The following question about oppressive and/or unreasonable by-laws was submitted to our site via email from a Queensland lot owner. Thanks to Frank Higginson, Hynes Legal for providing a response.
Question: Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable by-laws platform or should we simply install a product we really don’t want?
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Concerning oppressive and/or unreasonable by-laws.
Our QLD registered body corporate committee passed a resolution at a meeting in mid 2014 (registered on CMS in late 2015) saying all new flooring to replace existing flooring must meet 5 star AAAC rating (Lntw <=45 dB).
This was subsequently changed to 4 star AAAC through resolution (Lntw <=50 dB) earlier this year given nothing but carpet on underlay could meet or exceed specified acoustic rating. This latest change is probably not yet registered on CMS.
I have tried to explain to the Body Corporate committee that flooring acoustics is an imprecise science and that, for any owner to guarantee proposed new flooring meets the by-law, owners may require several acoustic tests at considerable cost. Indeed, several thousands of dollars may be spent without laying any new flooring.
The chairman of our committee himself and a number of other apartments have non-compliant flooring (some apartments were previously tested at body corporate expense for the purposes of the by-law consideration). In some circumstances, approval wasn’t sought or gained through committee, however, we’re now advised those who installed non-compliant flooring did so between the passing of the resolution in 2014 and the new by-law registration in 2015 or installed non-compliant flooring prior to the by-law being passed by committee. We understand and accept the by-law shouldn’t act retrospectively against them.
The building managers have our preferred product installed which easily reaches 3 star AAAC rating of Lntw <=55 dB (5mm loose lay vinyl planking laid on pressure sensitive adhesive over concrete sub-floor) and reside in the apartment below us. They occupy the only apartment that would hear any noise emanating through our flooring.
We currently holiday let our apartment and wish to replace flooring (carpet on underlay) in our living/dining/kitchen areas but are finding anything but carpet or cork are not guaranteed to satisfy the existing by-law/yet to be registered change to by-law.
Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable by-laws platform or should we simply install a product we really don’t want?
Answer: We think the industry has taken a wrong turn on this specific issue.
We think the industry has taken a wrong turn on this specific issue.
Our belief is that the floor rating specifications are completely irrelevant and shouldn’t even be in a by-law. The purpose of the flooring by-law (as opposed to rating) is to regulate interferences of noise from one lot to another – which is the age old nuisance argument.
It is not the type of floor covering that protects from the nuisance, it is the use of the floor itself. You could have a floor with a massively strong rating and if a kid went bouncing a basketball around on it at all hours it is going to transmit noise – and that is what should be regulated.
In our view the by-law should only require body corporate approval on any flooring installations. The committee can then impose reasonable conditions on the installation and subsequent use. Having a hard and fast rule about any particular type of rating doesn’t make that rating reasonable. It all depends on the circumstances.
Still after more information about oppressive and/or unreasonable by-laws or even more general articles about strata in Queensland? Visit our FactSheet: Strata By-Laws and Legislation OR FactSheet: Strata Legislation Queensland