Strata titles - Floor covering - Peaceful enjoyment of unit

Strata Titles Act 1985 (WA), s 81(2), s 83(1), Sch 1 by­law 10, Sch 2 by­law 10

1 Mr Zadnik sought an order for Mr Bizzaca to remove the bamboo-timber flooring he had installed in his unit and to replace it with carpets. Mr Bizzaca's unit is situated above that of Mr Zadnik. According to Mr Zadnik the timber causes the faintest noise of persons walking or furniture shifting to reverberate to his unit and as a result his peaceful enjoyment of his unit is being affected. Mr Bizzaca contends that several units in the strata complex had been installed with the same type of flooring and it complies with the Building Code of Australia specifications that allow noise up to 62 decibels to be transmitted. He also indicated a willingness to place loose carpets in key areas of his unit to reduce the transmission of noise.

2 An expert report prepared for purposes of the application found that although the noise level was at 62 decibels, it is loud enough to seriously impact on the quality of enjoyment of Mr Zadnik's unit. A carpeted area would for example only transmit noise at 24 decibel level. The report contained several recommendations to reduce the noise to more acceptable levels.

3 The application succeeds and orders were made for Mr Bizzaca to immediately take steps to comply with the provisions of Sch 2 by-law 10 of the Strata Titles Act 1985 (WA) by ensuring that all floor space within his unit is covered or otherwise treated to an extent sufficient to prevent the transmission of noise that is likely to disturb the peaceful enjoyment of occupiers of other lot/s. Unless the entire bamboo-timber covering is removed or covered by carpet, the following steps must be taken by Mr Bizzaca:

(a) All furniture located on bamboo-timber floors within his unit must within 14 days from the date of these orders be fitted with thick felt pads or alternative material.

(b) No hard-soled shoes may be worn on floor space covered by bamboo timber between the hours of 6 pm and 6 am.

(c) Loose rugs and/or carpet must within 14 days from these orders be placed on floor space covered by bamboo-timber to reduce noise transmission to a level acceptable under Sch 2 by-law 10.

4 Mr Zadnik sought the following order pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act): "for the proprietor of Lot 142 Apartment E406 to remove the un-insulated timber flooring".

5 Several submissions were received in support and against the application. A hearing was scheduled for 28 November 2005 for persons to give oral evidence. None of the parties attended. The decision was therefore made on basis of the documents as foreshadowed in the orders of Senior Member Raymond on 11 August 2005.

6 Mr Zadnik, who is the proprietor of lot 131 (apartment E307) situated below the lot of Mr Bizzaca, who is the proprietor of lot 142 (apartment E406), complains that since the installation of the bamboo-timber floor in lot 142, the audible noise from people walking and furniture being moved, has become so loud that he cannot peacefully enjoy his unit. He contends that Mr Bizzaca is in breach of Sch 1 by-law 10 of the Strata Titles Act 1985 and that the only way to restore his peaceful enjoyment is for Mr Bizzaca to remove the timber flooring and replace it with carpets.

7 Mr Zadnik submitted into evidence an expert report by Gabriels Environmental Design entitled "Determination of Field Floor Impact Sound Installation" dated September 2005. The report forms part of the records and I will therefore not repeat the methodology or findings in detail. However, the following are some of the most pertinent points made in the report:

(a) The Building Code of Australia sets the criteria for impact noise transmission at not greater than 62 decibels.

(b) Sound testing was conducted in both the units the subject of the application. A Norwegian Electronic Tapping Machine was used to generate the noise.

(c) The area covered by the bamboo-timber floor namely the living area, study and hallway, achieved a noise level of 62 decibels compared to the 20 decibels measured in the carpeted bedroom.

(d) A level of 62 decibels "is not high acoustic performance and requires significant and consistent management control. At this level of performance hard soled shoes would be clearly audible within the unit below, and shifting of furniture will result in significant noise intrusion. It is therefore critical that hard soled shoes not be used within these apartments and that all furniture, particularly chairs, be fitted with thick felt pads to the furniture slides effortlessly over the hard floor surface".

8 Several submissions were received in favour and against the application. All but one of the submissions were from persons who hold personal opinions about appropriate floor covering but none of the persons had personal experience of the audible noise in Mr Zadnik's apartment. I therefore note the views but cannot bring it into account to determine this application.

9 Mr Bizzaca opposes the application on grounds that the ST Act does not prohibit hard cover floors - it merely requires that steps be taken to prevent the transmission of noise. According to Mr Bizzaca several units in the strata complex have been upgraded by removing carpets and replacing it with timber or tile flooring. He submits that adequate material had been used in his unit since the 8-10 millimetre rubber-based adhesive pads on which the flooring is based, serves as insulation. He has also placed rugs at key areas to prevent transmission of noise.

10 Mr John Douglas, director of Exclusive Construction, who installed the timber supports Mr Bizzaca's contentions. According to Mr Douglas the timber is bamboo of 15 millimetres in thickness; it is placed on 8-10 millimetre flexible adhesive which provides a "strong buffer against sound transfer". He also notes that several other lots in the complex use the same floor covering.

11 The ST Act (Sch 2 by-law 10) places an obligation on Mr Bizzaca to "ensure" that all the floor spaces within his lot other than what is referred to was the "wet areas", is covered to treated to "an extent sufficient to prevent the transmission of noise likely to disturb the peaceful enjoyment" of the occupier of another lot.

12 The 62 decibels prescribed by the Building Code of Australia is useful in determining what building requirements apply, but the ST Act clearly has a different and higher test in mind, namely the peaceful enjoyment of a unit. The ST Act therefore does not include reference to a decibel level but focuses on the right of a person to have peaceful enjoyment of his/her unit.

13 The ST Act therefore does not refer to noise level, but rather to an activity that is "likely to disturb" another occupier.

14 The question whether the by-law is breached is therefore subjective and depends on the evidence of a particular case. According to the expert evidence 62 decibels is at the upper scale of noise transmission.

15 It is therefore within the discretion of the Tribunal to make a determination on the available evidence as to whether the noise that emanates from Mr Bizzaca's lot is in contravention of the by-law.

16 Mr Zadnik has gone to some length and cost to obtain an expert report to substantiate his application. The report fully supports his contention that his peaceful enjoyment of his lot is being disturbed by the activities in Mr Bizzaca's lot. Although the tested noise level is at 62 decibels, the expert concluded that it is loud enough to impact on the peaceful enjoyment of the unit. The expert therefore recommends that due to the high noise transmission "ongoing management" of noise control is required. The expert made certain recommendations to ameliorate the noise.

17 Mr Bizzaca is under an obligation to "ensure" that noise does not transmit from his unit to others in a manner that affects the peaceful enjoyment of such other units. From the evidence it does not appear as if Mr Bizzaca has been particularly helpful to assist in the testing of the noise levels or that he has complied with his obligation to take steps to comply with the by-law. Mr Bizzaca is obliged under the ST Act to take whatever steps are necessary to prevent noise that is "likely" to disturb another proprietor. Although the flooring had been installed with an adhesive that is supposed to limit noise transmission, it is clearly not effective enough as an insulator of sound.

18 I am satisfied that on the basis of the evidence before me, a finding can be made that the noise transmitted from Mr Bizzaca's unit following the installation of the bamboo-timber floor, breaches Sch 2 by-law 10 and therefore affects the ability of Mr Zadnik to peacefully enjoy his unit.

19 I am not satisfied that the only way to comply with the ST Act is by requiring that Mr Bizzaca remove the bamboo-timber covering as is requested by Mr Zadnik. It appears from the expert report that other steps can be taken in an attempt to comply with the ST Act without necessarily having to remove the floor covering. I am empowered to make such orders under s 81(2) of the ST Act.

20 However, if these alternative steps do not succeed to bring down the noise to a level consistent with the Sch 2 by-law 10, Mr Zadnik may bring a further application to the State Administrative Tribunal.

21 Orders should therefore be made under s 83(1) and s 81(2) to give effect to the recommendation by the expert.

1. Mr Bizzaca must immediately take steps to comply with the provisions of Sch 2 by-law 10 of the Strata Titles Act 1985 by ensuring that all floor space within his unit, other than the wet areas, is covered or otherwise treated to an extent sufficient to prevent the transmission of noise that is likely to disturb the peaceful enjoyment of occupiers of other lot/s.

2. Unless the entire bamboo-timber floor covering is removed or covered by carpet, the following steps must be taken by Mr Bizzaca to reduce the transmissible noise:

(a) All furniture located on bamboo-timber floors within his unit must within 14 days from the date of these orders be fitted with thick felt pads or alternative material.

(b) No hard-soled shoes may be worn on floor space covered by bamboo-timber between the hours of 6 pm and 6 am.

(c) Loose rugs and/or carpet must within 14 days from these orders be placed on floor space covered by bamboo-timber to reduce noise transmission to a level acceptable under Sch 2 by-law 10.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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DR B DE VILLIERS, MEMBER