Blenheim [2025] QBCCMCmr 371 (28 October 2025)

BY-LAWS - NUISANCE - whether a change of flooring in the respondent's lot is resulting in noise in the applicant's lot in breach of the by-laws or the legislation - whether the flooring must be replaced - COSTS - whether costs should be awarded against the applicant.

Act, ss 56, 167, 270

• [1] This application is about impact noise. The applicant says that since the respondent replaced the carpet in their Lot 11 with hard flooring, they have suffered ongoing noise that interferes with their use of their lot. The applicant's Lot 9 is not directly below Lot 11, but the lots share a common wall. The applicant asserts that impact noise is transmitted from Lot 11 down the internal blockwork wall and across the slab ceiling into Lot 9. The applicant alleges the respondent is breaching By-law 3 in this regard. They notified the body corporate but say it has not given the respondent a by-law contravention notice.
• [2] The applicant wants the respondent to reinstall carpet in Lot 11. The question then is whether the respondent is breaching their obligations such that an order is warranted.

• [3] Blenheim community titles scheme 7037 (Blenheim) is a 13-lot scheme in Taringa. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 8247.
• [4] The application seeks "An Order for the Owner of Unit 11 to install wall to wall carpet in all rooms in Unit 11 that were originally carpet."

• [5] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [6] The applicant originally brought a conciliation application against the body corporate in May 2024 regarding the hard flooring issue.[3] Those parties reached a conciliated agreement in July 2024. The applicant subsequently applied for conciliation against the respondent in June 2025.[4] The parties did not reach an agreement at conciliation.
• [7] This application was made on 13 July 2025. The Commissioner invited submissions from all owners.[5] The respondent made a submission, which the applicant responded to.[6]
• [8] The application was referred to department adjudication.[7] I have now investigated the dispute, including reviewing the application and submissions.[8]
• [9] The respondent indicated in their submission that they were selling Lot 11. Titles records confirm that ownership of the lot was subsequently transferred in September.

• [10] When the respondent acquired Lot 11 in February 2019 it was carpeted. In August 2022 they sought to replace the carpet. They say they submitted a form to the body corporate manager (BCM) with specifications of the proposed hybrid acoustic plank flooring and say the BCM advised formal approval was not required. They scheduled the work soon after on that basis. The respondent says after the installation commenced, they were told the information given by the BCM was incorrect. They say they engaged with the committee to rectify the matter.
• [11] In October 2023 the applicant wrote to the committee noting that carpet in Lot 11 had been replaced and querying if the new flooring was approved. They said they were experiencing ongoing noise transfer in their bedroom. They said there was nothing in Lots 8 and 12 to account for the noise, and Lot 6 was unoccupied. Accordingly, they were concerned the noise was being transmitted from Lot 11. The applicant wrote again in November, asserting that approval for the hard flooring could not be given and that it should be replaced with carpet. The applicant made a further noise complaint in early December. They noted they relied on hearing aids but said the noise was heard when the hearing aids were not being worn.
• [12] On 12 December 2023 the committee resolved to approve the installation of hybrid hard flooring in Lot 11, subject to 6 listed conditions. The first condition was "That the issue of noise transmission has been adequately addressed in accordance with the Body Corporate By-law 22. Hard flooring is to be laid in accordance with the Australian and manufacturers Standard. Australian standard Certification to be provided to the committee on completion of work."
• [13] In March 2024 the applicant asked the body corporate to reconsider its approval of the Lot 11 flooring. The committee refused and said the conditions of approval had been met. The applicant then submitted a BCCM Form 1 alleging a breach of By-law 3 by the respondent. The applicant also applied for conciliation against the body corporate.
• [14] At conciliation the body corporate agreed to propose changes to the by-laws and to remind owners and occupiers of their obligations under the by-laws. A new CMS was recorded in October 2024, amending some by-laws.
• [15] In February and March 2025, the applicant wrote to the respondent alleging acoustic testing had demonstrated noise transmission from Lot 11 to Lot 9 and alleging a breach of By-law 3.
• [16] In April 2025 the applicant wrote to the body corporate complaining of the continuing noise and giving a new BCCM Form 1 alleging a breach of By-law 3 by the respondent. The applicant subsequently applied for conciliation against the respondent.
• [17] On 30 June 2025 the applicant obtained a report from Acoustic Works detailing acoustic testing conducted on 25 July 2024. It said the floor impact test originating in the Lot 11 living room and received in the Lot 9 master bedroom was 51 LnT,w. It noted the mandatory criteria is 62 LnT,w, so the results were 11 dB better than the minimum. Based on that, it assumed the flooring has acoustic underlay. It noted that impact noise was audible within the load bearing blockwork walls. It speculated that the performance of the existing structure would be 70 to 75 LnT,w, such that the performance of 51 dB was outcome. It said the installation of the timber floor could be said to have resulted in a decreased amenity compared to the previous carpet. It noted the transmission of impact noise may be noticed through the wall as well as the ceiling.

• [18] The respondent says the application is vexatious and misconceived and should be dismissed, with costs. They say the flooring was lawfully approved, it substantially exceeds acoustic standards, the applicant has not provided credible evidence of a nuisance or unreasonable interference, and the noise logs are undermined by discrepancies and questions of credibility.
• [19] The submission discusses the installation and approval of the flooring. They say the committee was aware of the applicant's complaints when it made its decision, so the approval represents a finding that the issue of noise had been adequately addressed. They note the applicant did not pursue a challenge to the committee's decision.
• [20] The respondent notes that Lot 11 is not directly above Lot 9 and only shares a common wall. They say the Acoustic Works report says the building is constructed with load bearing blockwork which is a significant factor in the transmission of structure-borne noise. They say they cannot be held responsible for an inherent structural characteristic of the building. They say the applicant's assumption that any noise heard in Lot 9 must originate from Lot 11 is flawed, as it could originate from other lots above or from common property infrastructure. They say the claims of identifying specific noises is highly speculative and casts doubt on the applicant's ability to reliably attribute the source of any noise heard.
• [21] The respondent details their occupancy of the lot. They say on four of the dates the applicant logged noise, the lot was vacant. They describe their routine and use of the lot while in residence and, based on that, say it is highly improbable that all logged noise originated from Lot 11. The respondent also notes that the applicant has admitted to relying on hearing aids and that those aids were not worn when the noise log was created. They say the flaws in the logs render them speculative and unreliable.
• [22] The submission discusses the test for nuisance and unreasonable interference under the Act. They say a mere change in the type or level of ambient noise in a multi-unit dwelling, or a change in amenity, does not automatically constitute a legal nuisance. They discuss the previous and new by-laws. They say the applicant has not demonstrated an objectively unreasonable interference. They say Acoustic Works measured the actual performance of the floor and showed the floor performed 11 decibels better than the mandatory national standard. It further said the result was a reasonable outcome based on the current structure.
• [23] The respondent says despite the high acoustic rating of their flooring and the body corporate's approval, they have taken additional voluntary steps to mitigate noise. They say they have 35mm thick, memory foam rugs covering the living area and children's play area. They also say they have fitted all furniture with felt protectors on the feet to prevent scraping noises.
• [24] The submission further says the order to remove the approved, compliant, and high-performing hybrid acoustic flooring would impose a significant financial burden on them that would be unjust, inequitable, and disproportionate in the circumstances. They say they replaced the carpet for hygiene reasons related to the health of their family and requiring a replacement would be an unreasonable imposition on their right to enjoy their property. They also say the existence of this application is having a material impact of their sale of their lot.

• [25] The applicant's response to the submission includes:
  1. It is a reasonable expectation that owners are aware of the requirement for approvals and that responsibility should not be abrogated.
  2. The committee asked the respondent for acoustic testing of the flooring in November 2023, but the respondent refused. The committee approved the flooring despite that.
  3. While the physical structure of the building cannot be altered by any owner, community living requires a heightened awareness and consideration of other residents.
  4. Acoustic flooring underlay does not prevent the generation of hard floor impact noise.
  5. The assertion that Lot 11 is not the source of the noise is incorrect. The start of the noise coincided with the new flooring and ceases when the lot is unoccupied.
  6. They are not the only owner who has made a complaint. The previous owner of Lot 8 complained. Lot 6 would be affected has been vacant for several years.
  7. The use of rugs and felt protectors has been ineffectual as furniture scraping noise and other impact noise is clearly heard in Lot 9.
  8. They have a high degree of certainty with regard to the periods in the noise logs.
  9. It would be reasonable to establish that where someone with impaired hearing is so negatively disturbed by noise from Lot 11 that the noise level is significant.
  10. The respondent has contradicted the times of their routine, suggesting it varies.
  11. Acoustic Works made a distinction between the acceptable code levels and the suitability of those standards. It stated there would be a significant difference between the noise levels between the new flooring compared with the previous carpet, decreasing their peaceful enjoyment.
  12. Their complaint is not frivolous or vexatious.

• [26] The substantive issue in this application is whether the respondent is breaching the legislation or by-laws regarding noise associated with the hard flooring in Lot 11. In deciding that I will consider the relevant legislation and by-law provisions and then the evidence submitted. As the applicant has not sought to invalidate the decision to approve the Lot 11 flooring,[9] any issues the applicant has with that approval are beyond the scope of this application.[10]

• [27] Although the applicant does not specifically refer to it, the legislation sets out overriding obligation on occupiers regarding the use of a lot or common property that could affect others. Section 167(1) of the Act states:
  1. Nuisances

(1) The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that -

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

• [28] The Queensland Civil and Administrative Tribunal (QCAT) has considered the terms 'nuisance' and 'unreasonable interference' in section 167 of the Act.[11] Then President Wilson said a nuisance must result in "...a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises."[12] The 'ordinary and accustomed use' of premises is not considered a nuisance, even if some inconvenience to a neighbour is caused.[13] There is a need to establish whether the alleged activity was "... of such volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity."[14]
• [29] Having regard to the case law, the relevant principles in section 167(1) of the Act are:[15]
  1. The term 'nuisance' carries the common law meaning of private nuisance.
  2. 'Interferes unreasonably' is construed according to the normal meaning of the words.
  3. The test for 'nuisance' requires a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises.
  4. The test for 'unreasonable interference' does not involve any notion of substantiality.
  5. The test for 'nuisance' and 'unreasonable interference' is objective.

• [30] The current CMS for Blenheim includes the following By-law 3:[16]
  1. Noise, Nuisance and Behaviour

(a) An Occupier must not use, or permit the use of, a Lot or the Common Property in a way that:

(i) Causes a nuisance or hazard;

(ii) Interferes unreasonably with the use and enjoyment of another Lot; or

(iii) Interferes unreasonably with the use or enjoyment of the Common Property.

(b) An Owner or Occupier when conducting any renovation or works within their Lot must ensure that;

(i) reasonable measures are undertaken to restrict the noise and disturbance to other Owners and Occupiers;

(ii) any works are only undertaken within reasonable hours and in accordance with any applicable regulations; and

(iii) other Owners and Occupiers are provided with reasonable notification prior to the commencing the works or renovations.

• [31] Where By-law 3(a) closely reflects the wording in section 167(1) of the Act, the test for a breach of that by-law would be the same.
• [32] In addition, By-law 18 includes detailed provisions that would apply to any changes to floor coverings in lots, with a stated requirement that owners maintain a high standard of soundproofing in their lots.
• [33] Before the current CMS was recorded, a CMS recorded in 2019 applied.[17] It included By-law 22 which required body corporate consent to replace soft floor coverings with hard floor coverings and associated requirements. Under By-law 1 an occupier could not create noise likely to interfere with the peaceful enjoyment of a person on another lot or common property.[18]
• [34] As the 2019 CMS was in force when the respondent replaced their flooring and when it was approved, the requirements of the former By-law 22 (rather than the new By-law 18) applied to the approval of the installation. But it is the current By-law 3, rather than the old By-law 1, that now regulates the respondent's use of their lot.
• [35] By-laws are binding on all owners and occupiers.[19] The Act imposes a duty on the body corporate to enforce the CMS, including the by-laws, but it must act reasonably in doing so.[20] The legislation sets out the processes for pursuing an alleged by-law breach.[21]

• [36] A degree of noise and noise transference between lots is to be expected within a community titles scheme. The occupier of an apartment cannot expect silence or the level of peace and quiet that is likely in a freestanding house. An increase in the volume or frequency of audible noise, or a degree of annoyance from noise, will not of itself amount to a nuisance or unreasonable interference. However, occupants should not be exposed to noise of a significant volume and frequency.
• [37] The Australian Building Code Board's National Construction Code Volume One (for Class 2 to Class 9 Buildings) (the NCC),[22] sets out the technical design and construction requirements for multi-residential, commercial, industrial, and public assembly buildings. It is not the role of an adjudicator to enforce compliance with the NCC. However, evidence of non-compliance with NCC requirements may be relevant in considering whether an owner or occupier is meeting their obligations under the body corporate legislation and the by-laws.
• [38] In regard to noise transference, the NCC requires that the part of a building separating sole-occupancy units in a Class 2 or 3 building must be constructed to prevent undue sound transmission and the floor must minimise the transmission of airborne and impact generated sound.[23] It refers to standards including a weighted standardised impact sound pressure level (LnT,w) of not more than 62 decibels (dB) for impact generated sound.
• [39] I understand there is a view in the industry that the NCC minimum requirements achieve a comparatively poor level of impact noise isolation such that, even when the NCC criteria are met, ordinary domestic activities can cause intrusive levels of noise. Some recommend a minimum of 55 LnT,w,[24] which would achieve a 3-star rating (in a building rating system ranging from 2 to 6 stars) outlined by the Association of Australasian Acoustical Consultants.[25]

• [40] The applicant bears the onus of proof. It is not the case that no noise can originate from Lot 11 or that the applicant is entitled not to hear any noise. To evidence a breach of section 167 of the Act or By-law 3, the applicant must establish that noise is experienced in Lot 9, that the noise originates from Lot 11, and that the volume and frequency of the noise interferes unreasonably with reasonable standards for the use and enjoyment of Lot 9.
• [41] Presumable, the applicant thinks all three is occurring. But these are objective rather than subjective questions. Fundamentally, no objective evidence of noise, its source, or its impact is provided. The applicant largely relies only on their own bare assertions.
• [42] The applicant provides logs of the dates and times that noise is said to have been experienced in the Lot 9 main bedroom, with a brief description of the type of noise. These include alleged noise incidents experienced on 5 October 2023, 6 to 10 December 2023, 15 February 2025, and 12 dates in April and May 2025. Acoustic Works noted audible noise in the lot during the testing in July 2024. But otherwise, the applicant has provided no corroborating evidence of the existence or frequency of noise experienced in the lot. The applicant claims others have made complaints but does not provide statements or other evidence to support that.
• [43] The applicant has not provided little objective evidence that the noise claimed to be experienced in Lot 9 emanated from Lot 11 a result of the changed flooring. The applicant claims the noise only started when the flooring was changed, but it seems the applicant did not raise an issue until more than a year after the flooring changed. And the respondent says Lot 11 was vacant on some dates in the applicant's noise logs. Noting the Acoustic Works report, it may be that more noise is experienced in Lot 9 since new flooring was installed in Lot 11. But where there was no acoustic testing of other potential sources of noise (including the other lots above Lot 9), the source of all noise experienced in Lot 9 appears to be speculation.
• [44] Moreover, even if all the noise experienced in Lot 9 has emanated from Lot 11, and that the increased noise can be solely attributable to the flooring change, that does not of itself mean the level of noise has breached the objective standard of a legal nuisance or unreasonable interference or that the respondent is breaching their obligations has under By-law 3. No objective evidence of the nature or volume of the noise substantiates that claim.
• [45] The fact that the noise transference between Lots 11 and 9 recorded in July 2024 meets the NCC standard does not necessarily mean there could be no nuisance or unreasonable interference emanating from Lot 11. But the testing shows the transmission of impact generated sound between Lots 11 and 9 significantly exceeds the minimum standard, and also exceeds the minimum that some in the industry recommend. That does not support a finding of unreasonable interference, and no other objective evidence has been provided.

• [46] The Act provides that an adjudicator may dismiss an application if satisfied the application is frivolous, vexatious, misconceived, or without substance.[26] If an application is dismissed on that basis, the adjudicator can award costs (up to a maximum of $2,000) incurred by a party for loss arising from the application.[27]
• [47] The respondent says they have acted in lawfully, reasonably, and in good faith throughout and installed a high-quality flooring product that has been proven to significantly exceed mandatory requirements. They say there is nothing to link the noises the applicant purports to hear to the respondent's lot. Given all the circumstances, they say they cannot be the cause of the noises the applicant complains of. Given that, they argue the application is vexatious and misconceived. They ask that it be dismissed on that basis, with costs of $2,000.
• [48] The applicant denies the application is frivolous or vexatious, and says they are simply seeking to have their quality of living returned.
• [49] I do not consider the respondent has established that the application was frivolous or vexatious. I have no evidence that the applicant is not pursuing genuine concerns. However, there is a question that the application was misconceived and without substance. The applicant's own expert evidence shows the performance of the disputed flooring is significantly better than the relevant standards. The applicant provides no objective evidence to establish the existence that significant noise is emanating from Lot 11 at all, or that any noise originating from that lot rises to the level of a nuisance or unreasonable interference.
• [50] The applicant has put the respondent to significant expense in responding to the claims in this application, in addition to the complaints made to the respondent and the body corporate over an extended period and the other impacts of this application. However, given the circumstances, including that this is the applicant's first adjudication application, on this occasion I will not exercise my discretion to award costs.

• [51] The applicant has not discharged their onus of proof in this application. The applicant has provided little evidence that noise claimed to be experienced in Lot 9 has originated from Lot 11 (rather than from elsewhere in the building). And to the extent that any noise the applicant experiences does originate from Lot 11, they have not established that the volume or frequency of that noise meets the test for a nuisance or an unreasonable interference with the use of Lot 9. As the respondent is no longer the owner of Lot 11, the respondent could not change the flooring in Lot 11 even if the application was successful. But the applicant has not established the legal basis for an order to be made against any owner of Lot 11. It follows that I have dismissed the application.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[9] Any such challenge should have been commenced within 3 months of the decision, pursuant to section 242 of the Act, unless there was good reason to waive the time limit.

[10] I note in any event that the application does not appear to identify any substantive basis to challenge the committee's decision.

[11] See for example, Norbury v Hogan [2010] QCATA 27, Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25

[12] Oldham v Lawson [1976] VicRp 69; (1976) VR 654, in Norbury v Hogan [2010] QCATA 27 at 15

[13] Norbury v Hogan [2010] QCATA 27 at 17

[14] Norbury v Hogan [2010] QCATA 27 at 28, 31

[15] Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130, particularly paras 32-49

[16] Recorded 17 October 2024, Titles dealing number 723608647

[17] Recorded 5 September 2019, Titles dealing number 719605080

[18] Under section 180(1) of the Act, a by-law that is inconsistent with the Act or the regulations (or another Act) is void to the extent of the inconsistency. There could be a question of whether the former By-law 1 would have been inconsistent with section 167 of the Act if it purported to impose a significantly higher standard of conduct and purported to prohibit low levels of noise with only minor impacts.

[22] www.abcb.gov.au

[23] Clauses F7F1, F7P1, F7V1 and F7D5 of the NCC

[24] H-C Huang, 'Field Floor Impact Noise South-East Queensland (Australia)', Inter-noise Conference 2014, www.acoustics.asn.au/conference_proceedings/INTERNOISE2014/papers/p227.pdf

[25] Association of Australasian Acoustical Consultants, Guideline for Apartment and Townhouse Acoustic Rating, June 2017, http://aaac.org.au/

[27] Sections 270(3) and (4) of the Act