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Timber floors and indifferent neighbours
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andyj
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30/07/2013 - 4:46 pm
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Hi Jimmy, Scotlandx and excathedra,

 

You may recall a protracted battle I have had with the upstairs owner over a floating timber floor he had installed and the floor noise generated by his tenants military like exercises that last until the early hours of the morning.

Well the CTTT process may take considerable time, but in the end it can bear fruit. After gaining orders from the Adjudicator in January requiring the owner to rectify the problem, having the owners first appeal rejected in March, we have finally prevailed with a hearing that not only has reissued the adjudicators orders, but have also ordered him to remove the timber floor in all areas except a "kitchen". Cool 

Thanks to all in the forum, especially those mentioned above, for your support during what has been (and will be until its fixed) a stressful and harrowing experience. Lets hope that he does the right thing and the matter is now about to close

Cheers!!!!

 

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scotlandx
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31/07/2013 - 1:35 pm
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That is such good news, CONGRATULATIONS!

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HappyNow
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31/07/2013 - 3:21 pm
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Well done.  Pays to be diligent and determined :)

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PatriciaSC
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05/08/2013 - 9:54 pm
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That is great to hear! We are in the same battle. Not only are we battling the floor issue but the owner upstairs has embarked on a smear campaign to denigrate my character to the Executive Committee, in order to get their support. She even went to the Police and made a vexatious complaint that I had harassed her. But I am going ahead regardless and am writing up my chronology with many supporting documents. Your post has given me even more hope! Enjoy the "peaceful enjoyment" of your lot!!

 

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drshelley
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12/08/2013 - 1:40 pm
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That is so comforting - congratulations.  We are also embarking on the path to 'peaceful enjoyment' from timber floors installed by our upstairs 'family' who maintain we have to prove the noise is unreasonable (if you can hear people walking in bare feet I think that is unreasonable for starters).  I do hope we have the same success and that we have the mental fortitude to continue.  Can I ask if you had acoustic testing done as part of your case evidence.

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andyj
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14/08/2013 - 2:51 pm
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Hi PatriciaSC and drshelley,

Hang in there, the CTTT path can bear fruit. I have had the orders to fix the floor above reissued by the tribunal, however several weeks have now ticked by and the owner has been very quiet. He is rapidly running out of time to comply yet again.

 

As for acoustic testing. By-Law 14 is a subjective test whereby the tribunal determines whether the noise is "likely to disturb the peaceful enjoyment of a lot". There is no mention in the by-law that I can see that refers to a "measure" or refers to the BSA standards. If  you get acoustic testing done it will be costly and can go in your favor, but may not. If the tribunal member takes the view that just meeting the BSA standards will satisfy By-Law 14 then you may have to put up with impact noise that is could be "clearly audible" and thereby may backfire on you. I would suggest getting Statutory declarations from as many visitors as you can attesting to the disturbing quality and frequency of the noise. Keep timely and detailed logs as well. This is what I did in the end and the tribunal issued orders to fix the issue if transmission of impact noise

 

Keep us all posted on how you go

 

Good luck!! 

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PatriciaSC
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07/09/2013 - 12:41 pm
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Hi again,

I nearly gave it all up and sold the apartment, but my kids persuaded me to persevere.

The "respondents" made excuses about not being available on the date for mediation and tried to delay it by another month, but fortunately when I offered about 5 dates prior to the original date, and the respondent still claimed unavailable, I was given the go-ahead to go to the next step of adjudication.

I am now in the process of organising the documents for the CTTT adjudication.

I have a chronology of events and several pdfs of email complaints (noise diaries) from my current tenants and an email from the previous tenants who also were annoyed by the noisy floor. In fact they moved out within 7 weeks of the floor going in.

Andyj I would love to have a copy of your Adjudication so I can quote it in my submission.

If there is a link to it, or some way you can send it to me, I would very much appreciate it.

Knowing my "respondent" I am sure she is reading all of this.

But that's ok because I am just trying to get a fair outcome.

I'll let you know how I get on with the Adjudication.

Patricia

 

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andyj
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10/09/2013 - 4:05 pm
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Hi PatriciaSC,

Don't give up or sell out. You have the legal right, as do your tenants to "the peaceful enjoyment" of your lot. My particular Adjudication probably will not be of any particular use to you as each application for adjudication is unique. The arguments and evidence do however all follow the same pattern. You need to demonstrate to the adjudicator that there is not merely noise, but noise likely to disturb the peaceful enjoyment of your lot. What I am trying to get at here is that the noise is not occasional as can be expected in a strata lot, but that is repeated, intrusive, disturbing to a reasonable person. This is where your witnesses (pref a stat dec) come in. The more you can get the merrier. Also a noise log that states the dates, times what the noise was, what effect it  had on you, what you did about it and who can corroborate your evidence. The fact that the respondent has not played nicely over mediation is likely to reflect well in your favor. It lets the adjudicator get the feeling that they are unwilling to be reasonable and may have something to hide. Mention that in your application.

Jimmy T has provided some excellent references in his "Timber Floors, Facts and Frictions article" as well as some sample adjudications perhaps he can point you to the URL.

Another great resource is the http://www.austlii.edu.au law site link. Look for the CTTT section under NSW and do a Boolean search on by-law 14 and by-law 1. They are probably in breech of s117(1)(a) and possibly (c) of the SSMA 1996. you can find the strata schemes management act in a google search

When writing to the adjudicator. Keep your arguments clear, simple, factual and as devoid of emotion as you can. Simply state what has happened, the noise, its frequency and the impact it is having on you. Reference your supporting documents and state your diary notes were taken at the time of the incidents.

Hang in there you are well underway to a resolution

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drshelley
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17/09/2013 - 8:21 pm
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It is good to hear there is some justice on the timber floor 'scourge'.  We have a date for mediation and hope to persuade our noisy, upstairs 'go ahead young couple' that they have destroyed our life with their noise timber floors.  Fingers crossed that we have success at this stage without having to continue down the adjudication path.

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dnighttime
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08/01/2014 - 3:25 pm
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To all flatchatters I would not put any faith in the CTTT. We had stat decs, extensive noise diary and a noise report which recommended our upstairs neighbour with the uninsulated tiled floor install carpet with underlay and still lost the decision. All they produced was a receipt for a rug and a hall runner. Absolute joke. We will sell up.

 

As a well known strata lawyer told us, most of the CTTT are clowns. Be realistic, great if you get the decision you want but don't expect common sense tp play a part.

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andyj
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08/01/2014 - 5:15 pm
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dnighttime.

 

I am deeply sorry to hear of your experience. I can empathize with your plight as I have had to endure a young family using a timber floor for 2 years 24/7. I am sorry to hear that you are selling up and moving on. It is a great shame that you did not get the outcome you deserved at the CTTT. I can only hope that the new Minister for Fair Trading looks over the plethora of inconsistent judgments made by the various members of the Tribunal and puts in guidelines for future rulings.

Best wishes for the future

 

andyj

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PatriciaSC
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17/02/2014 - 8:58 pm
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Hi again, long time no chat!!

I had been busy spending hours of research about how to make an effective application for adjudication "on the papers" to the CTTT regarding the noisy floors in the apartment above mine, where I have tenants. I quoted precedents and had noise diaries and copies of communication with various acoustic and underlay experts. My submission was about 14 pages.

My successful application was one of the last to be adjudicated by the old CTTT (dated 30 December 2013) and the respondents were ordered to comply with By-Law 14 "forthwith".

After a month of no communication, I was informed by the Strata Manager that the respondents are waiting for their installer to explore their legal obligations in the matter of the installation.

Hmmmm ...I think they can do this at any time, after they fix the floor, and from what I have researched they have very little hope of getting any recompense from the installer.

It's now about 7 weeks after the decision and I am still waiting.....

I have made an application for a penalty for non-compliance which I found out today will be heard in about 6 weeks or so.

It's certainly been an exercise in patience.

The wheels grind very slowly but I hope it will be worth all the time and effort I have put into it. My original application was 27 September 2013, so that will be about 6 months from my first application to the penalty hearing.

In the meantime my tenants are about to have a baby.

What is disappointing, is that prior to this CTTT action, I had spent months researching the acoustic ratings of floor and underlay combinations, and had been trying to negotiate with the respondents since June 2013.

I was, and still am, hoping that the respondents will "do the right thing" and realise that the floor needs to be fixed. My tenants can hear noise at all hours of the day and night...suitcases being wheeled across the floor, chairs being moved around, footsteps and shoes, night and daytime bedroom activity and even a vibrating phone alarm on the floor!!

It will be interesting to see how the NCAT views this flagrant non-compliance. The Adjudicator was very definite in her language in the adjudication and ordered the compliance to take place "forthwith", which I understand to mean immediately.

I will keep you posted..but don't hold your breath!!

Patricia

 

 

 

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drshelley
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21/02/2014 - 9:51 pm
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today we received the result of NCAT submission requesting our timber-floor loving go-ahead young couple upstairs neighbours to comply with the by-law.  This took over 3 months of nervous waiting but at last we got a favourable result.  Yippee!!  They have been given until end April to rectify the noise problem so we will expect louder noise levels until then I presume. 

We do feel vindicated and were being to feel isolated from other owners as they turn a blind eye and don't want to get involved. 

The adjudication considered our noise log and our wording that the noise was 'invasive, pervasive and loud throughout our unit'.  They did have an acoustic test done (which they originally wanted us to pay for) and this showed that although the floors met BCA it did not meet minimum AAAC level to provide acoustic amenity.  We were dismayed - to say the least - by the acoustic engineers comment that although the floor did not meet the minimum recommended requirement, they did not consider this was significant as it was only 2db short.  This type of comment I think is made depending on who pays the bill and is not really an independent report.

the adjudicator did comment that the by-law did not stipulate any minimum requirement but we feel that this was, however, taken into account.  They had asked for an order that we put insulation in our ceiling (to stop their noise???) but the adjudicator said that we had not contributed to their noise and did not have to do this. 

So now we wait - should we expect that they will communicate with us as to how they are going to rectify the situation. 

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andyj
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03/03/2014 - 11:10 am
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Hi drshelley, PatriciaSC and gurus,

 

Last year after a protracted period of successful adjudication, appeal by owner and finally prevailing at the tribunal. I managed to get the owner to remove the floorboards from the living and bedroom areas of the unit above.

Despite a prior agreement between us to also have the floorboards removed from the mixed dining/kitchen area, the upstairs owner reneged on the deal at the final tribunal hearing.

He has installed cheap carpet and cheap 5mm underlay. Although the noise from the now carpeted areas has gone from what one visitor described as "horrific and audible from a neighboring country" , to simply annoying, I still can hear the tenants thumping on the floor for much of the morning and evenings. The sound is best described as a deep drumming thud.

The mixed use kitchen/dining area is as noisy as ever.

Since he has installed carpet I am assuming my chances of getting a penalty would be unlikely (comments welcome).

The Tribunal member said that I would have to put in a separate application for adjudication regarding the mixed kitchen dining area. Do I need to go to mediation again with the owners.

I have tried to have a nice chat with the tenants with 2 other owners present (who supported my claims of continuing noise). However the tennants said that they were not making any noise and were always in bed by 10pm (a blatant lie as we can see their lights on every night until well after midnight).

My next door neighbor also said to them that she was in my unit 10min prior and could hear the thumping, which they denied

drshelley you mentioned a minimum standard mandated by the AAAC which I would be delighted if you could share with me. As we are experiencing similar noise issues I would be delighted if we could share information offline such as our adjudication orders and tribunal orders as well as any other advice.

Jimmy can you please share my email address with drshelley

Cheers

hanging in there for a harmonious outcome andyj

 

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JimmyT
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03/03/2014 - 12:34 pm
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andyj said

Last year after a protracted period of successful adjudication, appeal by owner and finally prevailing at the tribunal. I managed to get the owner to remove the floorboards from the living and bedroom areas of the unit above.

What did the adjudication actually say?  If the owners were ordered to mitigate the noise then you have a very good chance of them being in serious trouble if it can be shown that they deliberately didn't do enough.

If the order was to lay carpet, than your case is a lot weaker.

Regards

Jimmy.   

 

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andyj
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03/03/2014 - 1:53 pm
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Hi Jimmy,

 

Thanks for your prompt reply.. and your ongoing expert advice Laugh

The Orders from the tribunal member were:

"By consent the respondent agrees to comply with the orders of the adjudicator"

It is noted that by consent that the respondent has agreed to remove all floorboards but for the kitchen area"

The orders of the adjudicator are: "The respondents shall comply with by-law 14 and specifically shall ensure the floor space within lot 8 is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of lot 8 noise likely to disturb the peaceful enjoyment of the owner of lot 6"

These orders do not apply to floor space in lot 8 comprising a kitchen, laundry, lavatory or bathroom"

 

My arguments that the kitchen area is mixed use is based on the ruling of Member A Borsody in Kelly v Lane NSWCTTT 438 7 August 2006 last 3 paragraphs url: http://www.austlii.edu.au/cgi-.....20v%20lane

The remaining timber flooring in the overhead unit has a dining area as well as a kitchenette.

cheers

andyj

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PatriciaSC
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25/03/2014 - 10:59 am
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Hi all.

I am sorry to hear about your problems as I have had so much stress with ours too, so I feel for you in your issue.

Here is a post I made on another flat chat forum which might be helpful to someone:

http://www.flat-chat.com.au/fo.....et/#p11852

All the best with your situation.

I will be back at the tribunal with a penalty hearing if the respondents in my case don't comply (again!)

Regards

Patricia

 

 

 

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PatriciaSC
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07/08/2014 - 9:09 pm
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The orders to change the floor so that it was not "disturbing the peaceful enjoyment of a lot" (my lot), were pretty much ignored: the respondents put down a few mats in their apartment above mine.

I went back to the CTTT for a penalty application.

BUT I found a precedent on the Austlii website where a tribunal member ruled that an alternative to the original decision was appropriate under another section of the regulations.

AND as luck would have it, the tribunal member I was getting at the penalty hearing was the same person as had ruled the alternative in that precedent.

Wooppee. So I applied for an alternative ruling that the owners above had to install carpet with underlay, as in the precedent.

And in the time ruled by the tribunal, the carpet was laid and all is quiet...

It took 12 months of persistence and research, but it was worth it.

Laugh

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andyj
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11/08/2014 - 11:50 am
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Hi PatriciaSC,

 

Could you please post the URL link to the precedent you found on the AustLii web site. I would like to see if I can use this

Cheers

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andyj
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18/11/2014 - 1:58 pm
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Hi Jimmy and Gurus,

We have engaged legal advice as has the respondent in a noise case against the tenants who live above us. We intend to send the owner a letter about his obligations under s117(1)(a).

In a post by Jimmy there was a reference to a district court case where a resident took the owner of a residence to the district court about a bunch of short term tenants partying all the time and got orders against the owner. Our lawyer was intrigued and would like to do the same. Can you please provide me  a link to the case or article so I can pass it on to our legal team.

 

Many thanks

 

andyj

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