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02/07/2013 at 10:17 am #8912
Our EC has served a ‘notice to comply’ to owners above us re the noise from their recently installed timber floor disturbing us. It is really quite bad and I am extremely stressed. The owners have answered that they think this is unfair as they have 3mm underlay that meets BCA standards etc. They state they are ‘happy to do strata mediation’ and have an acoustic test done that we have to pay for. What is the process from here –
do we go to mediation, if so, who initiates this and are we obliged to pay to have a test done. -
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02/07/2013 at 4:23 pm #18877
A couple of points:
Noise is noise and it doesn’t really matter what they say they’ve done and what thickness of which brand of insulation they have installed.
The BCA references to floor insulation in apartments are contingent on so many other issues that they are virtually meaningless and will have little bearing on a CTTT decision – the ONLY factor is if there is a noise problem that breaches by-laws (unless there’s a by-law that forbids hard floors and that’s a whole other issue).
The gold standard for under timber insulation is 11mm Regupol – and even then it isn’t always enough.
There is no mediation required for a Notice To Comply – they either fix it or they go to a tribunal where a fine (maximum $550) is imposed.
However, the Owners Corp may decided to go for an order at the CTTT which does require mediation but the fines for breaching that are up to $5500.
You’ll find the options and links to various information pages and forms HERE.
Meanwhile, gather as much evidence as you can about the levels and type of noise – recordings on your smartphone are acceptable evidence, as are stat decs from friends and neighbours – and be glad that your EC are running with this. So many drop the ball and say it’s a dispute between neighbours.
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.
02/07/2013 at 9:45 pm #18878Hi drshelley,
Jimmy is right on the mark here. I have been battling atrocious timber floor noise from above for almost 2 years now. I can really empathise with your position. The irritation and sleep deprivation are a killer. I would go down the mediation and CTTT adjudication/orders path. It may take considerable time and it can be a frustrating process but you are likely to get a much better result. The threat of a $100-500 fine does little to dissuade a selfish owner. Multiple fines in excess of several thousand dollars is more of an incentive. Their statement that it meets BCA standards is just rubbish. I bet they have one of those acoustic reports that installers hand out like junk mail. They are of “no evidentiary value” to quote a recent adjudicators decision. Grab yourself a application for mediation form from fair trading and get the ball rolling. Keep ongoing detailed noise logs (start time, duration, type of noise, what you did, how it affected you) and get corroboration as my solicitor advised me. This involves getting witnesses to sign your noise log attesting to their experiences. Also get stat decs from visitors and neighbours. A united front in the strata scheme to stamp out this chancer from upstairs will yield results.
Ps ask then to supply the professional acoustic report for their floor (tap testing) in writing, if they decline it implies that they have something to hide.
Cheers
02/07/2013 at 10:04 pm #18881JimmyT said
Thanks– if they get a fine (which they say they are happy to pay) is this accompanied by an order to comply or is that the end of it.
03/07/2013 at 10:56 am #18882No – what you do is apply for an order to rectify the problem. So assuming the order was made, it would be along the lines of the owners having to lay carpet, or to take up the floorboards and instal the appropriate underlay etc. The kind of order made may depend on the building and how it is constructed.
If the owners then fail to comply then you would be seeking a fine for that failure to comply. That is separate from rectification of the problem, because you want them to fix it.
03/07/2013 at 4:44 pm #18883If you go down the path of mediation-adjudication-orders-appeal path (and the orders withstand the appeal) then drshelley then can apply for penalties for non-compliance with the orders handed down. It is worth noting there is almost always an appeal (or 2 in my case) from the dissatisfied side.
Once the appeals part is settled then you should expect the other party to comply. If they do not comply you can then apply for penalties. The application/award of penalties does NOT absolve the offender from complying with the orders, and in fact there are several CTTT cases where the person affected by the floor noise applied for penalties on subsequent occasions for continued non-compliance.
It is also worth noting that if the naughty non complier has not applied for a stay of the adjudicators orders during the appeal process than you can apply for penalties stating that the recalcitrant owner has not complied since the adjudicators orders took effect and ask for a bigger fine.
04/07/2013 at 8:43 pm #18894I thought mediation was a separate method of dispute resolution to ‘notice to comply’ which they have been served with. ie if they have been given this notice we go straight to CTTT for a fine etc. Jimmy T recommended this – therefore we don’t do mediation – they say they are happy for mediation but also expect us to pay for an ‘acoustic test’ as we are the complainant.
If we continue on to CTTT when they don’t comply – can they ask for mediation to appeal the ‘notice’ – to my way of thinking then they are the complainant (against the notice). Does this make sense.
If we go to mediation do we need to have the ‘notice’ rescinded.
05/07/2013 at 8:06 am #18895You can have mediation without going through the Fair Trading system. Community Justice Centres provide this service for free but the outcomes may not be legally binding.
In the case of a dispute that has gone to a formal complaint, the Notice To Comply is served by the Owners Corp (either via the EC or the strata manager). In this case the EC is the plaintiff, not you.
The other option is that you or the EC can concurrently run a case at the CTTT for orders against the upstairs neighbour. A case for CTTT orders has a compulsory mediation at the start of the case but neither side is compelled to engage in any meaningful way – you can turn up and say nothing.
Both parties can agree to a legally binding agreement at this stage.
If you want to go for orders and the EC doesn’t, I would go to mediation and get agreement that whoever is found to be at fault should pay the cost of the acoustic testing, to be conducted by someone of your choosing.
This idea that the person who is suffering the noise should have to pay for the testing is nonsense. You can tell if a floor is too noisy just by using your ears (supported by the testimony of visitors to your apartment and other neighbours, including members of the EC).
Acoustic testing is more likely to be used by the person who installed the hard floors to prove it couldn’t be as noisy as their neighbour claims.
Regarding the the question of who is the plaintiff if they don’t pay the fine, penalty disputes are specifically excluded from mediation in the CTTT orders process. You simply make your claim for an order for them to pay any fine imposed by the CTTT. It’s a simple matter: they were fined and they didn’t pay – what’s to be discussed?
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.
06/07/2013 at 6:44 pm #18924Things are not really going according to plan – we decided that we would meet with upstairs owner again (once again bending over backwards to be fair etc) to discuss the issues as she had requested mediation even though she had the NTC – I really thought we could impress on her the level of noise as at the beginning of this stoush her husband had actually heard her walking in bare feet. But no that didn’t work. Her response – ‘all go-ahead couples in 2013 have timber floors” and ‘we are an active family and you don’t expect me to stop our child dropping toys on the floor’.
Well no we don’t expect her to stop her child dropping toys, but it is their child not ours and we don’t have to hear his noise. We had our children years ago.
Chairman of EC has now asked either us or her to request mediation through DFT. Seems he doesn’t realise that the EC issued the NTC.
We’re off to the legal eagles.
07/07/2013 at 8:30 pm #18933Hi, 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!
08/07/2013 at 6:17 pm #18944It is so comforting to have support – we are waiting for solicitor’s advice and fingers crossed the OC agrees to go with it – but I am so tired of the battles. Mental strength is so necessary but mine is starting to flagg – what a rollercoaster. We had peace for 6 years – maybe we should be grateful for that.
Can anyone tell me why when they install timber floors in new apartments there doesn’t seem to be any problem.
08/07/2013 at 7:19 pm #18925
@drshelley said:Can anyone tell me why when they install timber floors in new apartments there doesn’t seem to be any problem.
We have timber floors – top of the line gear on 11mm insualtion. Imagine our shock when our downstairs neighbour told us “of course we can hear you!”
The thing is, we take our shoes off, we don’t run around or jump up and down. In other words, if you are so keen to be a ‘go-ahead couple” modify your lifestyle and have little consideration for your neighbours.
Or, you should tell this selfish besom “go ahead … and move out.”
Hold the line, my friend. They are in the wrong, you are in the right.
My compromise would be, since they have signalled that they have no intention of changing their behaviour, that you will let them put wall-to-wall carpet and underlay on top of the floorboards provided the promise never to remove it.
And pass this message on from the Flat Chat Crew: Go-ahead couples in 2013 do their research and know that doing stuff on the cheap in strata never ever works.
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.
10/07/2013 at 2:15 pm #18961
@JimmyT said:
@drshelley said:
Can anyone tell me why when they install timber floors in new apartments there doesn’t seem to be any problem.“We have timber floors – top of the line gear on 11mm insulation. Imagine our shock when our downstairs neighbour told us “of course we can hear you!”
The thing is, we take our shoes off, we don’t run around or jump up and down. In other words, if you are so keen to be a ‘go-ahead couple” modify your lifestyle and have little consideration for your neighbours.
Or, you should tell this selfish besom “go ahead … and move out.”
Hold the line, my friend. They are in the wrong, you are in the right.
My compromise would be, since they have signalled that they have no intention of changing their behaviour, that you will let them put wall-to-wall carpet and underlay on top of the floorboards provided the promise never to remove it.
And pass this message on from the Flat Chat Crew: Go-ahead couples in 2013 do their research and know that doing stuff on the cheap in strata never ever works.
“
Having read and contributed to the Flat-Chat forum with interest over the past 12 months or so, it would appear that the issue of timber floors and the noises they generate in strata complexes is a very common and often distressing topic.
Jimmy T mentions in his post that he was “shocked” when his down stairs neighbors mentioned that they could hear him and his significant others, despite his considerable efforts to ensure his timber floors were insulated to the highest degree possible. Jimmy says that they take of their shoes and don’t run/jump around in their apartment which shows consideration for the occupants of the apartments surrounding his.
Naturally when living in a strata complex one should expect some noise to be heard from surrounding apartments, however with efforts to adequately insulate floor spaces, and thoughtfulness and consideration toward fellow neighbors, this noise is not often disturbing or intrusive.
Unfortunately not all strata dwellers are as considerate as Jimmy. Owners often lay their timber floors with the bare minimum of acoustic insulation to save costs. This often means that the floor has a tendency to transmit a much greater level of noise that a quality carpeted floor or a timber floor that has been installed to the highest standards.
If the occupants of said apartments are willing to modify their behavior in a manner Jimmy has suggested then often the issue with floor noise can be avoided or minimized. These measures include, but are not limited to laying quality rugs in high traffic areas, taking off shoes, walking lightly over the surface, not dragging furniture around all day and settling children (or adults behaving like children) down at a reasonable hour in the evening. One also has to be aware that airborne noise is transmitted more easily by a poorly insulated floor space.
As is all too often that case the occupiers of strata apartments these days do not give a toss about their neighbors or the impact their activities may be having on them.
Even with well insulated floors, if the occupants want to skip rope at 2am, hold drunken parties or their kids play will all the subtlety of a military exercise then there will be noise issues.
The perfect storm occurs when you combine poor floor space acoustic insulation with “go-ahead” occupants who couldn’t care how much noise they are making and under no circumstances will modify their behavior.
Almost invariably Professional Strata Managers will say its an issue between the owners and that they “don’t want to take sides” despite being reminded that they are responsible for ensuring by-laws are adhered to. Fellow neighbors will also tend to shrink into the shadows unless they too are directly affected by the noise pollution.
Notices to Comply are somewhat difficult to prepare as there are strict guidelines to follow and the penalties (if issued) have the deterrent effect of a smack on the hand with a wet bus ticket.
The CTTT track of mediation/adjudication/appeal is a long one and as mentioned by Jimmy and some of the other Strata Gurus can be a lottery as to the outcome.
Mediation often consists of the other party denying the existence of a noise problem supported protestations of their rights to do what they want in their apartments or frantic waving of documents from store brochures attesting to the sample acoustic performance of the floor and that it meets BCA standards.
In my case I offered for the owners brother to come and listen to the noise for himself (even the mediator thought this would be a good idea). Unfortunately the other party suddenly was “too busy to attend” and became hostile before frantically waving the installers brochures again. I noted with interest when they put in their submissions to the adjudicator that they claimed that they had been pleading with me for some time to come and witness the commotion caused by their floor.
Adjudication thankfully is relatively straight forward. Interested parties put their submissions in writing and then the adjudicator issues orders. If you have lined up your duck correctly by gathering evidence and witness statements, these orders will often be in your favor. It is worth noting that the adjudicator will issue orders that the “respondent” comply with the by-law, but not stipulate how (ie laying of carpet/replacement of acoustic underlay etc).
The next step of course is the appeal from the disgruntled floor owner. Here you may encounter lies, damn lies and statistics from the other party (eg accusations of harassment, attempts to blame other unit owners for their floor noise and more waving of irrelevant documents in way of proof). If you have continued evidence and witness statements of the noise problem you are likely to prevail again.
Sadly some floor owners wont end it here and will dig in their heels and go through many penalties processes until either you give up or the tribunal says that they have done enough to comply (even if they have in fact done nothing).
The final step is the district court or the supreme court. Here things get expensive, however “if” you win they will bear your costs.
It is sad that many people have to be dragged through this process that can take years to resolve at great emotional and often financial cost to the affected party
There are 4 ways to tackle noise problems in a strata unit
1 Notice to Comply path
2 CTTT mediation/adjudication/appeal/penalties path
3 NSW Protection of the Environment Operations Act
4 Civil action in the courts for breach of a covenant (the by-laws are a binding covenant on owners and tenants) asking for damages.
The last 2 are riskier if you lose (you bear the court costs) but carry more weight if you win (breach of court order is a criminal act)
It is a pity that when someone installs a floating timber floor that there are not mandatory tests that have to be performed by the installer to meet a certain standards (say 5-6 star rating).
andyj
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