions of the parties.
Relevant statutory scheme
8 The application proceeded in the Tribunal on the basis that the 'standard by-laws' apply. That is, the provisions set out in Sch 1 and Sch 2 of the ST Act applied to the strata complex in question, as per s 42(2) of the ST Act.
9 In accordance with By-law 10 of Sch 2 to the ST Act, a lot owner has certain obligations in relation to ensuring that the floor space within certain parts of the unit are covered or treated to prevent the transmission of noise to another lot.
10 In particular, By-law 10 of Sch 2 to the ST Act states as follows:
A proprietor of a lot shall 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 proprietor, occupier or other resident of another lot.
11 The decision of the District Court (Swannell v Lilliman [2004] WADC 72 at [16]) is relevant to this by-law. In that case, his Honour Judge Mazza held as follows:
There were two issues which the respondent needed to prove in order to allow the Referee to find that there had been a breach ... First, the Referee had to be satisfied that the noise which was transmitted from Lot 10 to Lot 8 was likely to disturb the peaceful enjoyment of the proprietor of Lot 8. Second, that the transmission of the noise was caused by the appellant's failure to cover, or otherwise treat the floor space to prevent the transmission of noise.
12 Under s 83(1) of the ST Act, the Tribunal's powers include it exercising its discretion to make an order for a proprietor to rectify a complaint on the application of another proprietor.
Positions of the parties
13 The applicant relied on a number of witnesses at the final hearing, including two independent experts to give evidence in support of her claims:
• firstly, an interior architect, Mr Michael Ferguson, of Gabriels Environmental Design; and
• secondly, an environmental health officer, Mr Michael Worthington, from the City of Bayswater.
- The applicant also called two witnesses who had visited her unit; namely, Ms Melodie Tyrer and Ms Sandra Brown. Both of these witnesses gave credible and relevant evidence, and the Tribunal attaches great weight to their testimony.
14 The respondent did not provide any expert reports prior to the final hearing on 30 April 2014. Rather, she relied on Mr Ferguson's written report dated 25 March 2014. The respondent accepted that noise was transmitted from Unit 18 to Unit 8. However, the respondent claimed that the applicant had a heightened sensitivity to noise, possibly due to a medical condition, and that therefore the noise was not likely to disturb the applicant's peaceful enjoyment of Unit 8. The respondent submitted that no weight should be attached to the report from the City of Bayswater (City) officers due to the method of testing and, in particular, the machine being left unattended in the applicant's flat over a period of days. For reasons which follow, the Tribunal accepts the respondent's submission and does not attach any weight o the City's 'Noise Level Readings report'.
Final hearing on 30 April and 19 June 2014
15 The final hearing on 30 April 2014 commenced with a site visit to Units 8 and 18 of the relevant complex. The site visit was recorded and the general observations made by the Tribunal were made at the resumption of the hearing in the hearing room. The Tribunal's general observations included that the two storey complex comprises about 21 units. The units appear to have been built in the early 1970s. The layout of both Units 8 and 18 are identical. Both units comprise a kitchen, lounge, two bedrooms and a bathroom and laundry area.
16 The applicant's son, Mr Anthony Friday, assisted the applicant at the final hearing. The parties both gave evidence. The applicant called the four witnesses listed above. The respondent did not call any witnesses, although she did give evidence on her own behalf. The Tribunal informed all witnesses that while they would not be on oath in the Tribunal, under s 98 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it was an offence to give false or misleading information to the Tribunal. Each witness, apart from Mr Ferguson, gave evidence in person before the Tribunal and was subject to cross-examination. Mr Ferguson gave evidence over the telephone.
Late expert report - 'Noise Level Readings' report
17 The applicant filed a report headed 'Noise Level Readings' on 30 April 2014 after the final hearing had commenced. The applicant informed the Tribunal that Mr Worthington from the City would speak to the 'Noise Level Readings' report. The applicant advised that she had herself only just received the report from Mr Worthington. Accordingly, the Tribunal had a short adjournment so that Mr Worthington's report could be read by the Tribunal and the parties prior to Mr Worthington giving evidence at the final hearing. After the adjournment, the applicant called Mr Worthington to give evidence. Mr Worthington gave his evidence, was cross-examined by the respondent, re-examined by the applicant's son, and asked some questions by the Tribunal.
18 Following the hearing on 19 June 2014, the respondent was given the opportunity to respond to the 'Noise Level Readings'. On 4 July 2014, the respondent provided the following response in summary:
• The respondent expressed serious concerns about the authenticity of the peak noises recorded by the City's equipment, especially as the recording equipment was left unattended in the applicant's unit over the Easter weekend. As a result, the peak noises may have been generated from within the applicant's unit itself.
• The respondent submitted that the City's report should not be relied on by the Tribunal because of the uncertainty about the source of the noises recorded in the applicant's unit.
19 The Tribunal will now consider the issues for determination.
Firstly, has the respondent ensured that the relevant floor space in Unit 18 is treated to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the proprietor of Unit 8?
20 The transmission of noise from Unit 18 to Unit 8 is not disputed by the respondent. However, the mere fact that noise is transmitted is not, by itself, sufficient for the Tribunal to find that By-law 10 is breached. This is because the ST Act does not prohibit the transfer of noise between units. Rather, the ST Act implicitly accepts that some noise will be transferred between units. The test is whether or not the noise transferred is caused by the failure to cover or treat the relevant floor space, and that it is such that it is 'likely to disturb the peaceful enjoyment' of the proprietor, who is also the occupier, of Unit 8.
Expert evidence
21 The applicant called two independent experts to give evidence in support of her noise claims at the final hearing:
• firstly, Mr Michael Ferguson of Gabriels Environmental Design; and
• secondly, Mr Michael Worthington from the City of Bayswater.
22 The Tribunal will now set out the relevant portions of the applicant's expert evidence.
Qualifications
23 The experts called by the applicant have qualifications from different fields of expertise.
24 Firstly, Mr Michael Ferguson graduated from Curtin University with a degree in Interior Architecture. Mr Michael Worthington is an environmental health officer and he has a degree in that field.
Written reports
25 Mr Ferguson provided the Tribunal with a written report dated 25 March 2014. On 30 April 2014, the Tribunal received a copy of Mr Ferguson's qualifications. Notably, Mr Ferguson has been employed by Gabriels Environmental Design since 2010. Gabriels Environmental Design Pty Ltd is a consulting firm specialising in acoustics and architectural sciences and is a member firm of the Australian Acoustical Society.
26 Mr Worthington spoke to an unsigned report headed 'Noise Level Readings'. The 'Noise Level Readings' report records the noise readings received by a noise meter in Unit 8 between the period 17 and 20 April 2014. Mr Worthington is the acting manager of environmental health at the City. Mr Worthington is an environmental health officer and he has a degree in that field. He is also an authorised noise officer for the purpose of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).
Criteria applied by experts
27 The experts called by the applicant applied different criteria to the level of noise transmitted from Unit 18 to Unit 8.
28 Mr Ferguson applied the Building Code of Australia (BCA), whereas Mr Worthington applied the Noise Regulations.
29 Mr Ferguson's evidence was that Pt 5F 'Sound transmission and insulation' of the BCA applied. In particular, FV5.1 'Verification methods' required that the level of impact generated sound through floors be not more than 62 decibels when determined under AS/ISO 717.2. Part 5F of the BCA differentiates between the transmission of airborne and impact generated sound through floors, and different decibel levels apply: see FV5.1 of the BCA.
30 The Noise Regulations prescribe standards for noise emission: see r 7 of the Noise Regulations. In particular, noise emitted from any premises, when received at other premises, must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind.
Method of testing
31 The experts called by the applicant used different methods of testing the noise which was transmitted from Unit 18 to Unit 8.
32 Mr Ferguson used a Norwegian Electronics NOR211 tapping machine on the floor of Unit 18 as the source of noise. Mr Ferguson explained to the Tribunal that the process involved dropping five different weights, or hammers, from a height of 40 millimetres over a period of time on the floor of Unit 18 and recording the level of noise in Unit 8. The tapping machine was set up in four positions in the living room of Unit 18. Mr Ferguson stated that the tapping machine was designed to be a standard representation of footfalls within a room.
33 In contrast,, Mr Worthington was not personally involved in the noise testing in Unit 8. Another environmental health officer from the City actually set up the testing unit in Unit 8. The City did not have access to Unit 18. The City's testing involved leaving an unattended noise meter in the applicant's unit over a period of four days.
34 Mr Ferguson's evidence was that the impact testing was the only suitable method to measure the structure-borne noise transmission which is the performance of the floor between the two units. Mr Ferguson said that measuring airborne noise was different to measuring the structure-borne noise. Airborne noise was not related to noise being transmitted between the floors of the units in question.
Results of testing
35 A measurement of 60 decibel (db) was recorded by Mr Ferguson. His evidence was that this measurement was below the 62 db BCA requirement for new buildings. Mr Ferguson said that while the reading was below the recommended level, the 2 db difference between the reading and what was suitable under the BCA was barely noticeable to the human ear. Mr Ferguson accepted that if there was a rug on the upstairs floor then there would be a significant improvement in the readings when the rug was walked on.
36 Mr Worthington's evidence was that the noise meter readings exceeded the assigned level under the Noise Regulations on all four days in question.
Non-expert evidence
37 Two people gave oral evidence of the noise they had experienced when visiting the applicant's unit.
38 For example, Ms Brown, a work colleague of the applicant's, spent about one hour in the applicant's unit one evening. Ms Brown said that she was surprised by the level of noise which came through the floor from upstairs. She said that she could hear footsteps and what sounded like furniture being dragged across the floor.
39 Ms Tyrer said that she had visited the applicant on a number of occasions. Ms Tyrer owns a unit in the complex, which she rents out. She is aware of the history of noise complaints and has experienced the noise from the unit above the applicant's when visiting the applicant.
40 Ms Friday's evidence included that the noise issues had existed for a long time and had been greater since the carpets were removed in the unit above. The noise issues had remained, notwithstanding the changes in tenants. She says that she only gets about four hours of sleep a night due to the noise. She described the noise as including footsteps and what sounds like furniture being dragged across the floorboards.
Consideration of the evidence
41 In relation to the first issue, the respondent relied on the evidence of Mr Ferguson. In effect, the respondent submitted that, as the decibel reading was less than that prescribed by the BCA, the transmission of noise was therefore not likely to disturb the peaceful enjoyment of the applicant.
42 The Tribunal accepts the entirety of Mr Ferguson's evidence. It prefers Mr Ferguson's evidence to that of Mr Worthington's and it accepts his expert opinion that impact testing is the correct method for measuring the transmission of noise between the floors.
43 However, the test to be applied by the Tribunal is that set out in the by-law, not the BCA. The BCA sets out the requirements which must be met for the construction of a building.
44 The 62 db level used to verify compliance with the BCA is set out in Pt F5 'Sound Transmission and insulation' of the BCA. The BCA is useful as a guide in determining what building requirements apply.
45 However, the relevant by-law under the ST Act has a different test; namely, the peaceful enjoyment of another lot. The relevant by-law is not an objective test. It does not specify a particular db level.
46 The Tribunal notes that it is open to the strata company to pass a by-law, if it was so inclined, specifying a particular db level.
47 Therefore, although the BCA requirement has been met, the strata by-law may nevertheless have been contravened. The question of whether the relevant by-law is breached is therefore subjective and depends on the consideration of the whole of the evidence of a particular case.
48 While the respondent accepts that noise is transmitted between the units, she submits that it is not noise 'likely' to interfere with the applicant's peaceful enjoyment. The Tribunal does not accept that there is any reliable evidence that the applicant's health condition makes her particularly sensitive to noise. No medical evidence in support of this contention has been submitted to the Tribunal. No medical expert gave evidence before the Tribunal.
49 Further, the Tribunal accepts that the 60 db reading given by Mr Ferguson, combined with the evidence of Ms Tyrer and particularly that of Ms Brown, satisfies the Tribunal that noise transmitted is such that it is likely to disturb the applicant's peaceful enjoyment of her lot. While the 60 db reading is within the acceptable range for BCA purposes, the Tribunal accepts Mr Ferguson's evidence that the 2 db difference would be barely noticeable to the human ear.
50 The Tribunal is satisfied that the evidence in this case is overwhelmingly that the noise transmitted from the respondent's unit to the applicant's unit is such that it is likely to disturb the applicant's peaceful enjoyment. The Tribunal has no doubt that the clearly audible noise of people in the respondent's unit merely going about their daily activities would impact on the occupant of the unit below. The evidence before the Tribunal is that the sound of people walking and moving furniture in the living area is clearly audible in the unit below.
51 The respondent is under an obligation to 'ensure' that noise does not transmit from the living area of her unit to another unit such that the peaceful enjoyment of the other unit is affected.
52 As set out above, the relevant by-law does not prohibit noise transmission between lots. However, it does prohibit noise which is 'likely' to disturb the peaceful enjoyment of another proprietor.
53 The Tribunal accepts that the respondent used an acoustic underlay under the bamboo floorboards which is designed to reduce noise transmission. However, the Tribunal finds, based on the evidence before it, that the underlay is not effective such that Sch 2 By-law 10 is complied with.
54 The Tribunal is therefore satisfied, on the basis of the evidence before it, that a finding can be made that:
i) the noise transmitted from the respondent's unit is likely to disturb the peaceful enjoyment of the applicant's unit; and
ii) it is caused by the bamboo flooring installed by the respondent.
- Accordingly, the respondent has not ensured that the relevant floor space in Unit 18 is treated to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the proprietor of Unit 8.
55 Given the extent of disruption to the applicant's peaceful enjoyment, the Tribunal finds that it should exercise its discretion under s 83 of the ST Act and make the order requested.
Conclusion
56 Given the finding that the respondent's bamboo flooring is in breach of by-law 10, an order requiring compliance with the by-law is appropriate. The order sought in the application was an order under s 83(1) of the ST Act 'to other than that comprising kitchen, laundry, lavatory or bathroom floating floorboards within the respondent's unit …'.
57 However, in accordance with By-law 10, the kitchen, laundry, lavatory and bathroom are excluded from the order.
Orders
58 The Tribunal makes the following orders:
- 1. By 2 September 2014 the respondent must ensure that all of the floor area of lot 18 (other than the 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 proprietor, occupier or resident of lot 8.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER
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