The Arbour on Grey - South [2025] QBCCMCmr 145 (7 May 2025)

The Body Corporate for The Arbour on Grey - South (respondent)

Section 88 of Schedule 4 of the South Bank Corporation Act 1989 (SBCA)

BY-LAW specifying minimum sound isolation impact control for hard flooring - whether should not have been made

SBCA, s 88 of Schedule 4

[1] Sean and Nicole Slinger, lessees of lot 78 (unit 2322) since July 2023, are renovating their lot. They wish to install hard flooring in the living areas (which were previously carpeted). They bring this application against the body corporate, challenging the validity of by-law 41.2(a) and 41.2(b) which the Slinger's argue impose too onerous a requirement regarding sound insulation.
[2] By-law 41 Floor coverings, provides as follows:

41.1 An Occupier must not install or cause to be installed or place in or upon any part of the lot hard flooring such as timber, tiles, marble or any similar material unless the Occupier has first obtained the written approval of the Committee, which may be given with or without conditions.

41.2 Any approval provided under this by-law is conditional upon the Occupier demonstrating that the flooring proposed to be installed will:

(a) achieve an acoustic rating acceptable for a five-star apartment building as published by the Association of Australian Acoustical Consultants from time to time;

(b) achieve an acoustic rating acceptable for a six-star apartment building as published by the Association of Australian Acoustical Consultants if the flooring will be installed directly above a bedroom beneath the lot; and

41.3 An Occupier must comply with any conditions imposed by the Committee when granting its consent, including any conditions which are imposed by the Committee, to prevent any noise arising in any way out of the installation or use of the flooring from being transmitted from the lot to another lot.

41.4 The granting of any approval by the Committee does not in any way relieve an Occupier of its responsibility under any other by-law.

41.5 In the event that an Occupier fails to comply with the terms of this by-law, then the Occupier must, at its own expense, remove the flooring from the lot upon receiving written notice from the Committee to do so.

[3] By-law 41.2(a) requires a LnT,w of 45 or less for kitchen/lounge/dining/hall areas. By-law 41.2(b) requires a LnT,w of 40 or less for bedrooms.
[4] The Slingers say the requirements are at the extreme end of what can be stipulated, and in comparison to the neighbouring building, Arbour on Grey - North, there are 10 points difference.
[5] They seek orders that by-laws 41.2(a) and 41.2(b) be revoked and the by-laws adjusted to reflect those of their sister building, Arbour on Grey - North (AOGN), which require that hard floors 'achieve a minimum impact isolation control of 55 under relevant Building Code Regulations'.

[6] The Arbour on Grey - South was established on 7 November 2002 with the registration of leasehold building units plan 107061 under the Southbank Corporation Act 1989 (SBCA), containing 96 lots in a 6-storey building at South Bank in Brisbane. Lot 78 is on Level E. It has residential units above and below.
[7] Section 47 of the SBCA provides that the modified Building Units and Group Titles Act 1980 (BUGTA) applies to subdivisions of South Bank public land by leasehold building units plan.
[8] The 'modified BUGTA' is contained in Schedule 4 of the SBCA. Schedule 4, Part 5 headed 'Disputes_'_ contains the provisions relevant to the resolution of certain disputes under the SBCA by a referee.
[9] Where a referee considers that, having regard to the interest of all proprietors in the use and enjoyment of their lots or the common property, an amendment or repeal of a by-law or addition of a new by-law should not have been made or effected, the referee may order that the amendment be revoked, that the repealed by-law be revived or that the additional by-law be repealed.[1]
[10] Submissions in response to the application were sought from all lessees (excluding the applicants) and the committee. Submissions were received from the lessees of 7 lots, and the committee. The Slingers were provided with copies of the submissions, and they provided a written reply.

[11] This application is brought under section 88(1) of Schedule 4 of the SBCA. It provides, relevantly, that where the referee considers that, having regard to the interest of all lessees in the use and enjoyment of their lots or the common property, an amendment or repeal of a by-law or addition of a new by-law should not have been made or effected, the referee may order that the amendment be revoked, that the repealed by-law be revived or that the additional by-law be repealed.
[12] The Slingers argue that the requirement in by-law 41.2(a) that a rating of 45 LnT,w or lower must be achieved contradicts the standards laid down by the National Construction Code (NCC), which provides:

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

[13] The Slingers say the by-laws regarding hard flooring also differ from those of Arbour on Grey - North, which state that hard floors must achieve 'a minimum impact isolation control of 55 under relevant Building Code Regulations'.
[14] The Slingers say their neighbours in unit 2326 have just been through the process of replacing their floors, and the financial burden as well as the stress of the process indicates that Arbour on Grey - South by-laws are unfair and unreasonable. Their flooring sits 53mm above the slab of their unit, which the Slingers believe devalues the property and they are unwilling to do that. The Slingers say renovating should improve the value of the property as well as the building it sits within.
[15] Unit 2326, the Slingers say, has a ramp on body corporate entry space leading into their unit because the floor height presents a trip hazard. All doors, including a fire door have been height adjusted. They also have ramps down into their bathrooms. Because of this floor height, their ceiling height is also lowered. The Slingers say 2 of these points are outlined as problems in the NCC's 'Sound transmission and insulation in buildings Handbook'. They quote from section - 5.1.1 Floor design, as follows:

Some designs require floors to be sound-rated to meet the NCC provisions. Carpet may only be one option to meet the impact rating on floors. Alternative hard-floor systems also need to be considered. This is the case whether the hard floor covering is installed as part of the initial fit out or as part of a future occupant upgrade. The design for both the hard floor covering and carpet options should allow for:

sufficient ceiling height being maintained in all rooms
an excessively high step is not formed between carpet and hard floor covering systems within the unit.[3]

[16] After 5 acoustic tests costing around $1000 each, and countless costs associated with acquiring the necessary materials for testing, the Slingers say unit 2326's final test came back with a reading of 46 LnT,w, still not reaching the standard of 45.
[17] When they started this process, the Slingers say they asked for a starting point from the body corporate and the building manager forwarded test results for unit 2218. The body corporate approved the materials used in testing to achieve a reading of 43 LnT,w, 'Timber on 17/8 dimple underlay - U2218 Liv to U2118 Liv' but it was voiding the underlay warranty as well as being considered 'unreasonable'.[4]
[18] The Association of Australian Acoustical Consultant's (AAAC) own documentation states that 'The AAAC Guideline for Apartment and Townhouse Acoustic Rating should not be used by Owners Corporations/Committees, Strata Managers or the like, to arbitrarily determine and set a minimum impact sound transmission performance requirement (or By-laws) for a specific building. To do so can cause significant issues. Each building is different and the impact sound transmission performance able to be achieved is limited by a number of factors.'
[19] The Slingers say that if they submit to laying carpet to avoid further financial burden and stress, they still have the issue of what to lay in the kitchen and foyer. They previously had cracked tiles which were removed for the installation of their new kitchen and future flooring. The acoustic tester they had told them that tiles would never pass the testing imposed by the body corporate of Arbour on Grey - South.
[20] The Slingers acoustic testing for their preferred flooring achieved a rating of 51 LnT,w, outside the 45 required by by-law 41.2(a), but well inside that required by AOGN. This test was done by laying 4mm Damtec underlay on top of the slab, 6mm fibro-cement sheeting on top of that, (to ensure the warranty on the Damtec is not voided), then 9mm hybrid flooring laid on top. This reaches a height of 19mm, which almost perfectly matches the height of the carpet being laid in the bedrooms and would avoid the problems noted above.
[21] An application under section 88(1) of Schedule 4 of the SBCA requires a referee to have regard to the interests of all lessees in the use and enjoyment of their lots before determining whether an amendment to a by-law or addition of a new by-law should not have been made. I have therefore had regard to the submissions made in response to this application, as well as the Slingers' reply to them.

[22] Of the submissions made, 3 were supportive of the application and 4 opposed it.

[23] The lessee of lot 61, Maria Kallos, agrees that by-laws 41.2(a) and (b) should be revoked and the by-laws adjusted to reflect those of Arbour on Grey - North which require that hard floors achieve a minimum impact isolation control of 55 under relevant building regulations. She submits that when she investigated hard flooring for her unit, she was informed that the only way to achieve what was required under the current by-laws was to have different levels in the kitchen and bathrooms and the use of ramps. She says going up and down ramps all day in a unit increases pressure on the knees and increases the falls risk. Ramps are a health and safety issue as well as the other problems with ceiling heights etc mentioned. The Slingers reply saying that Ms Kallos is an elderly lady, living on her own without the ability to fight the by-laws. She installed carpet, which is more difficult to manoeuvre on than the hard floors she wanted.
[24] Patrick Welsh, lessee of unit 2326 submits that he and his wife have recently completed extensive renovations to their apartment. He says the renovations suffered considerable delays and significant cost overruns as they attempted to meet by-law standards for hard flooring. Their only advice was to hit an acoustic level of 45. After examination, in his opinion an acoustic level of 45 is far too harsh and extremely difficult to achieve, a belief supported by several flooring experts he consulted during the renovations. They eventually had to endure 5 separate acoustic tests; each costing around $1,000. An inconvenience to them and a strain on their neighbours. Small ramps into neighbouring rooms had to be built due to the thickness of the flooring that was eventually passed. The entire job was delayed by at least 2 months as they tried to meet those standards. They fully understand the importance of 'lifestyle' considerations to all living around them, but in the case of their hard flooring by-laws, they think they are overly harsh and desperately need to be reconsidered.
[25] The lessee of lot 75 (unit 2319), Melissa Lu, says they have gone through the flooring application process and found the current requirement of 45 LnT,w to be unreasonable.
[26] She believes that a noise rating of 55 LnT,w, which was in place prior to 2020 and is still the standard at their sister building, AOGN, is already a high standard. In her experience, complaints regarding noise from the floor above are often more related to the lifestyle or behaviour of the residents rather than the type of flooring they have installed. As such, the lower 45 LnT,w seems both impractical and difficult to meet.
[27] Ms Lu continues that the building was constructed in 2002 when carpet was the primary flooring option, offering acoustic benefits that naturally mitigated noise. The building's design - comprising concrete slab floors without any suspended ceilings above the living areas or bedrooms - was developed with this in mind. However, now with the appeal of timber flooring for both aesthetic and health reasons, it is unrealistic to expect it to meet an acoustic standard that was set for a building designed for carpet.
[28] When they submitted their flooring application in October 2019, the requirement was still 55 LnT,w. Despite this, they were informed of a draft by-law that imposed a 45 LnT,w requirement, which they were told to comply with. They engaged an acoustics specialist who advised them that achieving a 45 LnT,w rating was unfeasible without either installing an exceptionally thick underlay - leading to uneven floors - or altering the fire-rated front door. Both options would have compromised the safety and value of their apartment.
[29] In an effort to find a suitable solution, they asked the strata manager for recommendations of timber flooring options that could meet the 45 LnT,w requirement. They did not receive any guidance or results from the committee, despite assuming they would have undertaken their own testing prior to seeking amendment of the by-law.
[30] The Lu's proceeded with an initial sound test on their chosen timber flooring, which resulted in a 49 LnT,w rating - meeting the by-law requirement at that time. Based on that result, they submitted their application to the committee as they complied with the then bylaws and the draft by-laws should not apply. However, they were advised that the committee was unable to vote on the application due to a lack of quorum.
[31] Despite this, with renovation plans already in place and contractors ready to proceed, they chose to move forward with the flooring installation and informed the strata manager accordingly. After completing the renovation, they conducted a follow-up acoustic test, which returned a result of 50 LnT,w, and provided the report to the strata manager.
[32] Since the completion of their renovation, they have communicated with their downstairs neighbour on multiple occasions. They have assured them that they have not experienced any issues with noise coming from their apartment. As a family with two children and a dog, they make a conscious effort to keep noise levels reasonable, including playing with their dog and using musical instruments, but always at appropriate hours.
[33] Ms Lu believes that by-laws should not only set a standard but also ensure that those standards are attainable and reasonable. Homeowners should be given the flexibility to renovate in a way that reflects their personal taste, without being bound by overly restrictive or unrealistic requirements. For these reasons, she strongly supports the Slinger's request for an amendment to the floor rating in the by-laws to 55 LnT,w; a standard that is both fair and achievable for residents of the building.

[34] Dr Margaret Ward, lessee of lot 18 (unit 2117), submits that the building was built in the early 2000s and the construction only needed to comply with the applicable building code at that time and was designed for carpeted surfaces. Since then, there have been significant amendments to the building code (now the NCC) to improve the minimum standard of building quality, including requirements for soundproofing between floors to allow for hard surfaced flooring. The reason for this, she says, is the currently accepted noise level to ensure peace and wellbeing of residents. Residents expect this minimum standard, and renovations that lead to anything less are likely to cause conflict for the body corporate. This clearly has already occurred and necessitated the amendment to the by-laws. These matters are considered seriously and thoroughly by both the Australian Building Codes Board (ABCB) and the Arbour on Grey-South body corporate with transparent processes and opportunities for all concerned to comment. The self-interest of Sean and Nicole Slinger to modify their apartment as they wish should not be reason enough to revoke the communal interests of the body corporate.
[35] The Slingers reply that the ABCB recommends a weighted standardised impact sound pressure level (LnT,w) not more than 62 for impact generated sound. In response to the claim that they are 'self-serving', the Slingers say they are in fact trying to serve the interests of all owners wishing to renovate their units. They believe no-one should have to go through what they and the Welsh's (unit 2326) have been through. They would like to think the time, effort and stress of their actions in completing this process helps owners in the future. Regarding the noise complaints, the Slingers say one the them was because a unit was being used as an Airbnb. Further, Dr Ward lives in a unit on level 1, and therefore would only ever need to have sideways testing.
[36] Hazel and Darryl Funch, lessees of lot 25 (unit 2124), submit that the current by-laws regarding the acoustical standard for floor coverings were updated when flooring trends changed and owners began replacing the original wool carpet and underlay with which the original apartments were built and sold, with various types of hard flooring. As the building is in the cultural and dining precinct of Southbank, the external environment is quite noisy. Being able to close the doors and enjoy peace and quiet when desired is very valuable to them. The committee advised owners at the annual general meeting (AGM) in 2018 that they were embarking on an update of the by-laws to reflect changes in legislation and in response to owner/resident complaints and expectations, particularly regarding pet and noise issues and maintenance of the high standard of peaceful living and lifestyle amenity they had bought into when purchasing.
[37] An anomaly was identified in the original built acoustical standard between apartments (the highest level attainable being quality carpet and underlay) and the generic by-law which referenced the minimum standard under the Building Code of Australia, rated as low/unacceptable by acoustical engineers. This 12-month consultation process involved communication and consultation between Bugden-Allen Legal, the committee and owners. The updated by-laws voted on at the AGM in 2019 were approved by owners by special resolution. The by-law regarding flooring acoustical treatment in effect set the same standard of acoustical amenity for residents as existed when the building was built. A significant difference between the Arbour on Grey buildings and more recent developments is seen in the concrete slab depth between floors, being approximately 150mm in Arbour on Grey - North and South, whereas new high quality apartment developments with hard flooring have 200mm depth of concrete slab between floors.
[38] As medical evidence links disrupted/disturbed sleep to mental health issues and the fact that medical professions and other shift workers reside in the building, they are opposed to lowering the acoustical standard of the building from its current rating.
[39] There are apartments which have installed hard flooring in the building which have met the current acoustical standard, so it is incorrect to state this standard cannot be met. The Slingers say that the Welsh's (unit 2326) and unit 2218 are the only units whose results are relevant. The other 3 units are on level 1 and sideways testing is all that is required for them as they are above commercial property.
[40] In the past 5 years under the updated by-laws, the Funch's say no previous or existing owner has requested that the standard be lowered. The Slingers submit that the reason no other owners have requested the standard be lowered in the past 5 years is because the process to have the by-laws changed is very difficult. They say they have had multiple phone calls in the last month from current owners commending their actions and thanking them for undertaking the process. Hopefully, owners wishing to upgrade their properties in the future will not have the same difficulties they (and others) have encountered.
[41] The Funch's are aware there have been complaints from occupiers in Arbour on Grey- North regarding unacceptable transference of noise between apartments in that building, because the original carpet and underlay was replaced by hard flooring. These complaints prompted their body corporate to commission an update of their original by-laws (2001) to reflect the identical standard for the installation of hard flooring adopted by Arbour on Grey - South. The current chairperson for AOGN has informed Mrs Funch this process to update their building by-laws will mirror their hard floor acoustical standard and has been underway for some months now. It will be voted on by owners at the AGM, or an extraordinary general meeting, when finalised.
[42] Mr Funch says that hard flooring of low quality sound proofing was installed in the unit above them when noise restrictions were not enforced. With the doors of their lot closed, he can hear (and feel the vibrations of) the resident above walking around, and the faintest scratching noise is very loud. They are fortunate the resident above is a quiet elderly man who lives alone and does not party. If he sells, and younger residents move in, they're not sure they could continue to live there.
[43] They want the flooring by-laws upheld as it helps to protect their amenity and also the value of their investment.
[44] In reply, the Slingers say as Mrs Funch says 'flooring trends have changed' since the building's inception in 2002. Installing carpet in the living areas of their unit would not be on trend and would decrease its value on sale. The Funch's correctly observe that the external environment is quite noisy. The Slingers say it can be extremely noisy. Every morning garbage trucks empty restaurant bins before 7am, delivery trucks idle below their balconies, grass is being mown and street sweeping machines drive up and down. Nighttime noise, especially on weekends, includes loud people leaving pubs, fireworks regularly, concerts, and motorists intentionally revving engines. Southbank is a party precinct.
[45] The Slingers disagree that you buy into Arbour on Grey - North or South to enjoy what the Funch's describe as 'peaceful living'. They do not dispute that disturbed sleep can contribute to mental health conditions, however, if you are a shift worker who needs to sleep during the day, they find it impossible to believe that the outside noise would not keep you awake. The Slingers reply that physical health is improved by laying hard floors. Allergy sufferers and asthmatic members in their family will benefit from the renovation.
[46] The Funch's note that the unit above theirs did not install quality underlay. The Slingers intend to install quality underlay as well as other sound proofing layers, as outlined in the acoustic report. The unit next to the Funch's, which had hard floors installed under the new by-laws only had to achieve the standard with sideways testing, through walls, not floors as they are located on level 1, with commercial properties below them.
[47] Andrea Kenafake and Ian Niven, lessees of lot 20, submit that they have owned their unit since April 2019. During 2020 they undertook significant renovations including replacement of the flooring. They decided to replace the carpet with carpet, being fully aware of the by-law that required a level of noise attenuation that was consistent with the original design of the building. They live below an apartment that has hard flooring. They can confirm that noise transfers clearly to the level below. The noise interruption is daily and regular.
[48] Since this time, Andrea has been a member of the committee and witness to the number of issues and complaints that have been raised to the body corporate regarding noise from other apartments. They fully support the existing by-law that maintains the level of noise attenuation that was in the original design of the building. Owners conducting renovations have options: they can replace like for like with carpet (as they did) or with some additional attenuation and compromise, they can achieve a hard flooring outcome that does not disrupt the peaceful enjoyment of others. They are also aware that Arbour on Grey - North, on the basis of the number of hard flooring noise complaints, are planning to amend their by-law to be consistent with Arbour on Grey - South.
[49] The Slingers reply that replacing carpet with carpet is an easier option because no acoustic testing is required. However, it is not on trend.
[50] Donald Hansen, lessee of lot 51 (unit 2224 directly below the applicants' unit) submits:

a) The slab is only 150mm thick on all the floor areas of each unit. > > b) Arbour on Grey - North (Stage 1) are in the process of changing their by-laws to match Souths due to the continual noise complaints when carpets are replaced with hard flooring. > > c) The unit above 2322 (2413) (lot 95) is a lock up unit and has been for at least the last 5 years. Nobody resides in that unit. This would be giving the Slingers a false sense of the noise transfer between floors as there is nobody above them for them to hear any noise. > > d) It was around 2018 that owners voted on restoring the hard flooring guidelines back to the original standard put out by Mirvac when they built the building in 2002. This was because there were too many complaints regarding noise transfer after hard flooring was put down. One complaint was from the owner who lived below him when he put hard flooring down in about 2012, but was rejected due to the length of time it was down and no complaints had been made until 2016. There have been around 5 units that have installed hard flooring since the amended by-laws came into effect and all have met the required standards. > > e) The Slingers have not had any flooring down since around December last year and the noise has been very bad at times, which he knows is because there is no flooring. But he believes if they put the hard flooring down that they want, it may force him to reconsider living there after 15 years. > > f) As a committee member, he has abstained from voting on the Slinger's application because of his conflict of interest.

[51] The Slingers reply that whether the slab is 200mm or 150mm thick is irrelevant as the acoustic testing is the measure which is considered. The Funch's complained about the noise above their unit (from unit 2224) when they moved in, in 2016. This was 4 years after Mr Hansen installed his hard flooring. No complaints had been made between 2012 and 2016, so the complaint was rejected (because it had to be made within 2 years).
[52] The Slingers say they had tiles removed from their entrance and kitchen in September 2024 to prepare for kitchen installation. No other flooring has been removed. Carpet currently (new in bedrooms, and some old) fully covers all areas of their unit, apart from the entrance and bathrooms. The Slingers concede that the removal of entrance and kitchen tiles (1 day), the installation of the kitchen in September 2024 (3 days) and tiling of the kitchen (1 day) would have been noisy. They also concede that the 2 bathroom renovations over a 2-week period in late January 2025, would have been noisy at times. They specifically asked Mr Hansen after they had been living there a few months whether he heard any noise from their unit. He admitted that their outdoor chairs had been scraping on the balcony. The Slingers have attached felt to these chairs on 2 occasions in the past 2 years and they will do the same on indoor chairs when hard flooring is installed. They will also have a large rug in the living area and another rug on the floor in the back living space.
[53] The committee submits:

a) It is unclear on what basis the applicants seek the orders. > > b) It was within the power of the body corporate to make by-laws 41.2(a) and (b). > > c) By-laws 41.2(a) and (b) are valid. > > d) It has a statutory obligation to enforce the by-laws. > > e) There is no requirement for the by-laws of a body corporate governed by the BUGTA to be reasonable to the standard imposed by the Body Corporate and Community Management Act 1997 (BCCM Act). > > f) In any event, the body corporate considers they are reasonable and proportionate, having regard to: > > 1. The design intent and construction of the building/s in the plan having a high standard of acoustic performance; > 2. The evidence demonstrating that the standard prescribed in the by-laws are both consistent with that intent and achievable; and > 3. The interests of all owners within the plan.

[54] The committee says the power to make by-laws is granted by section 30(2) of Schedule 4 of the SBCA. That power, it says, has been interpreted broadly where by-laws can be made 'for the purpose of the control, management, administration, use or enjoyment of the lots and common property the subject of the leasehold building units plan'.[5]
[55] The committee notes that section 30(6) imposes restrictions on the by-law making power. It provides:

No by-laws or any amendment of or addition to a by-law shall be capable of operating to prohibit or restrict the devolution of a leasehold estate in a lot, or a transfer, sublease, mortgage or other dealing with a leasehold estate in a lot, or to destroy or modify any easement, service right or service obligation implied or created by this Act.

[56] The committee says the operation of by-laws 41.2(a) and 41.2(b) do not fall in any of the categories of restrictions imposed by section 30(6).
[57] The committee further says there is no express limit on this power to make by-laws under the SBCA that operates to prohibit by-laws that are unreasonable or oppressive. That said, the committee says it is well established that the power is not unfettered, in that a by-law must not be 'so unreasonable that the by-law cannot be regarded as falling within the scope of what is intended by the empowering legislation, or if the by-law is not reasonably proportionate to what is necessary to achieve the statutory object or purpose.'[6]
[58] By-laws 41.2(a) and (b) were adopted by way of special resolution at the 2019 AGM and subsequently recorded as amendments to the management statement on the Plan. A copy of the minutes of the 2019 AGM were provided with the committee's submission. The by-laws were amended by the passing of motion 9 by special resolution, with 21 votes in favour, 7 against and 4 abstentions.
[59] The Slingers reply noting the minutes include the following note:

Concerns were raised that there had been insufficient discussion and consultation with the wider group of owners some of which were considered too prescriptive, such as those by-laws requiring an application to undertake a certain action. The Committee advised that the proposed amendments to the by-laws was the first such review undertaken since construction and amendments could be made in future years and recommended that future reviews occur at least every five years.

[60] The Slingers say this note raises the same concerns as their application and no further consultation has taken place. They say it reinforces their claim that the by-laws are unreasonable.
[61] The body corporate submits that by-laws 41.2(a) and (b) as recorded in the management statement for the Plan are valid.
[62] As noted by the committee, section 30(2) of Schedule 4 the SBCA empowers a body corporate, pursuant to a special resolution, to make by-laws amending, adding to, or repealing its by-laws 'for the purpose of the control, management, administration, use or enjoyment of the lots and common property the subject of the plan'. That power has been described as 'broad' and the limitation as to purpose 'undemanding'.[7]
[63] There is not, nor do I consider there could realistically be, any dispute that the body corporate is empowered to make by-laws about the installation of hard flooring in the building, including having a requirement for an application to be made, having a minimum requirement for acoustic performance, and that empowers the committee to deny the application or give conditional approval.
[64] I agree that by-laws 41.2(a) and (b) are prima facie valid. They are within the by-law making power of the body corporate; they do not fall into any of the categories of restrictions imposed by section 30(6) and they were properly consented to by special resolution in general meeting.

[65] The permissible form and effect of a by-law is another matter. The Slingers argue that the specific sound insulation requirements imposed by the by-law are too onerous, harsh, unfair, and unreasonable. Those words echo section 180(7) of the BCCM Act, which provides that 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 and the use of the common property for the scheme. Decisions in the context of that provision have invalidated by-laws that purported to allow hard flooring, but imposed practically unobtainable levels of acoustic performance, for being oppressive or unreasonable.[8] In Grosvenor Apartments[9], the specialist adjudicator found a by-law unreasonable that set a standard that would require an owner to install 60mm of acoustic material under their timber flooring. Even in Stradbroke Tower & Villas[10], authority for the notion that the body corporate is entitled to require a high standard of acoustic performance, includes an observation that a hard flooring by-law would be unreasonable if it imposed an unattainably high standard of acoustic performance.
[66] There is no similar explicit limitation on the capacity of a body corporate to make a by-law in the SBCA. However, a body corporate does not have unfettered power in that regard.[11] The boundaries of the power to make by-laws under the BUGTA were examined in Redman v The Proprietors - Fairway Island GTP 107328, wherein Barlow QC DCJ said:

[69] There is no express requirement, in the BUGTA, that a by-law not be oppressive or unreasonable. However, the parties agree that, at common law, as with delegated legislation, a by-law (even one forming part of a statutory contract) must be the result of a genuine and real exercise of the power to make it: the power must not have been exercised for a purpose not related (that is, ulterior) to the purpose for which it was conferred on the body corporate. It is in that sense that a by-law must be reasonable.

[70] A by-law made under such a power must be within the scope of what parliament intended when enacting the statute that gave the power to a subordinate body (in this case, the body corporate). It must not be so capricious and irrational that no reasonable person exercising the power could have devised it. It must be reasonably proportionate to the end to be achieved under the legislation. It is not enough that a reviewing decision maker may think the by-law to be inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. [12]

[67] The only question remaining then is whether by-laws 41.2(a) and (b) are so capricious and irrational that no reasonable person exercising the power could have devised it; or so lacking in reasonable proportionality as not to be a real exercise of the power.
[68] The committee submits that there is no requirement for the by-laws of a body corporate governed by the BUGTA to be reasonable, to the standard imposed by the BCCM Act.
[69] In any event, the body corporate considers they are reasonable and proportionate, having regard to:

a) The design intent and construction of the building/s in the plan having a high standard of acoustic performance; > > b) The evidence demonstrating that the standard prescribed in the by-laws are both consistent with that intent and achievable; and > > c) The interests of all owners within the plan.

[70] The committee submits that the Plan is a Mirvac development for which construction was finalised in 2002. The original design of acoustic systems installed by Mirvac achieved a five-star acoustic rating for apartment buildings as published by the AAAC. This was achieved within the living areas by a 150mm thick concrete slab and the installation of carpet and underlay. The design intention for the Plan by Mirvac was not to just meet the minimum acoustic rating as specified in the building codes, but to achieve a superior rating commensurate with a premium lifestyle residential development.
[71] This intention is demonstrated by a residential information booklet (Owner's Manual - a copy of which was supplied with the committee's submission) developed by Mirvac, which has the following advice regarding hard flooring (at page 3 of 13):

Where tiles or timber flooring is laid by the purchaser in lieu of carpet, adherence to strict acoustic standards is necessary.

Hard floor surfaces must not be laid over bedrooms in apartments below, as satisfactory acoustic isolation is unachievable without an acoustic ceiling in the bedroom below together with the following acoustic floor treatment.

An acoustic screed is to be applied to the concrete floor surface prior to installation of the new flooring material to achieve a finished floor with a field impact isolation classification in excess of FIIC 55. Failure to do this will result in the transference of impact noise to the apartment below.

[72] The intention is further demonstrated by early by-laws established by Mirvac, which can be found at page 8 of 13 of the Owner's Manual. By-law 35 of the Owner's Manual relevantly provides:

A lessee or occupier of a lot must not, without the prior approval in writing of the body corporate committee and subject to any conditions the committee may impose:-

a) remove or install any hard floor surfaces unless it achieves a minimum field impact isolation control of 55 under relevant Building Code Regulations and is suitably acoustically treated; or

b) interfere with any ceiling acoustic treatment.

[73] A five-star acoustic rating is equivalent to a FIIC rating of 75-85. It is the body corporate's intention and obligation to maintain the design standards of the building and it has been shown to be achievable with the right products as per original building specifications.
[74] The Slingers reply that nowhere in the original documents for Arbour on Grey - South is it stated that it is a five-star building.
[75] They note the Proposed Floor Impact Noise Insulation Criteria Report, prepared at the body corporate's request by Alpha Acoustics Pty Ltd, dated 15 April 2019 (Alpha Acoustics Report) recommended a rating of 53LnT,w, saying 'It should be noted that adopting the LnT,w ≤ 45 is a cautious approach for minimising floor impact noise but it will normally be very difficult to achieve this rating in timber and especially for tile floors. To achieve this rating, it is likely that a significant loss of height will be experienced by the owner replacing the floor covering (perhaps in the order of 50 to 60 mm of impact resistance construction)." The Slingers say this was the case for unit 2326. It had many knock-on effects and devalued their unit.
[76] 'Additionally, the use of rugs and felt pads on furniture is an optional recommendation in apartments with hard floors but this could be a recommendation rather than a law'. The Slingers refer to this part of the Alpha Acoustics Report and say they intend to implement these measures.
[77] The Slingers say the report saying 'This floor acoustic underlay system will likely be very expensive to install in a situation such as a bare slab as a starting point', contributes to the unreasonable nature of the by-laws.
[78] The Slingers further note that background noise levels, which includes traffic, are very high.
[79] The Slingers say it appears the body corporate has ignored the advice given to them by Alpha Acoustics.
[80] Over time, as residents refurbished their units and opted to install hard flooring, the body corporate says it began receiving ongoing noise complaints by residents below. Written complaints received by the body corporate in respect of noise transference between vertically adjoining units were included with its submission.
[81] This led to the body corporate consulting with all owners over a 12-month period regarding the impact of the original by-law.
[82] The body corporate engaged Alpha Acoustics to conduct acoustic testing to assess suitable floor impact noise insulation performance criteria. The following are excerpts from the Alpha Acoustics Report which led to the body corporate adopting the current by-law.

Alpha Acoustics holds the stance that [the requirements of the NCC] is only a minimum floor impact noise criterion that must be met and it is not an appropriate criterion for an apartment block where a higher standard of acoustic privacy may be expected especially considering a case where an apartment was built and sold with carpeted floors which achieve a much higher floor impact noise rating. In the case of a floor that was originally designed for a carpeted covering, it may be argued that the floor/building was designed with the carpet floor impact noise performance and hence it may become a legal matter as to whether simply meeting the NCC minimum requirements is adequate.

But the question is asked "what level of floor impact noise interferes with the peaceful enjoyment of a person especially given humans react differently to noise emissions. Therefore, although this law has the intent to protect occupiers and tenants of other lots from noise impacts, at times legal disputes occur because there may be differing interpretations of this law.

Therefore, to avoid legal disputes, it is possible for a Body Corporate to specify an exact noise impact criterion to ensure an agreed standard of acoustic privacy is maintained. This specification can be tested if a dispute arises or if a timber/tile flooring system has an unknown acoustic performance.[13]

If a tenant has grown accustomed to a high standard of acoustic privacy then that tenant may be sensitive to a degrading of the acoustic ambience even if the new acoustic privacy is perhaps an average to good performance (perhaps 3 to 4 Star rating).[14]

[83] The body corporate considers the current standards imposed by by-laws 41.2(a) and (b) are reasonable having regard to:

a) the current by-laws which do not operate to place a blanket prohibition on hard-flooring installations; > > b) experts who have determined the prescribed impact noise performance is difficult to achieve, but not impossible with hard floor coverings; > > c) the original construction of the building(s) being designed with a high floor impact noise criterion (i.e. carpet being installed); and > > d) the quality of the development being high range given its location.

[84] The Slingers seek to have the by-laws amended to reflect that of AOGN, which still maintains the wording reflected in by-law 35 in the Owner's Manual. The body corporate says that consultation with AOGN's body corporate reveals that due to the ongoing number of complaints regarding noise, AOGN intend to introduce an amended by-law which reflects that which the body corporate has since adopted.[15]
[85] The Slingers raise concern that no applications for hard flooring have been successful since the by-laws were amended.
[86] The strata manager has forwarded to the applicants, the 2 most recent examples of hard flooring applications / approvals which have met the acoustic standard. As mentioned in the application, one achieved the standard through raising the floor height to accommodate the acoustic underlay (unit 2326) and the other through voiding their underlay warranty (unit 2218).
[87] In both these cases, the body corporate says the owners were prepared to make these compromises to achieve the flooring outcome they sought for their property and not interfere with the peaceful enjoyment of a lot by another owner or occupier. The Slingers reply that it is unreasonable to expect them to be prepared to make the same decisions.
[88] Since receiving the invitation to make a submission to this application, the body corporate has identified 3 other applications which meet the current acoustic requirements of by-law 41. The body corporate therefore disagrees that the acoustic requirements within the by-law are unachievable or unreasonable.
[89] The Slingers reply that 3 of the applications are for 1st floor units and irrelevant.

[90] Considering all the submissions and the Slingers' reply, I cannot conclude that by-laws 41.2(a) and (b) are so capricious and irrational that no reasonable person exercising the power could have devised it; or so lacking in reasonable proportionality as not to be a real exercise of the power.
[91] The replacement of carpet with hard flooring is a major source of conflict within community titles schemes. Many bodies corporate have adopted specific by-laws regulating hard flooring surfaces by prohibiting their installation without the consent in writing of the committee, and, in some instances, conditions or standards for approved flooring. It is not unreasonable for the by-laws to regulate the use of flooring within individual lots to contain the possibility of nuisance created by noise travelling between units[16].
[92] Difficulty in achieving a LnT,w of 45 with hard flooring does not necessarily render the by-law oppressive or unreasonable. The Appeal Tribunal found in Body Corporate for Admiralty Towers II v Johnson[17]:

Finally, I do not consider that the by-law is unreasonable simply because the advice obtained by the body corporate, in the light of which it imposed the 45dB requirement, noted that it would be extremely difficult for hard flooring to comply. The evidence before the adjudicator indicated that, although difficult, it was possible to comply using hard flooring. As I have said above, in the light of the inadequacy of the evidence about the effects on the apartment of flooring about 42 to 51mm thick, combined with evidence that other lot owners had installed hard flooring with the body corporate's consent, the evidence did not go so far as to prove that it was practically so difficult as

to be impossible to comply with the by-law.[18]

[93] Whether a by-law is oppressive or unreasonable requires consideration of the by-law in the context of the particular scheme in which it operates.[19] Comparisons with AOGN are not relevant.
[94] It is up to owners to determine which by-laws should apply at the scheme. There is no basis for a referee to interfere unless the by-laws or the decision to adopt them are unlawful in some way. The Slingers want a less onerous hard flooring by-law, but have not submitted any relevant motions for owners' consideration at a general meeting. I am not persuaded that by-laws 41.2(a) and (b) are unlawful. They were adopted by special resolution at the 2019 AGM. I am satisfied by-law 41 is regulatory, not prohibitory, and is possible to comply with. It may not be easy to achieve an LnT,w of 45 or lower, but QCAT has accepted that it is not 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 floors. The fact that two other lots in the scheme have had hard flooring applications approved under the by-law proves that it is not a de facto prohibition on hard floors. A specific LnT,w of 45 was challenged but upheld under the BCCM Act in the Admiralty Towers II scheme.[20]
[95] I am not persuaded that, having regard to the interest of all proprietors in the use and enjoyment of their lots, the amendment of the hard flooring by-law in 2019 should not have been made or effected.

[96] I consider that by-laws 41.2(a) and (b) are valid. They are within the by-law making power of the body corporate; they do not fall into any of the categories of restrictions imposed by section 30(6) and they were properly consented to by special resolution in general meeting.
[97] Based on the material before me, I do not consider, having regard to the interest of all proprietors, that by-laws 41.2(a) and (b) should not have been made or effected. They are a means of regulating the installation of hard flooring in the context of the building's design, location and noise concerns, considering the interest of all lessees in the use and enjoyment of their lots.
[98] I have dismissed the application.

[1] Section 88(1) of Schedule 4 of the SBCA

20Insulation%20in%20Buildings%20handbook%202022.pdf

[4] See Palmer Acoustics Report for Unit 2218 of 4 November 2020

[5] See Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 @ [32] to [33], noting that the Plan formed part of a residential precinct within Hope Island Resort, created under the Integrated Resort Development Act 1987.

[6] See Gracemere Waters North [2011] QBCCMCmr 389, at [31], citing Commonwealth v Tasmania [1983] HCA 21; (1983) 46 ALR 625; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54.

[7] Marina Residences [2020] QBCCMCmr 648 @ [16], citing Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at [31] and following

[8] See for example, Pandanus Mooloolaba [2017] QBCCMCmr 78; Liberty [2015] QBCCMCmr 371

[11] Marina Residences [2020] QBCCMCmr 648 @ [19]

[13] Proposed Floor Impact Noise Insulation Criteria Report, Alpha Acoustics Pty Ltd dated 15 April 2019 (Alpha Acoustics Report), at para 3.2.

[15] See the statement from the body corporate's chairperson in Annexure E of the committee's submission.

[16] Williamson v Princess Palm Body Corporate CTS 9843 [2010] QCATA 55

[19] Body Corporate for River City Apartments v McGarvey [2012] QCATA 47

[20] Admiralty Towers II [2021] QBCCMCmr 519

Corporate and Community Management Act 1997

Resort Development Act 1987

Bank Corporation Act 1989

Units and Group Titles Act 1980

The Arbour on Grey - South [2025] QBCCMCmr 145 (7 May 2025)

At a glance

Court

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Catchwords

Judgment (83 paragraphs)

The Arbour on Grey - South [2025] QBCCMCmr 145 (7 May 2025)

Legislation Cited (4)

Cases Cited (2)