Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS - where the respondents have installed hard flooring in their lot - whether the respondents have complied with the hard flooring by-laws.

Act, ss 167, 180 to 186

1. I declare that the respondents have contravened the "hard flooring" by-laws for the scheme which require that any installed floor surface is to provide a level of floor impact isolation of L'NT,W 54 or better, between lower or adjacent Occupier areas.
2. Within 6 months of the date of this order, the respondents are to engage, at their own cost, appropriately qualified tradesmen and professionals to undertake remedial works which are to include the following:

(a) Removal of recently installed floor tiles in the lot 71 ensuite, bathroom and powder room, and professional installation of a high quality acoustic underlay system (such as Regupol 6010 dimpled rubber, or similar, as recommended by the acoustic engineer).

(b) Laying a cement screed of at least 30mm before installing new floor tiles.

(c) Ensuring that all pipes are acoustically lagged with pyrotek 4525c pipe lagging (or similar) and sealed to the slab.

(d) Undertaking post-installation impact tests and provide a sound impact isolation test certificate of compliance to the applicants.

I HEREBY CERTIFY this is a true copy of the order and reasons for decision.

• [1] Contessa Condominiums community titles scheme (Contessa Condominiums) consists of 124 lots and common property at Main Beach. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 9107.
• [2] The Applicants are the owners of lot 67 and the respondents are the co-owners of Lot 71 which is located above lot 67.
• [3] The Applicants seek the following outcomes:

1. That the owners of Lot 71 implement the recommendations of the Alpha Acoustics engineers report in full in all wet areas with new flooring (ensuite, bathroom, powder room). These recommendations will require:

(a) The owners of Lot 71 remove all newly installed floor tiles in their ensuite, bathroom and powder room and have a high-quality acoustic underlay system (such as Regupol 6010 or similar as recommended by the acoustic engineer) professionally installed before reinstalling floor tile

(b) Install properly acoustically lagged pyrotek 4525c pipe lagging, sealed to the slab, to all pipe

(c) The owners of Lot 71 undertake a post-installation sound impact test in their ensuite

(d) The owners of Lot 71 undertake a post-installation sound impact test of the adjacent Master bedroom in Lot 67 from their ensuite

(e) Install a sound-dampening ceiling with resilient hangers in the master bedroom of Lot 67

(f) All sound impact tests conducted and a sound impact isolation test certificate of compliance is provided to the applicant

2. The owners undertake all the above at their own cost

3. The owners of Lot 71 compensate the owners of Lot 67 for all costs due their failure to comply with the By-laws

• [4] The applicants say they have lived in lot 67, which is below Lot 71, since 2019. They did not have any issues or complaints about the previous owners of that lot and similarly, did not have any complaints regarding the current owners of lot 71 until they removed all their flooring and replaced it with different materials.
• [5] The respondents moved into lot 71 in November 2022. In April 2023 the respondents replaced tiles in the bathrooms of the lot, and in June 2023, replaced carpet in the living and bedroom areas within the lot with hard flooring. The applicants say no acoustic underlay was installed below new tiles when the lot 71 Ensuite, Bathroom and Powder room were renovated in in 2023. However they say it is common knowledge that professionally installed acoustic underlay should be used under tiles in apartment buildings.
• [6] The applicants say that since the floor coverings were replaced, they hear intrusive noise, including footfall and objects falling onto the floor at night and during the day. They further state that they routinely experience intrusive noise disturbance in their master bedroom loud enough to wake them from sleep, as well as noise in other rooms, and the ensuite.
• [7] The by-laws current at the time of the respondents' renovations, contained the following hard flooring by-laws:[1]

1. an Owner of a lot must not, without the written approval of the Body Corporate and subject to any condition the Body Corporate may impose, install any hard floor surfaces.
2. an Owner of a lot, other than an Owner of a ground floor lot, will not install any flooring or floor covering (other than carpet with an approved underlay) unless it meets the following condition:

2.1.11.1 any installed floor surface is to provide a level of floor impact isolation of L'NT,W 54 or better, between lower or adjacent Occupier areas;

2.1.11.2 prior to the installation of the floor surface, the Owner must obtain advice from a recognised acoustical consulting company with regard to suitable floor treatments to meet this level of isolation. This may include testing on a sample of the isolation system to be used to confirm the final performanc outcome;

2.1.11.3 upon completion of the works, the Owner must have the floor tested to ensure the minimum impact isolation requirement has been met. This test must be carried out in accordance with procedures defined in ISO 140 Part 7 by a company experienced with and recognised for this type of work;

2.1.11.4 the owner must submit an impact isolation test certificate to the Body Corporate within ten days of the test showing compliance with the defined limit;

2.1.11.5 should the test fail to meet the minimum requirements of this By-law, the owner must, within 30 days, remove the flooring and replace it with flooring which complies with this By-law, at the Owner's cost.

• [8] The measure "L'nT,w" describes the level of noise transmitted through a floor into the room below. The higher the L'nT,w, the poorer the acoustic performance of the floor.
• [9] The applicants made requests in person and in writing for the respondents to undertake acoustic testing of their new floors on multiple occasions and then issued a Form 1 - Notice to body corporate of contravention alleging a breach of By-law 2.1.11.3 because the respondents had not conducted an acoustic test of their new floors.
• [10] Subsequent to the installation of the respondents' hard flooring, a new CMS was registered for the scheme on 30 November 2023. The new CMS included an amended hard flooring by-law. Like the by-laws in place at the time of the respondents' renovation, the new hard flooring by- laws impose requirements to seek written approval from the body corporate to install hard flooring and for such flooring to not exceed L'nT,w 54. The new by-laws differ in that they do not require acoustic testing as a matter of course, only where there is a complaint or dispute about noise produced by the new flooring and/or if reasonably requested by the committee.
• [11] Following an application for adjudication to this Office on 22 July 2024, an adjudicator made the following order:

Within 3 months of the date of this order, the owners of Lot 71, Mark and Patricia Kingaby, must engage an appropriately qualified professional to conduct acoustic testing of the floor installed in the ensuite of Lot 71 in accordance with the terms of By-law 2.1.11.3.

• [12] The adjudicator was of the view that By-laws 2.1.10 and 2.1.11, which were in force at the time new flooring was installed in the respondents' lot applied in relation to that application.10 She went on to state that she considered the substantive issue in that application was whether the acoustic testing conducted by the respondents was sufficient to achieve compliance with By-law 2.1.11.3 and, if not, whether they should be required to conduct further acoustic testing. The applicants bear the onus of proof.[2]
• [13] An impact sound test was subsequently undertaken by Palmer Acoustics in the ensuite of Lot 71, and this reported a L'nT,w = 67. Consequently they say that the new floors in Lot 71 failed to meet the By-law minimum standard of L'nT,w 54.
• [14] The applicants also contracted an acoustic engineer (Alpha Acoustics) who determined that the use of acoustic underlay properly installed in the ensuite of Lot 71, can achieve a L'nT'w of 50 or lower (a 4-star rating).
• [15] However the applicants say the body corporate committee have made it clear they will not take any action against the owners of Lot 71 to comply with the By-laws. Rather than enforce the By-laws or seek advice on potential solutions from an acoustic engineer, the body corporate committee sought legal advice and have proposed changing the By-laws to remove any limits on noise in "non-habitable areas" (e.g. hallways, ensuites, bathrooms and laundries).
  • [16] They believe that by refusing to enforce the By-law, the body corporate committee are acting unreasonably and in breach of the code of conduct. They do not believe the committee's decision follows logical reasoning when:
    1. the L'nT,w of the ensuite was 67
    2. the By-law requirement is L'nT,w of 54 or better
    3. the Building Code of Australia (NCC 2020) requires a L'nT,w of 62 or better in all areas
    4. no acoustic underlay was used in Lot 71
    5. many highly effective low-cost acoustic underlays were (and are) available, and
    6. there are numerous precedents where owners have been required to replace hard flooring due to noise.
• [17] Alpha Acoustics were contracted by the applicants to provide an independent perspective on the Palmers impact sound test of the ensuite in Lot 71. Alpha Acoustics determined that the use of acoustic underlay properly installed in the ensuite of Lot 71 can achieve a L'nT'w of 50 or lower (a 4-star rating).
• [18] Alpha Acoustics undertook extensive modelling of the noise transmission from the ensuite of Lot 71 and state that "the ensuite performance [i.e. the L'nT,w of 67] ... was difficult to achieve without some form of flanking" (i.e. indirect impact sound transmission such as through structural walls). The L'nT,w of 67 is worse than a typical 200mm concrete slab.
• [19] Alpha Acoustics simulate the noise level attainable from different acoustic insulating products and describe these products in their report (attached). Alpha Acoustics make several recommendations, including a product that is expected to reduce noise transmission to a L'nT,w of less than 50.
• [20] The master bedroom is an occupier area adjacent to the ensuite. The By-law requires sound transmission to be L'nT,w 54 in all areas including adjacent occupier areas. Impact sound from the ensuite is easily heard in the master bedroom, signifying that impact sound from the ensuite of Lot 71 will be greater than the required minimum of L'nT,w 54 in the master bedroom. This is most important for owners of the 1 and 4 style apartments in Contessa where the master bedroom directly adjoins the ensuite and hallway; the 2 and 3 style apartments have a walk-through wardrobe to access their ensuite which provides some level of noise isolation.
• [21] The applicants say the owners of Lot 71 are obliged to show the By-law has been met in their ensuite, bathroom, powder room and all adjacent occupier areas. Even if the distinction between "habitable" and "non-habitable" areas is applied, as advocated by Stratify Legal, any noise created in the ensuite of Lot 71 should not exceed the level specified in the By-law of L'nT,w 54 in the master bedroom (an adjacent area).
• [22] The Palmer Acoustics report (20 Aug 2024) for the ensuite of Lot 71 section 6.0, states:

It is "unreasonable to expect tiles laid in a laundry or bathroom could achieve the criteria of L'nT,w 54".

• [23] However, the applicants say that Palmer Acoustics failed to qualify the above statement by omitting to state that a significant noise reduction can be achieved with an acoustic underlay system.
• [24] The applicants refer to a published paper by Mr Huang of Palmer Acoustics which was presented to 43rd International Congress on Noise Control Engineering, November 16-19, 2014.[3] This paper is titled "Field Floor Impact Noise South-East Queensland (Australia)" and states at page 7:

On many apartment buildings in Queensland, floor impact insulation layers are not installed in the wet areas including kitchens, bathrooms and laundries. As the design of an apartment becomes more compact, to save floor height, plasterboard ceilings are now installed exposing the bar concrete slab. The distance between the upper level wet areas to living area underneath is generally less than 500mm. This is a potential problem (depending on the living habits of the people on the upper level) for people below. We advise clients to apply an acoustic underlay on tiled floor areas, to minimise impact for kitchens, bathrooms, entries, hallways and laundries.

• [25] The Applicants have also provided another publication by Palmer Acoustics dated May 2013, titled "The Management of Floor Impact Noise to Meet or Exceed Building Code of Australia Requirements" which states at page 4:

What appears to be the most cost-effective means of reducing impact noise is to install an impact isolation layer under the hard floor surface. These are generally a proprietary product located under tiles, stone or timber floor systems. On tiled floors such products should provide at-least a 15 unit improvement in isolation with isolation of up to 25 units possible. The impact systems can be a rolled out resilient element (1mm to 15mm thick), a screeded wet system (typically 5 to 10mm), or a solid board system laid out across the floor (approx. 10mm thick).

• [26] The applicants say recommendations from the body corporate's lawyers take a somewhat flippant position. For example, they refer to the option of laying "acoustic underlay and carpet in the ensuite". The applicants say it is nonsensical to suggest this in 2024 when tiles can be laid in wet areas with a properly installed acoustic underlay system.
• [27] The applicants also reject a suggestion by the respondents and body corporate that the noise by-law should only apply to habitable areas and not to non- habitable areas. They are of the view that a by-law specifying that noise restrictions do not apply to the hallway or the ensuite, would be unreasonable and contrary to the NCC.
• [28] Stratify Legal recommended amending the by-laws that were passed at the 01 August 2023 AGM and executed on 30 November 2023. As an aside, the applicants note that this is beyond the maximum of 3 months after the AGM to execute the by-laws and thus, these may be invalid, but the applicants say this once again demonstrates the failure of the committee to act.
• The applicants also refer to the previous adjudication decision of 22 July 2024[4] where the adjudicator stated, "the By-laws in force at the time of the renovations are applicable and relevant for this case" and say that any subsequent by-law is "moot".
• [30] The applicants believe the owners of Lot 71 should insulate their tiled floors against sound transmission in their ensuite, bathroom, and powder room, to a level as reasonably close to that specified in the By-law. The sound insulation system recommended by Alpha Acoustics that can achieve a L'nT,w of less than 50 should be used. Also, post-installation testing should be required as per the Alpha Acoustics report (i.e. the tapping machine in the ensuite of Lot 71 with measurements taken in the ensuite and master bedroom of Lot 67) to demonstrate compliance with the By-law.
• [31] They note that the L'nT,w 67 is worse than the basic level of L'nT,w 62 which is required in all areas of a dwelling as specified in the National Construction Code 2020. The L'nT,w rating of 67 fails to meet even a 2-star rating of L'nT,w = 65 or better (Palmers Discussion paper 2013; Huang 2014, section 3.3.2).
• [32] The applicants say the total cost to the owners of Lot 71 for supply and installation of tiles in the ensuite, bathroom and powder room was $26,708, including materials and installation of floor tiles, wall tiles and tiles in shower cubicles.[5] Given the limited floor area in these 3 rooms, removing the floor tiles installing soundproof underlay, and reinstalling floor tiles will be a relatively small cost - especially in the context of listing their unit for sale at "offers over $2.2m".
• [33] The applicants also argue that the committee are in breach of the Code of Conduct by not enforcing a By-law, and rather than address an issue that affects all owners, they propose an amendment to the By-laws that will allow the noise transference to continue. They say Contessa was a 4.5-star building when completed and the current By-law of L'nT,w of 54 reduces it to barely a 3-star rating which is unacceptable. The proposal for no limit of noise in non-habitable areas reduces the building to less than 2-star.

• [34] The respondents say the Committee is of the view that the existing bylaw is invalid and will be replaced at the next General Meeting. However the applicants continue to claim that the respondents are in breach of the hard flooring by-law.
• [35] In August 2025, Palmer Acoustics undertook testing in the lot 71 ensuite and also undertook testing in the ensuites of units 164 and 221 as originally built.
• [36] The respondents say that Palmer Acoustics have advised that any renovation to a Non Habitable bathroom area will almost certainly not achieve the current 'less than 54' acoustic requirement.
• [37] They say the applicants' rely heavily on the content of a document written by Alpha Acoustics regarding sound proofing. That document refers to laying sound proofing material beneath wet room tiling but the respondents say the "QBCC guidelines" make no requirement for this.
• [38] Section 6 of the Palmer Acoustics Report dated 08 August 2024, which was commissioned by the owners of Lot 71, states under the heading "Discussion" that :

Smaller spaces often have more low-frequency reverberation, which can be a challenge. Also, bathroom flooring is frequently compromised due to pipe work, drainage, and waterproofing, which can limit the effectiveness of certain acoustic treatments.

It's important to understand that failures in bathroom and laundries when tested against NCC 2020, are not uncommon. It is therefore unreasonable to expect tiles laid in either the laundry or bathroom could achieve the criteria of L'nT,w 54 or less. Structural engineering would be required - including removing the pipes as this provides the greatest level of transmission.

• [39] On 27 August 2024, a 'Vote Outside of Committee Meeting' (VOC) decision was made to submit a motion to the next General Meeting, seeking a special resolution to change the CMS Hard Flooring by-law wording to differentiate between acoustic level requirements for Habitable and Non Habitable areas in an Apartment. The respondent believes that this would bring the Contessa by-law wording into line with the National Construction Code, and the acoustic requirement of L'nT,w 54 or less, would only apply to Habitable areas of an Apartment. The VOC decision was formally notified to all owners by SSKB, the Contessa Strata Manager on 28 August 2024.
• [40] The VOC document also stated that the Committee would take no further action in relation to the flooring installed in Lot 71. This was restated by the Committee Chair in an email dated 31 January 2025 . The respondents believe that this decision "offered protection from Committee action enforcing the flawed by-law" but did not declare the existing by-law wording invalid and unenforceable. They believe that only an owners' vote at a General Meeting to replace the existing by-law, will put an end to the applicants' claim, because "the by-law wording in place at the time the renovation was completed must apply to the renovation activity".
• [41] The respondents say they secured a detailed summary of the tiling work undertaken to ensure the work met with "QBCC standards". They also obtained a copy of a Form 43 issued by the tiler "confirming all work was complied within QBCC requirements".
• [42] The respondents say that despite being provided with a legal opinion regarding the validity of the by-law and technical results from Palmer Acoustics, the applicants have continued to seek compliance with the hard flooring component of the Contessa By-laws which require 'Acoustic sound to be L'nT,w of 54 or less on all hard floors.
• [43] In January 2025 the Committee commissioned Palmer Acoustics to test the acoustic levels in two original build apartment ensuites, to determine whether the acoustic results would return readings that might question the acoustic test result of 67 in their apartment. The results were L'nT,w of 67 and 66. They say this shows that the renovation tiling completed in lot 71 delivered the same result as the original build tiling.
• [44] The Palmer Acoustic report for the tests undertaken in "original build apartments", dated 22 January 2025, stated in Section 6 "Discussion":

Smaller spaces often have more low -frequency reverberations, which can be a challenge. Also bathroom flooring is frequently compromised due to pipework, drainage, and waterproofing, which can limit the effectiveness of certain acoustic treatments. It is therefore unreasonable to expect tiles laid in either the laundry or bathroom could achieve the criteria of L'nT,w 54 or less.

• [45] Acoustic tests in two original build ensuites (with different build layouts) produced acoustic results of 67 and 66. The 67 result was for the same layout style as Apartment 184 which is of course the same result delivered in the Apartment 184 test (Palmer Acoustics report Item 7).
• [46] They say this result challenges any suggestion that the tiling completed in Apartment 184 was sub standard or of a lesser acoustic rating than an original build ensuite tiling and that non habitable areas should not be required to meet a hard flooring bylaw that requires an acoustic test result of 54 or less.

• [47] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about a claimed or anticipated contravention of the Act or the scheme's CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[6] An order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.
• [48] I am satisfied I have jurisdiction to determine this matter having regard to the legislative dispute resolution provisions.[7]

• [49] After receipt of the application, the Commissioner invited submissions from the respondents, the committee and owners within the scheme.[8] Submissions were received from the respondent and various owners. The applicants exercised their right to inspect and reply to the submissions received.[9]
• [50] The file was referred to department adjudication.[10] I have investigated the dispute by reviewing the application and available submissions, the CMS and the titles records for the scheme.[11]

• [51] The potential effect of new flooring on neighbouring lots is always an important consideration before any hard flooring is installed. There is no general statutory requirement for an owner or occupier to obtain approval of a body corporate to make a change to their lot, including to the flooring in their lot. However, such approval may be required by a by-law, as is the case in this dispute. In addition, the National Construction Code 2022 (NCC) Volume One, (Building Code of Australia Class 2 to Class 9 Buildings),[12] sets out minimum standards for noise transference in multi-residential buildings.
• [52] Following an application for adjudication to this Office on 22 July 2024, an adjudicator was of the view that By-laws 2.1.10 and 2.1.11, which were in force at the time new flooring was installed in the respondents' lot, applied in relation to that application.10 They went on to state that they considered the substantive issue in that application was whether the acoustic testing conducted by the respondents was sufficient to achieve compliance with By-law 2.1.11.3 and, if not, whether they should be required to conduct further acoustic testing. The applicants bear the onus of proof.[13]
• [53] The by-laws current at the time of the respondents' renovations, were as follows:[14]

1. an Owner of a lot must not, without the written approval of the Body Corporate and subject to any condition the Body Corporate may impose, install any hard floor surfaces.
2. an Owner of a lot, other than an Owner of a ground floor lot, will not install any flooring or floor covering (other than carpet with an approved underlay) unless it meets the following condition:

2.1.11.1 any installed floor surface is to provide a level of floor impact isolation of L'nT,w 54 or better, between lower or adjacent Occupier areas;

2.1.11.2 prior to the installation of the floor surface, the Owner must obtain advice from a recognised acoustical consulting company with regard to suitable floor treatments to meet this level of isolation. This may include testing on a sample of the isolation system to be used to confirm the final performanc outcome;

2.1.11.3 upon completion of the works, the Owner must have the floor tested to ensure the minimum impact isolation requirement has been met. This test must be carried out in accordance with procedures defined in ISO 140 Part 7 by a company experienced with and recognised for this type of work;

2.1.11.4 the owner must submit an impact isolation test certificate to the Body Corporate within ten days of the test showing compliance with the defined limit;

2.1.11.5 should the test fail to meet the minimum requirements of this By-law, the owner must, within 30 days, remove the flooring and replace it with flooring which complies with this By-law, at the Owner's cost.

• [54] Subsequent to the installation of the respondents' hard flooring, a new CMS was registered for the scheme on 30 November 2023. The new CMS included an amended hard flooring by-law. Like the by-laws in place at the time of the respondents' renovation, the new hard flooring by-laws impose requirements to seek written approval from the body corporate to install hard flooring and for such flooring to not exceed L'nT,w 54. The new by-laws differ in that they do not require acoustic testing as a matter of course, only where there is a complaint or dispute about noise produced by the new flooring and/or if reasonably requested by the committee.
• [55] It should also be noted that in addition to the above by-laws regarding noise transference between lots, the Australian Building Code Board's National Construction Code 2022, Volume One, Building Code of Australia[15] sets out the minimum standards for multi-residential, commercial, industrial and public buildings. The NCC relevantly provides as follows:

F 7P1 - Sound transmission through floors - 2019: FP5.1

A floor separating sole-occupancy units or a sole-occupancy unit from a plant room, lift shaft,

stairway, public corridor, public lobby, or the like, or parts of a different classification, must

minimise the transmission of airborne and impact generated sound such that the separating

floor, including the effect of services and their penetrations, has -

a. a weighted standardised level difference with spectrum adaptation term (DnT,w + Ctr) not

b. a weighted standardised impact sound pressure level (LnT,w) not more than 62 for impact

• [56] With regard to 'verification methods', the NCC then states at F7V1:

Compliance with F7P1 to avoid the transmission of airborne and impact generated sound through floors is verified when it is measured in-situ that the separating floor has -

1. airborne: a weighted standardised level difference with spectrum adaptation term (DnT,w + Ctr) not less than 45 when determined under AS/NZS ISO 717.1; and
2. impact: a weighted standardised impact sound pressure level (LnT,w) not more than 62 when determined under AS ISO 717.2.

• [57] An impact sound test was undertaken by Palmer Acoustics in the ensuite of Lot 71 and this reported a L'nT,w = 67. They note that the new floors failed to meet the By-law minimum standard of L'nT,w 54, but also expressed the opinion that it would be unreasonable to expect tiles laid in either the laundry or bathroom to achieve the criteria of L'nT,w 54 or less.
• [58] However the applicants also contracted an acoustic engineer (Alpha Acoustics) who determined that the use of acoustic underlay properly installed in the ensuite of Lot 71, could achieve a L'nT'w of 50 or lower (a 4-star rating).

• [59] The respondents have sought to argue that the by-law is invalid and relies upon advice obtained by the committee suggesting that the by-law is invalid on the following grounds:
  1. The requirement in by-law 2.1.11.1 to achieve a floor impact isolation of L'nT,w of 54, fails to distinguish between habitable and non­ habitable areas. To the extent it purports to apply to non-habitable areas, such as the ensuite in lot 71, by-law 2.1.11.1 offends section 180 (7) of the Act (which provides a by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme).
  2. By-laws 2.1.11.2 and 2.1.11.3 require an owner to obtain an acoustic report both prior to and after installation of the flooring. This may offend section 180(6) of the Act (which provides a by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme).
• [60] I do not believe there is any basis for me to invalidate the by-law. The hard flooring by-law was adopted by special resolution at an AGM and I am satisfied the by-law is regulatory rather than prohibitory. It may not be easy to achieve an LnT,w of 54 or lower, but I do not believe it is unreasonable for a body corporate to impose a high standard of acoustic amenity, so long as the standard does not amount to a de facto prohibition of hard flooring.
• [61] I am unable to agree that the by-law can be classified as "oppressive or unreasonable" because it fails to distinguish between habitable and non­ habitable areas within a sole-occupancy unit.[17] Nor am I satisfied that It is "unreasonable to expect tiles laid in a laundry or bathroom could achieve the criteria of L'nT,w 54" as claimed in the Palmer Acoustics Report.
• [62] It is evident that the respondents have made no effort to achieve a reasonable level of sound insulation in their ensuite, bathroom or powder room to ensure suitable acoustic performance relevant to the By Laws as no sound- reducing acoustic underlay was used for the new floors.[18]
• [63] In my experience the installation of acoustic underlay below ceramic tiles in wet areas of units, is common, particularly in upmarket residential buildings.
• [64] Clearly, there a various types of acoustic underlay that are used to restrict noise transference when ceramic tiles are laid. The Alpha Acoustics Report dated 30 October 2024, indicates that the use of acoustic underlay properly installed in the ensuite of Lot 71, could achieve a L'nT'w of 50 or lower (a 4-star rating). They further state that when flooring is replaced, the new floor should at least meet the National Construction Code impact noise criteria.
• [65] I note that the paper by Mr Huang of Palmer Acoustics, referred to above[19] by the applicants, recommends the installation of acoustic underlay in wet areas if one is seeking to minimise sound impact. It states at page 7:

On many apartment buildings in Queensland, floor impact insulation layers are not installed in the wet areas including kitchens, bathrooms and laundries. As the design of an apartment becomes more compact, to save floor height, plasterboard ceilings are now installed exposing the bar concrete slab. The distance between the upper level wet areas to living area underneath is generally less than 500mm. This is a potential problem (depending on the living habits of the people on the upper level) for people below. We advise clients to apply an acoustic underlay on tiled floor areas, to minimise impact for kitchens, bathrooms, entries, hallways and laundries.

• [66] Another publication by Palmer Acoustics dated May 2013, titled "The Management of Floor Impact Noise to Meet or Exceed Building Code of Australia Requirements" states at page 4:

What appears to be the most cost-effective means of reducing impact noise is to install an impact isolation layer under the hard floor surface. These are generally a proprietary product located under tiles, stone or timber floor systems.

• [67] This is not to say that a floor impact sound pressure level (LnT,w) of 54 or less will always be achievable. However in the present case, Alpha Acoustics are clearly of the view that the use of acoustic underlay properly installed in the ensuite of Lot 71, can achieve a L'nT'w of 54 or lower.
• [68] The Alpha Acoustics Report dated 30 October 2024, states at page 7:

A noise model was used to simulate the existing ensuite performance and it was difficult to achieve the results without adding some form of flanking. It is also noted that modelling is only approximate. Never the less the existing floor was modelled to Lntw 67. Then applying underlays (assuming no airborne leakage through services) to develop various performances and to form the basis of comparison to estimate an underlays relative performance:

• Regupol 6010 8/4mm dimple under 30mm cement screed less than Lntw 50
• 5mm Acoustamat under 30mm screed less than Lntw 55
• 5mm Vibramat under 30mm cement screed less than Lntw 55
• Acoustafloor and Acoustabond tile adhesive under tiles less than Lntw 60.

Given the ongoing noise dispute Alpha Acoustics recommend the best performer is selected:

1. Regupol 6010 8/4mm dimpled rubber under a 30mm cement screed and tiles and
2. with additional dense insulation (ceiling 125mm thick earthwool) in the ceiling cavity and
3. ensuring all pipes are properly acoustically lagged with pyrotek 4525c pipe lagging and

1. consider resilient hanging mounts in the bedroom ensuite ceiling cavity and possibly the bedroom ceiling cavity subject to acoustic testing
2. 2 layers of 13mm soundchek in the bedroom ensuite ceiling cavity and possibly the bedroom ceiling cavity subject to acoustic testing .

• [69] This is supported by the owner of lots 5 & 10, a professional Acoustics Engineer who states:

As an acoustics professional and Lot owner I do not believe the By-Laws require amendment. The current By Laws have served the building well since we have been owners and in my professional opinion there is no technical reason to change the By Laws at this time. Any change would only see a reduction in the acoustic amenity of the building and open the door to disgruntlement amongst owners.

There is a distinct difference in professional opinion between the two acoustic consulting firms in this case. This in turn may well have led to the need for adjudication. The noise level By Laws have not recently been changed and all owners are aware of their responsibility, as should be their contractors.

Respondents' claims that the tiling work met with "QBCC and "Australian Standards".

• [70] Next I turn to the respondents' claims to have ensured that the tiling work undertaken met with "QBCC standards" and "Australian Standards".
• [71] They have provided a copy of a Form 43 issued by the tiling contractor "confirming all work was complied within QBCC requirements".
• [72] However the Form 43 Aspect Certificate[20] refers only to Waterproofing. It certifies that the waterproofing in the ensuite bathroom, main bathroom and powder room has been installed in accordance with the following standards:

External - BCA Part H2D8 & AS4654.2-2012[21]

• [73] I also note that the tiling contractor has provided a letter[22] outlining the works they undertook referencing that they 'within Australian Standards'. This letter refers to the following works:
  • Screeding
  • Waterproofing

• [74] However there is no mention of any work undertaken to ensure suitable acoustic performance relevant to the by-laws or indeed the minimum standards for compliance with the National Construction Code, specifically F 7P1 - Sound transmission through floors - 2019: FP5.1
• [75] Finally, I do not believe that by-laws 2.1.11.2 and 2.1.11.3, which require an owner to obtain an acoustic report both prior to and after installation of the flooring, offend section 180(6), which provides a by-law must not impose a monetary liability on an owner. In my view the ordinary meaning of the term "monetary liability" refers to a fixed obligation to pay a specific sum of money or a monetary penalty. I do not believe that a by-law that requires works to be certified by a licenced professional does not impose a monetary liability on an owner.

• [76] Finally the applicants have attached receipts of $3,048.55, for various items including acoustic testing, being the direct costs incurred by them in relation to this application. They seek reimbursement of this amount by the respondents.
• [77] The dispute resolution service offered by the Office of the Commissioner provides a low cost dispute resolution service, in which the parties bear their own costs (e.g., legal advice, preparation, expert reports).
• [78] Section 280 of the Act states that in very limited circumstances an adjudicator may order the respondent to pay to the applicant the amount it has paid under section 239(1)(c) of the Act, as fees for the department conciliation and adjudication applications if:
  1. The applicant for the adjudication application made a conciliation application for the same dispute;
  2. The respondent to the adjudication application was the respondent to the conciliation application; and
  3. The Commissioner ended the conciliation application under section 252K of the Act because the respondent failed, without reasonable excuse, to participate in the conciliation.
• [79] However as the above conditions have not been satisfied, I am unable to require the respondent to pay the amount of the application fees for department conciliation and adjudication.
  • [80] Therefore I make no order as to costs.

• [81] For the above reasons I have made the following orders:

1. Within 6 months of the date of this order, the respondents are to engage, at their own cost, appropriately qualified tradesmen and professionals to undertake remedial works which are to include the following:

(a) Removal of recently installed floor tiles in the lot 71 ensuite, bathroom and powder room, and having a high-quality acoustic underlay system (such as Regupol 6010 dimpled rubber or similar, as recommended by the acoustic engineer) professionally installed. > > (b) Laying a cement screed of at least 30mm before installing new floor tiles. > > (c) Ensuring that all pipes are acoustically lagged with pyrotek 4525c pipe lagging (or similar) and sealed to the slab. > > (d) Undertaking post-installation impact tests and provide a sound impact isolation test certificate of compliance to the applicants.

[1] This CMS was registered 30 September 2022. A subsequent CMS was recorded in November 2023.

[2] See Contessa Condominiums [2024] QBCCMCmr 267 at [36] to [37]

[3] Attachment to application - Conference Paper

[4] Contessa Condominiums [2024] QBCCMCmr 267

[7] See sections 184, 227, 228, 276 and Schedule 5 of the Act

[9] See sections 246 and 244 of the Act, respectively

[11] See section 271 of the Act for the investigative powers of an adjudicator

[12] www.abcb.gov.au

[13] See Contessa Condominiums [2024] QBCCMCmr 267 at [36] to [37]

[14] This CMS was registered 30 September 2022. A subsequent CMS was recorded in November 2023.

[15] www.abcb.gov.au

[16] https://ncc.abcb.gov.au/editions/ncc-2022/adopted/volume-one/f-health-and-amenity/part-f7-

[17] As distinct from common property stairways, corridors and lobbies.

[18] see Alpha Acoustics Report dated 30 October 2024, attached to Application and Demco Constructions invoice dated 14 April 2023 attached to application.

[19] Attachment to application - Conference Paper

[20] see Attachment 5 to Respondent's submission

[21] It is not clear why the certificate contains the reference to the external waterproofing standard

[22] see Attachment 5 to Respondent's submission