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Topic
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Hi Flat-Chat
Context:
The unit above me installed hard tiles on to the slab with the Owners Corporation permission subject to conditions of consent. The hard tiles are in a rumpus room above my bedroom and the room above is not a kitchen, laundry or bathroom.
Two independent acoustic reports have been conducted measuring the noise transmission about 54 LnTw. When the noise tests were conducted, the tapping machine made a great deal of noise on the hard tiles but was undetectable on the previous original carpet, such that the acoustic engineer had to physically check the tapping machine was operating. I am regularly disturbed by noise. Our strata has a recent by-law mandating that the LnTw must be 40 or less. The EC fail to take responsibility for giving permission or ensuring compliance with conditions of consent for these works. This EC is generally reluctant to enforce by-laws in this strata.
Question:
1) Is hard tile affixed to the slab Common Property?
2) What legal precedents support the answer to 1) above?
3) If it can be shown that the OC is responsible for the resultant noise problem, how do I strongly encourage them to remedy the flooring back to my original amenity of less than 40 LnTw?
My experience with a popular strata specialist firm was that they; added little value, research or strategy themselves, played devils advocate arguing against any research I supplied and pretty much just charged me for reading my emails and processing forms. It is my present assertion that the OC are responsible for the flooring noise problem, at least by way of giving permission for it and should therefore remedy my amenity to the previous carpeted state of less than 40 LnTw.
The problem of course is that they quietly resist and obstruct taking responsibility to remedy the situation and I'm seeking guidance on how to strongly encourage them to fix the problem.
I would value your comments or references to any relevant legal precedents establishing hard tiles on slab as common property.
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Replies
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Some of our legal “posters’ will be better able than me to advise you about legal precedents, but based on my past experience as Sec. of a self-managed 27 Lot Plan, tests that we conducted some time ago on the carpeted floors of 5 Lots on different levels gave an average (although fairly consistent) LnTw of 33. So your Plan’s requirement for a LnTw of <40 is about right.
Regarding who’s responsible for correcting the problem of the noisy itiled floor, I’d firstly suggest to you that it’s impossible for any tiles placed on a concrete floor to achieve the LnTw required under your Plan’s Special By-Law.
Secondly, and depending upon the wording of your O/C’s consent, it’s common for such consents to state that anything placed on or in a Common Property Wall or Floor by a Proprietor is the responsibility of the Proprietor from time-to-time of that Lot with regard to on-going maintenance and repairs. No O/C in their right mind would knowingly accept those responsibilities where a developer’s quality tile was replaced by an expensive / high quality Italian product!
As I said, the floor will not meet the consent conditions for the min. LnTw so the noise will have to be remedied, so I’d ask the O/C or Strata Manager for a copy of that consent, and lean on whoever is responsible under that consent to have the problem fixed under the Provisions of Model By-Law 14.
Over to our legal posters ……………..
Hi Playerproducer
If the tiles were installed at or before the date or registration of the strata plan they are common property. If an owner installed tiles after registration of the strata plan, it is the individual owner’s responsibility to look after the maintenance, renewal and repair of the tiles.
I am unable to advise on the by-law and it’s implications as I have not seen it. As a general rule, by-laws bind individual owners not owners corporations.
The standard Bylaws 1 and 14 addresses noise and flooring, respectively and might also be relevant.
Sub-sections 117(1)(a) and (c) of the Strata Schemes Management Act provide for orders from an adjudicator at the CTTT for nuisance or interference.
There are numerous remedies under the Protection of the Environment Operations Act 1997 which address both sound and vibration levels where such noise is harmful to or interferes unreasonably with the comfort or repose of a person who is outside the premises from which the noise originates.
The remedies include noise control notices (issued by Local Council), noise abatement orders (issued by Local Court magistrate) and noise abatement directions (issued by member of police force).
There are also a range of CTTT cases addressing breaching bylaw 14 (eg Kelly v Lane [2006] NSWCTTT 438).
Chris KerinSenior Lawyer
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