Owners of Haddon Place - Strata Plan 6353 and Tompkin and Anor
[2005] WASAT 340
•19 DECEMBER 2005
OWNERS OF HADDON PLACE - STRATA PLAN 6353 and TOMPKIN & ANOR [2005] WASAT 340
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 340 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:2305/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR T CAREY (MEMBER) | 19/12/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application successful. Order that the respondents take action to ensure compliance with by-law | ||
| B | |||
| PDF Version |
| Parties: | OWNERS OF HADDON PLACE - STRATA PLAN 6353 RON TOMPKIN MARGARET TOMPKIN |
Catchwords: | Strata titles – Bylaw of strata company requiring floor area of lot to be covered with "good quality rubber or felt underlay and carpet or some other floor covering capable of reducing impact noise to the same degree" – Whether cork flooring complies with by-law – Whether strata company estopped from relying on bylaw because of statement by strata manager – Strata Plan 6353 |
Legislation: | Strata Titles Act 1985 (WA), s 81(1), s 83(1) |
Case References: | Nil Nil |
Orders | 1. The respondents must take action to ensure that on or before 28 February 2005 all of the floor area of lot 27 (other than the kitchen, storeroom, laundry and bathroom) is covered by installing and laying a good quality rubber or felt underlay and carpet or some other floor covering capable of reducing impact noise to the same degree. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : OWNERS OF HADDON PLACE - STRATA PLAN 6353 and TOMPKIN & ANOR [2005] WASAT 340 MEMBER : MR T CAREY (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 19 DECEMBER 2005 FILE NO/S : CC 2305 of 2005 BETWEEN : OWNERS OF HADDON PLACE - STRATA PLAN 6353
- Applicant
AND
RON TOMPKIN
MARGARET TOMPKIN
Respondents
Catchwords:
Strata titles – Bylaw of strata company requiring floor area of lot to be covered with "good quality rubber or felt underlay and carpet or some other floor covering capable of reducing impact noise to the same degree" – Whether cork flooring complies with by-law – Whether strata company estopped from relying on bylaw because of statement by strata manager – Strata Plan 6353
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Legislation:
Strata Titles Act1985 (WA), s 81(1), s 83(1)
Result:
Application successful. Order that the respondents take action to ensure compliance with by-law
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondents : Selfrepresented
Solicitors:
Applicant : Self-represented
Respondents : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The applicant strata company sought an order the effect of which was to require the respondents to comply with a by-law for coverage of the main floor areas of lots. The respondents had installed cork flooring throughout their lot, whereas the by-law stipulates a requirement for carpet with good quality underlay or other floor covering capable of reducing impact noise to the same degree.
2 The Tribunal considered, firstly, whether the cork flooring complied with the by-law. It found that it did not, a finding supported by expert evidence of the comparative noise impacts of different types of floor covering. The Tribunal went on to consider other arguments raised by the respondents as to why their choice of flooring should be allowed despite its non-compliance with the by-law, including claims that the respondents had acted upon a favourable response by the strata manager to the respondents' cork floor proposal and that other proprietors including the proprietor of the lot immediately below the respondents' lot, the source of the complaint to the strata company, did not comply with the by-law. It decided that these arguments were either not substantiated or were irrelevant by reason of the objective requirement for compliance with the by-law.
3 The Tribunal ordered that the respondents take action by a specified date to ensure that a floor covering in compliance with the by-law is installed.
Introduction
4 The respondents are the owners of lot 27 in a 66 lot strata scheme situated in South Perth. They purchased their lot in March 2004, but did not take up residence until about a year later, due to the "noise issue" which is the subject of the matter before the Tribunal. The respondents have installed cork flooring throughout their lot. The respondents' preference for cork over carpet as a floor material is apparently based upon the recommendation of Mr Tompkin's doctor to avoid carpeting in his abode on account of his asthma.
5 The applicant contends that the form of floor covering adopted by the respondents breaches one of the strata company's by-laws. The by-law in question, Sch 1 by-law 12(d), a non-standard by-law which was
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- registered by way of a notification on the title in 1978, provides relevantly as follows:
"The Proprietor shall not … (a)t any time permit any part of the floor area of a lot (other than store-room, laundry and bathrooms) to be uncovered and to this end will install and lay a good quality rubber or felt underlay and carpet or some other floor covering capable of reducing impact noise to the same degree, except that the total floor area of the kitchen may be covered with a cork underlay of not less than one centimetre and then covered with any hard floor covering."
7 It is convenient, in order to identify the issues to be considered by the Tribunal, to list the grounds of opposition to the application referred to in the response:
1. the floor is not uncovered;
2. the by-law permits floor coverings other than carpet;
3. Ms Cherith Pettit-Jones, the principal/strata company manager, could not see a problem with cork flooring and this constitutes an issue estoppel;
4. the occupant below is not prejudiced by the cork flooring; and
5. many other units do not comply including the nominal complainant, unit 28, the occupant below.
8 I will deal with each of these grounds in the following sections. I have combined the first two grounds into a consideration of what I consider to be the critical question of whether the respondents' cork flooring is in compliance with the by-law.
Does the respondents' cork flooring comply with the requirement of by-law 12(d)?
9 It is apparent that the respondents have been alert to the need for them to respond to the requirements of by-law 12(d), and their reference to their floor not being uncovered is a logical response to the general
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- requirement of the by-law that no proprietor permit relevant floor areas of a lot "to be uncovered". No assertion is made by the applicant that there has been non-compliance with that general requirement, and in any event, the clear evidence is that at least all relevant parts of the floor area are covered with cork flooring.
10 This leaves unresolved the issue of whether the further requirements of the by-law are met. This is an issue that has almost totally been avoided by the respondents. Thus –
(a) they draw comfort from the expert evidence of Gabriels Environmental Design, who tested the noise impact of a tapping machine in different rooms of the respondents' lot (and also of lot 28 immediately below the respondents' lot) which indicated that the cork floor generally meets the requirements of the Building Code of Australia criteria for impact noise transmission in apartment buildings;
(b) they refer to the undoubted fact that apartment living tends to be accompanied by a higher level of noise than living in free standing dwellings and that some degree of flexibility was required;
(c) they suggest that other lot proprietors have not complied with the by–law, including the proprietor of lot 28 who complained about the noise from the respondents' lot.
11 The short answer to these matters is that they pay no regard to the terms of the by-law itself. The by-laws of the strata company set the legal parameters within which proprietors are required to conduct their affairs. In the case of by-law 12(d), the obligation to cover floor areas is particularised by the requirement that proprietors "install and lay a good quality or felt underlay and carpet or some other floor covering capable of reducing impact noise to the same degree". The capacity exists for the strata company or council of owners to waive the application of the by-law in particular cases, which occurred in the case of lot 28 according to its proprietor. Moreover, the respondents appear to have been aware of and explored this possibility in relation to their own lot. According to a copy letter from the applicant to the respondents dated 15 July 2004, the topic "hard surface timber flooring" was an item on the agenda of a meeting of the "Council of Management" (council of owners) on 7 July 2004. The letter indicates that this subject, along with the relevant by-law (to which the letter erroneously referred as by-law 11(d)) was discussed at some length, and it was agreed that permission not be given for the respondents to replace the existing carpet with solid wooden flooring "unless you can prove that the solid wooden flooring is capable
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- of reducing impact noise to the same degree as carpet". In other words, the council of owners insisted in the respondents' case upon compliance with the terms of the by-law.
12 I turn now to the evidence relevant to the question of whether the cork flooring reduces impact noise to the same degree as carpet. Pursuant to an order of the Tribunal, the applicant obtained the report of Gabriels Environmental Design. The report identified the tests conducted by way of measurements taken of the noise effects, in a receiving room located directly beneath, of a tapping machine applied in lot 27 in the lounge, hall/dining, kitchen and a bedroom. The same testing was conducted in lot 28, in which the lounge and bedroom were carpeted and the hall/dining and kitchen had ceramic tiles.
13 The results of the measurements recorded in the report are reproduced below.
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(Gabriels Environmental Design appears to have confused, and reversed the results for, lot 27 and lot 28, and the above table indicates the apparent intended results.)
14 The report explains that floor impact noise is rated in terms of the noise levels received in the room directly below the floor being impacted (that is, having the tapping machine applied to it). It confirms that the Building Code of Australia (BCA) establishes a criterion for impact noise transmission in apartment buildings of not greater than 62dB (currently a spectrum correction term is included as part of the formula, although this is likely to be dropped from future editions of the BCA). The manner of taking noise level measurements in the receiving room is set out in the report, with reference to correction for background noise.
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15 The "overview" section of the report focussed on the compliance, or otherwise, with the criterion under the BCA of the areas tested. The cork floors in the respondents' lot were said to generally meet the requirement of the BCA except in the case of the kitchen, which exceeded it by 1dB only. Significantly, in reference to lot 28, the overview observed that the results indicated that carpet floors are well below the BCA criterion, but the tiled areas exceeded the criterion by 9 – 10dB.
16 The expert evidence, which the respondents did not contest, establishes what might otherwise be the self-evident fact that a carpet floor has a considerably greater noise dampening effect than what might be regarded as "hard" floors. Although cork floors are found to be in compliance with the BCA requirement for apartment buildings, the test results demonstrate an increase in decibel level in the receiving room when compared with carpet to the extent of about 100%. Naturally, this is a product of the noise characteristics of both types of flooring.
17 By-law 12(d) requires carpet and underlay or other floor covering capable of reducing impact noise to the same degree. The expert evidence demonstrates that the cork flooring installed by the respondents does not, and is incapable of, reducing impact noise to the same degree as carpet. It might be a question whether any material other than carpet is so capable, but the crucial fact is that cork flooring is incapable.
What is the significance of a favourable indication by strata manager?
18 According to Mr Tompkin, in November 2004 he discussed with Ms Pettit-Jones, the strata manager for the scheme, the possibility of installing a cork floor. Mr Tompkin asserts that he had carried out considerable research on alternative floor coverings, and that he discussed with Ms Pettit-Jones at length what he had found out about cork flooring, including that it conformed to the Australian Standards for strata properties. The response he attributes to Ms Pettit-Jones is that if what he had said was correct, she "could not see an issue". Mr Tomkin states that he took this in good faith and the Tompkins then proceeded to install the cork flooring at a cost of $10 000, which they would not have done in the absence of what Ms Pettit-Jones had said.
19 As the respondents should have known, and in all likelihood did know given their earlier attempt to secure the council of owners' permission for solid wooden flooring, the strata manager did not have the authority to waive compliance with, nor give permission to proprietors to act in a way which would contravene, by-law 12(d). In any event, on Mr Tompkin's own version of his discussion with Ms Pettit-Jones, the
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- strata manager did not purport to do so. All she said, according to Mr Tompkin, was that if the information Mr Tompkin had provided was correct, she could not see an issue. This was merely a qualified indication of opinion of the likely outcome if the respondents were to again apply for permission for a hard (this time cork) floor. The course the respondents adopted of proceeding to install the cork flooring on this indication of opinion was unwarranted and at the respondents' risk. No estoppel is established on the basis of the facts alleged by the respondents because what the strata manager said did not amount to a representation that the strata company would not rely upon the terms of the by—law.
Of what significance is the prejudice, or lack thereof, to the occupant below?
20 The resident of lot 28 filed a document advising of the impact the cork flooring in lot 27 was having on him. That document comprised a log of two weeks in August 2005 of noises said to have emanated from the respondents' lot. The statement alleged a number of cases of noise attributable to various activities such as walking, chairs being dragged, and items being dumped on the floor upstairs. The main alleged effects of these noises on the resident, who has a long term illness which requires him to have regular rest, were being awoken from sleep and having difficulties in getting to sleep.
21 The respondents submitted that the suggested causes of the incidences of noise were false. By way of illustration, they said it was impossible for the occupier of lot 28 to hear chairs being "dragged", because all the respondents' chairs have adhesive felt pads attached to the legs which eliminate noise if dragged across the floor. In any event, chairs tend to be lifted rather than dragged.
22 It is not necessary for me to determine the extent to which the resident of lot 28 is affected by noise from what happens in the respondents' lot. This is because of the objective requirement for the proprietor of a lot to install either a good quality rubber or felt underlay and carpet or other floor covering capable of reducing impact noise to the same degree. Although the intent of the by-law is clearly to minimise the emission of noise from lots to other lots, the by-law is a self-contained code which is to be complied with regardless of the actual impact of non-compliance on other lots.
Of what significance is non-compliance by other lots, including lot 28?
23 The respondents assert that some other lots in the scheme do not comply with by-law 12(d). In particular, the respondents allege that lot 28
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- does not comply because it has tiles throughout the kitchen and hall/dining area. Moreover, the testing by Gabriels Environmental Design indicated a noise outcome in respect of those areas of lot 28 as being non-compliant with the BCA criteria for impact noise transmission in apartment buildings. In response to the lot 28 proprietor's statement of an absence of any complaint about noise in respect of lot 28, the respondents state that Ms Tompkin spoke with the owner of the lot directly below lot 28 who did have some things to say about the noise impacts emanating from lot 28. The apparent object of this evidence is to support an argument that the resident complaining of the noise from the respondents' lot conveniently ignores the noise impact of his own lot on a third lot of a level as great if not greater than those of which he complains and his complaint should be considered in this light.
24 The respondents do not refute the assertion by the lot 28 proprietor of a resolution of the council of owners in 1996 that approved of the current floor coverings in lot 28 despite their non-compliance with the by-law. Given that one of the duties of strata companies is to enforce the by-laws, there is a real question whether such a resolution by an agent of the strata company can be valid. This is not a question that it is necessary to decide in determining the current proceeding. That proceeding concerns an allegation of non-compliance by the respondents in relation to their obligations regarding the floor covering in their lot. The objective nature of that obligation renders comparisons with other lots irrelevant.
Order sought and made
25 Given my finding that the respondents' cork flooring is in breach of the by-law, 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 Strata Titles Act1985 (WA) (STA) "to enforce the by-law of Haddon Place which states … ". The order made having that effect, it does not differ in substance from the order sought, and therefore is an order permitted by s 81(1) STA. The kitchen is excluded (together with the other exceptions which appear in the by-law) from the order because the by-law allows that kitchens may be covered with a cork underlay of a particular depth and then covered with any hard floor covering. Although not expressed in so many words in the documents filed by the applicant, on my reading of those documents, the applicant's issue regarding the noise performance of the floor coverings in the respondents' lot was limited to those areas of the lot to which the general requirement of a carpet applied. Further, there is no evidence demonstrating that what
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- currently exists in the kitchen of the respondents' lot performs worse in terms of noise than a cork underlay covered with a hard floor covering.
Order
1. The respondents must take action to ensure that on or before 28 February 2006 all of the floor area of lot 27 (other than the kitchen, storeroom, laundry and bathroom) is covered by installing and laying a good quality rubber or felt underlay and carpet or some other floor covering capable of reducing impact noise to the same degree.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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