The Owners of Mill Point Strata Plan 11391 and Fownes and Anor
[2006] WASAT 30
•13 FEBRUARY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF MILL POINT STRATA PLAN 11391 and FOWNES & ANOR [2006] WASAT 30
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 1 FEBRUARY 2006
DELIVERED : 13 FEBRUARY 2006
FILE NO/S: CC 3279 of 2005
BETWEEN: THE OWNERS OF MILL POINT STRATA PLAN 11391
Applicant
AND
CASPAR LANCE FOWNES
ALIX FOWNES
Respondents
Catchwords:
Strata titles - Transmission of noise likely to disturb peaceful enjoyment of lot – Does compliance with Building Code of Australia satisfy the requirements of Schedule 2 bylaw 10 of the Strata Title Act 1985 (WA)
Legislation:
Building Code of Australia
State Administrative Tribunal Act 2004 (WA), s 32(2)(a)
Strata Titles Act 1985 (WA), Sch 2 bylaw 10
Result:
Application successful
Orders made
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondents : Ms J Kenny
Solicitors:
Applicant: Self-represented
Respondents : Dwyer Durack
Case(s) referred to in decision(s):
Swannell v Lilliman [2004] WADC 72
Zadnik and Bizzaca [2005] WASAT 333
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Owners of Mill Point Strata Plan 11391 (the Owners) sought an order for Mr and Mrs Fownes (the Fownes'), the proprietors of unit 12, to ensure that all floor space within the lot (other than that comprising the kitchen, laundry, lavatory, or bathroom) is covered or otherwise treated to prevent the transmission of noise to unit 10 which is owned by Mr Symons, in a manner that is in breach of Schedule 2 by‑law 10 of the Strata Titles Act 1985 (WA).
The Fownes' renovated their apartment approximately five years ago. The apartment is situated directly above that of Mr Symons' apartment. Part of the renovation included laying tiles in the entry/lobby and the removal of the carpets from the main living area and replacing it with timber flooring. In these reasons the Tribunal refers to "hard flooring" to describe the tiles and timber installed in these areas.
Several letters and oral communications were exchanged prior to and after the renovation had been completed between the Owners, Mr Symons and the Fownes' in regard to the impact of the hard flooring on the peaceful enjoyment of his unit by Mr Symons. Prior to the installation of the hard flooring the Owners raised concerns that it might be in breach of the by‑law and notified the Fownes' that if any complaints were received they would have to take remedial action at their cost.
Since the installation, Mr Symons has complained about the ongoing noise that reverberates from unit 12 to unit 10 as a result of the hard flooring.
According to Mr Symons, the hard flooring causes the faintest noise of persons walking, children playing, items being dropped or furniture shifting to echo into his unit and as a result, his peaceful enjoyment of the unit is being affected. This has had an impact on his health, sleep pattern and general enjoyment of the lot.
The Tribunal arranged for a site inspection to familiarise itself with the situation.
Mrs Fownes contends that she received permission from the Owners to install the hard flooring, that the flooring complies with Building Code of Australia specifications that allow noise up to 62dB to be transmitted, and that the noise generated during the site inspection was excessive and not a reflection of normal activities in an apartment.
An expert report prepared for purposes of the application found that the noise level in the hard flooring areas varied between 69dB at the entrance to 52dB in the dining room.
The Tribunal finds that a breach of Schedule 2 by‑law 10 of the Strata Titles Act 1985 has occurred, in that the audible noise that transmits from the entrance, dining and main living area in unit 12 to unit 10 is likely to disturb the peaceful enjoyment of the occupants of unit 10. The transmissions of noise is caused by the hard flooring. The noise made by persons walking in unit 12 during the site inspection was clearly audible in unit 10 to the extent that it is likely to interfere with the peaceful enjoyment of unit 10.
The following orders are therefore made:
1.The respondents must within 60 days from the date of these orders take steps to ensure that all floor space within the lot (other than that comprising the kitchen, laundry, lavatory, bathroom and balcony) is covered or otherwise treated to an extent sufficient to prevent the peaceful enjoyment of the proprietor, occupier or resident of lot 12.
2.Order 1 shall not cease to have any force or effect upon the expiration of the period of two years that next succeeds the making of this Order.
3.Until such time as Order 1 is complied with, no hard-soled shoes or high-heels may be worn between the hours of 6 pm and 6 am on floor space the subject of the Order.
4.The respondent must take steps to ensure that their tenants are aware of and comply with Order 3.
Background
The Fownes' commenced with a redesign of their apartment in 2001. The relevant element of the redesign for purposes of this application was the tiling of the entrance/lobby area and the installation of timber floors in the open‑space living areas, namely the dining room and lounge.
Mr Symons immediately raised concerns when he realised the type of renovation that the Fownes' had in mind. He was anxious that the hard floors would cause noise to reverberate to his unit at an unacceptable level and therefore negatively impact on his right to peaceful enjoyment of the unit. The Owners also wrote to the Fownes' to raise concerns about the possible breach of Schedule 2 by‑law 10 if the hard flooring were to be installed.
In a letter dated 12 September 2001, to the strata company manager, the interior designer, Mr Cox, informed the strata council of steps that would be taken to minimise the noise that is transmitted due to the hard flooring. Mr and Mrs Fownes also noted in evidence that they received a "guarantee" from Mr Cox that the material used to lay the hard floors would comply with building requirements and would not cause any nuisance to Mr Symons or another proprietor.
The Council responded on 25 September 2001 as follows to the letter of Mr Cox:
"The risks associated with installing tile and/or timber flooring in the areas proposed lie completely with the Owner of Apartment 12. If the owner of Apartment 12 proceeds with the proposed flooring then should the occupant(s) of Apartment 10 or any other property then or in the future complain of noise then the owner of Apartment 12 would have to remove the proposed timber and/or stone tiles and replace them with flooring that complies with the by‑laws; … " (Tribunal's emphasis).
This letter was followed up on 3 October 2001 by another caution from the Owners to Mrs Fownes to "remind you that the responsibility for complying with the by‑law is with the owner. On current evidence available to the Council of Owners, they consider it highly unlikely that your proposed flooring will satisfy the requirements of the By-law within the building."
Although Mrs Fownes, in evidence and Ms Kenny, in submissions, contended that approval had been given by the Owners for the installation of the hard‑flooring and that the Owners can therefore not complain of the consequences thereof, the Tribunal finds no evidence to support the contention. It is clear from the evidence that the Fownes' were placed on proper notice before renovation had begun that the installation of hard flooring might constitute a breach of Schedule 2 by‑law 10. The Fownes' acted at their own risk. Mrs Hutchinson confirmed in evidence that she had told her daughter, Mrs Fownes, that the floors would have to be removed or carpeted if complaints were received.
The caution expressed by the Owners arose from their experience with another unit in the complex where hard flooring had to be removed due to complaints from other proprietors. The Fownes' were therefore left in no doubt that should a breach occur, they would be required to take remedial steps at their cost.
The Tribunal does not accept the contention by Mrs Hutchinson or Mrs Fownes that the Owners had pre-determined the matter before the renovation had been completed. The mere fact that the Owners or Mr Symons expressed concerns when the renovations commenced, does not constitute any predisposition on their part. The Owners merely did what responsible managers would do. From the evidence by Mr Lutz and minutes of meetings, it appears that the Owners acted in a responsible and professional way and in accordance with their duties under the Strata Titles Act 1985 (WA) (ST Act).
The Tribunal notes that the Owners did not base their concerns on the question whether the renovations are in compliance with the Building Code of Australia. The Owners stressed that regardless of the type of material used to ameliorate noise, a breach of Schedule 2 by‑law 10 of the ST Act may yet occur due to the noise transmission of hard flooring.
Complaint
According to the evidence of Mr Symons, the noise level in his unit became "prohibitive" immediately after installation of the hard flooring. On 31 December 2004, the strata manager wrote to the Fownes' to bring the complaints to their attention and to request that they take remedial action. Since that time the matter remained on the agenda of the Owners. Due to the matter being unresolved, the Council authorised on 29 June 2005 that an application be submitted to the Tribunal for an order to require the Fownes' to comply with Schedule 2 by‑law 10. The application was lodged on 9 September 2005.
The Fownes' opposed the application on grounds that the floor space was sufficiently covered to prevent noise from being transmitted to unit 10. They based the objection on three grounds namely the assurances given to them by the designer; the findings of an expert report commissioned by them and the "excessive" noise generated during the site inspection.
Ms Kenny pointed out that the ST Act does not prohibit hard flooring – it merely requires that steps be taken to prevent the transmission of noise. According to Mrs Fownes they were aware of several modern units that have installed tiles or timber flooring in the living areas.
It is not within the jurisdiction of the Tribunal to deal with assurances that might have been given by Mr Cox. Mr Cox was not called to give evidence and the quality of the material used is not the subject of this application. Regardless of the quality of material used to install the hard flooring, the question for the Tribunal to determine is whether Schedule 2 by-law 10 is breached.
The expert report drafted by Mr Tim Reynolds of Herring Storer Acoustics found that the noise in the entry area was 69bD and in excess of the recommended level set by the Association of Australian Acoustical Consultants. According to Mr Reynolds the recommended level should not exceed 55dB. The dining area measured 52dB and the living area 54dB. Unfortunately, Mr Reynolds did not indicate in his report what the audible noise level is in a carpeted area.
Mr Reynolds was not called to give further evidence and his report was not challenged by the Owners or by Mr Symons. Their contention was that the ST Act does not prescribe a certain noise level but that it refers to the "peaceful enjoyment" of an occupier. The measured decibel levels are therefore not conclusive as to what constitutes "peaceful enjoyment" or a breach thereof.
Mr Symons submitted four letters from persons who had visited him at various occasions and who attested to the nuisance caused by persons walking and moving about in unit 12. Two of the letters were signed, one was unsigned and one was in the form of an email. The central theme of the letters was to confirm that Mr Symons had reason to complain about the noise. Although Ms Kenny objected to the letters being admitted into evidence, the Tribunal held that it is not bound by the Rules of Evidence (s 32(2)(a) State Administrative Tribunal Act 2004 (WA)) and that the letters may be admitted. Ms Kenny hence made submissions as to the weight the Tribunal should attach to the letters. The Tribunal noted the content of the letters, but due to the benefit of the site inspection there was no further need to place any particular weight on the letters save to note that the authors had also experienced the noise levels in unit 10.
Ms Ryan‑Brand, who says she visits Mr Symons three to four times per week, gave evidence of the frequent noise that is audible throughout the day when the unit is occupied. According to her, it is sometimes difficult to have a quiet talk, discussion or to take an afternoon rest due to the noise of persons walking, furniture moving and things being dropped in unit 12. Although she accepted that some level noise in a multi‑level strata complex is inevitable, the hard flooring in unit 12 made virtually everything the tenants did in the living area, audible in unit 10.
Mrs Hutchinson suggested that Mr Symons is "oversensitive" and that he was looking for an opportunity to complain about the faintest of noise. Mrs Fownes also gave evidence that their tenants are made aware of the risk of noise to other tenants. She also contended that "peaceful enjoyment" is a relative concept, depending on many subjective factors and that there was nothing to suggest that Schedule 2 by‑law 10 had been breached.
Ms Kenny contended that the onus of proof is on the Owners and Mr Symons, and that in the absence of an expert report and a record of when and how often disturbances had occurred, the application should be dismissed.
Consideration
The ST Act Schedule 2 by‑law 10 places an obligation on the Fownes' to "ensure" that all the floor spaces within their lot other than what is referred to as the "wet areas" are covered or treated to "an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment" of the occupier of another lot (Tribunal emphasis).
The application did not refer to the outside balcony and the Tribunal will therefore treat it in similar vein as the "wet areas".
As was pointed out by Mazza DCJ 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 the by‑law. First, the decision‑maker had to be satisfied that the noise which was transmitted was likely to disturb the peaceful enjoyment of the proprietor concerned. Second, the transmission of the noise must have been caused by the other proprietor's failure to cover, or otherwise treat the floor space to prevent the transmission of noise.
The 62 decibel prescribed by the Building Code of Australia is useful in determining what building requirements apply, but the ST Act clearly has a different and arguably higher test in mind, namely the peaceful enjoyment of a unit. It is therefore quite possible that the building standard is complied with but that the Schedule 2 by‑law 10 is nevertheless breached. The question whether the by‑law is breached is therefore subjective and depends on the evidence of a particular case. (Zadnik and Bizzaca [2005] WASAT 333)
The ST Act does not include reference to a decibel level, but focuses on the right of a person to have peaceful enjoyment of his/her unit. Had Parliament intended to set an objective test such as a decibel level, it could have done so. In the absence of an objective test, the Tribunal must take into account all the circumstances to determine if a breach of the Act has occurred.
The ST Act refers to a noise level that is "likely to disturb". It is within the discretion of the Tribunal to make a determination on the available evidence as to whether the noise that emanates from unit 12 is in contravention of the by‑law. According to the expert evidence 62 decibels is at the upper scale of noise transmission. The Fownes' accepted that the noise emanating from the lobby/entrance is in excess of what is recommend by their own expert.
The expert report did not address the standard set by Schedule 2 by‑law 10 of the ST Act. The Tribunal accepts that the technical specifications of the Building Code of Australia have been complied with but that does not in itself mean that the by‑law has not been breached.
The Tribunal was greatly assisted by the site inspection. The Tribunal, in the presence of the parties, requested persons to walk around and move furniture in the unit 12 while the Member accompanied by some of the witnesses and representatives of the parties attended unit 10. The Member requested the persons in unit 12 to walk around and do such things as would normally be done in the living areas.
Although Mrs Fownes contended that the noise generated during the inspection was excessive, the Tribunal found the demonstration most useful. Mr Munday, the strata manager, who attended unit 12 while the demonstration was taking place, gave credible evidence as to what had happened and what types of activities were conducted by those in unit 12. According to him, the walking, opening of drawers and even some "stamping" of feet were "entirely reasonable" if account is taken that in a three bedroom unit adults and children can walk around, move furniture, play games, sit at a dining table and move chairs in and out, and drop items. The presence of visitors would normally lead to an even higher level of usage of the hard floor areas.
The Tribunal found the noise to be clearly audible in unit 10. The Tribunal has no doubt that the clearly audible noise of persons in unit 12 just going about their daily activities, would constitute a high level of nuisance, discomfort and interruption of the lifestyle of the tenant in unit 10. The sounds of persons walking (male and female), chairs pulled out and pushed back at the dining room table and items dropped were clearly audible in unit 10. It is surprising that the application had not reached the Tribunal earlier.
The Tribunal was surprised that the Fownes' had not implemented more reasonable measures to ameliorate the noise given that complaints had been ongoing for a few years. Although a few loose carpets have been placed around in the living area, the main walking areas were without any carpeting or rugs to absorb the noise. It was apparent to the Tribunal that even to those living in unit 12, the noise of high‑heel or leather shoes on the hard floor would be untenable. This observation was confirmed by Mrs Hutchinson who remarked that she would not be able to live with the noise that was generated within unit 12.
The Fownes' are under an obligation to "ensure" that noise does not transmit from their unit to others in a manner that affects the peaceful enjoyment of such other unit/s. Although the Tribunal accepts that some level of noise would protrude from one unit to another in a multilevel strata complex, the Fownes' are obliged under the ST Act to take whatever steps are necessary to prevent noise that is "likely" to disturb another proprietor. It is therefore not any noise that might constitute a breach, but those noises that "disturb" the reasonable enjoyment. Although the flooring had been installed with an adhesive that was supposed to limit noise transmission, the Tribunal finds that it is clearly not effective to comply with Schedule 2 by‑law 10.
The Tribunal is therefore satisfied that on the basis of the evidence before it, a finding can be made that (i) the noise transmitted from the Fownes' unit is likely to disturb the peaceful enjoyment of Mr Symons and (ii) it is the hard flooring that causes the problem to arise.
Orders should therefore be made to require the Fownes' and their tenants to comply with Schedule 2 by‑law 10 of the ST Act.
Orders:
1.The respondent must within 60 days from the date of these orders take steps to ensure that all floor space within the lot (other than that comprising the kitchen, laundry, lavatory, bathroom and balcony) is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietor, occupier or resident of lot 10.
2.Order 1 shall not cease to have any force or effect upon the expiration of the period of two years that next succeeds the making of this Order.
3.Until such time as Order 1 is complied with, no hard‑soled or high‑heel shoes may be worn in unit 12 on floor space the subject of the Order between the hours of 6 pm and 6 am.
4.The respondent must take steps to ensure that their tenants are aware of and comply with Order 3.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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