Jiang v Sui

NCAT Consumer and Commercial|2023-10-06

Introduction

The applicants are the owners of Lot 27 in Strata Plan no 64807, a multi-level apartment complex of 335 lots in Ultimo.
The respondent is the owner of Lot 35 which is directly above Lot 27.
Lot 35 is let to Ms C Ang, who represented the respondent at the hearing.
The respondent undertook renovations in Lot 35 in 2021. Those renovations included the installation of floating floors.
The applicants complain that since the installation of the floating floors they have been disturbed by noise from Lot 35.
The applicants filed their application on 25 July 2023. The applicants seek orders: "1. Pursuant to ss 135, 232 and 241 of the Strata Schemes Management Act 2015 (NSW), an order requiring the U35 owner to promptly rectify his floor covering to ensure compliance with SP64807 by-laws 14 requirements. The rectification shall be of non-removable nature, providing permanent and long-term solution to the noise disturbance issue. 2. In addition to the above order, a further order is sought requiring the U35 owner to provide a new acoustic report to demonstrate that the rectified floor covering in U35 complies with SP64807 by-laws 14, specifically achieving a minimum AAAC 5-star rating. The acoustic report must be submitted to the applicant within one month of the completion of the rectification work."
The respondent opposes the making of those orders. Although the applicants seek orders only against the respondent, the owner of Lot 35, The Owners - Strata Plan No 64807 was joined as a party at a directions hearing on 23 August 2023. The owners corporation took no part in the proceedings.

Factual background

It appears that the basic factual framework of the dispute is not controversial. The following are my findings in that regard.
On or about 4 January 2021 the respondent submitted an application to the owners corporation seeking consent to carry out minor renovations, described as "remove carpet and change to laminate flooring".
The respondent attached to the application a document titled "Acoustic Certificate", which referred to "Foam Sound Solution 5mm" and stated that that product had been tested for impact noise compliance and that the test results were compared to the acoustics requirements of part F5 of BCA (Building Code of Australia) and the standards prescribed by the Association of Australia Acoustic Consultants (AAAC). The certificate stated that "Foam Sound Solution 5mm was tested under the following Timber Flooring", including "12mm Laminate Floating Boards". The certificate indicated that the testing under those boards produced results of L'n,w+Ci 46 and L'nT,w 44 and an AAAC star rating of 5. The certificate bore the note "test was undertaken with 200mm thick concrete sub-base and 13mm suspended plasterboard ceiling with 100mm cavity".
The respondent also attached to the application a quotation from the contractor identified in the application, which identified the floor to be laid as "OZ2336 Lunar Oak" and the underlay as "5mm black".
The applicants included in their bundle a screenshot from the Internet which indicated that OZ2336 Lunar Oak is a 12 mm thick laminate floorboard.
On 29 June 2021 at a meeting of the strata committee of Strata Plan No 64807 a resolution was passed: "That the strata committee RESOLVES in accordance with section 110 (f) of the Strata Schemes Management Act 2015 to ratify approval of the following minor renovations to the common property in connection with the Owner's lot in the form of the Works, subject to the conditions of complying with the scheme's by-laws: … 3. lot 35 - installation of hard flooring in the lot; …"
The by-laws in force for Strata Plan No 64807 during 2021 included by-laws 1 and 14 in the following terms: "By-Law 1 - Noise An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. … By-Law 14 - Floor coverings (1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot. (2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory, bathroom or any other area that is either parquetry or tiled at the time of the registration of the strata plan."
Additionally, Special by-law 7 laid down rules relating to the undertaking of minor renovations. Minor renovations was defined to include: "(v) removing carpet or other soft floor coverings to expose underlying wooden or other hard floors, (vi) installing or replacing wood or other hard floors"
Relevantly, Special by-law 7 provided: "4 Conditions for Minor Renovations 4.1 Before the Minor Renovations 4.1.1 Before commencing the minor renovations, you must: … (d) Acoustic Consultant's Report if the minor renovations will involve removing carpet or other soft floor coverings to expose underlying wooden or other hard floors or installing or replacing wood or other hard floors (apart from floor coverings in a laundry, lavatory or bathroom), if requested to by the owners corporation, give the owners corporation a report from an acoustic consultant certifying the acoustic properties of the new floor coverings, … 4.3 After the Minor Renovations After the minor renovations have been completed you must: … (e) Acoustic Consultant's Report if the minor renovations involved removing carpet or other soft floor coverings to expose underlying wooden or other hard floors or installing or replacing wood or other hard floors (apart from in a laundry, lavatory or bathroom), if required by the owners corporation, give the owners corporation a report from an acoustic consultant certifying the acoustic properties of the new floor coverings, … 4.4 Enduring Obligations You must: … (d) Flooring ensure that any floor coverings installed or exposed in an apartment during the minor renovations are covered or otherwise treated to an extent sufficient to prevent the transmission from the floor coverings of noise likely to disturb the peaceful enjoyment of the owner or occupier of another apartment (apart from floor coverings in a laundry, lavatory or bathroom), … 7 Approvals The strata committee may approve minor renovations under this by-law. To avoid doubt, the owners corporation delegates its functions under section 110 of the Act to the strata committee."
Ms Ang and her family moved into Lot 35 in November 2021.
On 13 December 2021 the applicants wrote to the strata manager complaining of noise emanating from Lot 35.
By-law 14 of the by-laws of Strata Plan No 64807 was amended in 2022 to read: "By-Law 14 - Floor coverings (1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot. (2) Without limiting the requirements of By-law 14.1, if an Owner is utilising a floor finish within an Owner's Lot other than carpet, then the Owner must ensure that the floor covering for the Lot has or achieves at least a 5 star rating under the Association of Australian Acoustical Consultants Guideline for apartment and townhouse acoustic rating. (3) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory, bathroom or any other area that is either parquetry or tiled at the time of the registration of the strata plan."
The amendment was registered (and took effect: s 141(2) of the Strata Schemes Management Act 2015 (NSW) (SSMA)) on 7 March 2022
On 12 July 2022 the owners corporation served upon the respondent a "Notice to Comply with a By-Law" which stated: "The Owners Corporation believes the owners are in breach of Special By-law 7 - on the basis that the Strata Committee has requested that the lot owner provides a report from an acoustic consultant following the installation of hard flooring and the lot owner has failed to provide a report." and required that the respondent comply with the by-law by providing an acoustic report within 14 days.
The respondent obtained a report from Koikas Acoustics dated 18 October 2022 (the Koikas Report).
The Koikas Report is entitled "Post - installation impact sound insulation testing" and is signed by Mr James Tsevrementzis, an "acoustical engineer".
I will address the content of the report in due course.
The strata manager wrote to the respondent and his solicitor on 25 November 2022 seeking a copy of the report. The respondent replied the same day: "The test results were found to comply with the minimum BCA impact noise requirement. If the full report is required according to the by-laws, the property manager will comply."
The report was provided to the strata manager by the respondent's solicitor on 29 November 2022. The strata manager responded on 2 December 2022: "Thank you for providing the report. Unfortunately the acoustic report does not achieve a AAAC five star rating, please advise the next steps to rectify this issue as the flooring is not compliant with the by-laws."
The strata manager followed up on 6 December 2022: "Can you please advise if arrangements have been made to rectify the flooring within the unit to ensure it is compliant with the by-laws?"
The parties enlisted the assistance of Fair Trading New South Wales to resolve the dispute and attended a mediation on 11 April 2023. The parties were unable to resolve the dispute at the mediation or through further negotiation over the following days.
The applicants maintain that the respondent is in breach of by-law 14 both as in force in 2021 and as amended in 2022
The respondent disputes that he is in breach of by-law 14 as in force in 2021 and says that the amended by-law 14 does not apply to the floors installed in 2021.
The applicants accepted at the hearing that they could not maintain the case that the respondent was in breach of by-law 1, because the respondent is not in occupation and cannot be said to be creating any noise in Lot 35.

Consideration

The conclusions of the Koikas Report included, in relation to by-law 14 as in force in 2021: "The standard flooring by-law (By-law 14) presented in Strata Plan 64807 does not specify an impact noise rating necessary to satisfy the requirements of By-law 14 above. To achieve the intent of the subject By-law 14 that the floor is covered/treated to ensure that any transmitted noise does not interfere with unreasonably or disturb the peaceful enjoyment of an owner or occupier of any other lot, Koikas Acoustics generally supports the adoption of an impact noise rating not more than L'nT,w 45 which correspond to a 5 Star rating under the AAAC apartments and townhouses guidelines. This rating is increasingly being adopted in strata plans throughout apartment buildings in Sydney. Achieving this design standard can be quite onerous, and in some cases, it is not possible to achieve this rating based on the underlying structural components of the building. Koikas Acoustics is aware that other acoustical consultants advocate for a lesser performing impact noise rating of 55 as being suitable to achieve the intent of the standard qualitative flooring By-law 14, and that adopting this acoustic rating is approved by other AAAC Member firms and supported by the AAAC itself. Given the large variance in responses to impact-generated noise within a building, it is the opinion of Koikas Acoustics that the more onerous acoustic rating of L'nT,w 45 should apply where it is practically achievable to meet this standard. Where the underlying building structure is such that it is not practically achievable to meet this rating, irrespective of the proposed acoustic treatment, then the lesser design standard of L'nT,w 50 and if that is not achievable then L,nT,w 55 could be seen as a reasonable and appropriate compromise for the body corporate to consider at their discretion."
The report indicated that impact noise tests were undertaken in the dining/living area and in a bedroom of each of Lots 27 and 35. The report noted that Koikas Acoustics had been advised "that the shared ceiling/floor system" between units 27 and 35 "is constructed of timber flooring unknown underlay, and 150-200 mm concrete slab, and unknown ceiling type".
The reported test results were L'nT,w 51 in the living dining/living area and L'nT,w 54 in the bedroom. The report stated that the tests were found to comply with the minimum BCA impact noise requirements but were found "to not achieve the professional opinion of Koikas acoustics (L'nT,w ≤ 45) and therefore may 'disturb the peaceful enjoyment of another lot'."
The respondent relied upon prior decisions of the Consumer and Commercial Division of the Tribunal and the Consumer Trader and Tenancy Tribunal (CTTT). The respondent included in his "Response to the Applicants' Application" extracts from those decisions as follows: "p. In Eales v Feletti [2018] NSWCATCD 66, Senior Member D Robertson: 'noted that an expert, Mr Tonin, expressed the opinion that a three star rating was a reasonable standard for the majority of apartments in Sydney.' That decision was taken on appeal and leave to appeal was refused by the Appeal Panel and the Appeal was dismissed (Feletti v Eales [2019] NSWCATAP 100). In the present Respondent's case, the Report of Koikas has clearly illustrated that Unit 35 is achieved above the minimum Building Code of Australia ("BCA") impact noise rating and Sydney City Council's requirement. ... q In Nowak v Pellicciotti [2018] NSWCATCD 9, Member JA Ringrose: "observed that a circumstance which had no relation to the property but which entirely depended upon the personal desires of the owner of the property would not, in my opinion, be a relevant circumstance in determining what was reasonable! In the present Respondent's case, the Applicants insist that Unit 35 requires a 5-star impact noise rating to satisfy their circumstance; this demand is irrational. r. Gao v Agosti [2009] NSWCTTT 175, the Appeal Panel has: 'accepted that the correct test for determining whether breaches had occurred was whether or not by-laws had been breached as assessed on an objective basis and not the subjective perceptive of a unit owner. The Tribunal had noted in that case that the noise complained of by the appellant involved normal daily activities, including walking on the floor In that case, the appellant had provided no expert evidence to demonstrate that the floor was generating an unreasonable amount of noise.' In the present Respondent's case, the Applicants did not provide expert evidence to support their case that the noise generated by two young children (4 and 1½ years) in Unit 35 was an unreasonable amount of noise. q. Zhang v Glykis [20201 NSWCATCD 17, Member J Ringrose notes that: 'in the course of earlier discussions between the parties the respondent had offered to ensure that rugs were strategically placed in the tenanted unit but this offer was refused and there is no basis upon which the Tribunal should or would order other measures be taken. The objective determination of both experts is that the flooring complies and it is noted the flooring was originally approved by the Owners Corporation in 2008. For these reasons the application is dismissed.' In the present Respondent's case, The Respondent's application for renovation was approved by the Owner Corporate in June 2021, and the Respondent has offered to lay carpet on top of the existing flooring to reduce the noise transmission to Unit 27; however, the Applicants insisted that after the carpet has been laid on top of the existing flooring, it must achieve a 5-star impact noise rating to comply with the current By-Law 14, the demand was unreasonable for the Respondent to accept."
I note that the passage quoted by the respondent as coming from the decision of the CTTT in Gao v Agosti [2009] NSWCTTT 175 is actually from the decision in Zhang v Glykis [2020] NSWCATCD 17 at [58]. In Gao v Agosti the CTTT held, in relation to a by-law which appears to have been in similar terms to the first paragraph of by-law 14, that: "The standards imposed by the By-laws are to be interpreted objectively. That is, the test to be applied in this case is whether the noise being transmitted is likely to disturb the peace and enjoyment of a reasonable person, rather than a person who may have a heightened sensitivity to disturbance."
That passage has been approved by the Appeal Panel, explicitly in Nowak v Pellicciotti [2018] NSWCATAP 245 at [53] - [54], and implicitly in Felcher v The Owners - Strata Plan No 2738 [2017] NSWCATAP 219 and Feletti v Eales [2019] NSWCATAP 100 at [34] - [35] (Feletti v Eales Appeal). I accept it as a correct statement of the law.
I also note, as potentially relevant to these proceedings, Hogan v Stebnicki [2022] NSWCATCD 63, where the Tribunal held, in concluding that the applicant in those proceedings had failed to establish that a by-law in almost the same terms as by-law 14 as in force in 2021 was not breached by the floating wooden floors which had been installed in the respondent's lot: "42 By-Law 14 does not specifically mandate an acoustic performance level the floor of Lot 3 must comply with. Nor does it require the use of carpet floor coverings. It is open to the Owners Corporation to amend the By-Law so as to do so, but in the absence of any such specification, it is necessary to interpret the words "treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner of occupier of another lot" having regard to external, objective reference points. 43 Blackett Acoustics references the structure borne noise insulation requirements of the Building Code of Australia which specifies a maximum impact sound level of Ln,Tw less than or equal to 62dB. This is the equivalent of a 2 Star Rating for floor performance. It determined that the Lot 3 floor has a maximum impact sound level less than or equal to 53, which is equivalent to a 3 Star Rating with 4 Star Rating features. It is not clear to me on the evidence if the Building Code of Australia applies in respect of this building given its age, but in any event, the Lot 3 floor performance exceeds the minimum standard required by that Code. The performance of the floor also complies with the requirements of the North Sydney Development Control Plan 2013. 44 The objective evidence relied upon by the Lot 2 Lot Owners demonstrates that carpet with underlay has much better noise insulation properties than other floors, including timber laminate floors. But it is not enough for them to show that carpet would provide better noise insulation; they must prove noise nuisance,and a breach of By-law 14. There is nothing in By-Law 14, or any other By-Law, that indicates that a performance standard better than that specified in the Building Code of Australia or the North Sydney Council Development Control Plan 2013 is intended. 45 The Lot 2 Lot Owners live in a communal living environment. There is no doubt that in this environment they are capable of hearing sound generated by the occupants of other Lots. In his Statement, Mr Stebnicki says that during the period of his occupancy of Lot 3, he heard various sounds emanating from other Lots in the apartment block. His current tenant, Ms Mills, says the same in her email of 8 December 2021. The likelihood of being able to hear sounds from other Lots is illustrated by the Guideline for Apartment and Townhouse Acoustic Rating Version 1.0 the Lot 2 Lot Owners have placed in evidence. There is clearly a relationship between the floor type and sound transmission. However, it is clear that even the highest rated floor type, including carpet with underlay, cannot eliminate all noise transmission between Lots. 46 By-Law 14 does not require the Lot 3 Lot Owners to achieve the highest possible floor performance level in terms of minimising noise transmission. Properly construed, it requires them to meet a minimum standard. That is denoted by the word "sufficient", meaning 'enough' or 'adequate'. I am satisfied on the basis of the Blackett Acoustics report that the Lot 3 floor has been treated sufficiently, or adequately, to minimise the transmission of unreasonable noise, given the communal living environment of the Strata Scheme."
The objective evidence in that case was a report from Blackett Acoustics (set out in the decision at [14]) which stated: "Based on Blackett Acoustics experience with floor impact noise issues within residential apartments, our interpretation of the general By-Law requirement of 'treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot', is to achieve at least a 3 Star rating floor system. However, an Owner's Corporation has the discretion to set its own By-Law in this regard. It is noted that even a 3-Star performance floor impact noise is relatively modest. Different Owners Corporations in different buildings have decided for themselves what constitutes "disturb the peaceful enjoyment" based on that building's circumstances. Very expensive (luxury) buildings have opted for 5-Star or 6-Star levels of impact sound insulation for owners wishing to change carpet and underlay floor covering."
To the extent that the Tribunal in Hogan v Stebnicki in the last sentence of [44] might be taken to suggest that the requirements of by-law 14 will be satisfied if the requirements of the Building Code of Australia or the relevant planning instrument have been met, I disagree. By-law 14 of the by-laws of Strata Plan 64807 specifies that floors, other than wet areas and areas that were parquetry or tiled at the date of registration of the strata plan, must be treated to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of other residents. To the extent that the terms of the relevant by-law are ascertainable from each of the decisions referred to above, the relevant by-laws under consideration in those cases did not include an exemption for "areas that were parquetry or tiled at the date of registration of the strata plan".
The by-law under consideration in these proceedings operates against the background that the floors to which it applies were originally carpeted. The by-law is, to a large extent, intended to ensure that lot owners who seek to replace that carpet with hard floors are required to ensure other residents are not unreasonably disturbed by increased noise arising from such action. The by-law is not directed to ensuring compliance with the building code or the planning regulations, it is directed to preventing unreasonable interference with others' peaceful enjoyment.
In my view, in that context, it is not inappropriate to expect that a floating floor will have similar noise insulation properties to the carpet it replaced.
The question whether a floor is appropriately treated so as to comply with by-law 14 must be determined on the evidence before the Tribunal. The evidence of an acoustic expert can assist the Tribunal both in measuring, objectively, the extent to which sound is transmitted through the floor and in explaining for the benefit of the Tribunal the impact of the level of transmission so measured.
There was before the Tribunal no reliable evidence from the applicants of the extent of the noise which they have experienced. The applicants provided no diary or other evidence of particular incidences of noise which they have experienced. Ms Jiang's evidence, as set out in her "Background and Reasons" document, rose no higher than the general statement: "[W]e've experienced excessive impact noises directly from U35's floor. We could hear heavy footsteps, kids running & jumping, objects rolling, things suddenly dropping on the floor, etc on a daily basis."
The respondent, through Ms Ang, disputed that the applicants' claims in relation to their experience of noise were warranted. The respondent suggested that the applicants had complained of noise even when Ms Ang and her family were away from the apartment.
However, I need not resolve that issue. The question which I must determine is whether the floor coverings installed by the respondent comply with the by-laws, either as in force in 2021 or as amended in 2022. That will not be established by reference to anecdotal evidence of noise transmission but rather by reference to the objective evidence, which in this case consists of the Koikas Report.
The only issues arising on the evidence before me are: 1. Whether the respondent is in compliance with by-law 14 as in force in 2021. 2. If the respondent is not in breach of by-law 14 as in force in 2021, whether by-law 14 as amended applies to the floors installed by the respondent in 2021. I note that it is clear that the floor presently installed does not meet the 5 star standard required by the amended by-law.

Does the floor comply with by-law 14 as in force in 2021?

I recognise that in both Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66 and Hogan v Stebnicki the Tribunal found that a 3 star rating was sufficient to meet the requirements of the relevant by-law. However, in my view, those decisions were based upon the evidence led in those cases and are distinguishable from this case.
The evidence in Feletti v Eales was that a three-star rating was a reasonable standard for the majority of apartments in Sydney. As noted above, the by-law in that case did not except areas that were parquetry or tiled from the beginning.
Similarly, the evidence before the Tribunal in Hogan v Stebnicki was to the effect that Blackett Acoustics considered a 3 star rating to be necessary but sufficient to satisfy the requirement that floors be "treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot". Again, the by-law there under consideration did not exempt areas that were originally parquetry or tiled.
The evidence before me in these proceedings is to very different effect to the evidence before the Tribunal in Feletti v Eales and Hogan v Stebnicki. The evidence before me, contained in the Koikas Report, is that compliance with by-law 14 requires an L'nT,w measure of 45 or less where that is practically achievable but that "where the underlying building structure is such that it is not practically achievable to read meet this rating, irrespective of the proposed acoustic treatment, then the lesser design standard of L'nT,w of 50 would be appropriate".
I note that an L'nT,w of 45 equates to a 5 star rating. In circumstances where the owners corporation has subsequently imposed a requirement that any hard flooring meet the 5 star standard, I cannot conclude that "the underlying building structure is such that it is not practically achievable to meet" the 5 star rating.
Even if it were suggested that a 5 star rating is not practically achievable in the particular circumstances of Lots 27 and 35 in Strata Plan 64807, the Koikas Report suggests that, in any circumstances, at least an L'nT,w of 50 is required. The Koikas Report indicates that the wooden floors installed by the respondent in Lot 35 do not meet that requirement.
The respondent did not lead evidence to suggest that the 5 star rating was not practically achievable. The respondent did not seek to establish exactly what had been installed, or the nature of the ceiling/floor system, and in particular did not seek to establish the thickness of the slab over which the floor had been laid.
The only evidence before the Tribunal concerning the underlay which had been installed was the documentation (included in the applicants' bundle) which the respondent had attached to his initial application to the owners corporation for consent to install the flooring. That documentation suggested that "Foam Sound Solution 5mm" was proposed to be installed but did not establish that that was what had been installed. The Acoustic certificate indicated that, when installed under 12mm laminate floating boards over a 200mm thick concrete sub-base and 13mm suspended plasterboard ceiling with 100mm cavity, that brand of underlay would achieve an L'nT,w of 44.
The fact that the floors installed by the respondent do not achieve that level of acoustic insulation suggests either that the "ceiling/floor system" provides less noise protection than that on which the tests recorded in the Acoustic Certificate were undertaken (ie the slab is less than 200mm thick, the ceiling in Lot 27 is less than 13mm thick, and/or the ceiling cavity is less than 100mm), or that the underlay installed was of lesser efficacy than Foam Sound Solution 5mm.
The applicants suggested that the flooring which had been installed was not that which had been the subject of the application, as the flooring in situ was a different colour to the Lunar Oak flooring referred to in the quotation provided by the respondent.
I do not need to address these questions. The issue which I have to determine is whether the flooring as installed in Lot 35 meets the requirements of by-law 14, that is that it that it is "sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of" Lot 27.
The acoustic report which the respondent himself has obtained indicates that the hard floors installed by the respondent in the living room and bedroom of apartment 35 do not satisfy the requirements of by-law 14(1).
Accordingly, I am satisfied that, even under the by-laws in force at the time the hard flooring was installed in Lot 35, the hard flooring as installed was not in compliance with the by-laws.
It is therefore not strictly necessary to consider the second issue, that is whether the amended by-laws apply to the hard floors installed by the respondent in Lot 35.
Nevertheless, because it may affect the orders which I make, and against the possibility that I am found to be wrong in concluding that the hard floors installed by the respondent do not satisfy the requirements of the by-laws as in force in 2021, I will address that issue.

Does by-law 14 as amended in 2022 apply to floors installed before the amendment?

By-law 14(2) as in force since 2022 does not expressly exclude from its operation floor coverings in place prior to the inclusion of that paragraph in the by-law. The by-law imposes an obligation upon the owner of a lot "if [the] Owner is utilising a floor finish … other than carpet". The obligation is to "ensure that the floor covering for the Lot has or achieves a least a 5 star rating" [My emphasis].
It is clear in my view that paragraph (2) is intended to provide content and definition to the requirements of paragraph (1). As such I interpret it as intended to apply equally to floors in existence at the date of enactment, as well as floors subsequently installed.
It follows that the respondent is in breach of by-law 14 as currently in force.
I note that s 139(1) of the SSMA provides that: "A by-law must not be harsh, unconscionable or oppressive." The respondent did not suggest that the by-law would be harsh, unconscionable or oppressive if it applied to pre-existing hard floors. Nevertheless, I would regard it as inappropriate to make an order requiring a lot owner to comply with a by-law that was clearly invalid.
A by-law which required the removal of pre-existing improvements installed in accordance with the by-laws in force at the time of installation might be seen to be harsh, unconscionable or oppressive.
Although I consider that question may be arguable, it cannot be said that it would be beyond dispute, particularly in this case, where the expert evidence suggests that, even prior to the amendment, the by-law required floating floors to achieve a 5 star rating.
I do not consider that it would be inappropriate to require compliance with a by-law which has been duly enacted by the owners corporation and registered with the Registrar-General, is not clearly invalid, and has not been the subject of any challenge to its validity.

Conclusion

I have found on the evidence before me that the hard floors in Lot 35 do not provide sufficient acoustic protection to prevent the transmission from the floor space in the living area and bedroom of Lot 35 of noise likely to disturb the peaceful enjoyment of the occupiers of Lot 27. It is appropriate to make orders requiring the respondent to take action to comply with the by-laws. The Tribunal has jurisdiction pursuant to s 232 of the SSMA to make orders requiring a Lot owner to comply with the by-laws: Feletti v Eales Appeal at [21] - [31].
The options available to the respondent are: 1. To restore the carpet in those areas; or 2. To undertake further treatment of the floors, whether by replacement of the existing hard floors or otherwise, to ensure the floor covering achieves an appropriate acoustic rating.
In light of my conclusion that the respondent is obliged to meet the 5 star rating prescribed by the amended by-law 14, it is appropriate to require the respondent to achieve a 5 star rating, unless he elects to remove the hard flooring and restore the carpet.
In any event, in the absence of evidence that a 5 star rating is not practically achievable, the Koikas Report indicates that a 5 star rating is necessary in order to comply with the requirements of paragraph (1) of by-law 14 as in force in 2021.
It is appropriate to make ancillary orders requiring the respondent to obtain an acoustic report certifying that the floors have achieved the required standard and requiring the applicants to allow access to the respondent's acoustic consultant to permit testing for that purpose.

orders

Accordingly, I order: 1. Within three months of the date of this decision, the respondent shall either restore the carpeting within Lot 35, other than in the kitchen, laundry, lavatory, and bathroom areas, or treat or replace the hard floors within Lot 35, other than in the kitchen and laundry, lavatory and bathroom areas, in a manner which will ensure those floors achieve at least a 5 star rating under the Association of Australian Acoustical Consultants Guideline for Apartment and Townhouse Acoustic Rating. 2. Within one further month, the respondent is to arrange testing by a suitably qualified acoustical consultant to certify the acoustic properties of the floor coverings within Lot 35 other than in the kitchen and laundry, lavatory and bathroom areas. 3. The applicants are to permit the respondent's acoustic consultant to access their apartment in order to undertake acoustic testing on no less than seven days written notice.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2023

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