*Timber and tile floors

TIMBER , tiled and even polished concrete floors have become possibly the hottest issue in the 13 years that Flat Chat has been in existence.

In an old apartment block, the problem arises when owners lift their carpets to discover nice, untouched floorboards underneath, only awaiting a sanding machine and a splash of varnish to make them new and trendy.

In new apartments, the carpet is ripped up and floorboards, tiles or, indeed, nothing is laid down to get a similarly trendy effect.  The potentially devastating effect on the downstairs neighbours is either not considered or flagged as “part of apartment living”.

In both cases they have removed the most effective form of sound insulation on floors and replaced it with something less effective or, in some cases, material that actually enhances the transmission of noise from one apartment to another.

When the owners of the new timber floor are challenged, the responses range from “you can always move out if you don’t like it” to “my kids have these allergies …” via ” the man in the flooring shop said it would be fine” and “I know my rights!”.  Funny, isn’t it, that people who claim to know their rights, rarely ever do and certainly have little idea of their responsibilities?

But that’s a whole other issue. When it comes to flooring over-riding sentiment is that your upstairs neighbour has the right to enhance the value of their apartment even if it means decreasing the value of yours.

This is, of course, not true and it never has been.

The recent changes to NSW strata laws designated the laying of timber floors a “minor alteration” meaning you didn’t need a by-law to do it.  However, that doesn’t mean you can ignore any by-laws that are in place to rgulate the kind of insulation under the timber or tiles.  You still have to get approval from your strata committee and if they have by-laws in place, they’ll expect you to abide by them.  If they don’t, they can still attach conditions before they give approval.

What happens if somone just ignores the process and pulls up their carpet and polishes the un-insulated timber boards or lays cheap timber straight on to the concrete?

There are process for putting that right but the problem, however, is knowing which way round the Fair Trading and NCAT maze you should go to get to a satisfactory result.

When I raised this issue in Flat Chat a couple of years ago, one reader, Garry, wrote in and explained how he had had a successful outcome when upstairs neighbours ripped up their carpet and proceeded to make his life miserable just by walking around living their normal lives in a normal fashion.  I blithely offered to pass requests for more more information on to Garry.

It was like the Second Coming.

Suddenly all these long-suffering apartment owners came out of the woodwork (pun entirely intended) seeking relief from their selfish and/or blissfully ignorant upstairs neighbours. It would be no exaggeration to say that this is far and away the biggest response  to any topic I have ever covered –  including pets, parking and parties – by a factor of more than five time the normal number of emails.

It’s an incredibly complex issue and it’s not just the people downstairs who are victims. Sometimes people who have tried to do the right thing have been given bad advice or paid for an inferior installation and end up having to replace their expensive wooden floor with expensive insulated carpet (a nice double-dip for the carpet sellers!).

Bad insulation can actually cause more noise nuisance than no insulation – and owners often don’t realise there is a problem till they get a letter from their Owners Corporation ordering them to put properly insulated carpets down again.

Others, sadly, know perfectly well that they are going to make their downstairs’ neighbours lives miserable but, as is so often the case these days, don’t give a damn and assume that they’ll get away with it.  Timber floor sales people will often encourage this notion if it means making a sale.

I immediately felt sorry for Garry who was manfully trying to respond to all these emails individually.  So I had a trawl through recent CTTT adjudications and appeals and put together a package of case histories (which you can access at the foot of this posting) to try to build a picture of the best way to approach this issue if you do decide to take the matter to the CTTT.

There are two ways you can approach this – through your by-laws (which vary from building to building) and through strata law which applies to everyone.

By-laws

If you have a by-law in your building which forbids or restricts flooring that doesn’t properly insulate noise transmission, you are halfway there.  If it specifies the Australian Building Standard for noise transmission, you may have a problem and have to depend on Strata Law (see below). Australian Building Standards are a joke when comes to apartments and those that apply to flooring seem to have been designed for people whose feet never actually touch the ground.

The standards devised by the Australian Association of Acoustic Consultants are a much better guide to what it tolerable and what isn’t. But don’t be sucked in to thinking the level of noise is the only factor.  A dripping tap is not particularly noisy but it will drive you mad if you don’t do something about it.  Similarly, the tap-tap-tap of fashionably high heels drumming a military tattoo above your head when you are trying to watch TV will have you thumping the ceiling by the first commercial break.

Even if you don’t have a specific by-law on flooring, you may well have one that says owners may not do anything that interferes with “the peaceful enjoyment” of another owner’s unit. This is one of the “model” by-laws suggested by Fair trading and adopted by many new apartment blocks and a significant number of (but by no means all) older ones. Since you can’t reasonably ask people not to walk around their own apartments, then you should be able to demand that their floors are insulated so that you don’t have to put up with noise every time they do.

Strata Law

Strata Law takes a much less specific view.  Let’s look at the relevant clause:

117 Owners, occupiers and other persons not to create nuisance

(1)  An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

(a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

The critical clause is (a) and to a lesser extent (c), because your floor in an apartment block is common property.  Now, my legal eagle friends tell me that the legal definition of nuisance is very different from the colloquial meaning.  For instance, it has to be frequent or persistent and something a reasonable person with no particular sensitivity would be affected by.  The context is also taken into account – the attached case studies include a building that the CTTT adjudicator (in their infinite wisdom) decided was pretty noisy anyway by virtue of the way it was built and dismissed the complaint.  I’ll say no more on that except to advise that if you do decide to take an upstairs neighbour to the CTTT on the basis of strata law, you would be well advised to consult a specialist strata lawyer first.

Since this whole issue erupted, I have been asked many times to suggest appropriate wording for a by-law.  I think that’s better done by your strata manager or even a strata lawyer. But if you are thinking of heading off future problems by adopting a by-law, I would couch it in non-specific terms, such as you can’t remove carpet or change the floor covering without Owners Corporation permission and that such permission will only be given provided there is a written undertaking to provide noise insulation to the same level and to remedy any failings immediately if downstairs neighbours are adversely affected. If owners aren’t prepared to make that commitment, then they can keep their carpet or face the consequences of action at the CTTT for breach of by-laws.

By the way, I have alerted the Department of Fair Trading to the extent of this problem and suggested that they issue a leaflet explain to apartment owners what their rights and responsibilities are when it comes to flooring.  No doubt, they are pacing the floor, trying to think of an appropriate response.

If you are contemplating action or are even the subject of a complaint, have a look at the attached documents – many are failed actions, some are successes, but regardless of the outcome there is a pattern even in how different adjudicators assess different cases. I have also included a case about piano playing (not flooring) as it illustrates how the CTTT deals with a very complex and sensitive issue.

Meanwhile, as a guide, here are my own highly subjective observations based on reading these reports:

1. Adjudicators seem to be at least as concerned with whether or not the noise is disturbing (which is where the by-law breach occurs) as they are about whether or not the floor meets BSA or acoustical engineering standards.

2. There seems to be an acceptance that the BSA standards are not an acceptable guide as to whether or not the floor is properly insulated against disturbing noise so anyone relying on that as a defence is skating on thin ice. Failure to meet Acoustical Engineers standards for carpeted floors (and few if any wooden or tiled floors can) may be a more significant consideration. The first case study (CTTT Appeal Decison 1, below) clearly states that while the floor meets BSA standards, it is still 25 percent less effective than carpetted floors and that’s why the upstairs naeighbours lost their appeal

3.  If you are taking this to the CTTT supported by an acoustical engineer’s findings, make sure your expert’s qualifications and experience are stated as part of the submission.

4.  Witnesses who are there to support your case by testifying that they can hear noise from the timber-floored unit will be asked if the noise is disturbing.  If they say “not really” (as in one example attached) the adjudicator is likely to rule that some noise is acceptable in apartment buildings and only “nuisance” noise is a breach and throw the case out.

5. Throwing down a few rugs is unlikely to be accepted as solving a noise problem with a timber floor.  A couple of these cases are appeals or penalty hearings because the offending owners have wrongly assumed that putting rugs down meant they had met the terms of a previous adjudication.  It may be worth asking for a pre-emptive adjudication on the use of rugs.  The simple test, again, is whether or not the disturbance continues.

6.  The question of rugs arises because adjudicators will often not specify a remedy.  The adjudicator may rule that there is a noise problem and it must be rectified but then leave it up to the unit owner to decide how to rectify it.  That’s why so many of these cases are only resolved after several trips to the CTTT.  In one case, the upstairs owner thought that she didn’t need to do anything, in another, the upstairs owner laid carpet with little or no insulating underlay.  In both cases they were subject to further orders to insulate the floor properly.

7.  Be as organised and methodical as you can be and try to keep personality clashes, past and present, out of the picture.

8.  It is definitely worth considering getting a specialist strata lawyer, especially one with a track record in these disputes,  to run your case for you.  It’s not essential, it may be expensive and you won’t recover costs even if you win but it will probably increase your chances of success. Names to consider include Suzie Broome at Makinson & D’Apice, Colin Grace, Stephen Goddard and David Le Page.

And finally, I attach a table from our original successful anti-timber litigant which shows that NO timber floor provides the same sound insulation as carpet on a quality underlay.  That could be the basis for justifying any by-law you may plan to propose.  By the way, the higher the figure the worse the noise transmission and it’s worth noting that a polished concrete slab doesn’t even meet the minimum BSA standards.

Acoustic ratings – floors

The following links are to recent CTTT rulings on flooring and noise issues

CTTT Appeal decision 1

OWNERS CORPORATION WINS APPEAL

PENALTY IMPOSED

SMALL PENALTY

UPSTAIRS APPEALL ALLOWED

DOWNSTAIRS APPEAL DISMISSED

NO PENALTY

PIANO PLAYING