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Hi All,
I live in a cozy 8 unit strata block that was built in the early 70’s. All things considered the first four and a half years of ownership have been relatively incident free and reasonably blissful. That is until February of 2012 when the long term tenants in the lot directly above mine moved out and the owners took the opportunity to install floating timber flooring. New tenants moved in at the end of February (a young family) and my nightmare formally begun.
After two weeks of pounding stomping and running/jumping on the new floorboards accompanied with frequent loud door slamming which began at 5-6am and continued almost uninterrupted until 12.30-2am, I had had enough. Enquiries with my other neighbors adjoining the offending unit indicated that they also had been badly affected by the incessant noises and also were at wits end. Attempts to discuss the issues with our new neighbors were met with a shrug and being told that they were not making any noise.
My two other neighbors and I decided to send an email to our strata manager to ask them to intervene. After several weeks of trying to track the owner down (the owner was overseas), contact between the strata manager and the owner of the offending unit was established. What followed was a brief exchange of emails where the strata manager pressed the issue with the noise and the timber floor and the owner’s protests that “he did not need approval to install the floor” and “I have an acoustic certificate from the installer and it meets the BCA standards”. Despite pointing out that the certificate was issued 3 years prior to the install of his floor and that the acoustic underlay mentioned in the certificate was different and thicker than the underlay on their invoice, the owner stuck to his guns. He did say he would talk to his new tenants.
Fast forward 6 months of no change in the incessant noise and email exchanges between me, the strata manager and the unit owner, and nothing had been achieved except that cordial relations were now badly degraded. It was at this point that I realized that despite some early promising signs, relations were at a low ebb and I would need to approach the CTTT for a resolution.
Prior to this I consulted with a Strata lawyer at some considerable expense. He recommended that I take both the owner to the CTTT for a breach of by-law 14 and s117(a) and the tenants to the CTTT for breaches of by-law 1 and s117(a).. Interestingly the owner had not informed the strata manager of the new tenant’s details and it took a strongly worded letter from the strata manager to extract the information.
I decided to take the owner to the CTTT for by-lay 14 initially and follow up with the tenants if that did not bring any relief. Mediation with the owner’s representative and me was a farce with much waving of the now infamous acoustic report in evidence and protests that we were harassing his poor innocent tenants.
A follow-up application to the adjudicator is now in progress with submissions containing detailed noise notes, stat decs and letters from witnesses.
My question is how long will it take for the adjudicator to make an order (submissions closed a month ago) and if appealed how long does it take to go to the Tribunal. Does anyone have a database of similar cases that I can look at should this need to go to the tribunal?
Any additional advice on how to deal with the distressing issue would be greatly appreciated
Cheers
andyj
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Well I was warned – recent jubilation that our recent submission for adjudication was successful and our upstairs neighbour was ordered to comply with by-law and treat ALL their floors. To me this seems simple – neighbour was given 10 weeks to comply. In their submission respondent (go-ahead young couple) had requested orders against us (I didn’t know you could do this) 1. that we insulate our ceiling – order denied as adjudicator said we had not contributed to their noise at all. 2. that they carpet the bedrooms and put rugs in living areas – adjudicator view was that this order request reinforced the idea that they knew they were making noise and the order was not made 3. that we stop harassing – outside adjudicator’s jurisdiction.
Acoustic testing had demonstrated that flooring did not meet the minimum standard (adjudicator had underlined this phrase, bolded the word minimum and in brackets after put the words (emphasis added).
When we asked our neighbour what they intended doing as 6 weeks has now passed, she said that she was waiting for further info from the acoustic engineer and then would be putting a submission to OC for approval???
I don’t believe the OC can overturn any order of the adjudicator – in fact I don’t really think they understand what the adjudicator’s order means.
Any thoughts fellow sufferers would be appreciated. Is it too late to draft a by-law stating that hard surface flooring is not allowed or must be 6 star standard.
@drshelley said:
When we asked our neighbour what they intended doing as 6 weeks has now passed, she said that she was waiting for further info from the acoustic engineer and then would be putting a submission to OC for approval???
Presumably they want to delay the process for as long as possible by seeking “acoustic reports” that will tell them nothing except that the only truly effective sound dampener is thick carpet on a top quality underlay, with an 11mmm quality underlay under floorboards is a fairly distant second.
The only submission to the Owners Corporation that would be relevant would be notice that they intend to alter common property by ripping up the floorboards and putting additional insulation underneath.
They could just be messing with your head and the carpet layers will roll up on the very last day of the deadline. I would be tempted to send them a letter – perhaps a lawyer’s letter – telling them that you have noted that they have not commenced work to abide by the terms of the CTTT Order and their stated intention to pursue this through the Owners Corp.
You are giving them fair warning that there is no respite offered to them via the Owners Corp which can’t overturn an NCAT (CTTT) order. The Owners Corporation can’t instruct them on what kind of noise insulation to use as the CTTT order simply states that they have to fix the problem. The Owners Corp has no say in how that is to be achieved and even if they did tell them what to do and it didn’t work, they would still have to fix it.
I would add that any failure to complete work within the deadline will be the subject of IMMEDIATE further action at NCAT which may impose fines of up to $5500 and award costs incurred by you, the plaintiff, in pursuing the order.
Considering the length of time that you have suffered noise due to their non-permitted removal of carpetting, any efforts to pursue this issue through the Owners Corp will been regarded as a delaying tactic and will be presented to NCAT as such, and you will accordingly pursue further orders and the imposition of fines with the utmost vigour.
The addition of a new by-law allowing the floor seems unlikely since it will be inferior to the standard item of strata law, section 117, that forbids residents from disturbing another resident’s peaceful enjoyment of their lot. They can’t use even the request for such a by-law as a stalling tactic – at least not without the risk of hefty fines at NCAT.
Your choice is to jump now or wait until deadline day. They don’t sound like the kind of people who like losing – perhaps this is their last little show of defiance before they cave in.
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thank you Jimmy T. Your advice as usual gives us so much confidence.
This evening however, we have received another email saying that they have been recommended to use 5mm regupol plus relay their current 2mm of quiet step underlay. They are also going to carpet the 3 bedrooms.
At least this is a start. But as you say the OC cannot instruct them on what insulation to use nor overturn an adjudicator’s order. However they do need OC permission to pull up the floorboards.
At this stage I think our response will be that even 11mm regupol is only a ‘distant second’ to carpet. They will still take a risk that this will not fix the problem. To quote our neighbour she states that ‘she is confident this premium underlay will considerably improve the noise transfer into our unit and meet the by-law”.
Any further opinion would be appreciated. Should we request that an additional 5mm underlay would be the minimum.
@drshelley said:
At this stage I think our response will be that even 11mm regupol is only a ‘distant second’ to carpet. They will still take a risk that this will not fix the problem. To quote our neighbour she states that ‘she is confident this premium underlay will considerably improve the noise transfer into our unit and meet the by-law”.Yes, my response would be that you can’t tell them how to deal with the problem but to caution them that you will not be satisfied with a solution that doesn’t properly address the noise transfer issue. A sensible if slightly more expensive solution would be to put 11mm Regupol on top of the existing insulation which is obviously more likely to do the trick.
Even so, the CTTT order is about stopping the noise, not laying down insulation and they should consider whether it is worth risking having to go back and do it all over again, After all, it was so-called “experts” who told them the current insulation would be fine. Attempting a solution is not the same as solving a problem. If it doesn’t worrk, all it means is you didn’t try hard enough and that’s exactly how NCAT will see it if the problem continues.
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We will certainly be warning them of this and also of the fact that if we apply for a penalty order we can at the same time apply for any costs, including legal fees which might be in the order of $9000.
Judging by the noise last night, thuds, jumping on the floor, running etc for over 2 hours- not even carpet would solve the issue. It was unbearable and unacceptable by a country mile.
Hi everyone. I had a good outcome at NCAT on 13 March in a similar matter.
I searched thoroughly and found out that there was a precedent where, at a hearing for a penalty for non-compliance with an adjudicator’s orders, a tribunal member had instead made an alternative order under s187 and made an order under s138.
So at my “application for a penalty” hearing, I asked for the same ruling, i.e. and alternative ruling under s138, By-Laws.
The ruling I asked for was from a precedent, and was that “the respondent is to cover all floor areas with the exception of wet areas with carpet and underlay if sufficient quality to ensure no transmission of noise from that lot to the lot below (etc) within 60 days.” And I am happy to say that was the order the Tribunal member made in my case. So I am very happy about that.
The problem of people ripping out quiet carpet and installing floating timber floors with inadequate underlay is a big problem.
If you need any links to what I found please let me know.
All the best with your plight Drshelly and AndyJ
Patricia
Congratulations Patricia SC – all this stress even with an order takes its toll, mentally, emotionally and physically. Like andyj having those links would be great please.
I am not sure of the motives or outcomes as to our upstairs tricky neighbours submission to the OC for approval to lay the extra insulation – they cannot make a decision that the extra insulation will solve the problem but it is still confusing and worrying, (we don’t know how the EC/OC will react to this and may have a majority who think this is OK) or where in fact this will lead to. If the OC approves this, maybe an adjudicator at penalty hearing will view this as OK ? don’t know. It also means calling a meeting, delaying tactics – they still have about 5 weeks to comply.
Every day a new twist, turn and worry.
drshelley
Well our upstairs neighbour finally installed carpet throughout their unit. Our new SM sent them a letter saying they would be in breach of the order and face severe penalties if they did not fix their flooring.
Now, while that result is what we were after, they have installed commercial carpet so that they have a smooth look like floorboards – so we still have noise but I don’t think we can do much about it. I think the carpet is very hard, not soft like domestic carpet and so there is no cushioning. Does any one know anything about differences in commercial to domestic carpet. We know they were installing good quality underlay – well that’s what they said. Can we get SM to ask for details/specifications of the carpet?
For some reason I can’t moderate the post (below) without replying; so “reply” and now it’s over to everyone else!
Apparently recycled polyurethane foam is the standard underlay for carpets; it supposedly has some benefits but sound insulation of any consequence doesn’t seem to be one of them. It seems that when dealing with the sort of people who demonstrate disregard of laws and decency it’s an error to declare the end of major combat too early; better to presume that they haven’t even bothered to read the detail of any finding against them (or even that they can read). It’s easy to imagine them thinking and gloating that putting in the cheapest, thinnest carpet gives them the final victory. If you can persevere and get another of the cheapest carpet on top of the smooth one currently laid it may be a suitably just outcome.
The pleasant and polite couple in the unit above mine seem to have a hobby of lifting up their stove to ceiling height and dropping it; more likely I’m guessing it is heavy duty exercise equipment, perhaps including dropping 50kg bar bells onto a rubber mat.
@drshelley said:
Congratulations Patricia SC – all this stress even with an order takes its toll, mentally, emotionally and physically. Like andyj having those links would be great please.I am not sure of the motives or outcomes as to our upstairs tricky neighbours submission to the OC for approval to lay the extra insulation – they cannot make a decision that the extra insulation will solve the problem but it is still confusing and worrying, (we don’t know how the EC/OC will react to this and may have a majority who think this is OK) or where in fact this will lead to. If the OC approves this, maybe an adjudicator at penalty hearing will view this as OK ? don’t know. It also means calling a meeting, delaying tactics – they still have about 5 weeks to comply.
Every day a new twist, turn and worry.
drshelley