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We read the article pasted in below written by Bannermans in Sept 2017. A copy can be obtained direct from Bannermans‘ website.
We find it hard to accept what the article says because regardless of whether the work affects common property or not, the aspect of noise becomes a problem that will likely need to be resolved by NCAT or the District Court. We therefore think that the matter should be referred to parliament and “fixed”.
We feel that the legislation should say that hard floors of any material (tiles, timber, etc.) should not be allowed in non-wet rooms unless authorised by an owners corporation and a by-law registered even if common property is not affected by the installation in any way.
Our reason is to avoid a noise problem arising as stated above. We feel that the legislation should also say that an owners corporation must stipulate in its consent conditions regarding the grade of noise insulation materials required and this should be repeated in the consequent by-law.
The situation presented in this article will create many difficulties between lot owners and therefore the legislation should be amended to avoid that occurring. As you have such a public profile, perhaps you could start a petition to present to parliament because legislation should avoid situations which pit people against one another.
“Is Consent Required for the Installation of Timber Floors?
Did you know that lot owners may be permitted to install floating timber floors in their lot without any approval from the owners corporation?
It is commonly thought that an owner requires authorisation to install floating timber floors under section 110 of the Strata Schemes Management Act 2015 (“SSMA”), by virtue of the fact that “installing or replacing wood or other hard floors” is listed as a minor renovation in section 110(3)(a) of the SSMA.
However, this only applies if the particular installation of floating timber floors is considered to be works “to common property” pursuant to section 110(1) of the SSMA as extracted below:
110 Minor renovations by owners
(1) The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner’s lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required.
A lot owner could argue that they are simply installing floating timber floors in a way that does not affect common property in any way and as such the works are not works “to common property”.
If they can successfully argue this, section 110 shall not apply to the installation of the floors, meaning that no approval would be required from the owners corporation for the works. This essentially means that the lot owners could simply install the floors and there is nothing that the owners corporation could do to stop them, apart from seeking urgent interim orders.
The lot owner would be required to comply with the schemes by-laws regarding noise transmission between lots and also treat floors to reduce noise transmission. Although, from the perspective of the owners corporation, it would be better off if it was involved in the approval process to ensure that the lot owner was using sufficient acoustic underlay to reduce sound transmission between lots and potential litigation.
If an owners corporation does not want lot owners installing floating floorboards without first being required to obtain consent, the owners corporation could make a by-law setting out the requirements and required consent that a lot owner needs in order to install hard flooring in their lot. “
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A blanket law banning hard floors in non wet areas is too onerous. There are many situations ie townhouses and villas where the installation of hard floors generally causes no problems. For example in my daughters strata which consists of four villas, all the owners have taken up the 1970s carpet all either polished the timber floors or laid tiles.
A prescriptive bylaw also is doomed to fail. What if the owner installs the floor using the prescribed insulation and there is a noise transmission problem. The owner has complied with the directive so who’s going to pay for the rectification.
Additionally having the committee approve the insulation is problematic. Are the committee acoustic experts? Of course not. A refusal by the committee to anything proposed by a lot owner would probably be successfully challenged as being an unreasonable refusal.
In my opinion the best by law covers the peaceful enjoyment aspect. If an owner installs hard flooring and it turns out to be noisy, it’s relatively easy to have correct tests done (inside the affected lot) by a qualified acoustic practitioner. The courts will then make a ruling but its the offending lot owner who has to pay the rectification costs.
You want the bylaws to be such that they put owners on notice, and the offender has to deal and pay for the consequences.
Although Bannermans have pointed out a loophole in the law, they themselves suggest that it can be fixed with a by-law. generally speaking the government is keen for individual strata schemes to govern their own circumstances this way, rather than by issuing laws that tend to be blunt instruments (as so accurately described by Kaindub).
Personally, I can’t see how your committee has any conflict over this. An owner has installed a floor and the result is intolerable noise. The downstairs neighbour’s right to the peaceful enjoyment of their lot over-rides the other neighbour’s desire to install cheap flooring.
The committee needs to get on to this and support the afflicted neighbour and pass a by-law to cover future incidents. The issue is noise, not the materials on the floor. The Tribunal is likely to order that the noise issue be fixed, rather than specify any kind of flooring … and that’s as it should be.
The committee doesn’t have to see both sides of the story. They are not adjudicators. The law is simple and the committee’s job is to protect and support people who have suffered because by-laws and/or strata laws have been breached.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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