Property - Strata titles - Discretion of Tribunal to make an order - Floor coverings - Noise - Peaceful enjoyment of unit

State Administrative Tribunal Act 2004 (WA), s 60(2), s 92(1)

Strata Titles Act 1986 (WA), s 31(1)(a), s 77, s 77B, s 83(1), s 83(3), Sch 2(10)

Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1

1 The applicants seek an order under s 83(1) of the Strata Titles Act 1985 (STA) for the respondent to direct the proprietor of unit 18 to comply with Schedule 2 by-law 10 by ensuring that the floor of her unit is covered to an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment of the occupier of unit 5. Unit 5 is owned by the applicants and is situated immediately below unit 18. The applicants require that the proprietor of unit 18 remove the tiles of certain rooms and replace it with a carpet.

2 The applicants contend that the noise transmitted from unit 18 is causing an ongoing nuisance to their tenant. According to the applicants, the breach of the by-law commenced when the carpets in unit 18 were replaced in 2003 with tiles which is more prone to transmit noise than a carpet.

3 The owner of unit 18 contends that the tiles were installed in accordance with "relevant requirements" and that loose carpets have since been placed in the unit to reduce the transmission of noise. The tenant of unit 18 has also offered to lay rubber mats under his exercise equipment to further reduce noise.

4 The Tribunal has a discretion whether to make an order under s 83(1) STA, hence the use of the word "may". The mere fact that some noise is audible, does not mean the Tribunal "must" make an order. It is inevitable that some noise will be audible in strata units where people live in close proximity - especially in the case where one unit is situated above the other.

5 The applicants must provide sufficient information for the Tribunal to be satisfied that the transmission of noise is ongoing and not a mere one-off occurrence, that the peaceful enjoyment on unit 5 is affected or likely to be affected and finally, that the replacement of the tiles with carpets will remedy the situation.

6 The Tribunal is not satisfied that the applicant has shown that the noise emanating from unit 18 is in breach of the by-law. The application is therefore dismissed.

7 The applicants are the owners of unit 5 Beverly Court. The respondent is the Owners of Beverly Court on strata plan 6561.

8 Submissions were received from the applicants, and two letters were received from the respondent. Enclosed to the letters from the respondent were correspondence received from the proprietor of unit 18, Ms West, in response to the application. The respondent did not make submissions in support or against the application. Ms West opposes the application.

Application lodged with State Administrative Tribunal

9 The application was lodged with the State Administrative Tribunal (SAT) on 21 April 2005.

10 The application for relief was lodged under s 77 STA. The applicants did not certify, as is required by s 77B STA, that the strata company had no by-laws to regulate the resolution of a dispute. However, no submissions were received in regard to the existence of alternative dispute resolution by-laws. SAT may provide relief from procedural requirements (s 92(1) State Administrative Tribunal Act 2004 (WA)) and the Tribunal is of the view that, in the absence of evidence regarding alternative dispute resolution procedures in the bylaws of the strata company, the matter can be determined.

11 The matter is determined on the papers pursuant to s 60(2) of the SAT Act as ordered by Senior Member Raymond on 9 June 2005.

12 The Tribunal has considered the submissions and correspondence and make the following determination.

13 The applicants seek an order for the respondent to enforce the provisions of Schedule 2 by-law 10 by directing Ms West to remove the tiles in the lounge, dining room, and bedroom of her unit and replace it with carpets.

14 The question for the Tribunal is, if Ms West or her tenant has failed to comply with the requirements of the by-law that requires her to:

"to ensure that all the floor space within the lot (other than that comprising kitchen, laundry, lavatory or bathroom) is covered or otherwise treated to an extent sufficient to prevent the transmission therefrom of noise likely to disturb the peaceful enjoyment of the proprietor, occupier or other resident of another lot." (Schedule 2 by-law 10 STA).

15 In the following parts the Tribunal will deal with the submissions in the following way:

(a) summary of the factual background to the application;

(b) the discretionary powers of the Tribunal to make an order;

(c) an analysis of the type information required to make a finding that a breach of the by-law has occurred; and

16 It appears that sometime during 2003, Ms West replaced the carpets of unit 18 with tiles. She gave the assurance at the time that the tiles would be installed "in accordance with the relevant requirements" (letter dated 13 June 2003). She did not expand on what those requirements were and the respondent did not provide her with specifications that had to be complied with.

17 Since the installation of the tiles, the applicants complained at various occasions that the noise emanating from unit 18 was "extremely difficult to live with" and that their tenant had complained that even the dropping of an item in unit 18 echoes like a "gunshot" through unit 5.

18 The applicants raised the concern at the Annual General Meeting held on 23 November 2004. According to the minutes of the meeting, the first applicant "advised that Unit 18 has floor tiles and it is very noisy for tenants in the unit below. Mrs Arasi requested that the owners be asked to have the tiles covered, so as not to transmit noise". However, the first applicant disputes the accuracy of the minutes and contends that it should read as follows: "Mrs Arasi requested the Committee take steps to apply to the Strata Referee covering all top floor units and floor coverings" [sic].

19 The respondent recommended that the applicants approach the State Administrative Tribunal directly to seek appropriate orders.

20 The respondent has not replied to the applicants or the Tribunal in regard to the purported inaccurate minutes. The respondent also did not make any submission in support or against the application. However, it provided to the Tribunal, a copy of a letter dated 27 May 2005 received from Ms West. In the letter, Ms West indicates that she had recently installed carpets in the unit in response to the complaints and that she had paid a visit to the tenant in unit 5 to establish the extent, if any, of ongoing noise disturbance. According to her, the tenant told her that he heard "no noise" from unit 18. They did some informal sound testing on the spot by a person walking with rubber boots in unit 18 and dragging furniture. They agreed that the walking of the person was not audible and that the noise from the furniture being moved was "barely audible".

21 The Tribunal sent a copy of Ms West's letter to the applicants on 7 July 2005,to obtain their comment and in particular to determine if their concerns had been dealt with. The first applicant responded in letter dated 23 July 2005 that they remain of the view that the by-law is being breached and hence requested that the application be determined. Enclosed to the letter was a note dated 23 July 2005 from the tenant of unit 5 in which he says the following: "Regarding the noise from the above unit no 18 sometimes there is some noise and it comes and goes at night time I notice hearing heavy things moving on my head" [sic] (own emphasis). The applicant states in her letter that although loose rugs had been placed in unit 18, the noise caused particularly when the tenant of unit 18 does his exercises during the evening, remains unacceptable.

22 Ms West replied in a letter dated 26 July 2005 to complain at what she calls harassment of her tenant. She also confirmed that her tenant had given an undertaking that he would place additional rubber mats under his exercise equipment so as to further reduce any noise.

23 The respondent is obliged under the STA to enforce the by-laws (s 35(1)(a)). If the respondent has failed to discharge the duty imposed by Sch 2 by-law 10, the Tribunal may order it and Ms West, or her tenant, to perform in a manner and at a standard required by the STA.

24 The STA clothes the Tribunal with a discretionary power to determine if an order ought to be made under s 83(1) STA. Section 83(1) provides that the Tribunal:

"[M]ay ... make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme ..."

25 The transmission of noise from unit 18 to unit 5 does not by itself require for the Tribunal to make an order as requested by the applicants. The Tribunal must first be satisfied that the by-law is being breached.

26 Although the respondent has not explicitly refused to take the action requested by the applicants, the provisions of s 83(3) STA apply since the applicants have made an application to the respondent to exercise its function, and the respondent has recommended that the applicants directly approach the Tribunal for an order.

27 In considering the application, the Tribunal must take account of the requirements of the STA and all relevant information related to the application. Hence, the discretion that the Tribunal "may" make an order.

28 In exercising its discretion the Tribunal must act in accordance with the provisions of the STA, the principles of fairness and reasonableness, the interests of the parties, equity and due consideration all the information at its disposal. Aronson and others aptly state that: "no law is entirely self-executing; it needs the interposition of human judgement" (Aronson, M; Dyer, B; Groves, M "Judicial review of administrative action", 3rd Ed. Lawbook Co., Sydney, 2004, page 88).

29 The Tribunal must apply the provisions of Sch 2 by-law 10 STA in context of the reality of the persons within the strata complex live in very close proximity of each other. The Act does not seek to guarantee a noise-free surrounding. It is inevitable that some noise will protrude between neighbouring units, especially when one unit is situated immediately above the other as is the case with unit 18 and unit 5. The question is therefore whether the noise that protrudes is of such a nature that the "peaceful enjoyment" of unit 5 is disturbed or likely to be disturbed.

30 In this regard, I refer to the decision of the District Court (Swannell v Lilliman DCWA 15 March 2004, para [23]) in which his Honour Judge Mazza held as follows:

"There were two issues which the respondent needed to prove in order to allow the Referee to find that there had been a breach ... First, the Referee had to be satisfied that the noise which was transmitted from Lot 10 to Lot 8 was likely to disturb the peaceful enjoyment of the proprietor of Lot 8. Second, that the transmission of the noise was caused by the appellant's failure to cover, or otherwise treat the floor space to prevent the transmission of noise."

31 Only if SAT is satisfied that Sch 2 by-law 10 is being breached, an order can be made.

32 The STA does not define what is meant by the requirement in Sch 2 by-law 10 for "peaceful enjoyment" or what would constitute noise that may "disturb" the tenant in unit 5. Different persons may demonstrate varying tolerance towards noise.

33 The Act leaves it to the discretion of the Tribunal to determine on the facts of the application when the threshold of noise is breached. Several scenarios exist, for example, an application may refer to some ongoing or regular noise and not merely a one-off event or nuisance, or the noise is caused during hours when "peaceful enjoyment" of a unit is important, for example late at night and early morning. Confirmation of the noise by an expert or other persons directly or indirectly affected may also be of value for the Tribunal to form a view.

34 There is no set list of examples and the Tribunal has to be guided by the facts as presented by the parties. In the Swannell (supra) matter referred to above (page 10), his Honour concluded that -

"There were issues which had to be decided such as whether the noise was excessive, was the respondent overly sensitive to noise considering that apartment living is inevitable going to involve occupants hearing something of each other's activities, at what times of the day was the noise transmitted to the respondent's premises and the like."

35 It is incumbent on the applicants to satisfy the Tribunal that the tenant of unit 5 is being deprived of, or likely to be deprived of, the "peaceful enjoyment" of the unit.

36 The applicants did not provide sufficient factual information to support their claim.

37 In order for the Tribunal to be satisfied, it could be expected from the applicants to provide a detailed statement from the tenant, some form of record of the nature and type of noise, the period over which noise has been ongoing, a measurement of noise level, statements by other persons who can verify the noise level or some expert evidence to demonstrate a breach of the by-law.

38 The applicants failed to provide specifics of the type of noise, when it occurs or other relevant information.

39 As stated above, the mere fact that some noise from unit 18 is audible in unit 5 is in itself not sufficient to constitute a breach of the by-law. The Tribunal must be satisfied that the "peaceful enjoyment" of unit 5 is being compromised by the noise that emanates from unit 18, and that a breach of the by-law is ongoing and not a mere one-off event.

40 It is incumbent on the Tribunal to take into account all the relevant information at its disposal, consider the options available, and taking account of the legislative framework prior to it making a determination. Although the exercise of discretion is subjective, the discretion of the Tribunal is not absolute. It must be exercised on the basis of the "relevant grounds" and "from the consideration of the Act as a whole ..." (Aronson, M; Dyer, B; Groves, M "Judicial review of administrative action", 3rd Ed. Lawbook Co., Sydney, 2004, page 90). This reflects the approach of his honour Brennan CJ:

"[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised ..." (Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36).

41 The information before the Tribunal indicates that although tiles had been installed, Ms West and her tenant have taken precautions to reduce and even prevent noise from penetrating to unit 5. Hence, the laying of loose carpets and the undertaking to place rubber mats under the gym equipment. The note from the tenant of unit 5 confirms that the noise is of intermittent nature. The tenant contends that "some" noise protrudes "sometimes" from unit 18. That is hardly sufficient to demonstrate that the relevant by-law is being breached.

42 Insufficient information has been provided for the Tribunal to be satisfied that the noise emanating from unit 18 is "likely to disturb the peaceful enjoyment" of unit 5 by the applicants or their tenant.

43 From the available information, it appears that the tenant of unit 18 is willing to address concerns raised by the tenant on unit 5 in a good neighbourly manner. This is to be encouraged as the most sensible way of taking each other's concerns into account.

44 The application should be dismissed as the applicant has failed to demonstrate that the provisions of Schedule 2 by-law 10 have been breached.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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DR B DE VILLIERS, MEMBER