Wearne v Tricare Australia Limited

[2013] QCAT 169

CITATION: Wearne v Tricare Australia Limited [2013] QCAT 169

PARTIES:	Joyce Mary Wearne (Applicant)
v
Tricare Australia Limited ACN 010 583 392 (Respondent)

APPLICATION NUMBER: OCL068-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Pam Goodman, Member

DELIVERED ON: 18 April 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     The respondent to these proceedings is Tricare Australia Limited ACN 010 583 392

2.     The applicant may elect to accept any of the following, any such acceptance to be communicated in writing to the respondent by 4:00 pm on 31 July 2013:

I.     The respondent may buy back from the applicant the unit she currently resides in, at the price she paid with no exit fee payable; or

II.     The applicant may be transferred to another unit within the Cypress Gardens Retirement Community not affected by the pump noise, with an adjustment either way for any difference in unit value; or

III.    The applicant’s unit may be modified at the expense of the respondent so that there are no external operational windows or doors which could be affected by the noise from the pump.

3.     Should the applicant elect to move from her unit, the respondent will meet all reasonable costs of the move, including packing and unpacking, cleaning and removal costs, and pay up to $1,500 to meet the cost of obtaining legal and financial advice regarding entry into a further accommodation contract.

CATCHWORDS:

Where noise from a pool heater interfering with the applicant’s right to live in quiet enjoyment of her unit

Retirement Villages Act 1999 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

BACKGROUND

1. The applicant moved into a unit at the Cypress Gardens Retirement Community (the village) in August 2010. The village is operated by the respondent.  The applicant’s unit is affected by noise from swimming pool heating pumps located close to the unit.

1. After moving in the applicant complained about the noise from the pumps and the respondent has taken some measures to reduce the noise levels. These measures have not resolved the applicant’s complaints.

PRELIMINARY MATTER

1. The respondent submits that this application should be dismissed as it is misnamed in the application as “TriCare Ltd” rather than “TriCare Australia Limited ACN 010 583 392”. The applicant has lodged an application for a direction that “Australia” be inserted in the relevant place in the application. The applicant states that if the proceedings were dismissed at this late stage, it would not terminate the dispute but cause a new application to be lodged, putting the parties and the Tribunal to the time and expense of running the same proceeding again.

1. There appears to be have been no confusion as to who the parties to these proceedings are, and there is no evidence that the respondent’s interests in defending this application have been prejudiced. The respondent has taken part in all preliminary processes and this matter is now ready for determination.

1. I am satisfied that finalising this matter is consistent with the objects of the QCAT Act and the Tribunal’s functions. Accordingly, the applicant in these proceedings is formally acknowledged to be TriCare Australia Limited ACN 010 583 392.

ORDERS SOUGHT

The applicant seeks Orders as follows:

1.That the respondent reduce the noise emanating from the pool-related pumps near the applicant’s unit as far as necessary to ensure that:

i.     The equipment does not interfere with the applicant’s quiet enjoyment of her unit; and

ii. The equipment complies with the applicable noise standards under s440T of the Environmental Protection Act 1994 (Qld).

2.That the respondent pay the applicants costs.

3.Further or other orders the Tribunal considers just in order to resolve the dispute.

The respondent seeks Orders as follows:

1.The application be dismissed on the basis that offers previously made to the applicant be left open for a period of 3 months.

(Offers previously made:

·        The respondent buy back the unit from the applicant at the price she paid for the purchase, and no exit fee is to be payable; or

·        The applicant be transferred to another unit within the village not affected by the pump noise, with an adjustment either way for any difference in unit value; or

·        The applicant’s unit be modified at the expense of the respondent so that there are no external operational windows or doors which could be affected by the noise from the pump.

The respondent has offered to assist the applicant in meeting costs of moving, should she decide to.)

HISTORY OF THE DISPUTE:

1. The applicant resides in a unit in a village operated by the respondent and registered in accordance with the Retirement Villages Act 1999 (Qld). The applicant occupies the unit pursuant to a 99 year lease dated 7 July 2010. She moved into the unit on 5 August 2010.

1. The lease includes the terms of a public information document (PID) provided by the respondent to the applicant. The PID provides, in part, that the applicant has the right to live in quiet enjoyment of the accommodation unit.

2. When she was inspecting the unit prior to entering into the lease, the applicant discussed audible pool pump noise with a representative of the respondent. The applicant states that when she asked whether the pumps were turned off at night, the representative answered “We wouldn’t expect you to sleep with that noise. I will confirm that with the maintenance manager”.

1. The respondent states that during the inspection the representative drew the applicant’s attention to the noise from the pool pumps and indicated that she did not know when they ran, and that she would need to check with the maintenance person. The respondent states that there was “full disclosure by the respondent about the noise made by the pumps”.

1. The parties agree that that there were no further conversations between them about the pumps prior to the lease being signed.

1. After moving into the unit the applicant complained about the noise, and engaged an acoustic consultant (Craig Hill Acoustics) who tested noise levels on her balcony on 1 September 2010 while the pool pumps were running. The consultant found that “ambient levels (the front entrance of the complex where pool pump noise was not audible) were exceeded by up to 13dB(A) above the acceptable criteria (background +5 dB(A)) for day and evenings” and that “disturbance and loss of acceptable acoustic amenity of receivers is likely”.

1. On 11 March 2011 The Gold Coast City Council conducted noise level testing from the applicant’s bedroom. They found that the pool pump was “making noise of 9 dB(A) above the background level”. The council advised:

The following information may be of use to you as a guide for acceptable levels for any private action proposed:

S 440T(b)(Pumps) of the Environmental Protection Act 1994 makes it an offence for an occupier of an premises to use or permit the use of a pump on any day from 7am to 7 pm if it makes a noise of more than 5dB(A) above the background level. This noise standard is used by authorised persons when investigating a noise source on a different premises to that of the complainants.

1. On 25 May 2011 a representative of the respondent wrote to the applicant advising that:

·a trial of running the pumps for less than 24 hours a day had not been successful as the pool had not been sufficiently heated, and that the pumps were once again running 24 hours a day, and

·works had been undertaken to reduce the noise including:

o   relocating heat pumping equipment

o   turning the fans in the equipment

o   enclosing pumping equipment in sound insulated boxes

o   relocating spa heat pumping equipment

o   fitting pool heat exchange units with anti vibration mounts

o   fitting pump piping with flexible anti-vibration cuplinks between internal and external plant

o   installation of additional cooling fan

o   fitting an acoustic curtain to pool plant room louver doors

o   installation of acoustic internal window in main bedroom of unit 65.

1. The applicant obtained a second report from Craig Hill Acoustics who conducted further testing on 31 August 2011 and concluded that noise levels continued to exceed levels contained in s 440T of the EPA, although they had reduced following works completed by the respondent.

1. On 13 February 2013 TTM Consulting Pty Ltd provided a report to the respondent, concluding that “noise emanating from the swimming pool heat pumps to inside Apartment 65 bedroom at Cypress Gardens has been investigated. Results of the measurements indicate that noise levels exceed s 440T of the EPA during all time periods. Acoustic treatment would be required to achieve compliance.”

1. TTM Consulting Pty Ltd have not advised what type of acoustic treatment would achieve compliance with s 440T, or the cost of such treatment.

LEGISLATION

1. In making this decision, I have had regard to the provisions of the Queensland Civil and Administrative Tribunal Act 1999 (Qld) (QCAT Act), and the Retirement Villages Act 1999 (Qld) (RVA).

1. I have made reference to the Environmental Protection Act 1994 (Qld) (EPA).

SUBMISSIONS

1. The applicant submits that:

·She was not made aware of the extent of the noise from the pumps prior to signing the lease.

·She has a contractual right to quiet enjoyment of her unit pursuant to the provision of the PDI. The PDI provisions override any suggested oral agreement to waive her right to such quiet enjoyment.

·Her health has been adversely affected by the ongoing noise and by the dispute between the parties.

·The offers from the respondent to buy back her unit and for her to move on do not take into the account the financial and emotional cost to her in relocating her home. She is unable to afford a more expensive unit within the same village.

·Despite work undertaken, the noise levels from the pumps exceed levels prescribed in s 440T of the EPA.

·The respondent has failed to engage suitably qualified and independent engineers to assess the situation and advise on possible solutions.

·Other options are open to the respondent to reduce the noise level. Craig Hill Acoustics  suggested ways to decrease the noise level:

o   Noise shielding above the unit to eliminate line of sight to the windows and balcony. Choice of material to include absorbent linings to reduce reverberation, or

o   Relocating the outdoor unit to the roof top and fitting rated acoustic louvers to plant room, or

o   Investigating the possibility of enclosing the unit with forced air intake.

·Turning off the pumps (even if only at night) is not a workable solution but there are other options available, and the respondent must do whatever it takes to allow the applicant peaceful enjoyment of her unit.

·Even if the respondent was able to bring the pump noise within the limits imposed by s 440T of the EPA, the noise may still constitute a breach of the applicant’s right to quiet enjoyment of her unit.

·The Orders she seeks can be complied with by the respondent.

1. The respondent submits:

·The applicant was aware of the noise from the pumps when she entered into the lease;

·It has expended significant time and money on efforts to reduce the noise - more than $22,000 in hardware alone;

·It is acknowledged that while noise levels have been reduced as a result of the recent works, they continue to exceed the limits referred to in s 440T of the EPA.

·There are no other viable options to reduce the noise from the pumps and there is nothing further it can do to minimise the noise short of modifying the applicant’s unit to prevent the window opening, or shutting off the pumps;

·Switching off the pumps is not viable as it would cause a breach of contracts held with other residents of the village;

·It has made reasonable offers to facilitate the applicant leaving the unit if she is unable to live with the noise from the pumps;

·The orders sought by the applicant cannot be complied with by the operator.

FINDINGS OF THE TRIBUNAL

1. Section 191 of the Retirement Villages Act 1999 gives QCAT the power to make the orders the Tribunal considers just to resolve a retirement village dispute.

1. On the material available, it is not possible to make a finding as to the details of discussions between the parties about the pool pump noise prior to the purchase. I can find that the applicant was aware of the noise when she inspected the unit and that she was not explicitly told that the pumps run 24 hours a day.

1. When considering whether the applicant’s quiet enjoyment of her unit has been interfered with, the Tribunal must impose an objective test. It would not be just to impose a standard requiring the respondent to meet the applicant’s subjective opinion on what level of noise is acceptable to her.

1. Both parties have referred to standards imposed by the EPA, and I am satisfied that it is reasonable to adopt them as a guide to determining what an acceptable level of noise is.

1. It is clear that the current noise levels continue to exceed those set out in the EPA.

1. The applicant claims that the respondent’s duty to take action to meet the levels set out in the EPA should not be qualified by the use of the phrase “viable options”. I do not accept that submission. The question for the Tribunal is not “Is there any way that the noise levels can be reduced?”, the question is “What is a just outcome in this dispute?”. Options must be viable rather than fanciful suggestions.

1. I accept that the respondent has options open to it which could reduce the noise levels further. There is, however, no evidence as to:

·The cost of any further proposed works;

·The intrusiveness of any proposed works on the amenity of village residents; or

·The level that any further works would reduce the noise to.

1. The role of this Tribunal is to make a decision based on the evidence available to it. There is no evidence before me that there is a viable option to undertake works available to the respondent which would reduce the noise to the level prescribed in the EPA. In these circumstances I cannot be satisfied that it is just to make an order as sought by the applicant.

1. It is clear, and is accepted by the respondent, that the unit is affected by noise at levels that exceed the limits set by the EPA. There is undisputed evidence from the applicant that the noise levels are unacceptable to her, and are affecting her health.

1. The respondent has provided a unit to the applicant with a higher level of noise than industry standards deem acceptable. For the reasons set out above, I am unable to determine that ordering further work is just. I find that, if the applicant chooses to leave her unit, the respondent must to do all that it can to place the applicant in the position she would have been in had she not entered into the lease in the first place.

1. On the evidence available to me, I am satisfied that the offers previously made to the applicant, and detailed above, are a reasonable and just outcome to this dispute. I am satisfied that the respondent has made a reasonable attempt to restore the applicant to the position that she was in prior to signing the contract. I note in particular that the respondent has offered to assist in the cost of moving the applicant’s belongings should she move. I am satisfied that it is just that the respondent also meet cleaning costs and the costs of the applicant obtaining independent legal and financial advice regarding any new accommodation arrangement she enters into.

1. I appreciate that there is an emotional and personal cost to the applicant in relocating her home, even within the village. No monetary figure has been placed on that cost by the applicant. If she is unable to live with the current noise levels, and neither of the parties is able to provide a viable option for noise reduction to an acceptable level, a move may be necessary. That of course is a matter for the applicant.

1. If the respondent is unable to find another resident for the noise affected unit, that is a matter for it, and not for this Tribunal.