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The orders to change the floor so that it was not “disturbing the peaceful enjoyment of a lot” (my lot), were pretty much ignored: the respondents put down a few mats in their apartment above mine.
I went back to the CTTT for a penalty application.
BUT I found a precedent on the Austlii website where a tribunal member ruled that an alternative to the original decision was appropriate under another section of the regulations.
AND as luck would have it, the tribunal member I was getting at the penalty hearing was the same person as had ruled the alternative in that precedent.
Wooppee. So I applied for an alternative ruling that the owners above had to install carpet with underlay, as in the precedent.
And in the time ruled by the tribunal, the carpet was laid and all is quiet…
It took 12 months of persistence and research, but it was worth it.
Dear Dnightime,
I am dismayed to hear about what has happened in your case.
Check what I wrote on another forum.
Perhaps you can appeal the decision you received on the basis of adjudicator error and precedents?
Having been “screwed around” but the respondents in my case, I am gald that I have had a good outcome.
What I have learnt is that detailed noise diaries and quoting precedents is what the adjudicators/Tribunal members are interested in.
Also because I was only available on a Thursday, I was fortunate to have a Senior Tribunal Member judging our hearing.
He was very good and very fair all round. It gave me great confidence in the process.
It might be worth another try?
Patricia
Hi all.
I am sorry to hear about your problems as I have had so much stress with ours too, so I feel for you in your issue.
Here is a post I made on another flat chat forum which might be helpful to someone:
All the best with your situation.
I will be back at the tribunal with a penalty hearing if the respondents in my case don’t comply (again!)
Regards
Patricia
Hi again after all this time has passed.
The results are in:
First step CTTT : Decision 30 December: Respondents to comply with By-Law 14 “forthwith:
Second Step: Application for Penalty s202 at NCAT: At the hearing I made application for a ruling under s187 where the Adjudicator can make an alternative order under S138 By-Law 14. I asked for the same order as a precedent that I looked up on the AustLII website.
Result: The respondents are ordered to lay carpet and underlay within 60 days.
It’s about 18 months now since the carpet was ripped out and the noisy floating timber floor was installed.
I hope that this is the end of the hassle and the hours of work that I have put into research and applications.
Any one who wishes to know more, please post!
Patricia
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
Hi again, long time no chat!!
I had been busy spending hours of research about how to make an effective application for adjudication “on the papers” to the CTTT regarding the noisy floors in the apartment above mine, where I have tenants. I quoted precedents and had noise diaries and copies of communication with various acoustic and underlay experts. My submission was about 14 pages.
My successful application was one of the last to be adjudicated by the old CTTT (dated 30 December 2013) and the respondents were ordered to comply with By-Law 14 “forthwith”.
After a month of no communication, I was informed by the Strata Manager that the respondents are waiting for their installer to explore their legal obligations in the matter of the installation.
Hmmmm …I think they can do this at any time, after they fix the floor, and from what I have researched they have very little hope of getting any recompense from the installer.
It’s now about 7 weeks after the decision and I am still waiting…..
I have made an application for a penalty for non-compliance which I found out today will be heard in about 6 weeks or so.
It’s certainly been an exercise in patience.
The wheels grind very slowly but I hope it will be worth all the time and effort I have put into it. My original application was 27 September 2013, so that will be about 6 months from my first application to the penalty hearing.
In the meantime my tenants are about to have a baby.
What is disappointing, is that prior to this CTTT action, I had spent months researching the acoustic ratings of floor and underlay combinations, and had been trying to negotiate with the respondents since June 2013.
I was, and still am, hoping that the respondents will “do the right thing” and realise that the floor needs to be fixed. My tenants can hear noise at all hours of the day and night…suitcases being wheeled across the floor, chairs being moved around, footsteps and shoes, night and daytime bedroom activity and even a vibrating phone alarm on the floor!!
It will be interesting to see how the NCAT views this flagrant non-compliance. The Adjudicator was very definite in her language in the adjudication and ordered the compliance to take place “forthwith”, which I understand to mean immediately.
I will keep you posted..but don’t hold your breath!!
Patricia
Hi again,
I nearly gave it all up and sold the apartment, but my kids persuaded me to persevere.
The “respondents” made excuses about not being available on the date for mediation and tried to delay it by another month, but fortunately when I offered about 5 dates prior to the original date, and the respondent still claimed unavailable, I was given the go-ahead to go to the next step of adjudication.
I am now in the process of organising the documents for the CTTT adjudication.
I have a chronology of events and several pdfs of email complaints (noise diaries) from my current tenants and an email from the previous tenants who also were annoyed by the noisy floor. In fact they moved out within 7 weeks of the floor going in.
Andyj I would love to have a copy of your Adjudication so I can quote it in my submission.
If there is a link to it, or some way you can send it to me, I would very much appreciate it.
Knowing my “respondent” I am sure she is reading all of this.
But that’s ok because I am just trying to get a fair outcome.
I’ll let you know how I get on with the Adjudication.
Patricia
That is great to hear! We are in the same battle. Not only are we battling the floor issue but the owner upstairs has embarked on a smear campaign to denigrate my character to the Executive Committee, in order to get their support. She even went to the Police and made a vexatious complaint that I had harassed her. But I am going ahead regardless and am writing up my chronology with many supporting documents. Your post has given me even more hope! Enjoy the “peaceful enjoyment” of your lot!!
Hi, I am in a similar situation.
Your upstairs neighbour’s attitude is not unusual.
Installers are telling customers that BCA compliance is the standard, but this is not relevant when dealing with By-Law 14, and that has been acknowledged in many of the adjudications by the CTTT.
From what I have searched on the Legal database, there are many decisions by the CTTT where complainants have been successful where they are organised and show evidence that their peaceful enjoyment of their lot is disturbed by the noisy flooring.
If you go to the CTTT yourself, the first mandatory step is Mediation, then next adjudication etc as stated below. It seems to me that this is the best and most effective option, because if they don’t comply with CTTT orders, there are fines, and also still a requirement to comply.
A strata Exec committee serves them a notice to comply with By-Law 14, under the Strata Schemes Management Act 1996, but this doesn’t seem to be as effective as going the route of the CTTT.
There are fines associated with non-compliance, but in my opinion, the best thing to do is to go down the road of the CTTT yourself, provide evidence and go to Adjudication if no agreement is met. If you agree to a solution at mediation, that is also binding.
You can search how the process works by looking here:
My opinion is don’t give up and be firm about what you want and be prepared to confronted with a lot of red-herrings by the respondent.
Stick to what you want because it IS reasonable.
All the best!
In this particular situation there was an “Approval for Floorboards” document signed off by the Strata Agent which outlines the terms and conditions of the agreement for the owner to install the floor.
The owners haven’t complied with this, and that is evidenced in many ways.
The Executive committee and the Strata Agent are sitting on the fence and won’t help me, the affected owner (downstairs from the floorboards).
My tenants are fed-up and want to move out because the noise is so bad. The combination of the cheapest laminated flooring and 3mm cheapest underlay is not much better than bare concrete in its acoustic performance.
The Strata Agent and Executive Committee could do several things.
They could agree to send the owner a “Notice to Comply” (with by-Law 14). They could action two of the clauses in the the Approval, which require the owner to restore the floor to it’s original condition if reasonable complaints are made, and/or require the owner to have carried out acoustic testing to determine whether the noise attenuation is sufficient.
I am totally disappointed with the committee and the Strata Manager. Next time it might be one of them who is affected by some other owner doing something unreasonable that affects them. I’ll have to think very hard about whether I will be supporting them.
I have spent numerous hours researching acoustics, have spoken with an acoustics engineer and I have tried to negotiate a solution with the owner.
I wrote to her, suggested a reasonable timeline and asked her for her timeline preference, if mine didn’t suit her. The owner refuses to communicate with me.
So I am left with no other option than the CTTT, which is what I will be doing. I have all my documents prepared.
Numerous decisions I found on the Government Website, found in favour of the person affected by the noisy floors.
Your comments are welcome.
Patricia
Hi,
Thanks for the feedback. I am the owner of the affected apartment.
I agree the Strata is not responsible to pay.
I believe that the installer could be liable to fines by the CTTT if challenged by the customer (owner of the upstairs apartment). Any comments on this?
The installer wrote on his statement to the customer re the underlay that :
“The CSIRO tests state that the 3mm 100% rubber 850 density result is Lnw59. This is the equivalent of the Impact Isolation Class of 59. We have been advised that, along with the floating floor, this gives an acoustic result of better than 59 (which is what is wanted). “
Before I found the incriminating document which detailed the underlay, I tried to talk with the boss of the company that installed the timber floor to find out this detail so that I could investigate other options, and was shouted at over the phone. Perhaps he knew he was “busted” for lying?
If I was the customer I would take the installer to the CTTT on the basis that they gave false information, in stating the Lnw is equivalent to IIC and seek recompense in money or free re-laying labour costs.
Did the installer really not realise that Ln,w+Ci is not equivalent to IIC??
I am a schoolteacher, and I was able to find out this information so how did the timber flooring company not know this?
I will be seeing this through to a fair and satisfactory result.
While I feel sorry for the owner of upstairs, the noise levels are so unreasonable that it must be resolved.
Any suggestions about suitable underlays?
Thanks
