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  • #52967
    Avatarchesswood
    Flatchatter

    One of our units has a vinyl/floating/whatever floor contravening the by-law requiring the owner to have the floor covered or treated to prevent noise nuisance. The unit below is tenanted. Our committee resolved to apply for NSWCAT mediation which is necessary before starting a tribunal case.

    At the mediation hearing, the floor’s owner insisted that the legally-proper procedure is for the afflicted downstairs resident to apply for mediation. Why is that? Doesn’t the OC have an interest in seeing that by-laws are enforced.

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  • #52971
    Jimmy-TJimmy-T
    Keymaster

    One of our units has a vinyl/floating/whatever floor contravening the by-law requiring the owner to have the floor covered or treated to prevent noise nuisance …  At the mediation hearing, the floor’s owner insisted that the legally-proper procedure is for the afflicted downstairs resident to apply for mediation. Why is that? Doesn’t the OC have an interest in seeing that by-laws are enforced.

    The problem here may be that your strata committee may have taken the wrong route on this. If a by-law has been breached, you issue a Notice to Comply.

    If the resident or lot owners doesn’t comply with the Notice To Comply, you take them straight to NCAT – no need to go to mediation – and ask for fines and ultimately orders.

    The committee has therefore added an unnecessary step.

    But, to answer your question, the offending owner is clutching at straws.  If they have breached a by-law then it has nothing to do with the tenant downstairs (although they could be called to give evidence for either side).

    Interestingly, the recent Court of Appeals ruling on pets implies that anyone can do anything they want in their homes provided it doesn’t trouble anyone else in the block, and therefore you can’t have pre-emptive by-laws to stop them.

    By-laws that establish minimum standards for flooring have been cited by some strata law experts as examples of situations where a problem needs to be established before action can be taken.  Pre-emptive by-laws  that set out to prevent a problem with a catch-all rule could therefore be seen to be harsh, unconscionable or discriminatory.

    The correct procedure would then be to take a complaint against the owner with the noisy floor.  The solution for strata schemes could be to establish parameters under which noise is less likely to be intrusive and breaches of which they will resolve to pursue on behalf of owners if they are breached.

    That way, you are telling owners they can lay any flooring they like but if noise transmission exceeds a certain level, the owners corp and not justtheir individual neighbours will take action against them at NCAT.

    The niss ue then becomes what is a reasonable level of noise transmission and it’s certainly not the Australian Building Standards acoustic level of 48 (62 Decibels) which is a fraction better than 6mm cork on concrete.  Why? Becauae for too long property developers have been able to manipulate standards in the Australian building industry to suit their bottom line rather than our right to peace and quiet.

    Anyway, the person with the inadequate flooring might have a case, only not for the reasons they have stated. Let’s hope they don’t read Flat Chat.

     

     

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