Committee waiving by-law requirements for hard floor installation

Considering responses to the previous post ‘Committee approving non-compliant flooring’ (below) and other advice, we have rewritten our hard flooring by-law. This modified by-law was approved at an AGM and is at the end of this post.

The new by-law requires owners seeking to instal hard flooring to undertake an acoustic test before committee approval of installation. This is to demonstrate that the proposed flooring meets specified sound transmission standards (those recommended by the City of Sydney). Our committee often waives this requirement to make life easier and less costly for the owner seeking to install.

Two questions:

Can the Committee legally choose to wave a by-law requirement, particularly when this may enhance the value of one property to the detriment of other owners?
If an owner (probably on the floor below) complains, and seeks written confirmation that the new floor meets the acoustic requirements (as provided for in the bylaw), and subsequent removal of a non-compliant floor, who should pay for the removal? Can the owner who installed the non-compliant floor seek compensation from Committee members who gave him permission to break the bylaw or the Owners Corporation (thereby increasing levies)?

The by-law:

SCOPE OF BY-LAW

Pursuant to By-Law number 21, an owner or occupier must not lay or install any floor covering other than carpet on the lower boundary floor space of their lot without the prior written consent of the Owners Corporation.

POWERS OF THE OWNERS CORPORATION

The Owners Corporation shall have the following additional powers, authorities, duties and functions:

i) the power to decide on type, style, design and specification of any floor covering installed pursuant to this By-Law;
ii) the power to enter onto any part of the parcel for the purpose of inspecting any floor cover;

iii) the power to order the removal of any floor covering installed in breach of this By-Law; and

iv) the authority to recover the costs of removing and replacing any floor covering in a lot from a defaulting owner.
OWNERS OBLIGATIONS
i) The owner must ensure that the floor space does not transmit noise that is likely to interfere with the peaceful enjoyment of the owner or occupier of another lot, including (but not limited to) noise transmitted from the movement of persons or furniture.
ii) An owner who wishes to change the flooring in his lot, other than from carpet to carpet, must first apply to the Strata Committee for approval, which will not unreasonably be withheld, provided the application contains sufficient information to enable the Strata Committee to satisfy itself that the requirements of this by law regarding noise transmission are met.

iii) An application of an owner to the Strata Committee to change the flooring in his lot, must include a written report or a statement from a qualified acoustic consultant confirming that the proposed new floor/ceiling system will achieve an in-situ weighted standardised impact sound pressure level (L’nTw) of no greater than 55, measured as per the assessment procedures described in AS ISO 140.7 and AS ISO 717.2. Further, the Strata Committee reserves the right to require an acoustic test by an acoustic consultant of its choosing of the proposed flooring in the owners apartment at the owners expense prior to granting approval of the application.

iv) Upon completion of the installation of the new floor covering, the owner must submit to the Strata Committee a written statement from the installation contractor confirming that the flooring specified in the owner’s application was installed in the specified unit and that the method of installation complied with the manufacturer’s recommendations.
v) The Flooring Works must be undertaken at the cost of the owner.
vi) The Strata Committee may, at any time, require an owner to provide written confirmation from an acoustic consultant approved by the Strata Committee, confirming that a floor/ceiling system meets the acoustical parameters outlined in this by-law. In the event that no such confirmation is forthcoming, the owner will bear all costs associated with the acoustic consultant and the Strata Committee may invoke the provisions under section B of this by-law.
Liability

The owner will be liable for any damage caused to any part of the common property as a result of the installation of the Flooring Works and will make good that damage immediately after it has occurred.

Indemnity

the owner must indemnify the Owners Corporation against any loss or damage the Owners Corporation suffers on the common property as a result of installing, maintaining or removing the Flooring Works including liability under 65(6) in respect of any property of the owner;

Right to Remedy Default
i) if the owner fails to comply with any obligation under this By-Law, THEN the Owners Corporation may, in accordance with Part 6 of the Strata Schemes Management Act 2015:
ii) carry out all work necessary to perform that obligation;

iii) enter upon any part of the parcel to carry out that work; and

iv) recover the costs of carrying out that work from the defaulting owner pursuant to the Recovery of Costs Special By-Law.