Terry v Drummond

[2019] NSWCATCD 47

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Terry v Drummond [2019] NSWCATCD 47

Hearing dates:

7 May 2019

Date of orders:

11 June 2019

Decision date:

11 June 2019

Jurisdiction:

Consumer and Commercial Division

Before:

S de Jersey, General Member

Decision:

Pursuant to section 232 of the Strata Schemes Management Act NSW 2015 the respondent is to install carpet floor coverings with a high grade acoustic underlay to at least 80% of the following timber floor areas of Lot 2 in SP 17771 by 19 July 2019:

 

the dining area of the combined kitchen/dining area;

 

the upstairs hall areas.

 

Pursuant to section 232 of the Strata Schemes Management Act NSW 2015 the respondent is to give access to the owners of Lot 1 in SP 17771 (or their representative) to Lot 2 for the sole purpose of inspecting Lot 2 in SP 17771 to ascertain that floor coverings have been installed as ordered above.

 

Access to Lot 2 in Order 2 is to be granted by the respondent to the applicant at a mutually convenient time and no later than 19 July 2019.

 

Pursuant to Section 232 of the Strata Schemes Management Act NSW 2015 the owner or occupier of Lot 2 in SP 17771 must not create any noise in Lot 2 likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

 

Pursuant to section 232 of the Strata Schemes Management Act NSW 2015, the owner or occupier of Lot 2 in SP 17771 is not to use power tools inside Lot 2 for a period of 2 years from the date of these orders as follows:

 

(a)For Mondays – Fridays, outside the hours of 9.00AM to 5.00PM;

 

(b)For Saturdays, outside the hours of 9.00AM to 1.00PM;

 

(c)For Sundays and public holidays, not at all.

 The balance of the application is dismissed.

Catchwords:

By-laws 1 and 14 – noise - floor coverings

Legislation Cited:

Strata Schemes Management Act NSW 2015

Category:

Principal judgment

Parties:

Robert Terry & Wendy Barnes
Gyongyver Drummond

Representation:

Counsel:
C Hamilton-Jewell (for the respondent)
Applicant (self-represented)

File Number(s):

SC 18/46006

Publication restriction:

Nil

REASONS FOR DECISION

THE HEARING

1. The applicants are the owners of Lot 1 in SP 17771 (Lot 1) and the respondent is the owner of Lot 2 in SP 17771 (Lot 2). There is one other lot owner in the strata, who provided a statement to the applicants but did not otherwise participate in the hearing.

2. Both parties attended the hearing on 7 May 2019. The respondent was represented by Counsel. At the commencement of the hearing the applicants confirmed that they sought orders as set out in a document headed “Draft Orders – Updated 6th May 2019. There was no objection by the respondent for the applicants to amend the claim to seek the orders sought in this document.

3. Both parties relied on a bundle of documents, including witness statements which had been provided to each other in accordance with the Tribunal’s orders made on 19 February 2019.

4. The respondent had asked the applicants in writing prior to the hearing to have witnesses available for cross examination at the hearing. None of the applicants’ witnesses attended. The Tribunal raised whether the respondent wished to make an application for an adjournment of the hearing so that arrangements could be made for witnesses to attend; the respondent did not seek an adjournment but sought to proceed with the hearing.

5. Directions were made at the end of the hearing for written submissions to be provided after the hearing date. The respondent provided written submissions by email on 13 May 2019. The applicants provided written submissions by email on 20 May 2019. I have reviewed both sets of submissions.

JURISDICTION

6. There was no issue raised that the Tribunal has jurisdiction to determine this dispute under the Strata Schemes Management Act NSW 2015 (the Act).

ORDERS SOUGHT BY THE APPLICANTS

7. I summarise the orders sought by the applicants as follows:

1. The respondent is to lay fixed wall-to-wall underlay and carpet on the timber flooring in the bedrooms, lounge and hall areas of the respondent’s Lot being Lot 2;

2. The respondent will ensure that no power tools or excessively loud noises will emanate from within Lot 2 outside certain hours and days;

3. The respondent will lay fixed wall-to-wall underlay and carpet to cover the timber entry stairs;

4. The respondents will lay fixed wall-to-wall underlay and carpet to the dining area and fixed wall-to-wall underlay and vinyl to cover the kitchen area;

5. The respondent will notify the Owners Corporation via email on the day prior to use of power tools if they are going to be used for longer than 1 hour;

6. The respondent is to notify the Owners Corporation when the work the subject of the above orders is complete; and the respondent is to give the strata managing agent unfettered access to Lot 2 to inspect and photograph the work undertaken;

7. The respondent is to remove the telephone and cuckoo clock from the entry vestibule to the lounge room;

8. The Tribunal is to give the parties liberty to restore the proceedings for further directions.

8. In their written submissions dated 20 May 2019 the applicants do not press draft Order 7 (for removal of the cuckoo clock and telephone line).

RELEVANT BY-LAWS

9. By-law 1 is in relation to noise and provides that an owner or occupier of a lot must not create any noise on the lot likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

10. By-law 14 is in relation to floor coverings and provides that an owner must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of any other lot. The by-law does not apply to floor space comprising a kitchen, laundry, toilet or bathroom.

BACKGROUND

11. I summarise the background facts which are mostly uncontested as follows:

1. A large older style home has been converted into 3 strata lots;

2. This dispute involves Lots 1 and 2;

3. Lot 1 which is owned by the applicants is downstairs and faces the street;

4. Lot 2 is owned by the respondent and is on the second floor and faces the street;

5. Being a conversion of an old home, the house was not sound-proofed at the time of construction;

6. The applicants live in Lot 1;

7. The respondent does not live in Lot 2, but her son who is in his 50s lives there alone (the Occupant);

8. Lot 2 sits above Lot 1, but the rooms do not have the same configuration;

9. In about 2012 or 2013, high density sound baffles were installed between the floor joists and the existing floor of Lot 2 and paid for by the then owner of Lot 1 in order to assist with reducing sound transmission from Lot 2 to Lot 1;

10. In 2015 the then owner of Lot 1 also installed a false ceiling in Lot 1 to minimise noise transmission between the two lots;

11. Currently the timber floors of Lot 2 have Persian rug floor coverings and “Silentstep” underlay which have been laid by the respondent;

12. The Occupant has mental health challenges, and is managed under a Community Treatment Order; periodically he is hospitalised;

13. The Occupant knows how to use power tools and uses them inside Lot 2 from time to time;

14. A notice to comply with By-law 1 (noise) was issued to the Occupant on 6 June 2017; other notices were issued at this time for other issues, but not related to noise or flooring;

15. The parties entered into a mediation agreement on 5 September 2018 (Mediation Agreement); part of the relief sought in these proceedings is to enforce the terms of the Mediation Agreement;

16. The applicants have prepared a Noise Log updated at 10/4/19 which is at tab 50 of their documents.

THE APPLICANTS’ EVIDENCE

12. I summarise the applicants’ evidence as follows:

1. There is slate throughout the kitchen and dining area and it appears to them that a large number of the Occupant’s activities take place on the slate areas;

2. There is an excessive use of power tools by the Occupant, particularly late at night; the powers tools sound like a grinder and a sander, which are very noisy;

3. The Occupant has not been present at Lot 2 for the few weeks prior to the hearing, but the sound of power tools was last heard about 1 month prior to the hearing;

4. The times at which power tools are used are sporadic – sometimes it is for an hour or so, or for as little as 10 minutes;

5. On average a power tool is used once or twice a week by the Occupant;

6. The applicants can regularly hear power tools dropping on the slate floor; they believe the Occupant is taking the power tools from the attic of Lot 2 whilst standing on the ladder and then dropping them onto the slate floor below which is causing a loud thudding noise to transmit in Lot 1;

7. The entrance to Lot 2 is adjacent to the bedroom of Lot 1 so if the Occupant is working in the vestibule area of Lot 2, noise will transfer into the bedroom of Lot 1 which disturbs anyone sleeping in that bedroom;

8. There is no carpet on the stairs which are part of Lot 2;

9. Sometimes the applicants hear the Occupant having what they describe in their oral evidence as a “manic phase” with a lot of howling, swearing, wailing and loud music;

10. So far this year the police have attended Lot 2 on 3 occasions due to concerns for the Occupant’s wellbeing and mental health issues;

11. Often the radio or TV is played very loudly in Lot 2;

12. There are emails in the applicants’ documents between the parties where the applicants have advised the respondent of the noise that comes from Lot 2 in the form of screaming, swearing and arguing (by the Occupant with himself);

13. At tab 37 the applicants have in evidence a list of noise issues from Lot 2 since the mediation – it refers to prolonged periods of vacuuming, manic periods and use of power tools;

14. The applicants rely on a statement of their son who lived at Lot 1 for a period of about 9 months up to August 2018; he says in his statement that he was regularly woken up from the noise coming from Lot 2, often very late at night and early in the morning; he recalls that whilst he lived there, the Police were called at least 5 occasions to assist the Occupant;

15. The applicants also rely on a statement of the owner of Lot 3 which is at tab 45 of the applicants’ documents; that statement sets out the history of her time living in Lot 3 since 2008 and the issues she has had with the Occupant during that period;

16. The owner of Lot 3 attests to construction work being carried out by the Occupant within Lot 2;

17. The occupant of Lot 3 says in her statement that she has seen the Occupant of Lot 2 in the last 12 months balancing heavy objects on his balcony such as tool boxes, timber and boots; she has seen the Occupant of Lot 2 drop things such as metal washers, window cleaning equipment and a rusty circular saw from Lot 2 to the area below.

RESPONDENT’S EVIDENCE

13. I summarise the respondent’s evidence as follows:

1. Given that the strata is an old house converted into 3 lots and the house is not sound-proofed, noise travels easily from one lot into another;

2. The only areas of Lot 2 which are not covered with rugs are – the kitchen and dining area, the laundry, the bathroom and the entry vestibule;

3. In 2008 the respondent installed underlay under all the rugs at the request of Lot 1’s then owner;

4. Power tools were used by the Occupant for some renovations inside Lot 2 which ceased in October 2018 and have not been used by him since then;

5. The Occupant does not construct objects or use power tools as a hobby, occupation or an interest;

6. The respondent sometimes stays with the Occupant and says he is not noisy;

7. The respondent says the Occupant is proud of his home and is considerate to the applicants by taking off his shoes to minimise noise;

8. The Occupant has some mental health episodes of nightmares, and coughing fits, but he is being treated under the Mental Health Act and has a medical team who regularly visits him;

9. The Occupant has never harmed anyone nor does he have a criminal record;

10. Document at page 23 of the respondent’s documents is a letter from NSW Health Northern Sydney Local Health District which states that the Occupant is compliant with treatment under the community treatment order, accepts regular medication and home visits and has remained relatively stable in his mental condition since June 2018 (other than hospitalisation for a few weeks in June 2018);

11. The Occupant suffers from asthma, so non-fixed floor coverings are preferred, because it is easier to control dust and mould if loose rugs can be vacuumed underneath as well as between the underlay and the rugs;

12. There is a perimeter gap of about 12cm between the rugs and the walls in the bedrooms, lounge study and hallways;

13. The only areas without rugs and underlay are the entrance vestibule, the kitchen/dining area (which has the same slate as was in place at the time the respondent purchased Lot 2) and the bathrooms, laundry and balcony;

14. There is insufficient evidence before the Tribunal of when power tools are being used by the Occupant;

15. The telephone is in the entry area because that is where the telephone is connected for Lot 2; which also includes a disability line;

16. All rugs have “Silentstep” underlay under them which is an acoustic underlay and which the respondent was told would reduce the transmission noise of footsteps from Lot 2 into Lot 1;

17. Document at page 13 of the respondent’s bundle is a fact sheet on Silentstep which notes that it is a high performance acoustic carpet underlay, comprising a flexible mass-loaded barrier fused on to the high density premium foam underlay; the combination of these 2 products allows Silentstep to reduce the transmission of impact generated noise such as footfall and airborne noise such as speech.

EXPERT EVIDENCE

14. The applicants rely on 2 expert reports of Mr Robin Brown fromo Octave Acoustics – one dated 25 March 2019 and the other 29 March 2019.

15. In the 25 March 2019 report, Mr Brown states:

1. He carried out an impact sound insulation test on 2 floor surfaces within Lot 2 – the slate floor in the kitchen and the timber floor in the living room;

2. Testing was done with the Persian rug and associated underlay rolled to one side;

3. The results for both surfaces complied with the current Building Code of Australian requirement for sound insulation between sole occupancy units of multi residential buildings, however, this building code requirement does not apply to this particular building;

4. Given the level of impact sound insulation that currently exists between the 2 lots, the only practicable method of achieving a significant reduction in performance would be to install carpet and underlay to exposed areas; this would be expected to render most of the currently audible floor impact noise close to inaudible;

5. An alternative to both/carpet undelay and a hard floor finish on an acoustic mat, would be vinyl flooring installed on a soft underlay; this would still fall significantly short of the improvement resulting from the installation of carpet and underlay; but it would be a material improvement.

16. In the 29 March 2019 report, Mr Brown states:

1. He was instructed to carry out unattended noise monitoring for an extended period within the master bedroom of Lot 1 and to review the results to identify the periods of power tool operation within Lot 2 outside agreed times and periods of floor impact activity that may adversely affect the quality of sleep within the master bedroom of Lot 1;

2. The equipment was installed on 7 March 2019 in the master bedroom of Lot 1;

3. The noise monitoring equipment was decommissioned on 21 March 2019;

4. The author’s analysis was that power tools were used between 7.20pm and 8.20pm on Saturday 16 March 2019 and then for short periods on Monday 18 March 2019;

5. There was an intense period of night time floor impact activity between 11.49PM and 1.10 AM on Sunday 10 March 2019;

6. The key areas that would require carpet and underlay treatment are the kitchen, dining area, and the hall between the top of the stairs and the kitchen.

17. The respondent relies on an acoustic report from Mr McGrory of JHA, at page 24 of the respondent’s documents. The report was prepared from a visual inspection of Lot 2 on 18 December 2018 to assess the acoustic conditions of Lot 2. The report notes as follows:

1. The property was built around 1920 and therefore was constructed prior to any requirements for acoustic separation;

2. The building is not required to meet current acoustic requirements;

3. The floor coverings have been installed to the extent that covers the majority of their respective floor areas;

4. The areas without floor coverings include the entry stairs, kitchen passage way which are contained within their own vestibule and are not located above Lot 1 and therefore do not need to be covered for acoustic purposes;

5. Complaints have arisen from activities unrelated to footsteps or structure-borne noise, this type of noise is referred to as airborne noise and carpet and typical floor coverings are ineffective in reducing this type of noise and need high density materials such as plasterboard, and concrete to improve the sound insulation performance;

6. The report provides suggestions of what the Lot 1 owners could do to improve the airborne and sound insulation performance of their lot;

7. The author of the report is of the opinion that the current floor coverings are sufficiently installed to an extent that reduces the transmission of noise in accordance with By-law 14.

CONSIDERATION

18. There was no issue that the strata building being a converted house is about 100 years old and it not sound-proofed. There was no issue that noise has been a problem for some time between Lots 1 and 2 and various steps have been taken by previous owners of Lot 2 and the respondent to try and reduce the impact of noise travelling from Lot 2 to Lot 1.

19. A central factual issue which is in dispute and needs to be determined by the Tribunal is whether the Occupant is using power tools and if so when. The applicants say that the Occupant is regularly using power tools inside Lot 2; the respondent says the Occupant is not. Given that the respondent does not live with the Occupant, but the applicants reside in Lot 1 I give more weigh to their oral evidence, as there is no basis for me to find that they are not telling the truth in this regard. In addition to this oral evidence and the Noise Log, given the evidence of the occupant of Lot 3 and the Octave Acoustics Report dated 29 March 2019, I find on the balance of probabilities that it is more likely than not that the Occupant of Lot 2 is using power tools within Lot 2; that the use of power tools is noisy and is likely to disturb the peaceful enjoyment of any occupant of Lot 1, given that it is the lot immediately below.

20. I also accept the applicants’ oral evidence that those tools are being dropped on the slate floor from time to time and this in itself is causing loud impact noises to transmit from Lot 2 through to Lot 1 which is disturbing the applicants’ peaceful enjoyment of their lot.

21. I find that this disturbance of the applicants’ peaceful enjoyment by way of power tools has been occurring for a number of years and I accept the applicants’ oral evidence that it has continued since the Mediation Agreement was signed and since renovation works were completed in Lot 2 in late 2018.

22. It follows that I am satisfied that the Occupant’s use of power tools in the Lot, and at various times of the day and night as well as the sound of dropping heavy items on the slate floor is a failure to comply with By-law 1, sufficient to invoke the Tribunal’s power to make an order under section 232 of the Act.

23. The next issue for determination is whether the respondent is also in breach of By-Law 14.

24. By-law 14 requires floor spaces within a lot to be covered or treated to prevent the transmission of noise from the floor, which is likely to disturb the peaceful enjoyment of another owner. It is clear from the photos in evidence that not all timber floor areas in Lot 2 are covered. As the applicants state, it is about 80% coverage - but there are sections such as parts of the hallway, the stairs and the perimeters of the room which are not covered at all.

18. The Octave Acoustics report dated 25 March 2019 states in paragraph 16 as follows:

“It should be noted that testing in the living area of Lot 2 was carried out with the incumbent Persian rug and associated underlay rolled to one side. The normal condition for this room is that the Persian rug and underlay cover approximately 80% of the floor area. As such, it is expected that floor impact activities on the Persian rug in the living room are significantly attenuated and the resultant noise levels within Lot 1 unlikely to interfere with the peaceful enjoyment of the occupants of that lot.”

26. Mr Brown states in paragraph 15 as follows:

“Given the existing levels of impact sound isolation between Lots 2 and 1, the only practicable method of achieving a significant reduction in performance would be to install carpet and underlay to the exposed areas. Such treatment would be expected to render much of the currently audible floor impact noise close to inaudible.”

27. In paragraph 17 the author notes:

“I note that no such rugs were apparent within the kitchen or dining areas of Lot 2”.

28. In paragraph 34 of the Octave Acoustics report dated 29 March 2019 Mr Brown states:

“Given the existing levels of impact sound insulation between Lot 2 and Lot 1 are already relatively high, I note that the only practicable method of achieving a significant reduction in performance would be to install carpet and underlay to the remaining hard floor surfaces within Lot 2. Such treatment would be expected to render much of the currently audible floor impact noise close to inaudible. The key areas that would require such treatment within Lot 2 include the kitchen, dining area and the hall between the top of the stairs and kitchen.”

29. Based on paragraph 16 of the Octave Acoustics report dated 15 March 2019, I accept the author’s opinion to the effect that provided the Persian rug and associated underlay are rolled out in the living area of Lot 2, the noise resulting from floor impact activities on the Persian rug is unlikely to interfere with the peaceful enjoyment of the occupants of Lot 1. Accordingly, I find that the Persian rugs and underlay provide sufficient sound insulation so that activities on those parts of the flooring in Lot 2 with these coverings are unlikely to interfere with the peaceful enjoyment of the applicants of Lot 1 and I make no order for these areas to be changed.

30. The acoustic report from JHA states that the current floor coverings are sufficiently installed to an extent which reduces the transmission of noise in accordance with the relevant by-law. The report notes that the noise complained of is “airborne” noise and carpet and typical floor coverings are ineffective in reducing this type of noise and require high density materials such as plasterboard and concrete.

31. Notwithstanding the JHA report, I accept the evidence of Octave Acoustics as set out above, that carpet and underlay on all hard surface areas will reduce the transmission of noise arising from activities on the floor. I am satisfied that for those areas that do not have rugs with acoustic underlay there is a level of noise transmission through the timber flooring and/or slate flooring of Lot 2 to Lot 1 which is likely to disturb the occupiers of Lot 1. This is particularly when the Occupant is undertaking his power tool activities. In accordance with paragraph 34 of the Octave Acoustics report dated 29 March 2019 I am satisfied that and carpet and underlay is the most effective treatment to the remaining hard floor areas which are currently not covered

32. I am satisfied that the dining area and upstairs hall areas of Lot 2 that do not have carpet coverings do not comply with By-law 14 and they ought to have carpet coverings with acoustic underlay installed in order to comply. In terms of the dining area, I do not consider this part of the wet floor area, even though its flooring extends from the kitchen. From the photos in evidence the dining floor commences where the kitchen cupboards end and I am satisfied that it is sufficiently separate from the kitchen, not to be characterised as a wet area so that By-law 14 does not exempt it. I find that By-law 14 does apply to the dining area and it should have a floor covering such as a carpet and underlay to minimise noise transmitting through it.

33. Paragraph 21 of the 29 March 2019 report refers to the complaints of Lot 1 being in relation to excessive floor impact noise during the night from the kitchen, hallway and dining areas of Lot 2 which are located immediately above Lot 1. I find that there is insufficient evidence from the applicants and Octave Acoustics to establish that the use of the stairs and vestibule area of Lot 2 is likely to disturb the peaceful enjoyment of occupants of Lot 1, given that these areas are not located over Lot 2. Accordingly I decline to make any orders with respect to the vestibule and stairs.

34. As there is no specific evidence from the applicants that fixed wall-to-wall carpet with underlay is more effective than non-fixed rugs with acoustic underlay, I decline to make an order that fixed carpets be installed.

35. I also find that there is insufficient evidence to establish that the areas which are currently carpeted (which are about 80% covered) ought to have their coverings extended so that more than 80% of the area is covered in order to reduce the transmission of sound. For this reason I decline to make an order extending coverage to 100% of the currently covered floor areas.

36. As there is no evidence lead by the applicants that a coverage of more than the current rate of coverage for the carpeted areas which is 80%, would be more effective, the orders I have made to install carpet and underlay to those timber areas currently not carpeted, are to at least 80% of the area.

37. As the kitchen is a wet floor area, By-law 14 does not apply and I make no order with respect to the kitchen floor.

38. I am satisfied that the use of power tools, especially outside usual hours (9am-5pm) on weekdays, on weekends and at night, is likely to interfere with the peaceful enjoyment of any occupant of Lot 1 and appropriate orders should be made of the applicants. The parties reached an agreement with respect to power tools as set out in the Mediation Agreement. However, paragraph 2 of the Mediation Agreement which has specific restrictions on the days and times of power tool use appears to be relevant to the period of renovations that were taking place in Lot 2 at that time. I accept the respondent’s evidence that those renovations are now complete. So any use of power tools now would be for other projects, of which there is no specific evidence. Paragraph 4 of the Mediation Agreement is a general provision that the Occupant informs the applicants if power tools are to be used for longer than one hour in duration. This paragraph is unclear in its terms – is it continuous use for one hour or if power tools are used for a few minutes over the course of an hour. I consider the term unfairly onerous and unclear, so decline to make an order in the terms of paragraph 4 of the Mediation Agreement.

39. However, as I am satisfied on the evidence that power tools are still being used in the evenings by the Occupant, sometimes late at night and that this usage is likely to interfere with the peaceful enjoyment of the applicants of their lot, I consider the appropriate order to be that the owners and occupiers of Lot 2 are not to use power tools outside the hours of 9.00AM to 5.00PM from Monday to Friday, nor outside the hours of 9.00AM to 1.00PM on Saturdays and not at all on Sundays and public holidays. As occupancy of lots may change over time, and although there was no evidence that the current occupancy of Lot 2 might change at some time in the near or distant future, I do not consider it appropriate to make the time period of the order open-ended and to bind future occupancies. Accordingly, I make the order for a period of 2 years.

40. As an ancillary order I make an order that the respondent allow access to Lot 1 or its representative to ascertain whether the orders made have been complied with.

41. There was a considerable amount of evidence at the hearing regarding the Occupant’s mental health. The respondent submitted in her written submissions this evidence should be disregarded. I agree with that submission. The Tribunal has not determined the issues based on the difficulties which pertain to the mental health issues.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 July 2019