[andyj]

Here’s something that may be of interest to anyone who is faced with a timber flooring dilemma

Often the owner who has laid the floor will often justify it by frantically waving an acoustic report of the installation itself, or a lab report of the floorings acoustic characteristics as tested in the lab and boldly state that “it meets the BCA standards” (often followed by a final triumphant wave of the aforementioned documents).

Well after talking to an acoustical consultant I was told the following.

“The BCA standards only apply to new buildings and do not apply to renovations of existing buildings”.

and

“By-law 14 is a subjective test whereby the CTTT considers whether or not the noise generated is likely to disturb the peaceful enjoyment of another lot owner or those using common property. It does not require the flooring to meet a particular building standard.”

The acoustic certificate would appear to only be useful as backup paper in the lavatory should the primary roll become exhausted

 

[andyj]

Hi Jimmy and Scotlandx

Received the following from the owner upstairs (edited to protect the arrogant and innocent)

 

“I believe that by installing a carpet with underlay  on the top of floorboard would certainly remove any residual noise that may have been generated by the floorboard.The laying of new carpet I would imagine will reduce the noise transmition level to a level below the original torn, well exhausted carpet.”

 I will not accept anything less than full carpeting in all living areas except the kitchen bathroom and laundry, and a) it reduces the noise completely and b) we return to the tribunal to have this agreement ratified before them including an agreement that the carpet is never removed again.

“On this basis with the new installation, I would expect that you can kindly check with XXXXX and XXXX (other lot owners) and if you are all happy then I go ahead with this and we both withdraw our applications from CTTT and close the matter on floorboard.” 

 No please see paragraph above. this agreement needs to be registered with the tribunal to make it binding on all parties

“If you still believe that there would be some chances of noise coming through and you would be continuing to peruse the case then I would need to go ahead with all the tests for measuring the noise levels in your unit, and also in XXXX and XXXX units in order to quantify everything and close the issue based on the findings.”

Acoustic testing can only occur in my unit as I am the respondent to your appeal the other parties have not been ordered to give you access. This path may turn out to be more costly to you

 

Comments

[andyj]

Thanks Scotlandx and Jimmy,

 

I will tell him to shove his suggestion into a dark passage

As I have witness statements and stat decs from 2 neighbor’s and 3 visitors attesting to the noise, I would guess that an acoustic report is unlikely to sway the tribunal if it just says meets BCA standards or just exceeds them (50’s)

 

I have seen meets BCA standards reports not sway the CTTT before

 

Cheers

[andyj]

The owner upstairs has emailed me and asked that we consider settling the issue without going to the appeal and penalties option. He has had a costing on an acoustic report and has decided that carpet may be a more cost effective solution

 

He has offered to carpet the bedroom areas. I would like for the living area to be carpeted as well as significant noise is generated here as well.

My question to my learned friends is should the existing timber floor be removed before the “quality carpet and underlay” is laid or would keeping the timber floor add to the sound insulation properties of the carpet.

I will say to the owner that I want “the installation of carpet and quality underlay in all areas except the bathroom, laundry and kitchen areas that will provide sufficient impact sound insulation so as to satisfy by-law 14 and not disturb the peaceful enjoyment of the surrounding apartment’s”.

 

I am thinking of asking that he sign an agreement that the carpet not be removed. How would I phrase something like this

 

Pls advise as I may be able to have this resolved in a satisfactory manner without further CTTT action

 

 

[andyj]

Hi All,

I am a bit surprised but the Owner of the upstairs unit has managed to get his appeal against the orders of the adjudicator to fix his incessantly noisy floor reheard.

As I mentioned a few months ago he appealed, We appeared at the hearing, he didn’t and the appeal was dismissed. He was supposed to appear by telephone. A few weeks after the appeal was dismissed I booked a long overseas holiday to relax after this harrowing saga. Just before I left lodged an application for penalties for non compliance.

While I was overseas I got an email from my neighbor saying she had received a notice from the CTTT regarding the penalties application as she had on all previous correspondence from the CTTT regarding application’s regarding the floor issue. She had previously put in submissions supporting my application to have the owner fix his timber floor installation.

Unknown to us all was that the owner of the offending unit had written to the CTTT saying that because he was to appear by phone he was expecting the CTTT to call him. The CTTT responded that because he was overseas he was it was his duty to call. He then argued that he was not told this and given contact details. The CTTT invited him to ask for a rehearing that was approved and scheduled for 3 weeks later. He was asked to provide the Tribunal and myself with documentation to support his case by 24 April.

I didn’t receive any of this documentation of notice of this hearing as I was overseas. Neither did any of the other parties that got my application for adjudicators orders, the subsequent appeal that was dismissed and my application for penalties. The offending owner did not send me any documentation to support his new appeal either, which would have caused me to enquire what was happening.

The CTT held the appeal directions hearing on 1 May in my absence and was adjourned.

The appellant (noisy floorboards) has been ordered to supply evidence for grounds of appeal by 3 June (extensions allowed) to CTTT and myself

I need to supply paperwork including witness statements by 3 July supporting my penalties application

He gets to respond to my statements by 17 July and the hearing is on 26 July. I also have to provide him access for expert reports with 48 hrs. notice, but he doesn’t need to allow me the same access.

 

Suffice to say I am a bit peeved by all of this and the CTTT seems soft on applications that are logged out of time or stalling because someone is overseas

 

andyj

[andyj]

All good arguments, tenants flout noise regulations, landlord is informed and terminates the tenancy based on by-law breaches.

But let me play the devils advocate here.

Yes excessive noise by a tenant is a breach of by-law (1) and potentially strata 117 (1)(a) and possibly (c) and potentially environmental and council regulations.

But what if the landlord is a relative or friend of the tenants and really doesn’t give a toss that their best buddies are constantly annoying a small part of the suburb. In fact the landlord tells all and sundry to leave their tenants alone and that they are definitely staying put.

As I understand it neither the OC, EC Strata Manager or CTTT can terminate a lease based on a breach of by laws of a tenant unless the landlord consents.

Can the landlord be fined by the CTTT for the behavour of their tenants?. A breach of a notice to comply often yields a fine of a few hundred dollars at best after months of mayhem to the surrounding neighbours.

Feedback and discussion most welcome

[andyj]

Jimmy, scotlandx and others

The owners of the lot above me have lost thier appeal. Many thanks to all for your advise and support. Hopefully this whole mess will be now be addressed without the need to seek penalties.

andyj

[andyj]

scotlandx, Jimmy T and Whale

Thanks for your valuable advice on the forum. I am preparing my case for the upcoming appeal. I was wondering if you could provide “academic” comment on the following.

I note that an “automatic right of appeal to the Tribunal exists against any order of an Adjudicator made under ss 138-162” which means that an appeal can be lodged because of an error of law or disagreement with any aspect of an Adjudicators decision.

I note the appeal notice should set out the grounds or reasons for disagreement. The general rule (the prima facie principle that judgments that are presumed to be correct) appears that a judgment of an Adjudicator is presumed to be correct. 

Therefore the grounds for appeal should clearly set out the errors or issues which the appellant wishes to argue. A grounds for appeal or a combination of grounds for appeal would therefore need to establish that the Adjudicators orders are plainly wrong, harmful, prejudicial or unreasonable if allowed to stand unrevoked or unamended.

In preparing arguments for disallowing admission of evidence of the appellant

I understand that the tribunal can conduct the hearing in the following manners

As an “appeal in the classic sense” where the tribunal is limited to examining errors of law or finding of facts by the Adjudicator (arguments no additional material submitted)

An appeal by way of rehearing based on the evidence provided to the Adjudicator examining whether the adjudicator fell into legal, factual or discretionary error, or

An appeal by way of rehearing based on the evidence provided to the Adjudicator, supplemented by such further evidence as the appellate tribunal admits, where the further evidence includes:

1) evidence in relation to fresh matters that occurred after the decision of the Adjudicator

2) in relation to matters that occurred prior to the decision of the Adjudicator where the evidence satisfies:

        Pre trial unavailability even with the exercise of reasonable diligence:

        It must be appropriately credible and:

        If it was adducted before the Adjudicator an opposite verdict would

        have been likely.

I am likely to incur frightening costs in the pursuit of this matter, therefore an attempt at recovering costs will be sought if possible.

What does it mean where the applicants appeal is frivolous, vexatious , misconceived or lacking in substance. Can someone provide some examples that I may use as “academic food” in getting my arguments together

The more I can prepare before engaging the legal folk the more I can save in costs:

All and any comment will read with gratitude.

 

Kind Regards.

[andyj]

scotty x

Got a Costs disclosure coming from one of the site sponsors. Sounds like its going to cost a fair bit. They suggested an acoustic report, but this may go against me as well

Jimmy do you have a link to acoustic engineers. A reputable one near Parramatta would be good.

Looks like its life time to c..p on me from a great height. Pity the CTTT is a no costs jurisdiction. Could have done renovations/paid down the mortgage with the proceeds instead

Do I need the lawyer at the directions hearing as well or just the formal hearing. Owner from hell is phoning in from overseas for directions hearing

I’m going for a walk now so I can use some language that is not fit for publication!! 

[andyj]

Hi All,

 

A wee update. I now have the paperwork from the CTTT.

Reason for late appeal. The owner is overseas, has been for the last 5 years, is very busy at their job and has difficulty communicating with people in Australia due to the big time difference.. Oddly they have been using a Sydney based representative up until now for attendance at mediation, and have managed to get their submission to the adjudicator in time previously. Why would this be grounds to accept a extension of time to appeal??. They also want more time to establish their case (shouldn’t they have done that before adjudication??)

Reason for appeal

They “Strongly believe and have written evidence and a visual inspection” that their floor complies with by law 14 and the adjudicator is in error.

Why does the CTTT accept this drivel??

[andyj]

Hi scotlandx, excathedra,

Thanks for the posts. I am yet to get the paperwork from the CTTT. I am a little peeved with the CTTT as I am trying to plan a holiday away from the noise pollution at home and have been ringing them every Monday them since the 21day appeal point passed. Since the orders were posted on 14 Jan (Orders issued on 11 Jan, I received by Mail on 15 Jan) that the appeal period would have lapsed on 4 Feb so a 8 Feb submission would be out of time. The Owners rep should have got the orders on the same day. The Owner himself emailed me on 22 Jan asking for a compromise agreement, but I took scotlandx’s fine advice (among others) and didn’t reply. There have since been accusations that we are harassing the tenants on racial grounds (yes in writing) even though the only time I have spoke to them was last year asking them to stop building IKEA furniture on the shiny new timber floor at 11.30pm on a week night. Even the owner indicated that I has spoken to them once and “this harassment shall stop”. Really guys this should saga would get better ratings that most prime time TV shows.

I have called Precision Flooring and spoken to one of the acoustical representative’s. He suggested that the best flooring is carpet with quality underlay. He said Regupol was one of the best underlays for timber floors. He suggested that I get the owner to give them a call. to discuss. I have already some months ago put the owner onto Regupol as a good underlay. I wont repeat the return language in this fine forum.

My strata solicitor is not local to the city so costs will be incurred with travel. I wish the owner had taken my offer to go halves in the remedy costs now.

If a directions hearing isn’t to address the substance of the matter, does that mean that his “appeal” unlikely to overturn the adjudicators orders and simply outline remedy process or am I dreaming here. (I think I am dreaming here)

I am still keeping noise logs, and have the original stat decs from neighbors and visitors but I get the feeling this will drag on for some time.

Any advice on preparing for the face to face at the tribunal would be appreciated. I am gathering witnesses to come as well.

Cheers all. Hope this goes the way of the good guys

[andyj]

Hi All,

Got some bad news today. The Owner upstairs has appealed and the tribunal has accepted it for a “directions hearing”. The adjudicators orders were made on the 11 Jan and the appeal was lodged on the 8th of February so I am assuming that the appeal has been accepted out of time. Can I argue that the appeal is late and should not be accepted. Also what is a “directions hearing”. I have just let my strata lawyer go assuming that the next step was penalties, but it looks like this one will be fought to the last breath. Has anyone been through this before and if so what advice would you offer.

Would it be wise to get my strata lawyer on to the case again??

Sincerely, one despondent strata victim

[andyj]

Hi Jess,

Strata living has many benefits and can have a few drawbacks as well and things can change over time. I received the following advice from a strata lawyer which I think it is a good addition to the advice given by the other posters in this thread.

Strata schemes with swimming pools, gyms and elevators often have high strata levies as these services have increasing maintenance costs as the scheme ages

Try and buy a lot on the top floor, as lots above can generate noise that is transmitted through the floor.

Large strata schemes with hundreds lots mean that your “voting power and influence” as a lot owner will be diluted. You will have more say as a member of the OC in smaller strata schemes.

Get a copy of the by-laws and strata records and have your solicitor check them over with you before you buy, query any “special levies”.

A building and pest inspection by a licensed practitioner is always worth the money and peace of mind.

In a strata scheme you will be living in close quarters with other residents and you will experience occasional noise from neighbors from time to time, however this can be true for free standing houses as well.

If you can talk with other residents in the building. Often you can get tidbits of information that are not on the strata roll.

[andyj]

Thanks scotlandx,

Your advice is very, very much appreciated and makes perfect sense. I will get some advice as suggested. All I want is the owner above to return the acoustic characteristics of his lot to that I was experiencing before the wooden nightmare was installed. I have been putting up with constant booming and banging noises till 2am since Feb last year and I am getting a bit desperate for a good nights sleep. I am a bit worried that the owner upstairs will do a half a***ed job and say its resolved or use his current strategy of asking the tenants to tippy toe for a few months till, in his mind it has blown over. It would be nice if he could just see that the installer gave him bad advice and he got a dud install and just fix it once and for all. Had the roles been reversed this is exactly what I would have done.

 

Again thanks for what is sensible advice. I was going to ask my strata lawyer but he charges like lawyers do for everything, including asking how things are going

Cheers

andyj

[andyj]

Hi Jimmy and Flat chatters

The owner of the Lot upstairs has not appealed to date and the appeal period of 3 weeks has passed. They have however sent me an email saying that they don’t believe that their floor is at fault and that they will not be doing anything to rectify the problem. They kindly asked me to suggest a reasonable way to address the “root problem”.

The adjudicators orders were pretty clear in that they said by-law 14 was clearly breached and that the underlay used was insufficient to prevent the transmission of noise from the floor space. The adjudicator as expected did not specify carpeted flooring or otherwise

Would it be unreasonable of me to suggest a solution such as “Please call Precision Flooring and ask for a quote on the 15mm Regupol Underlay” or would I likely be painting myself into a corner here. I am tempted to ask for quality carpet and underlay, but fear I may be pushing my luck here

Pls advise

[Author]

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