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Tony, Michael and David Partners at ABKJ
Footsteps from above

Elephants on the Ceiling

The issue of footsteps on the ceiling (and noise generally) in strata titled buildings is a vexing issue for many committees and owners.  Given the increased propensity towards high density living in our cities, this is an issue that isn’t going away.

Even the sturdiest and newest buildings will probably permit some sound transference between lots in certain circumstances; that is a feature of strata living that prospective residents ignore at their peril. However, the issue can generally be managed through the use of appropriate materials and construction techniques.

Hard floors are “in” at the moment, with many owners looking to replace their (sound absorbing) red shagpile with (sound conducting) sleek timber or tiles. Naturally, hard flooring facilitates more sound transference to neighbours below than carpet and needs to be installed as part of a properly considered flooring solution with a properly considered and installed acoustic underlay.

Sadly, this sometimes doesn’t happen, and might be due to:

  1. A deficiency in the by-laws;
  2. A lack of proper regulation by the committee; and
  3. Lot owners ignoring the conditions of approval, engaging a shoddy builder, or failing to tell the committee what they are proposing to do in the first place.

So what should committees do to prevent noise from becoming an issue in their building?

What they shouldn’t do (as some have found to their detriment) is prohibit hard flooring altogether. That doesn’t work, and a by-law to that effect will almost certainly be declared invalid by an adjudicator.

I suggest that committees should:

  1. Take a moment to review their flooring by-laws. A good by-law will require an owner wanting to install hard flooring to seek the consent of the committee and empower the committee to regulate the installation of hard flooring through the imposition of reasonable conditions, such as:
  • That the works are undertaken by properly insured and properly licensed professional tradespeople;
  • That the flooring solution incorporates an appropriate acoustic underlay;
  • That the flooring solution provide for a minimum quantified impact sound rating prescribed by the by-laws. Many committees are prescribing standards well in excess of the minimum standard prescribed by the Building Code – more on this later;
  • That the owner obtain written advice from a suitably qualified professional person (an acoustical consultant) that the flooring system as installed will comply with the impact sound rating requirements prescribed by the by-laws.

If you would like advice about this or would like assistance in drafting a best practice by-law, please don’t hesitate to contact me.

  1. Assuming that the scheme has an appropriate and comprehensive by-law, the committee needs to apply that by-law when considering applications received from owners for the installation of hard flooring. Committees shouldn’t be afraid to ask questions and obtain all the relevant information before making a decision.

A couple of recent adjudicator’s decisions about hard flooring are worth a mention.

The decision of Salacia Apartments One [2016] QBCCMCmr 252 (2 June 2016) concerned an application by an owner against the body corporate seeking a declaration that a particular by-law concerning floor covering replacement was invalid on the basis that it was oppressive and unreasonable.

The by-law included a number of fairly robust conditions including that before undertaking any works, a lot owner must give the body corporate 12 weeks notice of the intention to do works, the owner must sign an assurance to make good any damage to common property occurring as a result of the works, any new floor coverings have a 5 star sound transference rating, and hard flooring not be permitted other than in entrance foyers, bathrooms, ensuites, kitchens and laundry areas.

The adjudicator found that the blanket prohibition of hard flooring in living areas was not reasonably proportionate to what was necessary to regulate and manage the use and enjoyment of lots in the scheme.  On that basis, that limb of the bylaw was found to be invalid and was struck out. Otherwise, the by-law was upheld.

Of particular significance is the adjudicator’s comment that, “I would point out that I did not reach this conclusion because [the bylaw] requires sound insulation which is adequate to achieve a 5 star sound insulation rating, as determined in accordance with the Association of Australian Acoustical Consultants Acoustical Star Ratings for Apartments and Townhouses…”

Committees can take some comfort from that decision that the imposition of a particular impact sound rating standard in a by-law, even a high standard such as a 5 star standard (which significantly exceeds the minimum requirements of the Building Code) probably won’t render the by-law invalid.

Another decision worthy of comment is the decision of 18 Kingsford Street [2016] QBCCMCmr 78 (23 February 2016).  In that decision, the body corporate successfully obtained orders against an owner requiring the owner to take appropriate action to attenuate the transference of noise through the floor of their lot and in particular those areas where the owner had laid porcelain tiles, on the basis of an anti-nuisance by-law.

Expert evidence put in the matter concluded that the noise transference between the relevant lots failed to meet the Building Code minimum standard.  In determining the matter in favour of the body corporate, the adjudicator found that the noise emanating from the upstairs lot was of such volume and frequency that it would interfere unreasonably with a resident of ordinary sensitivity.

This decision serves as a good example of a body corporate successfully taking enforcement action even without the benefit of a hard flooring by-law.

If you have any questions in relation to this article, or if you or your committee needs assistance in relation to strata & body corporate issues, please do not hesitate to contact Andrew Kyle of ABKJ Lawyers on 07 5532 3199.