SCHUBERT and HUANG
[2020] WASAT 63
•16 JUNE 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: SCHUBERT and HUANG [2020] WASAT 63
MEMBER: MS P LE MIERE, MEMBER
HEARD: 4 JUNE 2020
DELIVERED : 10 JUNE 2020
PUBLISHED : 16 JUNE 2020
FILE NO/S: CC 878 of 2019
BETWEEN: PAUL SCHUBERT
Applicant
AND
KA YAN HUANG
Respondent
Catchwords:
Strata titles - Floor coverings - Bamboo flooring - Noise transmission likely to disturb the peaceful enjoyment of another lot - Ensuring sufficiency of covering to prevent transmission of noise - Expert evidence
Legislation:
Strata Titles Act 1985 (WA), s 42(2), s 83(1), Sch 1, Sch 2
Strata Titles Amendment Act 2018 (WA), Sch 5, cl 30
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr G Orifici (Representative) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The application was heard on 4 June 2020. An oral decision was delivered shortly thereafter. The following reasons for decision have been prepared from the transcript and have been subjected to only minor editing to improve clarity of expression and set out.
Mr Paul Schubert (applicant) and his wife are the owners of apartment 78 on Strata Plan 63456 and known as Ocean Edge Beachside Apartments (OEB Apartments). Ms Ka Yan Huang (respondent) is the owner of apartment 91 in the OEB Apartments. The applicant's apartment is situated below the respondent's apartment.
There is a dispute between the applicant and the respondent concerning the level of noise being transmitted through the floor of the respondent's apartment to the applicant's apartment.
The respondent took possession of her apartment on 20 November 2014 and resided in the apartment with her husband between December 2014 and February 2019.
The respondent applied to the Council of Owners for, and on 20 November 2014 was granted approval to install bamboo flooring in her apartment. On 3 December 2014 the bamboo flooring was installed and from January 2015 the respondent started receiving complaints from the applicant regarding noise allegedly being transmitted through the floor space of the respondent's apartment.
The applicant's complaint is that the applicant's peaceful enjoyment of his apartment is disturbed by the noise being transmitted from the respondent's apartment.
The applicant alleges the replacement of the carpet in the respondent's apartment with bamboo flooring is the source of the problem.
The original application filed by the applicant on 14 June 2019 was subsequently amended to identify the alleged conduct to be in contravention of the OEB Apartments by-law 8.1 rather than the StrataTitles Act 1985 (WA) (ST Act).
To settle the dispute the applicant seeks an order pursuant to s 83(1) of the ST Act for an order that the respondent remove the wooden bamboo flooring and underlay (if any) fitted throughout the respondent's apartment.
Section 83(1) of the ST Act empowers the Tribunal to exercise its discretion to make an order to rectify a complaint of a proprietor against another proprietor:
(1)The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the bylaws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
Following a number of direction hearings the matter was set down for final hearing on 4 June 2020.
Issues to be determined
•Is noise transmitted from apartment 91 to apartment 78?
•Is the transmission of that noise caused by the respondent's failure to cover or otherwise treat the floor space to prevent the transmission of noise?
•If the answer is in the affirmative is it likely to disturb the peaceful enjoyment of the applicant, the proprietor of apartment 78.
Relevant statutory scheme
As these proceedings commenced prior to the major amendments to the ST Act coming into operation on 1 May 2020 under the Strata Titles Amendment Act 2018 (WA) (STA Act), the provisions of the ST Act, as they were prior to those amendments, apply to the determination of this application: cl 30 of Sch 5 of the STA Act.
All references to the provisions of the ST Act in these reasons are to those in the ST Act immediately prior to 1 May 2020.
The application proceeded in the Tribunal on the basis that the 'standard bylaws' did not apply. That is, the provisions set out in Sch 1 and Sch 2 of the ST Act do not apply to the strata complex in question, as per s 42(2) of the ST Act.
The by-laws of the strata complex were, relevantly, amended on or about August 2014.
Following these amendments standard bylaw 10 of Sch 2 to the ST Act became bylaw 8.
By-law 8 confers on a lot owner the right to install wooden flooring or other hard surface floor coverings 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.
8.1A proprietor must ensure that all floor space within the Proprietor's Lot (other than that comprising kitchen, laundry, lavatory or bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission there from of noise likely to disturb the peaceful enjoyment of the Proprietors, occupiers of any other Lots;
8.2A proprietor may install a wooden or other hard-surfaced floorcovering to their lot with the prior written approval of the Council provided that a sound proof membrane approved by the Council and which complies with all applicable Australian Standards and the Building Code of Australia is first installed between the concrete slab and the proposed flooring and the Proprietor must comply with all current Australian Standards and the Building Code of Australia applicable to sound proofing of flooring at the time of installation.
The hearing
The applicant represented himself and gave evidence and called two witnesses who had visited his apartment: namely Mr Frank Houston and Mr Bradley Cook. The applicant did not call any expert evidence.
The respondent who appeared by video from Hong Kong was represented/assisted by Mr Giuseppe Orifici.
The following witnesses gave evidence on behalf of the respondent.
•Mr Terry George - an acoustics expert
•Ms Sheridan Curie property manager of the respondent's apartment
A bundle of documents relied upon by the applicant and respondent at hearing were received into evidence and marked Exhibit 1. The bundle included the expert report(s) of Mr George.
Is noise transmitted from apartment 91 to apartment 78?
Shortly after the respondent installed the bamboo flooring to her apartment the applicant complained that significant noise was being transmitted through the ceiling to his apartment. He commenced writing emails to the respondent and to the Strata Manager complaining that the noise emanating from the respondent's apartment was disturbing his sleep, causing him distress and preventing his peaceful enjoyment of his apartment.
The respondent denied that all of the noise complained of by the applicant was transmitted by her apartment. A meeting with representatives of the Council of Owners (COO) and the applicant and respondent was held on 17 February 2015 at the applicant's and respondent's apartments for the parties to discuss the issue. A second meeting was held on 28 April 2015.
The applicant says the respondent admitted at these meetings that noise was being transmitted from her apartment and that it needed to be rectified.
Mr Houston gave evidence that he had been the Chair of COO at the time of the initial complaints made by the applicant in January 2015 and had conducted 'tests' at the meeting held on 17 February 2015 as to the noise that was transmitted by normal walking on the floor of the respondent's apartment. I have no reason to doubt his evidence in relation to these meetings however it is of limited relevance to the question before the Tribunal today.
It is apparent from the correspondence in Exhibit 1 and a description of what happened during the testing at the above meeting that the respondent was doing everything she could to appease the applicant. From the emails it appears the respondent had the attitude that if there was something wrong with the floor it was due to the installation and she would therefore ensure the installer 'fixed' the problem.
The Tribunal accepts that her response to the 'testing' at the February 2015 meeting might have been because she accepted that noise was transmitted from her apartment to apartment 78 and all the parties thought this would not occur if the relevant Australian Standards and Building Code had been complied with.
There was however no evidence at this time as to whether the Building Code of Australia or Australian Standards had been complied with. All parties seem to have assumed the allegation by the applicant that the installation did not meet those standards was correct.
The respondent accepts that some noise may be being transmitted from her apartment as no apartment is sound proof however denies that she admitted at any time that all the noise that is concerning the applicant could be being transmitted through the floor space in her apartment.
The respondent made reference to correspondence in Exhibit 1 referring to an incident in mid-January 2015 when the applicant knocked at her door and complained of excessive noise coming from her apartment at a time when she and her partner where asleep in bed. The respondent said she was so distressed and frightened by this event that she reported it to the police.
The applicant admitted at hearing that he had been mistaken on this occasion as to where the noise was coming from.
For the above reasons I give no weight to any suggested or alleged admissions by the respondent at that time or in other correspondence around that time.
The applicant gave compelling evidence that he was and is disturbed by the noise of footsteps running and general movement around the respondent's apartment that is transmitted from her apartment to his apartment. He gave his evidence in an honest an open way.
The applicant's said that on two separate occasions when the noise was from the respondent's apartment was significant he went and asked Mr Bradley and Mr Huston to come and listen and to see if they found it annoying or if he was just being overly sensitive.
Mr Houston and Mr Cook gave evidence that when they visited the applicant's apartment they heard noise in the applicant's apartment that they found annoying. They also said they did not experience any such noise in their apartments and would not like to be living in an apartment where you could hear a transmission of such noise. They considered the noise excessive and that they would not be able to live with the noise.
I have no reason to disbelieve them or to disbelieve the effect the noise transmitted from the respondent's apartment has on the applicant.
The Tribunal is satisfied and finds that noise is being transmitter from the respondent's apartment to the applicant's apartment.
However the mere fact that noise is transmitted is not by itself sufficient for the Tribunal to find a breach of bylaw 8.1. This is because the ST Act does not prohibit the transfer of noise between apartments. Rather the ST Act implicitly accepts that some noise will be transferred between apartments. The test is whether or not the noise transferred is caused by the failure to cover or treat the relevant floor space, and that it is such that it is likely to disturb the peaceful enjoyment of the applicant the proprietor, who is the occupier of apartment 78.
Is the noise transmitted from the respondent's apartment caused by the respondent's failure to cover or otherwise treat her floor space to prevent the transmission of noise?
Mr George an acoustics engineer gave evidence that the testing he conducted in the applicant's apartment showed the noise levels transmitted were of an intensity of 46 decibels. The Tribunal understands the testing to have been undertaken using a 'tapping machine' set up in a number of different places in the respondent's apartment. The tapping machine was designed to be a standard representation of footfalls within a room.
Australian Standards which set the minimum requirement, mandate transmission of noise to be less than or equal to 62 decibels. Mr George said a transmission of noise of 62 decibels would be given a star rating of 2.
To qualify for a 5 star rating the transmission of noise must be 45 decibels or less. Further for a sound to be audible to the human ear it has to be at least 3 decibels and more commonly 5 decibels and for that reason he classified the insulation installed in the respondent's apartment to have a 4 to 5 star rating.
A six star rating requires a decibel levels of 30 or less and that it is almost impossible to achieve a transmission of noise less than 45 decibels with a wooden floor. A floor covered with a high quality woollen carpet may achieve a decibel level of 30 or less.
He said that the only way to reduce the transmission of noise to less than 45 decibels with wooden floors would be to construct in effect a floating floor and that this could only have been done at the design stage when the building was constructed.
Mr George agreed the testing he conducted only accounted for noise transmission through the floor. He also agreed that carpet would produce a decibel level of noise transmission of around 30. That is that carpet on a floor would result in a lesser transmission of noise through the floor than a wooden floor.
It was Mr George's evidence that the transmission of noise readings he obtained were relatively low and the best that could be achieved with a wooden floor. He considered no other type of sound proof membrane could be used to achieve a better result.
Australian Standards mandate transmission of noise in apartment complexes to be less than or equal to 62 decibels. The readings achieved by the respondent's floor coverings show a significantly lower transmission of noise.
It is the applicant's submission that it is not relevant that the respondent has used the best sound proofing available for a wooden floor because it still allows sound transmission that is disturbing his peaceful enjoyment of his apartment and therefore he says the respondent is in breached of bylaw 8.1.
It is the applicant's position that because the noise that is transmitted from the respondent's apartment is disturbing his peaceful enjoyment of his apartment and a woollen carpet would reduce the transmission of noise through the floor to his apartment the respondent has not covered or otherwise treated her floors to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of his apartment.
There are two parts to by-law 8 in relation to flooring the second part, bylaw 8.2 specifically allows for wooden floors to be installed provided they comply with the relevant Australian Standards and the Building Code of Australia.
By-law 8.1 or 8.2 cannot be read in isolation, they each inform how the other should be read. Bylaw 8.2 specifically allows for wooden flooring to be installed.
The respondent has installed wooden flooring in a manner so as to prevent the transmission of noise from her apartment by using an insulation method that reduces the transmission of noise. The expert evidence is that there is nothing further she could do to treat her floor space to further reduce the transmission of noise through the floor given she has a wooden flooring.
The applicant and Mr Bradley gave evidence that in other apartments that have wooden floors there is no problem with the transmission of noise through the floor space from the apartment above.
Mr George, the acoustic expert's evidence is that the respondent has installed the most effective insulation possible. This would therefore suggest that the insulation or installation of the other floors is not materially different from that of the respondent and therefore logically the transmission of noise through the floor space is the same or not materially different.
There is no evidence that all of the noise coming from the respondent's apartment is being transmitted through the floor space of her apartment, that is an assumption made by the applicant. Mr George briefly touched on the possibility of noise being transmitted through the walls. Noise of course can also be transmitted through open or even closed windows.
It is therefore possible that the installation of carpet would not make any significant difference to the transmission of noise from the respondent's floor space to the applicant's apartment.
The Tribunal is not satisfied that the noise transmitted from the respondent's apartment is caused by the respondent's failure to cover or otherwise treat her floor space to an extent sufficient prevent the transmission of noise.
Given my findings above it is not necessary to consider if the noise from the respondent's apartment was 'likely' to disturb the peaceful enjoyment of the applicant or other proprietors or owners of other apartments. However for completeness sake I will.
Is the noise transmitted through the floor spaces of the respondent's apartment likely to disturb the peaceful enjoyment of the applicant, the proprietor of apartment 78?
Compliance with by-law 8.1 does not require that no noise be transmitted so as to not disturb the peaceful enjoyment of a proprietor of an apartment. It requires the floor space to be treated or covered to an extent sufficient to prevent the transmission of noise likely to disturb a proprietor's peaceful enjoyment.
'Likely' according to the Oxford Concise English Dictionary means probable, such as may well happen or be true to be reasonably expected- promising; apparently suitable.
If what is required by the bylaw is to not disturb a proprietor's peaceful enjoyment then non-compliance would occur if a proprietor said his or her peaceful enjoyment was disturbed no matter how unreasonable the proprietor was being or how insignificant the noise was.
Wooden floors are permitted in OEB's apartment complex and the wooden flooring installed in the respondent's apartment according to the expert Mr George, not only complies with Australian Standards and the Building Code of Australia as required by by-law 8.2, but significantly exceeds it.
Other wood flooring in the OEB complex according to the evidence of the applicant does not disturb other proprietors' peaceful enjoyment of their apartments (lots).
To the extent that other decisions of the Tribunal may have suggested that the test as to whether the noise is likely to disturb the peaceful enjoyment of a proprietor is a subjective test I respectfully disagree.
On a subjective basis any noise at all that is transmitted through a floor in an apartment complex could disturb an extremely sensitive person who did not accept that apartment living necessarily means it is likely there will be some transmission of noise between apartments.
According to the tests conducted by Mr George the noise transmitted through the floor space, being at a level of 46 decibels is not significant and is the lowest transmission of noise you can achieve with wooden flooring.
The evidence of the applicant is that other wooden floor spaces in the apartment complex do not transmit noise sufficiently to disturb the peaceful enjoyment of the proprietors of other apartments (lots).
The onus is on the applicant to persuade the Tribunal that the noise transmitted through the floor spaces of the respondent's apartment to the applicant's apartment is likely to disturb the peaceful enjoyment of the applicant, the proprietor of apartment 78.
The Tribunal is not satisfied that the noise transmitted through the respondent's floor spaces (as opposed to from the respondent's apartment) at 46 decibels is likely, that is to be reasonably expected to cause a disturbance to the applicant's peaceful enjoyment of his apartment (lot).
My above comments should not be taken as suggesting the Tribunal did not accept that the applicant Mr Shubert was being honest when he described his distress caused by the noise being transmitted from the respondent's apartment nor should it be taken that the Tribunal considered him overly sensitive.
However the objective testing conducted by the expert shows a low level of noise transmission through the respondent's floor space to the applicant's apartment. The expert described the wooden floor installation from a noise perspective to be of a 4 to 5 star rating.
The objective expert evidence is that no other or further covering or treatment could be installed on the respondent's wooden floor spaces to stop or reduce the transmission of noise from the respondent's floor space to the applicant's apartment.
The anecdotal evidence of the applicant with respect to other wooden floor spaces in the apartment complex is that the noise transmitted through those floor spaces does not disturb the peaceful enjoyment of the proprietors in the apartments below them including the neighbour of the applicant.
The Tribunal is not satisfied that the respondent has not ensured that all floor spaces within her apartment (lot) (other than that comprising kitchen, laundry, lavatory or bathroom) are covered or otherwise treated to an extent sufficient to prevent the transmission there from of noise likely to disturb the peaceful enjoyment of the respondent or proprietors or occupiers of any other lots.
Orders
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
16 JUNE 2020
0
2