REILLY and PERKINS HOLDINGS (WA) PTY LTD
[2025] WASAT 81
•6 AUGUST 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: REILLY and PERKINS HOLDINGS (WA) PTY LTD [2025] WASAT 81
MEMBER: MS R PETRUCCI, MEMBER
HEARD: 10 FEBRUARY 2025
FINAL WRITTEN SUBMISSION FILED 8 MAY 2025
DELIVERED : 6 AUGUST 2025
FILE NO/S: CC 281 of 2024
BETWEEN: GAIL LORRAINE REILLY
First Applicant
PAUL JULIAN ROLLS REILLY
Second Applicant
AND
PERKINS HOLDINGS (WA) PTY LTD
First Respondent
THE OWNERS OF THE WESTRALIAN STRATA SCHEME 47949
Second Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Application by proprietors seeking compliance with scheme by-laws - Standing - Alleged contravention of scheme conduct by-laws - Noise - Transmission of noise - Floor coverings - Amendment of floor coverings by-law after installation of different floor covering - Proper construction of 'floor coverings' by-law - Whether floor coverings sufficient to prevent transmission of noise likely to disturb other proprietors - Objective test - Whether breach of by-law established - Expert acoustic evidence - Role of strata company to enforce scheme by-laws - Lack of action by strata company - Factors to consider in exercising statutory discretion to make orders - Turns on own facts
Legislation:
Interpretation Act 1984 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 84
Strata Titles Act 1985 (WA), s 39, s 39(b), s 44, s 45, s 45(2), s 45(4), s 46(j), s47(1)(a), s 47(1)(b), s 47(1)(c), s 47(3), s 47(3)(a), s 47(4), s 47(4)(b), s47(4)(c), s 47(5), s 47(5)(b), s 48, s 197, s 197(1)(a), s 197(2), s 197(2)(a), s197(2)(d), s197(4), s 200, s 200(2)(m), Pt 4, Div 4
Result:
Application partly successful
Category: B
Representation:
Counsel:
| First Applicant | : | Ms T Watson and Mr S Bell |
| Second Applicant | : | Ms T Watson and Mr S Bell |
| First Respondent | : | Mr DJ Pratt |
| Second Respondent | : | N/A |
Solicitors:
| First Applicant | : | Douglas Lawyers |
| Second Applicant | : | Douglas Lawyers |
| First Respondent | : | Jackson McDonald |
| Second Respondent | : | N/A |
Case(s) referred to in decision(s):
Ainsworth v Albrecht 2016 HCA 40; (2016) 261 CLR 167
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Erbrich and The Owners Of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109
Felcher v The Owners Strata Plan No 2738 [2017] NSWCATAP 219
Feletti v Eales [2018] NSWCATCD 66
Friday and Luck [2014] WASAT 109
Gao v Agosti [2009] NSWCTTT 175
George v Rockett [1990] HCA 26; [1990] 170 CLR 104
Kruger v The Commonwealth of Australia (1997) 190 CLR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Nowak v Pellicciotti [2018] NSWCATAP 245
Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; [1936] 55 CLR 110
Schubert and Huang [2020] WASAT 63
Swannell v Lilliman [2004] WADC 72
The Owners - Strata Plan No 7704 v Kim [2023] NSWCATCD 39
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1
The Owners of Mill Point Strata Plan 11391 and Fownes [2006] WASAT 30
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Webb v Tang [2023] WASCA 119
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 19 May 2005, Strata Plan 47949 (strata plan) was registered pursuant to the Strata Titles Act 1985 (WA) (ST Act) and the strata scheme known as 'The Westralian' was created. The strata scheme comprises 96 residential and two commercial units in an 18-storey development in the City of Perth.
Mr and Mrs Reilly are the proprietors and current occupiers of Lot 49 on the strata plan. Directly above them is Lot 51 which is owned by Perkins Holdings (WA) Pty Ltd (Perkins Holdings).
While Mr and Mrs Reilly acknowledge they live in a strata complex and that Lot 51 is not occupied full-time, they complain of the 'unbearable noise issue which they have been dealing with and desperately trying to resolve for at least, the last seven years' which they say emanates from the floor space of Lot 51 as a result of Perkins Holdings putting 'screed and vinyl over tiles with no acoustic at all'.[1]
[1] Witness statement of Mrs Reilly at para 65, Exhibit 1, (Hearing Book prepared by the Tribunal on 5 February 2025 at page 688).
On 2 May 2024, Mr and Mrs Reilly commenced proceedings in the Tribunal under s 47(3) of the ST Act seeking the enforcement of the scheme conduct by-law 11 concerning floor coverings (which is set out in full below at [55]). They seek orders against Perkins Holdings, and in the alternative, an order against The Owners of the Westralian Strata Scheme 47949 (strata company) under s 47(5) of the ST Act and, or alternatively, under s 200(2)(m) of the ST Act as follows:[2]
1.The First Respondent [Perkins Holdings] replace the vinyl flooring in Unit 51 78 Terrace Road, East Perth, more particularly described as Lot 51 on Strata Plan 47949, with material that prevents the transmission of noise in excess of 50 decibels.
2.The First Respondent [Perkins Holdings] pay the costs of the works referred to in order 1.
3.In the alternative to Orders 1 and 2, the Second Respondent [strata company] issue the First Respondent [Perkins Holdings] with a notice in accordance with by-law 11.2 of the By-Laws of the Second Respondent [strata company].
[2] The orders originally sought by Mr and Mrs Reilly did not include order 3 (see Exhibit 1 at page 296). The orders sought were amended by Mr and Mrs Reilly on 16 September 2024 where order 3 was added (see Exhibit 1 at page 711). Following this, on 10 October 2024, SM Mr John O'Sullivan ordered for the strata company to be joined as the second respondent to the proceeding.
No doubt Mr and Mrs Reilly think that Perkins Holdings is being unreasonable and that Perkins Holdings thinks that Mr and Mrs Reilly are being unreasonable about noise transmission from Lot 51 to Lot 49. This matter has had the benefit of an on-site mediation early in the proceedings before the Tribunal, but Mr and Mrs Reilly and Perkins Holdings were not able to resolve their differences. Therefore, in my view, this is a case which appears not to be capable of resolution without the intervention of the Tribunal.
As stated in Felcher v The Owners Strata Plan No 2738 [2017] NSWCATAP 219 (Felcher) at [23], the role of the Tribunal in conducting hearings before it is not inquisitorial. That is, while the Tribunal may determine how to proceed with a hearing as provided for in s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it is not the role of the Tribunal to take the lead in the investigation of the facts. Rather, the role of the Tribunal is to make a decision on the basis of the evidence presented to it and the usual practice is that the parties have the management of their respective case.
Therefore, Mr and Mrs Reilly, as the applicants, bear the onus (or burden) of proving their case, that is, persuading the Tribunal that they are entitled to the relief (or orders) they seek, being the civil standard of proof, being on the balance of probabilities. To put it in other words, in this case, Mr and Mrs Reilly must establish that the floor coverings of Lot 51 do not comply with the requirements of floor coverings bylaw 11, and that as a result the proprietor of Lot 51 is in contravention and continues to be in contravention of that by-law. The Tribunal must be satisfied that Mr and Mrs Reilly's assertions are more probable than not.
For the reasons which follow, I am satisfied that Mr and Mrs Reilly have established that Perkins Holdings is in contravention of bylaw 11.1. Subject to hearing from the parties as to the precise form of the orders, I propose to make the orders under s 47(5)(b) of the ST Act to require Perkins Holdings to take action to comply with by-law 11.1 (see below at [244]).
Issues
There are some significant points of difference between the parties as to the issues to be determined in this matter.[3]
[3] Exhibit 1 at pages 302 and 714.
The first issue, according to Mr and Mrs Reilly is whether Perkins Holdings contravened by-law 11.1 by reference to the 'transmission of noise in excess of 50 decibels (dB)'.[4] Perkins Holdings does not reference any dB reading in regards to by-law 11.1. Rather, Perkins Holdings say there are two issues with respect to by-law 11.1, being the requirement for the floor coverings or finishes to be: (a) approved by the strata company; and (b) sufficient to prevent the transmission of noise likely to disturb other proprietors.[5]
[4] Exhibit 1 at page 302.
[5] By-law 11 (and other by-laws) for this scheme refers to 'proprietors' which was the term used in the ST Act prior to major amendments to that Act on 1 May 2020. The current ST Act refers to 'owners' (rather than 'proprietors') in reference to the person who owns the strata lot. I have used the term 'proprietor'; however, it is interchangeable with the term 'owner' in this matter.
The second issue, according to Mr and Mrs Reilly, is whether the strata company contravened by-law 11.2 by failing to issue a notice to Perkins Holdings. In contrast, Perkins Holdings say issue 2 is limited to the question of whether the strata company should have exercised its discretion under by-law 11.2 to issue a notice, if the finding is made that Perkins Holdings breached by-law 11.1.
I will address all of the above issues under the following broad headings:
(a)Whether Perkins Holdings contravened by-law 11.1?
(i)What is the proper construction of by-law 11?
(ii)Whether by-law 11.1 requires transmission of noise to be limited to no more than 50 dB?
(iii)Whether noise transmitted is reasonably likely to disturb other proprietors?
(b)Whether the strata company should have exercised its discretion under by-law 11.2?
(c)Whether the Tribunal should exercise its discretion to make orders, and if 'yes' what should the order(s) be?
Evidence
Expert evidence
Mr and Mrs Reilly rely on the expert reports prepared by Mr Michael Ferguson, an associate director of Gabriels Hearne Farrell (formerly Gabriels Environmental Design). Mr Ferguson is an environmental consultant who has specialised in architectural acoustics for the past 14 years. Mr Ferguson has a Bachelor of Interior Architecture and is a member of the Australian Acoustical Society. Mr Ferguson prepared two reports. First, a report for Simply Bamboo, dated 18 November 2016.[6] Second, a report for Mrs Reilly dated 4 September 2017.[7] Finally, Mr Ferguson filed a witness statement dated 1 November 2024 which he confirmed at the final hearing on 10 February 2025 (final hearing).[8]
[6] Exhibit 1 at pages 366 to 374.
[7] Exhibit 1 at pages 389 to 395.
[8] Exhibit 1 at pages 692 to 703.
In addition, Mr and Mrs Reilly rely on an expert report from Mr George Watts of Herring Storer Acoustics dated 16 August 2018.[9] Mr Watts prepared his report for Bellcourt Strata Management (the then strata manager for the strata company).
[9] Exhibit 1 at pages 399 to 405.
Finally, Mr and Mrs Reilly rely on an undated academic paper of Ms Silvana Wirepa from the University of Newcastle, with the heading 'Acoustics Impact noise comparatives of floor/ceiling systems'.[10]
[10] Exhibit 1at pages 527 to 673.
Perkins Holdings relies on an expert report prepared by Mr Imran Khan, the national technical director of E-LAB Consulting, dated 5 December 2024.[11] Mr Khan has been an acoustic engineer for approximately 18 years. He is a member of the Australian Acoustic Society and Engineers Australia.[12] Mr Khan prepared a report for Perkins Holdings dated 5 December 2024. Finally, Mr Khan filed a witness statement dated 20 December 2024 which he confirmed at the final hearing.[13]
[11] Exhibit 1 at pages 853 to 868.
[12] Exhibit 1 at page 821.
[13] Exhibit 1 at pages 846 to 871.
At the final hearing, I had the benefit of affirmed evidence of Mr Ferguson and Mr Khan who gave their evidence together, were asked questions by the parties and were given the opportunity to respond directly to each other's evidence. Both experts in giving their evidence or answering questions at the final hearing referred to:
•the Building Code of Australia (BCA);[14] and
•two statements issued by the Association of Australasian Acoustical Consultants (AAAC), which is described as an 'overarching body of acoustic consultants'.[15] The first statement is titled 'Position Statement Concerning the Transmission of Impact Sounds through Flooring of Apartment Buildings' dated 21 July 2022.[16] The second statement is titled 'AAAC Guideline for Apartment and Townhouse Acoustic Rating - Explanatory notes regarding the impact sound insulation rating' Version 2.0 dated May 2023.[17]
[14] The BCA is now part of the National Construction Code (NCC). The Australian Building Codes Board (ABCB) is a standards writing body responsible for the NCC. In these reasons I have referred to the BCA as that is what Mr and Mrs Reilly and Perkins Holdings referred to as did Mr Ferguson and Mr Khan.
[15] ts 33, 10 February 2025.
[16] Exhibit 3 (two pages).
[17] Exhibit 4 (one page).
Mr Watts was not called to give evidence and where the evidence of the acoustic experts differs, I prefer the evidence of Mr Ferguson and Mr Khan as Mr Watts' report was prepared for the strata manager (and not Mr and Mrs Reilly) and he was not available to answer questions about his report.
Non-expert evidence
Mr and Mrs Reilly rely on Mrs Reilly's witness statement dated 1 November 2024,[18] and Ms Siobhan Reilly's (daughter of Mr and Mrs Reilly) witness statement dated 1 November 2024 which they confirmed at the final hearing.[19] I had the benefit of Mrs Reilly's and her daughter's affirmed evidence who were both cross-examined and reexamined.
[18] Exhibit 1 pages 678 to 689.
[19] Exhibit 1 at page 691.
Perkins Holdings relies on the witness statement of a director of the company, Mr Daniel Neville Perkins, dated 20 December 2024 which he confirmed at the final hearing.[20] I had the benefit of Mr Perkins' affirmed evidence who was cross-examined and re-examined.
Non-participation by strata company
[20] Exhibit 1 at pages 832 to 842. Mr Perkins corrected para 36 of his witness statement by deleting the reference to 'my adult children' to 'my children, one aged 16 and the other aged 19'.
The strata company did not participate in these proceedings. No book of documents nor witnesses statements were filed by the strata company. No one from the council[21] was present at the final hearing.
[21] The term 'council' is defined in s 3 of the ST Act as the governing body of the strata company.
At the commencement of the final hearing, the Tribunal attempted to telephone the chairperson, Dr Paul Vogel, and the treasurer, Ms Deborah Lorkin but there was no answer. Mr Michael Bancroft, the secretary, answered the call from the Tribunal. Mr Bancroft explained that he had been in hospital for about four weeks, having just been released and would remain absent from the council for another 10 days. Mr Bancroft informed me that he had not received notification of the proceeding and that he was not in a position to inform the Tribunal as to whether or not the strata company wanted to participate in the final hearing.
Ms Watson informed me that on 1 November 2024, the strata company was served by hand delivery to the letter box of the strata company the application made to the Tribunal by Mr and Mrs Reilly, their bundle of documents and the orders made by the Tribunal on 10 October 2024.[22] In addition, Ms Watson informed me that the strata manager was served the same by email. Finally, Ms Watson referred me to the minutes of the council meeting held on 16 January 2025.[23]
[22] ts 2, 3 and 6, 10 February 2025.
[23] Exhibit 2.
After hearing from Ms Watson and Mr Pratt, who both made submissions urging the Tribunal to proceed with the final hearing, I decided, bearing in mind the objectives of the Tribunal as set out in s 9 of the SAT Act, which includes to act speedily and with little formality and to minimise the costs to the parties, that it was in the interests of justice to proceed to hear the matter for the following four main reasons:
(a)the strata company was aware of the proceeding as evidenced by the minutes of council meeting held on 16 January 2025 which reflected at item 11(d) that it was resolved that the:
Lot 49/51 SAT Matter:
… be removed from the agenda until further action is required.[24]
(b)the e-Courts Portal records the strata company having received Exhibit 1 which includes all the orders made by the Tribunal including the orders setting the date of the final hearing;
(c)the expert and non-expert witnesses for both Mr and Mrs Reilly and for Perkins Holdings were in attendance at the Tribunal and were ready to give their evidence; and
(d)in this case, it is only the alternative order sought by Mr and Mrs Reilly that is of interest for the strata company.
[24] Exhibit 2 at page 4.
At the final hearing, I noted that the Tribunal would invite the strata company to make written submissions, if following hearing all the evidence, I was of the view that it was necessary to consider going down the path of the alternative order sought by Mr and Mrs Reilly. That is not necessary, as I explain later in these reasons.
Shortly after the conclusion of the final hearing, correspondence was filed with the Tribunal by Ms Watson. This led to further orders being made by the Tribunal as discussed below at [210].
Finally, in any event, should the strata company feel it necessary, it may seek to apply to the Tribunal under s 84 of the SAT Act for a review of this decision if the strata company is of the view that it is affected by the decision in circumstances where it did not appear and was not represented at the final hearing.
Mr and Mrs Reilly's application to the Tribunal
Very broadly, Mr and Mrs Reilly's case is that Perkins Holdings is responsible for the noise transmitted from the floor space of Lot 51 which they describe as 'unbearable' and is 'significantly impacting [their] ability to peacefully enjoy their apartment'[25] and is therefore in breach of bylaw 11 (the by-law is set out in full below at [55]).
[25] Mr and Mrs Reilly's SIFC at page 6 (Exhibit 1 at page 307).
The orders sought (see above at [4]) by Mr and Mrs Reilly are orders to the effect that require Perkins Holdings to upgrade the sound insulation of the floor of Lot 51 to ensure it complies with by-law 11 including that the transmission of noise does not exceed '50 decibels' (as provided for in by-law 11.2). In the alternative, Mr and Mrs Reilly seek an order requiring the strata company to issue a notice to Perkins Holdings in accordance with by-law 11.2.
The first question that arises in respect of Mr and Mrs Reilly's application is, whether Mr and Mrs Reilly have standing to make their application.
Standing
Mr and Mrs Reilly made their application to the Tribunal under s 47(3) of the ST Act. That section provides that a proprietor, in this case Mr and Mrs Reilly as the proprietors of Lot 49, may make an application for the enforcement of scheme by-laws if one of the three grounds set out in s 47(4) of the ST Act is satisfied.
Section 47(4) of the ST Act provides:
(4)An application can only be made under subsection (3) on the grounds that —
(a)if a person other than the strata company is alleged to have contravened the scheme by‑laws — the person has been given notice under subsection (1)(a) and has contravened the notice; or
(b)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by‑laws; or
(c)the person has contravened the particular scheme by‑law on at least 3 separate occasion[.]
Mr and Mrs Reilly submit that s 47(4)(b) of the ST Act is satisfied because Perkins Holdings' contravention of by-law 11 has had serious adverse consequences for them. In particular, Mr and Mrs Reilly contend that the noise transmitted from Lot 51 to Lot 49 has caused significant disturbance to their peaceful enjoyment of their Lot 49 for several years as evidenced by the nine written complaints made about the noise transmission.[26] In addition, Mr and Mrs Reilly say that the transmission of noise has caused them distress and interrupted their sleep.[27]
[26] Mrs Reilly's witness statement at paras 33, 39, 44, 45, 46, 52, 53 and 56 (Exhibit 1 at pages 682 to 686).
[27] Mr and Mrs Reilly's reasons for orders sought filed on 6 March 2024 at page 2 (Exhibit 1 at pages 297 to 298).
Mr and Mrs Reilly say that Perkins Holdings has contravened scheme by-law 11 on at least three separate occasions again as evidenced by the nine written complaints made about the noise transmission. They say that s 47(4)(c) of the ST Act is satisfied.
In short, Mrs and Mrs Reilly say that each and all of s 47(1)(a), (b) and (c) of the ST Act are satisfied and therefore they have standing to make their application to the Tribunal.
Perkins Holdings' position is that Mr and Mrs Reilly may have standing under s 47(3)(a) read with s 47(4)(b) or s 47(4)(c) of the ST Act.[28] However, Perkins Holdings did not make any further submissions on the basis that they accept that the Tribunal has jurisdiction, in any event, under s 197 of the ST Act.[29]
[28] Perkins Holdings' statement of issues, facts and contentions filed 20 December 2024 (Exhibit 1 at pages 718).
[29] Perkins Holdings' submissions in support of order dismissing application filed on 24 May 2024, took the position that Mr and Mrs Reilly did not have standing under s 47(3) of the ST Act (Exhibit 1 at pages 874 to 879).
It is useful to note that an application under s 47(3) of the ST Act must be made against a person whom it is alleged is in contravention of a scheme by-law. This is because under s 47(5) of the ST Act, the orders which the Tribunal may make, upon being satisfied that the person has contravened one or more scheme by-laws is solely directed to the person in contravention of the scheme by-laws. In the context of the ST Act, the reference to a 'person' includes both a natural person and an entity to which the law attributes personality, for example, a company.
In my view, Mr and Mrs Reilly have standing to make their application under s 47(3)(a) read with s 47(4)(b) or s 47(4)(c) of the ST Act. To come to this conclusion, I have taken the following into consideration.
First, Mr and Mrs Reilly allege the contravention of by-law 11 has had serious adverse consequences for them as the excessive noise causes them distress and interrupts their sleep.[30] In my view, this satisfies the requirements of s 47(4)(b) of the ST Act.
[30] Exhibit 1 at page 298.
Second, Mr and Mrs Reilly allege that Perkins Holdings, being a person, contravened scheme by-law 11 on at least three separate occasions as evidenced by the nine written complaints made over a number of years to the strata manager and to the council seeking a resolution to the noise transmission from Lot 51 to Lot 49. In my view, this satisfies the requirement of s 47(4)(c) of the ST Act.
Mr and Mrs Reilly also submit that via their legal representative they gave written notice to Perkins Holdings. That written notice is not part of the documents filed with the Tribunal. Consequently, I cannot consider it and therefore I have not considered s 47(4)(a) of the ST Act which concerns the giving of notice of an alleged breach of by-laws.
In any event, I am satisfied that Mr and Mrs Reilly have standing to make their application under s 47(3)(a) read with s 47(4)(b) or s 47(4)(c) of the ST Act.
Having found Mr and Mrs Reilly have standing does not mean Perkins Holding is in contravention of by-law 11. That is the next issue to be determined. In other words, I am satisfied that the Tribunal has jurisdiction, and I will therefore now go on to consider whether Perkins Holdings breached or contravened by-law 11.
If the answer to the question as set out in the immediately preceding paragraph is 'yes', then it will be necessary to consider whether the strata company should have exercised its discretion under by-law 11.2, and if so, whether the Tribunal should order the strata company to issue a notice under by-law 11.2 (see below from [200]).
For completeness, I observe that both Mr and Mrs Reilly and Perkins Holdings say that Mr and Mrs Reilly have standing to making their application under s 197(4) as both parties are 'scheme participants' pursuant to s 197(2)(a) and s 197(2)(d) of the ST Act. Finally, they agree their dispute is about whether or not the proprietor of Lot 51 is in breach of by-law 11. That is the relevant 'scheme dispute' as that term is defined in s 197(1)(a) of the ST Act.
Finally, while Mr and Mrs Reilly and Perkins Holdings agree about standing under s 197(2) of the ST Act, I observe that Mr and Mrs Reilly did not make their application to the Tribunal for the resolution of a scheme dispute under s 197(4) of the ST Act. Rather, the application was made under s 47(3) of the ST Act for the enforcement of scheme bylaws, and in particular the enforcement of by-law 11. I will return to the exercise of the Tribunal's discretionary power to make orders under s 47(5) and s 200 of the ST Act later in these reasons (see below from [220]).
Facts
The factual framework of the dispute is agreed or uncontroversial. I make the following findings of fact.
Strata scheme
Following the construction of The Westralian building in early May 2005,[31] on 19 May 2005, the original owners, 78 Terrace Road Joint Venture Pty Ltd (the original owners) lodged the strata plan for registration with the Registrar of Titles. The strata plan was registered the same day.
[31] Mr Perkins's witness statement at para 5 (Exhibit 1 at page 833).
Lot 49 is located directly below Lot 51.
Strata company
The strata company is the strata company for the strata scheme created by the registration of strata plan on 19 May 2005.
Management statement
On 19 May 2005, the original owners lodged the management statement with the Registrar of Titles for registration. It was registered on the same day (by instrument J291674). The management statement provides in part:
1.The Schedule 1 Bylaws are amended repealed or added to as follows: -
The bylaws in Schedule 1 to the [ST] Act and numbered 1 to 15 inclusive, as they apply to the scheme referred to in the strata plan are repealed and the bylaws numbers 1 to 15 inclusive are adopted as the Schedule 1 Bylaws as appears in Schedule 1 hereto.
2.The Schedule 2 Bylaws are amended, repealed or added to as follows:-
The Bylaws in Schedule 2 to the [ST] Act numbered 1 to 14 inclusive, as they apply to the scheme referred to in the strata plan are repealed and the bylaws numbered 1 to 38 inclusive, are adopted as the Schedule 2 Bylaws of the strata company as appears in Schedule 2 hereto.
The management statement included the following by-law to deal with floor coverings (by-law 20):
20.Floor coverings
20.1A proprietor 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 proprietors of other lots.
20.2In addition to all the approvals required by bylaw 4 of this Schedule 2, no proprietor shall install a wooden floor to any portion of his or her lot without first installing a sound proof membrane between the concrete slab and the proposed wooden floor.
By-law 4 of Sch 2 of the management statement is relevant in that it required:
4.Alterations to a lot
4.1A proprietor shall not commence any structural alterations building or associated works of any kind to his lot before he has:
4.1.1obtained all the necessary approvals and permits of the local authority;
4.1.2obtained the consent of the strata company in the structural alternations are prescribed improvements within the meaning of section 7 of the Act.
4.1.3given the strata company at least 14 days written notice of the proposed structural alterations and the date that work is to commence and true and complete copies of all relevant plans and specifications in respect thereto and the approvals and permits obtained from the local authority pursuant to bylaw 4.1.1.
4.1.4indemnified the strata company in respect of any cost expense or liability that may be incurred by the strata company consequent upon the proprietor undertaking the structural alterations building or associated works which indemnity shall be in writing in a form reasonably by the strata company and prepared and stamped at the cost of the proprietor.
On 21 January 2015 (by instrument M8902348) there were changes to the management statement. This included repealing the Sch 2 conduct by-laws and inserting a new Sch 2 conduct by-laws numbered 1 to 30 which included a new conduct by-law 16 regarding floor coverings as follows (by-law 16):
16Floor coverings
16.1Proprietors and occupiers must ensure that all floors within their lot (other than that comprising kitchen, laundry, lavatory and bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission from those floors to another lot of noise likely to disturb the peaceful enjoyment of the proprietor or occupier of another lot.
16.2Without limiting the requirements of sub-bylaw 16.1, if a proprietor or occupier is utilising a floor covering other than carpet, then:
16.2.1any floor finish must achieve single representative impact isolation to satisfy the BCA requirements or 40dB, whichever is the lower; and
16.2.2the proprietors or occupier must provide the strata company with an acoustic report signed by an acoustic engineer or other appropriately qualified person certifying that the floor covering meets the requirements of this by-law.
On 27 November 2020, (by instrument O568889), the scheme bylaws were consolidated (the by-laws). Various by-laws were repealed (including by-law 16) in the consolidation process and a new by-law 11 for flooring coverings was added as follows (by-law 11):
11Floor coverings
11.1Each proprietor must ensure that all floor space within its lot is covered or otherwise treated with materials approved by the strata company to an extent sufficient to prevent the transmission of noise likely to disturb other proprietors.
11.2If the strata company reasonably determines that a proprietor is not complying with by-law 11.1, the strata company may (without limiting any of the strata company's other rights) issue the proprietor with a notice requiring the proprietor to advise the strata company of the rectification works that it proposes to undertake within 14 days (Rectification Works).
11.3The Rectification Works must:
11.3.1comply with all Australian Standards and the Building Code of Australia as applicable to sound proofing; and
11.3.2any floor finish must achieve an LnT,w rating to satisfy the BCA requirements or 50 dB, whichever is the lower rating or meet any other minimum standard for acoustic performance set by the council of the strata company (Acoustic Standard).
11.4The proprietor must arrange for the Rectification Works to be completed within 60 days of the strata company approving the Rectification Works.
11.5Subject to by-laws 11.1 to 11.4, a proprietor:
11.5.1must obtain the council's prior written consent before replacing the floor finish within the proprietor's lot; and
11.5.2acknowledges that the council may withhold the consent where the replacement floor finish will not meet the Acoustic Standard.
11.6Each proprietor will:
11.6.1to the extent reasonably possible, only use footwear in its lot; and
11.6.2if necessary, ensure that all furniture in its lot is fitted at all times with suitable floor pad,
that will prevent the transmission of noise likely to disturb any other proprietor.
On 17 November 2022, (by instrument P358502) there were various amendments to the by-laws. In regards to by-law 11, the wording as set out in the immediately preceding paragraph was not amended, however the numbering of by-law 11.5 changed with the omission of the numbering as follows:
11.5Subject to by-laws 11.1 to 11.4, a proprietor:
must obtain the council's prior written consent before replacing the floor finish within the proprietor's lot; and
11.5.1acknowledges that the council may withhold the consent where the replacement floor finish will not meet the Acoustic Standard.
On 15 November 2023, (by instrument P788152), there were various amendments to the by-laws but there were no amendments in relation to by-law 11 concerning floor coverings. That is, there was no amendment to by-law 11 (as it appears in the immediately two preceding paragraphs).
As at the date of the final hearing there was no other notification of changes to the by-laws.
Ownership and occupancy
Lot 49
Mr and Mrs Reilly purchased Lot 49 in April 2015.
Mr and Mrs Reilly leased out Lot 49 from April 2015 to March 2016 inclusive.
On 16 December 2016, Mr and Mrs Reilly moved into Lot 49 but due to a water leak they had to move out for repairs to be done. They then went on a holiday.
Mr and Mrs Reilly moved back into Lot 49 in early 2017.
Mr and Mrs Reilly went away for 18 months (January 2019 to June 2020) and returned to live at Lot 49 on 1 July 2020.
Lot 51
Perkins Management Pty Ltd, a related entity of Perkins Holdings, purchased Lot 51 in or about March 2011.
In or about August 2015, Perkins Management Pty Ltd sold Lot 51 to Perkins Investments (WA) Pty Ltd.
In or about June 2017 Perkins Holdings became the proprietor of Lot 51.
Perkins Holdings says that Lot 51 is used about 35 nights per annum.[32]
Installation of vinyl plank flooring with timber veneer look
[32] Exhibit 1 at page 716.
On 9 January 2012 Mr Perkins in his capacity as the managing director of Perkins Builders by email informed the council that 'we will be taking up occupancy of the apartment [Lot 51] now that the term of the lease … has expired'[.] Further, Mr Perkins stated that prior to moving in 'we wish to install new carpet and vinyl floorcoverings over the top of the existing ceramic floor tiles throughout the unit, and repaint and wallpaper internally. We are organising for this work to occur during January and early February'[.][33]
[33] Exhibit 1 at page 344.
On 27 July 2017, in reply to a query from the strata manager, Mr Perkins in his capacity as managing director of Perkins Builders, by email stated in part:[34]
The original ceramic tiled floor finish that was part of the original specification is still installed in Unit [Lot] 51. It was not removed.
The installation of the new flooring approximately 5 years ago [in 2012] involved a levelling screed application over the original floor … and the installation of a 5mm flexible vinyl plank flooring system with a timber veneer look INCLUSIVE OF A BONDED ACOUSTIC UNDERLAY[.]
[34] Exhibit 1 at page 378.
The laundry flooring of Lot 51 remains the original ceramic tiling that was in place when Perkins Management Pty Ltd purchased Lot 51 in or about March 2011 and was the flooring choice for the construction of the Westralian.[35]
Complaints
[35] Mr Perkins's witness statement at paras 3 and 6 to 7 (Exhibit 1 at pages 833 to 834).
On 25 September 2015, the tenant of Lot 49 complained to the property manager describing Lot 51 as 'extremely noisy and [having] parties during the week'.[36] The property manager informed the strata company of the complaint on 25 September 2015.
[36] Exhibit 1 at page 357.
On 8 July 2017 Mrs Reilly complained to the strata manager that on Saturday night the 'walking up and down, the scrapping of chairs and the dropping of things on their floor [Lot 51], has been quite disturbing, even above the noise of the TV'.[37]
[37] Exhibit 1 at page 375.
On 3 August 2017 Mrs Reilly complained again about noise coming from Lot 51 stating that she 'can hear noise, with all the scrapping etc. I rang Isaac to see if there was a cleaner, as you can hear the vacuum cleaner being dragged on the floor'.[38]
[38] Exhibit 1 at page 385.
On 28 September 2017, Mrs Reilly complained again to the strata manager about noise coming from Lot 51. This time stating that 'the owners of 51 walking even in bare feet we can hear them'.[39]
[39] Exhibit 1 at page 396.
On 26 March 2018, Mrs Reilly complained again to the strata manager about noise coming from Lot 51 stating the 'noise from 51 last night was terrible, I have no idea what they were doing, moving boxes? walking up and down. The sounds are like they are happening in our own apartment'.[40]
[40] Exhibit 1 at page 397.
On 22 June 2018, Mrs Reilly complained again about noise coming from Lot 51 stating 'floor [Lot 51] is so noisy, even though it is only 6.30 pm, high heels, they might as well be walking in our apartment'.[41]
[41] Exhibit 1 at page 398.
Following about 18 months of not living in Lot 49, on 1 July 2020, Mrs Reilly wrote to the strata manager noting among other things that they 'have complained about the transmission of noise from apartment 51, since we moved in 2016, and still nothing has been done'.[42]
[42] Exhibit 1 at page 406.
On 9 December 2020, Mrs Reilly wrote again to the strata manager complaining that 'you hear them as soon as they walk into their apartment [Lot 51], the noise of them walking is as if they are walking in our own apartment' and that their 'flooring is so bad, you even hear bare feet, so you can imag[ine] the noise of high heels … It is like they are walking in our apartment'.[43]
[43] Exhibit 1 at pages 407 to 408.
On 3 August 2022, Mrs Reilly wrote to the strata manager and to the council complaining that on 20 May 2022 the 'noise from apartment 51 was extremely loud, walking with and without shoes/heels' and that from the 19 and 20 July 2022, 'the sound of a person walking up and down [was] so loud we [had] to calm our dog, and he thinks the noise is coming from our own apartment'.[44]
Notice
[44] Exhibit 1 at page 428.
On 20 December 2023, Mr and Mrs Reilly instructed their legal representative to issue a notice to Perkins Holdings alleging breach of by-law 11.
On 25 January 2025 Mr Perkins replied stating, amongst other things, that:[45]
…
I have nothing new to add other than to reconfirm that while the apartment is rarely occupied, 29 night stays in 2024 (8%) and usually single occupant (me).
We have on occasions had complaints of noise when our apartment is unoccupied as evidenced by management[']s air-key data and I have also heard transmitted noise from the podium level (2 floors above) which evidences the generally poor acoustic separation of the units in this building which was constructed prior to the updated building bylaws requiring specific acoustic performance measures in the design and construction.
I believe the by-laws that you are referring to are not relevant to a building of Westralian[']s age.
I do not intend to replace the flooring in my apartment at this point in time[.]
[45] Exhibit 1 at page 494.
Whether Perkins Holdings contravened by-law 11.1?
It is common ground that by-law 11 (see above at [55]) is the relevant by-law concerning floor coverings in this matter. However, I will briefly consider by-law 20 and by-law 16 being the earlier versions of the floor coverings by-law (see below at [103], [126] to [127]).
What is the proper construction of by-law 11?
In order to properly construe a scheme by-law, it is first necessary to understand the scope of the statutory provisions which enables the strata company to make by-laws, in this case by-law 11.
The applicable principles in properly interpreting legislation were recently summarised in Webb v Tang [2023] WASCA 119 as follow (citations omitted):
73The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
74The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
75The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.
Therefore, in properly interpreting the provisions of the ST Act relevant to this matter, the focus must be upon the text of the provisions having regard to their context and purpose.
As the application before the Tribunal concerns the alleged breach of bylaw 11, which was registered by the Registrar of Titles on 27 November 2020, the relevant provisions of the ST Act are found in Div 4 of Pt 4 which is headed 'Scheme by-laws' and is comprised of s 39 to s 48. This division deals with, among other things, the making of bylaws, the application of by-laws, when by-laws are invalid, the enforcement of by-laws and the requirements for registration of bylaws.
The starting point is s 39(b) of the ST Act which provides that on registration of the strata scheme, the strata company is taken to have made the by-laws that were registered for the scheme. In this case, the strata scheme was registered on 19 May 2005 and therefore the strata company is taken to have made the by-laws as set out in the management statement (in this case by instrument J291674) registered by the Registrar of Titles on 19 May 2005.
Over time, as has occurred with this strata scheme, the strata company may amend or repeal a by-law it is taken to have made on registration of the strata scheme. This is provided for in s 44 of the ST Act.
In this case, the by-law dealing with floor coverings has changed over time as follows:
•by-law 20 was the original floor covering by-law per the management statement (registered on 19 May 2005);
•by-law 20 was repealed and replaced with by-law 16 which took effect on 21 January 2015; and
•by-law 16 was repealed and replaced with by-law 11 which took effect on 27 November 2020.
The amendments to the by-law dealing with floor coverings were each registered by the Registrar of Titles (see above at [52] to [57]. This is a requirement of s 48 of the ST Act.
It is common ground that the by-laws apply to Mr and Mrs Reilly and Perkins Holdings as they are both proprietors of a lot in the strata scheme. This means that they both must comply with the by-laws as if the bylaws were a deed (signed and sealed by each person to whom they apply) containing mutual covenants to observe and perform the matters set out in the by-laws. This is provided for in s 45 of the ST Act.
In summary, the strata company has wide powers to make by-laws about the management and control of the strata scheme provided they are consistent with the ST Act or any other written law. In regards to making a by-law concerning floor coverings, there is nothing in the ST Act which prohibits the transmission of all noise between lots. In other words, it is accepted that there will be some noise transmitted.
What are the principles to properly construe a by-law?
It may be that different forms of by-laws of a strata company may have a bearing on their construction. However, in this case, as the default by-laws were wholly repealed and replaced by by-laws made pursuant to its management statement (see above at [51]), following Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 (Byrne) at [56] to [71], and s 45(5) of the ST Act which provides that scheme by-laws are not statutory legislation within the meaning of the Interpretation Act 1984 (WA), I have proceeded on the basis that the by-laws in this strata scheme are characterised as a statutory contract (rather than subsidiary legislation).
Various principles relevant to the proper interpretation of by-laws was detailed in The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 at [71]. Those principles were adopted in Byrne at [75] to [79] and on appeal in Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104 at [139] to [140]. The principles may be summarised as follows:
•by-laws are to be construed so that they are not inconsistent with the ST Act;
•by-laws are to be construed objectively, by what they would convey to a reasonable person;
•caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain their meaning. A tight rein should be kept on having recourse to surrounding circumstances;
•by-laws are to be construed in the relevant statutory context which includes that the function of by-laws is to regulate the rights and liabilities of strata company and the owners and other persons who have rights or interests in the lots or the common property;
•by-laws are to be construed in the context of the registered strata plan;
•by-laws may have a commercial purpose and be interpreted accordingly but due regard must be paid to the statutory context in so doing so; and
•rules of evidence assisting the construction of contracts inter partes do not apply to the proper construction of by-laws.
I respectfully adopt the above principles and have applied them in properly construing by-law 11 as follows.
By-law 11.1
By-law 11.1 applies to all proprietors, regardless of whether or not the floor coverings of their lot have been replaced or otherwise treated with materials (see further below at [119]). If the strata company wanted by-law 11.1 to apply only to proprietors of lots where floor coverings have been replaced or otherwise treated with materials from the date the bylaw came into effect (that is, from 27 November 2020), then the bylaw should have expressly stated so.
By-law 11.1 imposes two obligations on the proprietor of a lot.
The first obligation has two parts in that the:
… proprietor must ensure that all floor space within its lot is covered or otherwise treated with materials approved by the strata company[.]
(Emphasis added)
In regard to the first part, all floor space that is covered or otherwise treated with materials requires approval of the strata company. This includes the kitchen, laundry, lavatory and bathroom (which were expressly excluded under the previous by-law 16 and by-law 20). If the strata company wanted these other areas to continue to be excluded, then by-law 11 should expressly exclude them.
The second part requires that the prior written approval of the council must be obtained by the proprietor before replacing the floor coverings to their lot. However, by-law 11.5.1 provides context and definition to the requirements of by-law 11.1. That is, by-law 11.5.1 requires the proprietor to obtain the prior written consent of the council before replacing the floor coverings. Therefore, by-law 11.1 read with by-law 11.5, requires that all floor coverings replaced from 27 November 2020 (that is, the date by-law 11 came into effect) must have the prior approval of the council.
In this case, as floor coverings in Lot 51 (apart from the laundry) were changed in early 2012 by the installation of a vinyl plank flooring system with a timber veneer look (see above at [69], that is prior to the date that by-law 11 came into effect, the prior approval of the council was not required.
For completeness, I will now briefly consider the previous versions of the floor covering by-law at the time the floor coverings were changed in 2012 to determine what approval by the council, if any, was required.
The original floor covering by-law 20 (registered on 19 May 2005) did not require the proprietor to obtain the approval of the council to renovate or replace floor coverings in their lot.[46] Similarly, by-law 16 (registered on 21 January 2015) did not require the proprietor to obtain the approval of the council to renovate or replace the floor coverings in their lot.
[46] In relation to by-law 20 there is reference to by-law 4 which deals with structural alterations. No submissions were made by the parties as to whether the replacement of floor coverings is a structural alteration. Following Erbrich and The Owners of 125 Herdsman Parade Wembley (Strata Plan 38066) [2020] WASAT 109, I find that in this case the floor coverings are not a structural alteration to the lot.
It follows that there is no time limit (or process) prescribed in the bylaws, prior to when by-law 11 came into effect (that is from 27 November 2020), for a proprietor to seek the approval of the council to replace or otherwise treat with materials the floor coverings. However, that does not mean a proprietor may have any floor covering in their lot.
By-law 11.1 requires that the floor space within the lot is sufficiently covered or treated to prevent the transmission of noise likely to disturb other proprietors. The by-law uses the term 'prevent' which ordinarily means 'to stop' or 'to preclude'. It is therefore a requirement for the proprietor to ensure that the floor space of the lot is sufficiently covered or otherwise treated with materials to stop the transmission of noise likely to disturb other proprietors. The test as to whether this has been done is an objective one (and not a subjective test). I will return to this objective test later in these reasons (see below from [138]).
By-law 11.1 does not prescribe the level of floor performance required in terms of minimising noise transmission. That is, by-law 11.1 does not require the proprietor to achieve the highest possible floor performance level in terms of minimising noise transmission. However, properly interpreted, by-law 11.1 requires that the proprietor meet at least the minimum standard. This is because the word 'sufficient,' which ordinarily means 'enough' or 'adequate' is used in bylaw 11.1. Thus, the floor coverings of Lot 51 (and all lots in the strata complex) must be sufficient to prevent the transmission of noise likely to disturb other proprietors.
Subject to the requirements of the ST Act, it is open to the strata company to amend by-law 11.1 to, for example, specify a minimum acoustic performance level (for example, to a dB level or to use the AAAC star rating system), but in the absence of any such specification, it is necessary to interpret the words 'sufficient to prevent the transmission of noise likely to disturb other proprietors' by having regard to external, objective reference points.
The reference points, to which Mr Ferguson and Mr Khan had regard, are:
•the BCA which specifies a maximum impact sound level insulation requirement against the transmission of airborne and impacted generated sound sufficient to prevent illness or loss of amenity to the occupants (or a minimum standard) of a Weighted Standardised Impact Sound Pressure Level (L'nT,w) of 62 dB when determined under 1SO717.2; and
•the star rating system of the AAAC which considers a L'nT,w of 55 dB (or a six star rating) as the appropriate requirement.
Both Mr Ferguson and Mr Khan note that the ABCB has, after receiving submissions from the AAAC decided to retain the L'nT,w requirements at 62.[47]
By-law 11.2
[47] Exhibit 3.
Just like by-law 11.1, by-law 11.2 applies to all proprietors, regardless of whether or not their floor coverings have been replaced or otherwise treated with materials. If the strata company wanted bylaw 11.2 to apply only to proprietors of lots where floor coverings have been replaced or otherwise treated with materials from the date of effect of the by-law (that is, 27 November 2020), then the bylaw should expressly state so.
Where the strata company reasonably determines that an owner is in contravention of by-law 11.1, the strata company is empowered under by-law 11.2 to issue a notice to the proprietor of the lot requiring that proprietor to notify the strata company of what works are proposed to rectify the contravention (the rectification works).
The obligation on the strata company to issue the notice is discretionary. However, that does not mean the strata company may arbitrarily issue or arbitrarily not issue a notice. The exercise of the discretion must be done reasonably.
By-law 11.3.1 obliges the proprietor to put forward rectification works that comply with the BCA as applicable to sound proofing and all Australian Standards. In addition, by-law 11.3.2 requires that the floor finish must achieve either:
•the lower of the BCA requirement (62 dB) and 50 dB;[48] or
•any other minimum standard for acoustic performance set by the strata company via its council.
[48] This wording including a rating of 50 dB was suggested by Mr Watts in his report of 16 August 2018 (Exhibit 1 at page 405).
There is no evidence before the Tribunal that the council has set any other minimum standard for acoustic performance.
If the strata company approves the rectification works, they must be completed within 60 days. This is provided for in by-law 11.4.
If the replacement floor covering does not meet the acoustic standard (which is set out in by-law 11.3.2) then the strata company by its council may decide to withhold its consent. This is provided for in bylaw 11.5.2. Again, in withholding its consent, the council must do so reasonably.
By-law 11.6
Just like by-laws 11.1 and 11.2, by-law 11.6 applies to all proprietors, regardless of whether or not their floor coverings have been replaced or otherwise treated with materials. If the strata company wanted bylaw 11.6 to apply only to proprietors of lots where floor coverings have been replaced or otherwise treated with materials from the date of effect of the by-law (that is, from 27 November 2020), then the by-law should expressly state so.
By-law 11.6 requires proprietors, to the extent reasonably possible, to use footwear and have all furniture fitted with suitable floor pads, to prevent the transmission of noise that is reasonably likely to disturb any other owner.
Does by-law 11 (which has effect from 27 November 2020) apply to floor coverings installed at an earlier date?
By-law 11.1, as it came into effect on 27 November 2020, does not expressly exclude from its operation floor coverings in place prior to the inclusion of that part in by-law 11. This is because by-law 11.1 requires that:
… all floor space within its lot is covered or otherwise treated with materials[.].
(Emphasis added)
Ordinarily the word 'is' in a sentence means the third person singular present tense form of the verb 'to be' indicating a state of being or existence. The clear wording of by-law 11.1 is that it applies to all floor coverings, regardless of when they were installed. That means, by law 11 applies in this case.
I note that s 46(j) of the ST Act provides that a by-law must not, having regard to the interests of all of the owners of lots in their use and enjoyment of their lot, be unfairly prejudicial to, or unfairly discriminatory against one or more of the owners or be oppressive or unreasonable.
Perkins Holdings did not suggest that by-law 11 is invalid by application of s 46(j) or any other part of s 46 of the ST Act.
A by-law which requires the removal of pre-existing floor coverings installed in accordance with the by-laws in force at the time of installation might, in the particular circumstances of the case, be seen to be oppressive or unreasonable. In this case, I do not consider that it would be inappropriate to require compliance with the by-law 11 which has been duly enacted by the strata company and registered by the Registrar of Titles and which has not been the subject of any challenge to its validity.
Summary of by-law 11
Broadly, the purpose of the by-law 11 concerning floor coverings is twofold. First, it is to set out the rules and procedures for the strata company to manage floor coverings in the strata scheme. Second, it is to set out the responsibilities of the proprietors in respect to floor coverings of their lot.
In summary, by-law 11 properly construed, and one which a reasonable person would understand the by-law to mean and which is consistent with the ST Act, without dealing with wooden floors (as the floor covering in this case is vinyl planks) requires:
•from 27 November 2020, all replacement floor coverings require the prior approval by the strata company via the council, which may be withheld if the replacement floor covering will not meet the specified 'acoustic standard';
•all floor coverings (whether replaced before or after 27 November 2020) must be sufficient to prevent the transmission of noise that is reasonably likely to disturb other proprietors;
•if the above is not achieved (that is by-law 11-1 is breached), the strata company may, at its discretion, require the performance of 'rectification works' to a specified 'acoustic standard' within a specified period of time; and
•all proprietors to the extent reasonably possible, are to use footwear and have all furniture fitted with suitable floor pads, to prevent the transmission of noise that is reasonably likely to disturb any other proprietor.
In summary, by-law 20, which came into effect on 19 May 2005 and was operative until 20 January 2015, required floor coverings (other than for the kitchen, laundry, lavatory and bathroom) to be sufficient to prevent the transmission of noise that is reasonably likely to disturb other proprietors. By-law 20 did not mandate an acoustic performance level that the lot's floor must comply with, nor did it mandate the type of floor covering. Further, by-law 20 did not require certification from an acoustic engineer/other appropriately qualified person.
In summary, by-law 16, which came into effect on 21 January 2015 and was operative until 26 November 2020, required replacement floor coverings that are not carpet, to achieve the single representative impact isolation of not more than 40 dB which is certified by an acoustic engineer/other appropriately qualified person.[49]
[49] I observe that on 17 November 2016, Mr Ferguson carried out a field impact isolation performance test in Mr and Mrs Reilly's Lot 49 (referred to as the 'source room') of the proposed bamboo flooring to Lot 46 (referred to as the 'receiving room'). Both Mr Ferguson and Mr Khan agreed that the impact performance of the proposed bamboo flooring achieved a L'nt,w of 45 dB as reported by Mr Ferguson in his report would not satisfy the floor covering by-law 16 (in 2016) which required a single representative impact isolation to satisfy the BCA requirements or 40 dB, whichever was the lower.
Finally, for completeness, I note that Mrs Reilly explained that she was a member of the council when the flooring of another lot in the strata scheme, Lot 52, had to be replaced due to flooding. Finbar Group Limited was engaged to undertake the repair work and they told the council that they 'can't rectify the floor and match the by-law [by-law 16]' and that is what instigated the discussion to review by-law 16. Mrs Reilly stated that she was no longer a member of the council when discussions about amending the floor coverings by-law took place including the discussion of what is now by-law 11.[50] Ms Reilly acknowledges that the floor coverings of her Lot 49, while she was a member of the council, did not comply with bylaw 16 as the dB reading was 43 (and therefore greater than the required 40 dB).[51] I note that my decision does not turn on anything stated in this paragraph. It is included to assist in an understanding of the history of the floor covering by-law.
[50] ts 78, 10 February 2025.
[51] ts 79 to 80, 10 February 2025.
Whether by-law 11.1 requires transmission of noise to be limited to no more than 50 dB?
It is Mr and Mrs Reilly's view, by reference to Schubert and Huang [2020] WASAT 63 (Schubert) at [50] that the better interpretation of bylaw 11.1 is that the floor coverings within a lot in the strata complex will prevent the transmission of noise likely to disturb other proprietors if the noise transmission is less than 50 dB.[52] Mr and Mrs Reilly rely on by-law 11.3 to support their view that Perkins Holdings is required to undertake rectification work to ensure the floor finishes of Lot 51 achieve a L'nT,w of 50 dB or less.[53]
[52] ts 20, 10 February 2025.
[53] ts 21, 10 February 2025.
Mr and Mrs Reilly say that the acoustic expert[54] report informed the strata company in determining an appropriate condition for the by-law on the replacement of floor coverings and it is this report which gives the reference to 50 dB.[55]
[54] Exhibit 1 at pages 399 to 405.
[55] ts 21, 10 February 2025.
Perkins Holdings rejects Mr and Mrs Reilly's view on the proper interpretation of by-law 11.1. In short, Perkins Holdings position is that by-law 11.1 has no reference to a dB level.
With respect, I do not agree with Mr and Mrs Reilly's application of Schubert. While it is clear that the Tribunal in Schubert stated at [50] that 'by-law 8.1 or 8.2 cannot be read in isolation, they each inform how the other should be read', the Tribunal, however, did not go on to oblige the proprietor to ensure floor coverings achieve a rating of 50 dB or less (or any other rating), as Mr and Mrs Reilly are urging the Tribunal to do in this matter in interpreting by-law 11.1.
To be clear, in Schubert, the Tribunal in interpreting by-laws 8.1 and 8.2 stated at [17] that the by-laws conferred on a proprietor the right to install wooden flooring or other hard surface floor covering together with certain obligations in relation to ensuring that the floor space within certain parts of his or her apartment (lot) are covered or treated to prevent the transmission of noise to another lot.
I note that this case can be distinguished from that in Schubert because in that case the dB was 43 as compared to 63 dB in this case. Mr Ferguson explained that 63 dB is 'twice as loud' as 55 dB in terms of what you can hear noting that L'nT,w and dB are very close.[56] This was not challenged by Mr Khan.
[56] ts 98, 10 February 2025.
In conclusion, in properly interpreting by-law 11, there is no requirement under by-law 11.1 that requires the transmission of noise from the floor space of a lot to be limited to no more than 50 dB. Rather, what bylaw 11.1 requires is that all floor space is covered or otherwise treated with materials sufficient to prevent the transmission of noise likely to disturb other proprietors (see also above at [106]).
Whether noise transmitted is reasonably likely to disturb other proprietors?
The second obligation imposed by by-law 11.1 is that the floor coverings must be:
… sufficient to prevent the transmission of noise likely to disturb other proprietors.
(Emphasis added)
Following earlier decisions of the Tribunal in Friday and Luck [2014] WASAT 109 and The Owners of Mill Point Strata Plan 11391 and Fownes [2006] WASAT 30, Mr and Mrs Reilly contend that the noise transmission from Lot 51 is likely to disturb other proprietors where both Mr Feguson and Mr Khan found the acoustic rating from Lot 51 to be 63 dB.[57]
Objective test
[57] ts 22 to 23, 10 February 2025.
To the extent that Mr and Mrs Reilly say that the noise transmitted is reasonably likely to disturb other proprietors is the subject of a subjective test (rather than an objective test), I do not accept that position for the following reason.
Tribunal decisions including Gao v Agosti [2009] NSWCTTT 175 at [10], Felcher at [8] and [17], Feletti v Eales [2018] NSWCATCD 66 at [38], Nowak v Pellicciotti [2018] NSWCATAP 245 (Nowak) at [53] to [54] and Schubert at [63] confirm that the test to be applied is an objective (and not a subjective) test. This was stated in Nowak at [25] as follows:
[T]he correct test for determining whether breaches had occurred was whether or not the by-laws had been breached as assessed on an objective basis and not on the subjective perspective of the unit owner[.]
(Emphasis added)
Therefore, the test to be applied in this case is, whether Lot 51's floor coverings prevent the transmission of noise reasonably likely to disturb other proprietors? Anecdotal evidence of noise transmission does not resolve the question.
What is reasonable is an objective test that requires the existence of facts which are sufficient to reduce the state of mind in a reasonable person.[58]
[58] George v Rockett [1990] HCA 26; [1990] 170 CLR 104 at 112.
The word 'reasonable' has been held to mean 'reasonable in all the circumstances of the case'.[59] The real question is to determine what circumstances are relevant. A circumstance which has no relation to the property (e.g. the lot) which is the subject matter of the dispute, but which depends entirely upon the personal position or personal desires of the proprietor of the property are not relevant circumstances in determining what is reasonable.
[59] Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; [1936] 55 CLR 110 at 116 per Latham J.
Further, the language of by-law 11.1, 'likely to disturb other proprietors', is fundamentally different to language such as 'disturbs other proprietors' and had the strata company intended to impose a subjective test, then language such as 'that disturbs other proprietors' should have expressly been used.
Mr and Mrs Reilly say that the noise which is transmitted from the floor space of Lot 51 is likely to disturb other proprietors because:[60]
(a)a field floor impact sound isolation test between Lot 51's dining area to their dining area reveals the flooring produces a L'nt,w of 63 dB which is in excess of the BCA's upper limit of 62 dB; and
(b)on a proper construction of by-law 11, 63 dB exceeds the limit of 50 dB imposed by by-law 11.3.2.
[60] Exhibit 1 at pages 310 to 311.
In the alternative, Mr and Mrs Reilly say, if their preferred interpretation of by-law 11 is not accepted, the transmission of noise from Lot 51 is likely to disturb other proprietors for the following reasons:[61]
(a)Mrs Reilly gave evidence that she hears the walking up and down noise, even when walking in bare feet, the scraping of chairs and furniture noise, moving boxes and the dropping of things on the floor from Lot 51;
(b)Mrs Reilly's daughter also gave evidence of noises coming from Lot 51 which are 'disturbing';
(c)the tenant complained in 2015 that Lot 51 was 'extremely noisy and [having] parties during the week';
(d)the 63 dB rating, which is considered to be audible and intrusive when persons are walking normally with normal footwear, is higher than the 62 dB minimum rating of the BCA; and
(e)by-law 11 has a different and higher test than the BCA. It requires a standard of 50 dB.
[61] Ibid.
In contrast, Perkins Holdings' position is that the floor coverings within Lot 51 are sufficient to prevent the transmission of noise that is reasonably likely to disturb other proprietors. This is because, according to Perkins Holdings, both experts agree that the BCA provides that a floor separating units (lots) must minimise the transmission of impact generated sound such that a separating floor has a L'nT,w of not greater than 62 dB for generated sound and the testing of the floor coverings in Lot 51 only 'marginally exceeded' that standard by achieving a noise transmission level of L'nT,w of 63 dB where a 1dB difference in noise in terms of human sensitivity is 'almost imperceptible'.
Testing by Mr Ferguson
On 30 August 2017 Mr Ferguson measured the field impact isolation performance of 'the existing finished timber floor of Lot 51'[62] where the testing was performed between the dining area of Lot 51 (source room) to the dining area of Lot 49 (receiving room). Mr Ferguson reports that he undertook the testing in the afternoon. While the word 'timber' was used by Mr Ferguson, it is common ground that the flooring of Lot 51 (apart from the laundry) is vinyl planks with a timber veneer look (see above at [69]).
[62] Exhibit 1 at page 391.
In his report of 4 September 2017, Mr Ferguson notes that the bylaws at the time of testing required 'the tested floor finish must achieve an L'nT,w value of 40 or lower' by reference to by-law 16.[63] Further, Mr Ferguson reported that the basic construction of the building is 'masonry walls with a standard concrete floor (unknown thickness) and skim coated ceiling'.[64]
[63] Exhibit 1 at page 391.
[64] Ibid.
Mr Ferguson concluded in his report of 4 September 2017:[65]
Based on the results from the on-site measurements and calculations, the flooring tested shows marginal exceedance with the current criteria for the BCA 2016 of not more than L'nt,w 62 dB, by achieving a result of L'nt,w 63 dB. It should be noted that this level significantly exceeds the relevant Strata By-Law specified level of not more than L'nt,w 40dB.
[65] Exhibit 1 at page 393.
By way of background information on impact isolation testing, in Appendix A to his report, Mr Ferguson notes that the BCA established a criteria of the maximum of L'nT,w + C1 of 62 dB and that as the C1 is an anomaly, it was recommended that the L'nT,w of 62 is taken as the criteria - which is the minimum performance standard. Further, Mr Ferguson referred to the AAAC which uses a six star rating system where a L'nT,w of 65 dB is rated as two stars, a L'nT,w of 55 dB is rated as three stars, and an L'nT,w of 40 dB is rated as six stars.
Mr Ferguson explained that impact noise is 'quite a complicated thing to predict … and it's wise to take a test of any sample proposed - of a flooring material in the actual building that it's proposed to be put in, because there are many variables in play when it comes to impact noise that might affect its performance'.[66]
Testing by Mr Khan
[66] ts 62, 10 February 2025.
On or about 19 November 2024, Mr Khan performed impact sound isolation testing of the vinyl planks covering the living areas of Lot 51 and the original tiled floor in the laundry of Lot 51 to the same areas in Lot 49. In addition, Mr Khan tested various floor samples to ascertain their field impact isolation performance.[67]
[67] Exhibit 1 at page 818.
The acoustic test was carried out, according to Mr Khan, in accordance with Australian Standard, AS ISO 140.7 Acoustics - Measurement of sound insulation in buildings and of building elements - Field measurements of impact sound insulation of floors and Australian Standard, AS ISO 717.2 Acoustics - Rating of sound insulation in buildings and of building elements - Part 2: Impact sound insulation.
In his report of 5 December 2024, Mr Khan states that the measurements were conducted using a:[68]
(a)NTi XL3 Class 1 Sound Level Meter, S/N: A3A-00650-D1;
(b)Larson Davis Sound Calibrator, S/N: 22031; and
(c)Norwegian Electronics NOR211 Tapping Machine.
[68] Exhibit 1 at page 820.
Mr Khan's testing revealed:
(a)the vinyl planks floor covering produce noise transmissions of L'nt,w of 63 dB; and
(b)the original tiled floor (in the laundry area) produces noise transmissions of L'nt,w of 62 dB.
Mr Khan concluded:[69]
The existing vinyl plank floor coverings measured a performance of L'nt,w 63 which marginally exceeds the BCA criteria by 1dB. The original floor covering, tiled floors just complied with the BCA requirement [L'nt,w 62].
It is noted both the existing vinyl floor covering and the original tiled floor surface do not meet the Westralian Apartments by[]laws requirement of L'nt,w 50[.]
[69] Exhibit 1 at page 823.
Mr Khan noted that the test result for the floor sample of 'existing vinyl planks plus 3mm thick acoustic underlay + vinyl planks (same floor as existing)' measured a performance of L'nt,w 47 and for the floor sample 'existing vinyl planks + vinyl planks with integrated underlay' measured a performance of L'nt,w 52.[70] Mr Khan concluded:[71]
… Where remedial works are required to be carried out it is recommended the new floor covering is installed over a 3mm thick acoustic underlay.
Acoustic experts' summary
[70] Exhibit 1 at page 822.
[71] Exhibit 1 at page 823.
Both Mr Ferguson and Mr Khan agree that there has been a change in the standards from Australian Standard AS/ISO140-7 to ISO 16283-2 but that the calculation methodology set out in ISO 717-2 is still applicable. The procedure for impact testing on floors has not changed according to both experts.
The results of Mr Ferguson's testing on 4 September 2017 was L'nt,w of 63 dB with Ci of -11 dB. Mr Khan's result is a L'nt,w of 63 dB as set out in his report of 5 December 2024.
Both experts agree that the Ci was used by the BCA in 2004 to measure and combat noise such as footfall and is a correction value which can be a negative or positive value.[72] Further, both experts agree that the rationale behind adding the Ci to a noise measurement is to better represent the characteristic of typical walking noise spectrum.[73]
[72] ts 42, 10 February 2025.
[73] ts 44, 10 February 2025.
Mr Ferguson said the issue with the Ci is that the worse the floor performs, the higher the Ci value or the bigger the negative performance it would have, for example, bare concrete would comply with the minimum standard of the BCA of 62 dB.[74] Mr Khan opined that the Ci still represents the 'footfall kind of noise' and with the Ci excluded, this makes the impact isolation test better.[75]
[74] ts 54, 10 February 2025.
[75] ts 54, 10 February 2025.
Both experts agree:
•in 2004 the BCA required a L'nT,w + Ci of not more than 62 dB, which is before The Westralian was built and that the building design of a fully integrated concrete frame would have no structural or acoustic separation between any of the components;[76]
•the BCA was amended in 2016 to remove the Ci.[77] Both experts agree that it follows that when applying the BCA requirement pre-2016 that the result would be L'nT,w of 52 dB (i.e. 63 - Ci 11) and therefore comfortably meet the BCA standard pre-2016;[78]
•the BCA setting the satisfactory level of impact sound isolation at 62 dB establishes a minimum standard of performance for impact isolation.[79]
[76] ts 50, 10 February 2025.
[77] ts 45, 10 February 2025.
[78] ts 60, 10 February 2025.
[79] ts 54, 10 February 2025.
Mr Khan explained that the intent of setting the level at 62 dB by the BCA is to provide 'sufficient amenity'. Further, Mr Khan said that the AAAC corrected its earlier statement that 62 dB would cause a 'significant loss of amenity'[80] in May 2023.[81] Prior to this, Mr Khan said that the AAAC considered that a L'nT,w of 55 dB was the appropriate standard to be applied.
[80] Exhibit 3.
[81] Exhibit 4.
Both experts agree that floor coverings of Lot 51 do not comply with the minimum standard of performance as set by the BCA, that of 62 dB. Further, both experts agree that a rating of 50 dB is considered a better performance in line with a 'luxurious level of amenity' or a 'very high acoustic performance'.[82]
[82] ts 53, 10 February 2025.
The AAAC position statement concerning the transmission of impact sounds through flooring of apartment buildings dated 21 July 2022, provides in part:[83]
…
As part of the 2004 BCA upgrade, requirements for Impact Sound Insulation were introduced for the first time. As a starting point deemed to best reflect the collective interests of the various stakeholders involved in the BCA, these requirements were adopted from the Building Regulations of the United Kingdom.
The opinion of the AAAC was that these new requirements for Impact Sound Insulation were not sufficient to provide a suitable minimum level of amenity. However, the intention was that these requirements would be adjusted to an appropriate level Lnw and LnTw 55) in the 2006 edition of the BCA. Despite the best endeavours of the AAAC this has not happened and the Australian Building Codes Board (ABCB) has now adopted a firm position against change of these Impact Sound Insulation requirements.
…
The NCC/BCA provides criteria for 'minimum requirements' for acoustics. This is itself a compromise and inconsistent with the better airborne sound performance required from walls and floors. To this end the AAAC considers the Lnw and LnTw 55 are appropriate standards to be applied by the NCC/BCA. A submission has been made to the ABCB concerning this matter. In response, the ABCB has indicated that it intends to retain Lnw and LnTw requirement at 62[.]
[83] Exhibit 3.
Mr Ferguson said it is quite difficult to provide the exact loss of amenity values as it is a subjective discussion. For new apartment developments, Mr Ferguson said he advises for floor surfaces to aim for a L'nT,w of 55 as a minimum in line with AAAC. He said the BCA's L'nT,w of 62 is 'a bit more relaxed' to cover a broader range of developments in terms of quality.
Mr Ferguson and Mr Khan did not agree on an appropriate or minimum L'nt,w rating for noise transmission. Mr Ferguson is of the view that building developers generally aim for a L'nt,w 55. However, Mr Khan is of the view that most building developers just comply with the BCA (or a L'nt,w 62) as the construction costs increase in order to reduce the L'nT,w.
To achieve a better performance, both Mr Ferguson and Mr Khan agree that the best way is to stop noise at the source, usually by an underlay. However, restrictive measures such as type of construction of the building, whether the floor is concrete or a lightweight floor, how the structure is held up including whether the walls are load bearing and the type of ceiling all impact on what 'star rating' can be achieved.[84]
Consideration
[84] ts 63, 10 February 2025.
As stated by Mazza DCJ (as then he was) 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 a by-law concerning floor coverings, in this case by-law 11.1. They are as follows.
First, I must be satisfied that the noise which was transmitted from the floor space of Lot 51 is likely to disturb the other proprietors. Second, I must be satisfied the transmission of noise was caused by Perkins Holdings' failure to sufficiently cover or otherwise treat with materials all of the floor space within Lot 51 to prevent that transmission of noise.
By-law 11.1 does not, in this case, require compliance with a specific building code, a specific star rating or with a specific acoustic limit. However, the findings and observations of Mr Ferguson and Mr Khan, as acoustic experts, assist me in my determination of whether, on an objective basis, bylaw 11.1 has been breached by Perkins Holdings.
It is significant to restate here that the strata company declined to interfere in the long-standing dispute, since 2017, between Mr and Mr Reilly and Perkins Holdings, notwithstanding that the strata company is the primary body responsible for enforcing compliance with the scheme by-laws by the operation of s 47 of the ST Act.
Both experts agree that the noise level transmission from the floor space of Lot 51 was in excess of the minimum standard of 62 dB set by the BCA (except for the laundry which achieved the minimum standard of 62 dB). Both experts agree the requirement of the BCA has been breached. Further, the experts agree that the level of noise transmission from Lot 51 is in excess of the 55 dB and therefore does not meet the satisfactory level of amenity as determined by the AAAC.
A rating of 62 dB which is described as 'audible and intrusive when people are walking normally',[85] is useful in determining what is the minimum standard in building construction, or in the words of Mr Khan what building developers aim for because any lower dB increases the costs of construction. However, by-law 11.1 has a different test as there is no reference to a minimum dB rating, rather it requires the floor coverings to be sufficient to prevent the transmission of noise likely to disturb other proprietors. As already stated, the term 'prevent' in bylaw 11.1 imposes an obligation on the proprietor (see above at [105]).
[85] Exhibit 1 at page 553.
Apart from Nowak and The Owners - Strata Plan No 7704 v Kim [2023] NSWCATCD 39 (Kim), published decisions concerning floor covering by-laws are of little assistance in this case because those cases either had no or limited expert acoustic evidence, they applied a subjective (rather than objective) test as to whether the noise transmitted was likely to disturb other proprietors, or the dB rating was significantly less than 62 dB.
In Nowak flooring works were undertaken to a lot in a 38 year old strata building. The works were described as 'replacing carpet and tiles to glued hardwood on acoustic underlaying which would comprise a 15mm thick engineered floor on 5mm cork/rubber acoustic underlay'. In that case, the Tribunal accepted the evidence of the acoustic expert that the living room was within the compliance of the BCA (62 dB) whereas the result of one bedroom was:
… marginally higher than the criterion of 62 L'nt,w where that room is not used often and so there would only be limited movement mainly associated with going to bed and getting out of bed in the morning.
The Tribunal held in that case that the impact sound was transmitted mainly by movement of furniture items and not by footfall from people walking. Further, the Tribunal accepted the acoustic expert evidence that the marginal exceedance of the limit in one bedroom which was not associated with frequent footfall or movement of furniture should not be of concern. In conclusion, the Tribunal held that the evidence of the minimal failure in one bedroom given its limited use and the age of the building (38 years old with a thin floor slab) did not justify the making of an order.
In this case, Mr Khan and Mr Ferguson agree the living areas floor space within Lot 51 (apart from the laundry) exceeds the minimum BCA requirement of 62 L'nt,w. This means, unlike in Nowak, the impact sound from Lot 51 was not isolated to one bedroom with limited movement (such as going to bed and getting out of bed in the morning) but rather the noise was transmitted from the living areas floor space within Lot 51. This corroborates with the evidence of Mrs Reilly who since 2017 has complained about the noises coming from Lot 51 including the scrapping of chairs, the dropping of things and the walking up and down including at night-time. Further, this corroborates with the evidence of Ms Reilly's daughter who also complained of noise including walking, heels, and the dropping of things on the floor. Therefore, by applying Nowak, even with the 'marginal exceedance' of the BCA minimum standard of 62 dB, this is not a case where the noise transmitted is isolated to one room with limited movement.
The Westralian was constructed in 2005, or about 20 years ago, as compared to the building constructed more than 38 years ago in Nowak. Neither Mr Ferguson nor Mr Khan opined as to the age of The Westralian in this case and whether the age (and therefore the construction) of the building is to be taken into account in considering the orders sought by Mr and Mrs Reilly.
Turning to the more recent case of Kim. There, the Tribunal accepted that the noise from Lot 3 transmitted to Lot 1 was disruptive and from the perspective of the owners of Lot 1, it was 'burdensome'. The Tribunal found the noise transmission from Lot 3's living and dining area and the bedroom measured noise transmission levels of 60 dB and 61 dB respectfully. Reference was made by the Tribunal to the acoustic expert who opined that the noise transmission from Lot 3 to Lot 1 equated to a rating of two stars which indicates transmission of a range of noise from everyday activities, such as normal speech as being audible.
The Tribunal in Kim found that the description of noises by the owners of Lot 1, including footsteps, conversations, coughs and even cooking preparation activities such as cutting some foods was consistent with the description of 'audible' noises for a two star rating classification by the AAAC. Consequently, the Tribunal declined to make an order on the basis that the noise transmission was from every-day, unexceptional activities (however, the Tribunal went on to conclude that the owner of Lot 3 was in breach on another basis).
In this case, Mrs Reilly says the noise transmission from Lot 51 includes:
•walking up and down in shoes or bare feet;
•noise of high heels;
•scrapping of chairs;
•dropping of things;
•vacuum cleaner dragged on the floor; and
•moving of boxes.
Mrs Reilly's daughter says the noise transmission from Lot 51 includes noise of walking, heels and something being dropped on the floor.
Apart from footsteps (with the assumption the person is wearing normal footwear) none of the above noises complained of by Mrs Reilly and her daughter are consistent with the description of 'audible' noises for a 2 star rating classification by the AAAC. That is, unlike in Kim, the noises complained of in this case, apart from footsteps from normal walking, do not arise from every-day, unexceptional activities.
Mr Khan reports that the difference of 1 dB from 62 dB to 63 dB is 'almost imperceptible'. A difference of 1 dB may be almost imperceptible where the activity is isolated such as limited to one room with limited use. However, that is not the case here where the noise transmission is from the living area (which is where the testing was done by both Mr Ferguson and Mr Khan) and is not isolated and is not from normal daily activities (such as coughing).
The Tribunal in Nowak describe 63 dB as audible. Bruel & Kjaer[86] similarly describe 63 dB as audible. They also describe 63 dB as intrusive when persons are walking normally with normal footwear in the source room (in this case the living areas of Lot 51) and describe the same rating of 63 dB for furniture moving as unbearable.
[86] Exhibit 1 at page 553.
While Perkins Holdings say it used a 'bonded acoustic underlay', in my view that underlay is not sufficient to prevent the transmission of noise from the floor space of Lot 51 likely to disturb other proprietors. I am therefore satisfied and find that the noise transmitted from the floor space of Lot 51 is likely to disturb other proprietors and that the noise transmission is caused by the vinyl planks floor coverings installed within Lot 51. I have taken the following into account in arriving at this conclusion.
First, while Perkins Holdings submits that under the pre-2016 BCA standard, which incorporated the Ci, the floor coverings of Lot 51 would have been assessed at 52 dB, the evidence of Mr Khan and Mr Ferguson from their testing completed in 2024 and in 2017 is that the noise transmission from the flooring system installed in Lot 51 breaches the minimum level of 62 dB prescribed by the BCA and breaches the level of 55 dB considered to provide a satisfactory level of amenity by the AAAC. Such noise transmission of 63 dB when compared to the 55 dB, is according to Mr Ferguson 'more than twice as loud' in terms of what you can hear. This was not challenged by Mr Khan. Further, this is supported by Mrs Reilly's description of the noise transmission from Lot 51 to Lot 49, which was not challenged.
The BCA and AAAC levels are an objective factor to be considered in considering if by-law 11.1 has been contravened. Other relevant factors, including whether the noises complained are activities of daily activities are to be considered as discussed in the following paragraphs. This is because the ST Act and scheme by-law 11.1 do not set a minimum level of noise transmission linked to the BCA or the AAAC or other measure. In this case, by-law 11.1 applies to all floor coverings regardless of when they were installed and requires proprietors to have all of their floor space within their lot covered or otherwise treated with materials sufficient to prevent the transmission of noise likely to disturb other proprietors.
Second, while Perkins Holdings submits 'the principal complaint seemed to concern footsteps'[87] which when adjusted by the Ci the dB is 52 (pre2016 BCA) and therefore only 2 dB more than the current bylaw 11.2, Mrs Reilly complained not only of footsteps but also complained of the noises of scrapping of chairs, dropping of things, the vacuum cleaner being dragged on the floor and of the moving of boxes. Similarly, Mrs Reilly's daughter complained of noise from dropping of something on the floor. As already noted, while footsteps are a normal daily activity, the other items complained of are not normal activities of daily living.
[87] ts 93, 10 February 2025.
Third, while Mr Khan suggests that 1dB over the minimum standard set by the BCA at 62 dB, is 'marginal …' a decibel rating of 63 dB is described as 'audible and intrusive when people are walking normally with normal footwear within the source area'.[88] As already stated, but repeated here, 1 dB may be marginal if the noise was from everyday activities such as coughing. That is not the case here. The noise complained of is also from frequent footfall, of scrapping of chairs, dropping of things, the vacuum cleaner being dragged on the floor and of the moving of boxes which are not everyday activities or isolated to one bedroom and minimal (such as getting into bed and out of bed in the morning).
[88] Exhibit 1 at page 553.
Fourth, while Mr Perkins suggests that The Westralian building has relatively poor acoustic properties, there was no expert evidence to support this. Mr Ferguson stated he was not in a position to opine.[89] Mr Khan did not comment on the acoustic properties of the building, but rather in response stated:[90]
… I think 2004, the performance was LnTw+ Ci, and the current standard 2006 is LnTw of 62. So Ci typically being a negative correction factor, the current standard is actually better than the previous standard. So, in my opinion, the previous - the current standards post-2016 have been upgraded, but Ci has been removed, so it's - the value has come down. So for - for everyone's benefit, impact isolation, lower the number, better the performance.
[89] ts 50, 10 February 2025.
[90] ts 51, 10 February 2025.
Fifth, while Perkins Holdings submits that Mr Reilly's failure to give evidence when he was in attendance at the final hearing is a strong telling that the noise is not such that would disturb the ordinary reasonable proprietor, it is correct that Mr Reilly did not give evidence, however, I am not persuaded that this leads to the inference that the uncalled evidence of Mr Reilly would not have assisted the applicants' case. Both Mrs Reilly and her daughter (who lived at Lot 49 for a period of time) gave affirmed evidence which I accept.
Sixth, while Perkins Holdings say that this is not the case of a barking dog or boisterous young children but rather of an entirely ordinary and unremarkable use of Lot 51, the evidence of Mrs Reilly is that the noises are not ordinary or unremarkable. Rather, as already stated and repeated here, the noises complained of, apart from footsteps, are not of ordinary daily activities or isolated (such as getting into and out of bed in the morning).
Finally, while Mrs Reilly accepts that it is possible that she may have misidentified the source of some of the noises coming from Lot 51 and that Mrs Reilly's daughter gave evidence that it can be difficult to determine where noise is coming from, in the context of someone using a jackhammer, their evidence of the noise transmission from the floor space of Lot 51 was consistent.
In summary, I am satisfied and I find that the noises complained of by Mrs Reilly since 2017 and by Mrs Reilly's daughter are not noises of everyday activities (such as footsteps and coughing). Rather, they are audible and intrusive and would objectively disturb other proprietors.
Accordingly, I am satisfied, and I find that Perkins Holdings has not ensured the floor space within Lot 51 is covered or otherwise treated with materials sufficient to prevent the transmission of noise likely to disturb other proprietors and is therefore in contravention of by-law 11.1.
Sections 45(2) and 45(4) of the ST Act imposes a duty on proprietors to comply with the by-laws. Consequently, the failure to comply with a bylaw is a failure to exercise a function imposed by the ST Act or the by-laws.
Having made the finding that Perkins Holdings is in contravention of bylaw 11.1, I turn now to consider the second issue, whether the strata company should have exercised its discretion to issue a notice to Perkins Holdings in accordance with by-law 11.2.
Whether the strata company should have exercised its discretion to issue a notice under by-law 11.2?
Mr and Mrs Reilly say that the strata company, if acting reasonably, should have exercised its discretion under by-law 11.2 to issue a notice to Perkins Holdings to require them to comply with by-law 11. This is in circumstances where firstly, Mr and Mrs Reilly say that the strata company sought legal advice about by-law 11 on 22 March 2022 and were therefore fully aware of their obligations;[91] and secondly, where there is no evidence that the floor covering work done by Perkins Holdings, or a related entity, in early 2012 was approved by the strata company.
[91] Exhibit 1 at pages 411 to 412 and ts 25, 10 February 2025.
As already stated, but repeated here, by-law 11.2 read with by-laws 11.3 and 11.4 empowers the strata company to require a proprietor to undertake 'rectification works' which includes an acoustic standard to be satisfied and when the rectification works are to be completed. The decision to issue the notice by the strata company under by-law 11.2 must be made reasonably (see also below at [229]).
It is possible that floor coverings which complied with the by-law when the floor space was covered or otherwise treated with materials, including the original floor covering may not satisfy the requirements of by-law 11. It is because of this that it is appropriate that the strata company when considering whether to issue a notice to consider when the floor space was covered or otherwise treated with materials, among other factors, such as whether the noises complained of emanate from normal daily activities.
To be clear even if by-law 11.1 is found to have been contravened by Perkins Holdings, the strata company is not obligated under bylaw 11.2 to issue a notice to Perkins Holdings to undertake rectification works. However, the decision to not to issue a notice must be made reasonably by the strata company. In this case, the strata company has not issued a notice.
It is not necessary for me to determine whether the strata company should have issued a notice to Perkins Holdings for reasons set out later in these reasons (see below from [218]). However, I make the following comments about the strata company.
Lack of involvement by strata company
It is unfortunate that the strata company, which has the responsibility for ensuring compliance with the scheme by-laws, has done little in this case to assist to resolve the deadlock or impasse between Mr and Mrs Reilly and Perkins Holdings. The following statements reflect this lack of action by the strata company.
On 2 August 2017, the strata manager in an email to various persons including Mrs Reilly stated that they have:[92]
… advised unit 51 to be conscious of the noise transmission [and] that they apply matting where possible [and] be aware when wearing shoes that may assist with the noise.
[92] Exhibit 1 at page 383.
The strata manager then goes on in the same email to state:[93]
I am unsure what action the council would like to take regarding this matter. This flooring is the owner's responsibility not common property.
[93] Ibid.
Then some years later, on 8 August 2020, in reply to Mrs Reilly's ongoing complaint about noise transmission from Lot 51 [see above at [77]) the strata manager states that the:[94]
… council has resolved that you will need to take any action as deemed appropriate.
[94] Exhibit 1 at page 429.
As already stated, and repeated here, the strata company did not file any documents and no one from the council attended the final hearing. After the Tribunal had received closing written submissions from Mr and Mrs Reilly and from Perkins Holdings, on 21 March 2025, Ms Watson informed the Tribunal[95] that the council had convened a meeting the day before, on 20 March 2025, where the strata company resolved to:
fully support the orders being sought by the [a]pplicants.
[95] Letter filed by applicant with the Tribunal on 21 March 2025 (covering letter with four pages of email trail).
As a result, on 27 March 2025, I ordered the strata company to file with the Tribunal and provide a copy to Mr and Mrs Reilly and to Perkins Holdings a copy of the minutes of meeting held by the council on 20 March 2025, a written statement and any other documents that the strata company relies on in the proceeding. Further, the Tribunal ordered for Mr and Mrs Reilly and Perkins Holdings to file a written statement in reply.
The draft minutes of the council meeting held on 20 March 2025, attended by Dr Vogel, Dr Carmela Pestell, Mr G Lilleyman, Ms Savannah Meade representing the strata manager and Mr M Doyle, Building Services Manager were filed with the Tribunal and provide in part:[96]
12Other Matters for discussion
…
e)Lot 49 & 51 – Noise complaint (SAT Matter CC 281/2024)
The Chair WSC informed members that he has reviewed the file containing all relevant material related to this matter, which was provided by the [s]tata [c]ompany. Following a discussion of the matter by [c]ouncil, the WSC resolved to support the Orders being sought by the [a]pplicants (Lot 49).
[96] Draft minutes titled 'The minutes of the Westralian council meeting for the owners of the Westralian held on Thursday 20 March 2025 commencing at 5.30 pm at Westralian Boardroom' filed with the Tribunal on 17 April 2025 (four pages).
In written submissions in reply filed on 8 May 2025,[97] Mr and Mrs Reilly submit that, by reason of the council's minutes (see [211] above), the strata company consents to the orders they seek. Further, Mr and Mrs Reilly submit that if the Tribunal decides not to make the orders as they seek, then the Tribunal is urged to order the strata company to issue the notice to Perkins Holdings on the basis that the council consents to, or is not opposing the orders sought by them against the strata company. Finally, Mr and Mrs Reilly submit that the council's minutes are a relevant consideration for the Tribunal when determining whether or not the strata company should have exercised its discretion to issue the notice to Perkins Holdings.
[97] Applicants' written statement in reply pursuant to order 3 of the orders made by the Tribunal on 27 March 2025 filed on 8 May 2025 (three pages).
Perkins Holdings in written submission filed on 8 May 2025, submits that the position of the strata company as outlined in the council's minutes (see above at [211]) is irrelevant in determining the first issue on whether Perkins Holdings has contravened by-law 11.1, as that issue must be determined by the Tribunal objectively. I respectfully agree with this submission. I have had no regard to the minutes of the council meeting of 20 March 2025 in considering whether Perkins Holdings contravened by-law 11.1
Further, Perkins Holdings submits that to the extent that the council's minutes are, or might be, of relevance to the Tribunal's determination of the other issues before it, those minutes should not be given any weight for the following two reasons:[98]
…
(a)It is not clear what information was contained in the 'file containing all relevant material' that the [m]inutes record as having been reviewed by the Chair. In particular, it is not clear whether the 'file' included the transcript of the hearing that took place on 10 February 2025 and if it did, what consideration (if any) was given by the [strata company] to the oral evidence of the experts, given that the [strata company] was not present at the hearing.
(b)It is also not clear whether the 'file' included [Perkins Holdings] SIFC and if it did, what consideration (if any) was given by the [strata company] to the discretionary factors enumerated in paragraph 34 of [Perkins Holding's] SIFC.
[98] First respondent's written statement in reply pursuant to order 3 of the orders made by the Tribunal on 27 March 2025 filed on 8 May 2025 (three pages).
The factors set out in Perkins Holdings' statement of facts, issues and contentions at paragraph 34 are:[99]
(a)the nature and extent of the non-compliance - the evidence is that there is a marginal non-compliance with the BCA standard of 1 dB, which is 'almost imperceptible';
(b)the use of Lot 51 - the evidence is that Lot 51 is used for about 35 nights per year in an entirely normal matter (as set out in Mr Daniel Perkins's witness statement at paras 25 to 29);
(c)the impact of the noise transmission from Lot 51 on the proprietors of Lot 49 - it may be accepted that Mrs Reilly is greatly aggrieved by noise from other units. However, it is also noted that on at least two occasions that Mrs Reilly made complaints about noise emanating from Lot 51 whilst it was unoccupied. That suggests that not all of the noise about which complaints are made by Mrs Reilly in fact emanates from Lot 51; and
(d)the proportionality of the cost of the rectification works to the benefit to be obtained - the evidence is that the cost of the rectification works is approximately $25,000 plus GST. The cost of replacing the existing flooring is disproportionate having regard to the marginal non-compliance with the BCA standard and the limited use of Lot 51.
[99] Exhibit 1 at page 721.
In considering whether I should exercise the Tribunal's discretionary power to order the strata company to issue a notice to Perkins Holdings under by-law 11.2, I start with the decision in The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 (Russell), where the Tribunal held that where there is a deadlock or impasse between the member of the strata company who is a co-owner of the common property and the strata company, the ST Act intends that there be a practicable means to break that deadlock. Relevantly, the Tribunal stated in Russell at [59] to [61]:
In dealing with whether or not a strata company has unreasonably refused to do that which it allegedly should have done, the Tribunal has consistently taken an approach that the management of the strata company is best left to the strata company and that the Tribunal should not too readily impose its own views on what is unreasonable … At the same time, the legislature has intended that there be a practicable means of breaking deadlocks between the members of a strata company who are co-owners of the common property, live often in close proximity, and who should desire to live in harmony with each other.
(Emphasis added)
In my view, the above position equally applies to proprietors in a strata complex who have reached an impasse or deadlock for the Tribunal to intervene to break that deadlock; including where there has been a lack of involvement by the strata company. However, there is of course no requirement for an owner to assist another owner, or that an owner acts altruistically or sympathetically at the expense of their own interests.[100]
[100] Ainsworth v Albrecht 2016 HCA 40; (2016) 261 CLR 167 at [60] to [64].
It is not necessary for me to resolve whether the strata company should have issued a notice to Perkins Holdings, because in my view, given the extended period of time since 2017 that Mr and Mrs Reilly have endured the impasse or deadlock with Perkins Holdings and the lack of any action by the strata company, it is appropriate for the Tribunal to consider intervening by making an order under s 47(5) and/or s 200 of the ST Act.
I turn now to consider the final issue, whether to exercise the Tribunal's discretion to make orders against Perkins Holdings.
Whether the Tribunal should exercise its discretion to make orders
Section 47(5) of the ST Act sets out the orders that the Tribunal may make require a person to do if the Tribunal is satisfied that a person has contravened the scheme by-laws as follows:
(5)The Tribunal may, if satisfied that a person has contravened the scheme by‑laws, by order require the person to do 1 or more of the following —
(a)pay a specified amount to the strata company by way of penalty for the contravention;
(b)take specified action within a period stated in the order to remedy the contravention or prevent further contraventions;
(c)refrain from taking specified action to prevent further contraventions.
Under s 200 of the ST Act, the Tribunal may make an order that it considers appropriate to resolve the dispute or proceeding.
The powers of the Tribunal to make orders under s 47(5) and s 200 of the ST Act are discretionary.
The term 'discretion' was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19] as follows:
'Discretion' … refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable … [or] it may be quite narrow[.]
The precondition which enlivens the discretion conferred on the Tribunal to make an order under s 47(5) of the ST Act is that the Tribunal must be satisfied that a person has contravened the scheme bylaws. For s 200 of the ST Act, the precondition which enlivens the discretion conferred on the Tribunal is that the Tribunal must be satisfied that there is a scheme dispute or proceeding on foot in the Tribunal.
The discretion conferred by s 47(5) of the ST Act to make an order for contravention of the scheme by-laws is not limited by any mandatory considerations. The same applies in relation to s 200 of the ST Act. However, that is not to say that the statutory power is not without limitation. As stated by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
Legal reasonableness provides the boundaries within which a decisionmaker, such as the Tribunal, has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at [505] and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67].
The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
The Tribunal's statutory task, as revealed by a consideration of the ST Act as a whole and, in particular, s 47(5) of the ST Act is that if the Tribunal finds that a person has contravened a scheme by-law then the Tribunal may make an order to require the person to take specific action or to refrain from taking specific action in order to comply with the ST Act and the by-laws. Therefore, it follows that in making an order under s 47(5) of the ST Act, the Tribunal must determine which of the scheme by-laws the person is in contravention of. In other words, the Tribunal must make findings of fact. In making the findings, the Tribunal is obliged to have regard to any matters relevant to forming the requisite opinion prescribed by s 47(5) of the ST Act.
Importantly, in exercising its statutory powers, the Tribunal must do so reasonably: Li at [23]. The same was said in the earlier decision of Kruger v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:
… [W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]
In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Sections 47(5) and s 200 of the ST Act are to be construed accordingly.
In considering whether to exercise the Tribunal's discretion to make an order, Perkins Holdings submits the following matters are to be considered:[101]
(a)by-law 11.2 does not make rectification works compulsory;
(b)the age of the floor covering in Lot 51 is now 13 years old, and which comfortably exceeded the BCA standard at the time it was installed;
(c)the acoustic rating of the floor covering when compared to the current BCA standard of 62 dB it is exceeded by only 1 dB, which is almost imperceptible. In any event, the better view is that the previous BCA standard incorporated the Ci adjustment which better reflects sound attributable to footsteps;
(d)Mr Perkins' de minimis use of Lot 51 being something in the order of 30 to 35 nights per annum in an entirely ordinary and usual manner; and
(e)the proportionality of the cost of the rectification works being approximately $25,000 to replace the floor coverings.
[101] ts 95 to 96, 10 February 2025.
In contrast, Mr and Mrs Reilly submit that the dB, when considering objective standards, is almost the most important aspect of the evidence because if considering the noise transmission, the scientific assessment of what the transmission is, is really the most appropriate measure.[102]
Exercise of discretion
[102] ts 98, 10 February 2025.
In the following paragraphs I set out my consideration of why it is reasonable in all of the circumstances of this case to exercise the Tribunal's discretionary powers under s 47(5)(b) of the ST Act to make orders against Perkins Holdings.
First, while the floor coverings of Lot 51 are now some 13 years old, bylaw 11 properly construed applies to all floorcoverings regardless of their age.
Second, the noises complained of (apart from footsteps) are not from normal unexceptional everyday activities. The noises complained of include scrapping of chairs, dropping of things, vacuum cleaner dragged on the floor and moving of boxes. Further, the noises emanate from the living areas of Lot 51 and not one bedroom where there is limited movement (such as getting into bed and out of bed in the morning).
Third, the noise complaints are not one isolated incident. Mrs Reilly has complained about the noises since 2017.
Fourth, while Mr Perkins' use of Lot 51 has been somewhere up to 35 nights each year, Mr Perkins said access to Lot 51 is available anytime during the day and that he or others could spend more time in Lot 51 if he or they wanted to.[103] In addition, Mr Perkins conceded that even if he only occupied Lot 51 one day per week, the noise could be disturbing other proprietors.[104]
[103] ts 92, 10 February 2025.
[104] ts 89, 10 February 2025.
Fifth, both Mr Ferguson and Mr Khan agree that the noise transmission from the floor space of Lot 51 does not meet the minimum impact sound level insulation against the transmission of noise requirement of the BCA (62 dB). The noise transmission levels have not changed between testing by Mr Ferguson in 2017 and testing by Mr Khan in 2024. Further, both acoustic experts agree that the noise transmission from the floor space of Lot 51 does not achieve the 55 dB rating of the AAAC.
Sixth, this is not a case where Perkins Holdings has taken any steps to reduce noise transmission even though its expert, Mr Khan, provides three alternative options to reduce the noise transmission from Lot 51 to a range between L'nt,w 47 and L'nt,w 52.[105] While Perkins Holdings submit that the cost of the rectification works being approximately $25,000 to replace the floor coverings is not proportional, in my view, it is appropriate that Perkins Holdings be responsible for the costs of complying with the orders to be made by the Tribunal under s 47(5)(b) of the ST Act.
[105] ts 91, 10 February 2025 and Exhibit 1 at page 860.
Finally, there is a level of disharmony between Mr and Mrs Reilly and Perkins Holdings. The disharmony has persisted since 2017. In all of the circumstances of this case, it is reasonable and necessary for the Tribunal to intervene to break the deadlock or impasse.
Having found Perkins Holdings to be in contravention of bylaw 11.1, and reflecting on the relief (orders) sought by Mr and Mrs Reilly (see above at [4]), it is appropriate and reasonable, taking into account all of the circumstances of this case to require Perkins Holdings, at its own cost to comply with by-law 11.1 by covering or otherwise treating all the floor space within Lot 51 with materials approved by the strata company sufficient to prevent the transmission of noise likely to disturb other proprietors.
Conclusion
Perkins Holdings is under an obligation to ensure that noise does not transmit from the floor space of Lot 51 that is likely to disturb other proprietors in the strata complex. Although the vinyl plank flooring system with a timber veneer look was installed inclusive of a bonded acoustic underlay (see above at [69]) that is supposed to limit noise transmission, it is clearly not sufficient to prevent the transmission of noise likely to disturb proprietors.
Mr and Mrs Reilly seek an order requiring the replacement of the vinyl plank flooring system (see above at [4]). In my view, that may not be the only way to comply with by-law 11.1. It is possible that alternate suitable floor coverings, such as suggested by Mr Khan (see above at [239]) are available which may not require the removal of the existing flooring.
While I will hear from the parties as to the precise terms of the orders, my preliminary view is that an order is to be made under s 47(5)(b) of the ST Act requiring Perkins Holdings, at its own cost, to cover or otherwise treat with materials approved by the strata company, all the floor space within Lot 51 to comply with by-law 11.1 within an agreed period, or if not agreed within 60 days of the orders. Following that, within 30 days of covering or otherwise treating with materials all the floor space within Lot 51, Perkins Holdings, at its own cost, must arrange for the testing by a suitably qualified acoustic consultant to provide a written report certifying the acoustic properties of the floor space within Lot 51. Finally, Perkins Holdings, at its own cost must within seven days of receiving the acoustics report provide a copy of it to Mr and Mrs Reilly and to the strata company. Finally, in order for the testing to be carried out, Mr and Mrs Reilly must permit the acoustic consultant access to their Lot 49 in order to undertake acoustic testing on being provided written notice within an agreed period, or if not agreed, within seven days of the giving of the written notice.
Orders
The Tribunal orders:
1.The matter is adjourned to a hearing at 2.00 pm on 13 August 2025 for the duration of one hour at 565 Hay Street, Perth, Western Australia to hear from the parties as to the precise form of orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
6 AUGUST 2025
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