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Hi All
I have posted before about an owner that was a member of our SC that did not apply to install hard flooring and broke our Special by-law which states hard flooring throughout with a Star 4 rating except the bedrooms which are to remain carpeted. The owner installed hard flooring including the bedrooms and when tested by an acoustic engineer was a Star 2 – not good.
The building is concrete slab construction about 50 years old and does not have the construction features of modern buildings to help minimise noise transference.
This was to go to NCAT on 6th April unfortunately the solicitor we had left the law firm and the principal solicitor would not respond to any attempts to communicate – including the strata manager, SC and the respondents solicitor.
We had to withdraw the application.
We have since re established contact with our solicitor but at a new firm and the tone is a little different.
They are suggesting two resolutions we could pursue:
1. Re submit to NCAT but run the risk of the tribunal saying the by-law may be considered Harsh, unconscionable and oppressive because of the restriction on the bedrooms and therefore we run the risk that hard flooring would be allowed in the bedrooms. They also point out the additional cost to OC to pursue this.
My understanding is that our by-law is not a blanket by-law and takes into account owners wanting to install hard flooring and owners who want to avoid noise transference in the bedrooms.
2. Resolve the matter by coming to an agreement – the owners have said they will put carpet in the bedrooms and install a flooring system that when a sample was tested in the building it was a Star 4. However it rated a 50 which is right at the top end of Star 4. When this system is actually installed it therefore could be 3 below the sample testing thus making it a Star 3. The owners will only do this if they do not have to get the new floor tested thus giving certainty.
My questions are:
Could our Special by-law be considered harsh, oppressive etc?
I remember Flat Chat informing us about a case won because NCAT considered noise transference particularly in the bedrooms – do you know the case name?
Can an owner that has not complied with SSMA 110 – no application to install the flooring and therefore breaking the law be awarded cost by the court?
Do you think the settlement option is reasonable?Thanks
Slim
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Taking a case to NCAT is a lottery, especially since some Members are viewing by-laws that have previously been accepted for years as now being harsh and unconscionable.
And there are other factors. Take a look at this case where the Member decided that because the Acoustic engineer did not specifically say that fitted carpet with underlay was more effective than Persian carpet in reducing noise, then areas that weren’t covered by the Persian carpet did not need to be carpeted. I know! The logic or lack thereof is baffling.
And in this case, the Member has ruled that because the building was old, the residents should not expect a level of sound insulation that would be mandatory in a new building (ignoring the fact that the sound insulation was fine before the upstairs resident ripped up the carpet and installed timber floors).
Most alarming is the fact that the Member seems to accept that the advice of the flooring supplier that 5mm insulation was “the best available” was reasonable grounds for the upstairs neighbour to proceed. Fort the record, my building insists on 11mm Regupol (rubber).
In the latter case, the by-laws simply say the flooring insulation must be sufficient to prevent the transmission of intrusive noise. The Member appears to be ruling that this is not enough and they should have included specific rules, presumably with acoustic ratings. It’s worth noting that two senior members of NCAT later rejected an application for the decision to be appealed.
However, it seems to me in your case that the upstairs owner, as a member of the committee, should have known what the by-laws were and have acted accordingly.
I don’t think it’s at all unusual for bedrooms to be treated differently than other rooms, when it comes to floor covering. But it seems this new law firm is less than fired-up about this, and that would worry me. Are they going to go in half-hearted or with all guns blazing?
I think I would be seeking a second opinion from a specialist strata lawyer with a track record in successfully pursuing cases of this nature before I settled on a compromise.
After all, the by-laws were clear, the upstairs owner should have known what they were but then chose to put down cheap flooring at your expense. A smart lawyer will line up a stack of evidence to show that separate conditions for bedrooms are standard practice and not at all “harsh or unconscionable”. Someone has to draw the line somewhere.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Over the last 8 years, our large scheme in NSW has had 7 or 8 flooring/noise issues that have gone to Mediation/NCAT – with mostly good outcomes for all parties. But the means of getting a resolution has been different each time.
On one occasion (which seems similar to yours), the tribunal member turned around a ‘flooring issue’ into a ‘noise’ issue’! by tasking all parties to conduct a simple noise test ourselves -that is, dropping car keys and moving chairs around. Whilst it took some time to get both parties and witnesses together, the result was instant and amazing! The offending floor installer got the shock of his life by the “noise” coming from his apartment and he instantly agreed to remove the hard flooring entirely.
Such a test may not be possible or helpful in your case, but it would certainly show to NCAT that you have made every attempt to resolve the issue and could be part of any ‘negotiation’.
You may also want to consider whether using the ‘noise’ by-law instead of the ‘flooring’ bylaw is a better way to go. Just don’t put them together in one case!
My experience has been that relying on the strict wording of any by-law is fraught.
Flatchatter g-g – You hit the nail on the head.
It is a noise issue primarily, and compliance with a flooring by-law secondarily.
This is the noise by-law in the Model By-Laws for Residential Strata Schemes:
NoiseAn owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.
In terms of NCAT, provided the acoustic engineer’s evidence is good enough, NCAT will make orders for abatement of the noise – usually carpeting.
To support any application to NCAT, the person(s) affected by the noise would be best advised to attach a Statutory Declaration setting out how the noise is affecting them – sleep, children, pets, anxiety, stress – come to mind.
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