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QLD: Q&A The very noisy floorboards upstairs disturb our peace

The LookUpStrata Team
noisy floorboards upstairs

This Q&A post contains questions about QLD Lot Owners concerned with the noisy floorboards upstairs.

Table of Contents:

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Question: As part of the approval process for changing carpet to hard flooring, my body corporate has issued me with a list of requirements. While I do intend to install appropriately flooring, as we have no bylaw regarding these requirements, do I have to follow them?

I wish to change the flooring in my unit from carpet to hard flooring. Our body corporate states I need to lodge an application for them to approve the scope of works, appearance of flooring product, and acoustic characteristics. After installation, I will also need to pay for testing to ensure the flooring has an acoustic rating below a certain db level.

What concerns me is that none of the above requirements are listed anywhere in our bylaws, other than a general provision to not cause excessive noise. While I do intend to install appropriately flooring, if there is no bylaw regarding these requirements, do I have to follow them?

Answer: The by-law is not the only issue at play.

You raise an interesting question. On the face of it, if the by-law is not detailed about what is expected of you for compliance, then you literally cannot comply with what is not stated and it is arguable the committee has no basis to ask it of you. That said, the by-law is not the only issue at play. There is a provision in Queensland legislation regarding nuisance and it is reasonable for the body corporate to take that into account. Again though, we run into the same issue, namely, the lack of specificity.

Looking at the issue from a process perspective: you have been asked to make an application and supply certain information. It’s not clear if you have made your application as yet. If not, when you do so, you might like to inform the body corporate of your intention to install ‘appropriately quiet flooring’ and you hopefully can objectively articulate what that means. At that point, the committee will either accept your application or ask you to supply more information. You then have a decision to make: do you go ahead and comply with their request regarding db levels, noting what I’ve said above, or do you decline to do so? If you choose the former, there’s a cost to you (as well as effort). If you choose the latter, the committee presumably will refuse your application and you are then left with the next decision, whether to challenge that refusal.

This is not the yes/no answer you were hoping for. From experience, I can tell you that hard flooring ‘issues’ are both commonplace and challenging to resolve. I can also tell you from experience that the inverse – noise disputes arising out of hard flooring – are equally commonplace and challenging. My suggestion: negotiate with the committee now, while you can. Ask questions about the decibel levels, where they come from and on what basis they are being required. Be clear about you would be willing to do to mitigate noise. Then, depending on results of those negotiations, make a cost/benefit analysis of what your next move will be. There can be literally months and years of dispute, and significant expense, which might follow.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the May 2022 edition of The QLD Strata Magazine.

Question: Is it mandatory to conduct an acoustic test when there are noise concerns due to hard flooring?

After gaining approval from the then Body Corporate Committee 4 years ago, we installed a floating wooden floor on a 1st level apartment using noise-reducing underlay as recommended by the manufacturers – Compliant below the 62 noise level.

Part of the approval advised we needed to carry out an acoustic test, which required gaining access to the apartment below. After discussions with the owner at that time, he was not keen to allow access.

I advised the then body corporate of this. During the first year or so, we discussed with our neighbour who had experienced no noise issue, so would still not agree to access. We had no issues or complaints during this time.

Last year, that owner moved and rented the property out. The person who rented has continually complained about many different noises, which has been discussed amicably. We have tried to accommodate their concerns by keeping as quiet as possible for an older couple.

The tenant has now purchased the below apartment and has continued to complain regularly about all sorts of noises, believing it all comes from our apartment. We do not agree and think they should just accept this level of noise as part of apartment living!

We received a complaint about “continual clomping and stomping”, scraping of furniture etc during a time when our apartment was empty as we were away.

Are we obligated to go to the expense of this acoustic test, as I do not think this will solve his issues? Is it mandatory that we have to carry out this test just to satisfy this sensitive owner’s concerns?

Answer: Does the By-Law require you to carry out aa acoustic test, or has this been a request from the Body Corporate?

There are two issues of concern here. The first and most critical is what the By-Law requires. Does the By-Law require you to carry out a test, or has this been a request from the Body Corporate? These matters should be clearly defined so that there are no arguments or misunderstandings. By-Laws often required that after the floor has been replaced, the floor owner arrange for a floor impact insulation test to confirm that the specified limits have been satisfied.

The second issue is the number 62. This is an LnTw 62 from the Building Code, which sets an absolute minimum standard. At 62, the noise level is such that many lower occupants will complain bitterly about the noise. It means that children playing, ball impacts, foot-fall, and scraping furniture will be quite audible in lower areas. Many Body Corporates understand this and set much lower performance requirements. These range from LnTw 45 (very difficult to achieve) to LnTw 55, which is often considered as a good balance between acoustic amenity and practical noise control treatments.

The LnTw number is a room corrected noise level from a tapping test, with a lower number showing better acoustic insulation and lower noise levels. An Lntw 55 is considered to provide a 3 star level of acoustic amenity.

Ross Palmer Palmer Acoustics E: ross@palmeracoustics.com P: 07 3193 0500

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: My upstairs neighbour installed tiles without soundproofing. To fix the noise issue, he wants me to contribute to the cost of laying the carpet. Is this legal?

The owner of the unit above has had tiles laid without soundproofing. We have complained about the noise. In response to our complaints about the noise, he has arranged a quote to put carpet down.

In compensation for the laying of the carpet, the neighbour wanted me to pay him $4000. He has now reduced this amount to $3000 and he would like $2000 in advance before he goes ahead and orders the carpet!

Can he do this to me? Is it legal?

Should I be paying him for work to be carried out in his unit to fix a problem he created?

Answer: The downstairs owner should not have to contribute

There is a statutory obligation not to use your lot or common property in a way that interferes unreasonably with the use and enjoyment of others. It would appear that the complaints about noise may have merit – otherwise why would the upstairs owner do something about it?

If that is the case the upstairs owner is obliged to do something. That may involve changing their floor coverings to address the issue, and if so, the downstairs owner should not have to contribute to that.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: Our body corporate does not seem to have any bylaws to deal with neighbour’s noise such as from hard flooring and children running around.

I’m concerned about the flooring and sound proofing of my apartment. How can residents deal with neighbour’s noise like walking, moving furniture, kids jumping up and down and running around? In our body corporate we do not seem to have bylaws or standards to cover these problems?

Answer: Your first step is to ensure you have your current by-laws.

Every scheme registered in Queensland will have by-laws. Whether they deal with noise and renovations specifically is another matter – chances are they will.

Your first step is to ensure you have the current by-laws. These can be obtained from the Titles Office in Queensland. Only the by-laws registered with Titles are the ones which apply to your scheme.

After that, there will be various options you can pursue, depending on what your by-laws say. Regardless of by-laws there are legislative provisions in Queensland around nuisance.

Both the nuisance provisions and process for enforcing by-laws can be technical and prescriptive. With that in mind, your first step, if you haven’t already done so, is to approach the source of the noise and try to work out a solution. You are required by law to at least attempt this. After that, you may need advice on your next steps.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: The unit upstairs has removed the carpet and underlay and polished the floorboards. As well as being incredibly noisy, any spilled liquids seep through their floor to our unit. What can we do?

We purchased a ground floor unit around a year ago. It is in an old 2 story block with 8 units. It was first registered in 1967, so it falls under the 1965 by-laws. The issue is, the second floor units all had carpet & underlay, laid onto tongue & groove boards. The unit above us have pulled up the carpet and underlay and have polished the old boards which sit directly on the structs in our ceiling, leaving no insulation what so ever.

Apart from the noise being incredibly loud & disturbing, any spilled liquids leak through the boards and come through our light fittings. Do we have any rights? Are the owners above us allowed to remove the floor insulation? Any information would be greatly appreciated.

Answer: Have you approached them and/or the committee of the building about your situation?

The article below goes into a bit of detail about what your options are. If there are no by-laws preventing the owners upstairs from doing what they’ve done, that’s one thing, but they still are obliged to not cause a nuisance. Similarly, if their actions are causing damage – e.g. water ingress into your lot – that’s also something they can potentially be held accountable for.

Have you approached them and/or the committee of the building about your situation? If not then that’s your first step. You should also be keeping a log of noise issues, as you need to evidence of your situation. Regarding the water issue, you might need to approach a plumber to get a report and/or quote.

Following this and if the issue still remains, you may need to use the dispute resolution process of The Commissioners Office.

Finally, if your by-laws are as old as you say they are, then they probably need review. You can propose a motion to your next general meeting for this. While you don’t need a lawyer to draft your by-laws, it is strongly advisable.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in the July 2021 edition of The QLD Strata Magazine.

Question: The apartment owners upstairs have glued noisy vinyl floors straight onto the concrete. The tenants are very noisy. How does the body corporate assess the noise from the new flooring and the effect it is having on neighbours?

Noise complaints due to a change of flooring in a unit have been submitted to body corporate. The owners did not contact the committee before replacing the carpet with noisy choice luxury vinyl floors.

The owner has confirmed that it was glued straight on to the concrete with no underlay. He states that it was not required.

Footsteps can be heard whenever the occupants walk around the unit. Opening and closing cupboard doors and everything is so loud. Two units, one beside and one above them, have had their lives turned upside down with a loss of sleep and loss of enjoyment of their homes.

The tenants are unruly. The property manager doesn’t care and refuses to believe the tenant is noisy. The owners don’t think they need to do anything except ask the tenants to be a bit quieter.

One of the neighbours from an adjoining unit has recorded the loud noises made by the tenants. Can this be used as proof of some of the noise the neighbours are being subjected to? Sometimes it is of a loud sexual nature.

How does the body corporate assess the noise from the new flooring and the effect it is having on neighbours and other residents?

Answer: Statutory declarations from residents, verifiable recordings of the noise, test results or third party noise monitoring will all increase your ability to resolve the complaint.

Before moving forward into the details on this case, the first point to make is that directly glued vinyl to concrete is a totally unacceptable form of flooring in a multi-occupant structure.

Vinyl floors will increase the actual noise created by steps, furniture moves, things being dropped upstairs, and will do nothing to attenuate the noise from getting into the building structure. From there it will be transmitted through the floor/ceiling and likely also through the building structure to other residents on the same level, the level below and sometimes even further away.

It is possible for the Strata Manager / Body Corporate to enforce based on multiple complainants, particularly if you have a set of noise diaries recording dates / times and the nature of the noise issues. But these can be challenged in some cases if there is a perception of residents ganging up on one resident.

In terms of measuring the noise there are 2 approaches:

  1. The formal engineering test is an impact test, where a weight is dropped in a controlled manner on the floor surface and the noise impact is measured in the apartment below. Vinyl without underlay will definitely fail this test. But this does require access to the apartment in question.

  2. The second option is to prove unacceptable nuisance (as you would other noise issues such as a dog, noisy washing machine or as you say loud sexual type noises). This involves installing noise monitoring equipment in the apartment below (or wherever the nuisance is heard) and documenting the frequency and severity of the noise nuisance. This is more qualitative as there is no official standard in place and is more open to challenge in the tribunal. However with testing over a sufficiently long period of time and particularly with serious cases such as the one you are describing, this is perfectly effective.

It is the responsibility of the Strata Committee, working with the building manager to assess and resolve issues of unacceptable noise nuisance. Your by-laws and the state laws exist to support this action. What remains is gathering the required evidence to enforce the replacement of the vinyl flooring with carpet and underlay. And potentially also behaviour change by the residents in question.

In Queensland, the commissioner made it clear at a recent Q&A session. Making a decision on noise nuisance is all about the evidence. So statutory declarations from residents, verifiable recordings of the noise, test results or third party noise monitoring will all increase your ability to resolve the complaint and be sure that the decisions of the Strata are supported if it goes to tribunal or court.

Stuart Clough Noisenet E: stuart.clough@noisenet.com.au

This post appears in Strata News #308.

Question: I am thinking about installing soundproofing and insulation in the ceiling and a wall in my apartment as I hear children running around on the very noisy floor upstairs on a daily basis.

I am thinking about installing soundproofing and insulation in the ceiling and a wall in my apartment as I hear children running around on a daily basis. I do not believe this is a structural change but a lot improvement change to my unit and not common property. Do I need to go through the committee for approval to do this?

My issue is as follows:

  1. When the owner put in brand new carpet 2 and half years ago he did not change the very old underlay;
  2. The noise has only started coming through since the tenants above with 2 young children moved in;
  3. The contractor advised that the ceiling and walls are hollow and that is the reasons for the noise coming through;
  4. Insulation has been recommended by a certified contractor with soundproofing in it to assist with the transference of noise.
  5. I am currently going through the committee to get their approval pursuant to the by-laws.

I am just worried that they are not going to approve this as it has been a 2.5 year noise dispute.

Does the committee have any grounds to not approve the insulation?

Answer: Ensure that you are really going to solve the problem. Money spent at the source of noise is most effective.

Stuart: Ensure that you are really going to solve the problem. Money spent at the source of noise is more effective – eg carpet instead of tiles or floorboards will have a much greater impact than insulation in your walls.

Also make sure:

Stuart Clough Noisenet E: stuart.clough@noisenet.com.au

Frank Higginson: It will depend on what the by-laws say as that may require approval from the committee.

It is not possible to say if the committee can validly refuse an application without the committee providing reasons for refusal.

However, the other consideration for you as the occupier below is whether the noise that is being caused amounts to an unreasonable interference. If it does, and there is an appropriate by-law dealing with noise and nuisance, then the committee would be obliged to take by-law enforcement action against the use of the lot upstairs. The occupier downstairs might also want to send the committee a form 1.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #250.

Question: The new family upstairs have laid vinyl floorboards. They claim that because the building is old with thinner walls, floors etc, they do not have to use a noise insulator.

I have lived in my strata unit for many years. The new owners of the unit above have pulled up the carpet and laid vinyl floorboards and we now have to put up with the very noisy floorboards upstairs.

I asked them before laying if they could let me know what underlay is going in, as we have by-law 1 Noise.

They didn’t ask and they used the thin plastic foam underlay instead of a noise insulator.

We are living with constant noise and thumping in our ceiling from each step, drawers opening and closing and small children running through the apartment.

The owners said it was too expensive for the noise insulator so they used the cheaper underlay.

They also claim to have investigated the legislation prior to carrying out the renovation. They believe that because our building was built in 1986 with thinner walls, floor etc, they are able to put whatever down they wanted. Is this correct?

I can’t seem to find any reference to this information anywhere in the Queensland legislation.

Answer: I very much doubt the age of the building has anything to do with the type of flooring that can be installed.

I very much doubt the age of the building has anything to do with the type of flooring that can be installed. What matters is:-

  1. What the by-laws say about works to the unit. The by-laws should provide that before any works are conducted to the internal components of the lot that the approval of the committee is sought. The committee can then impose reasonable conditions on the works that would normally extend to the type and standard of the underlay that has to be put in.
  2. The second thing (if that didn’t happen, which it sounds like it did not) is that the owner cannot use the lot in a way that interferes unreasonably with the use and enjoyment of others. It would appear that (almost regardless of the underlay) that the use of the lot is interfering with the owner below. that is potentially a breach of the by-laws. So the next step starts with what the by-laws are, whether they are enforceable, gathering the evidence of unreasonable interference, asking the committee to do something about it, and then making an application to the Commissioner’s Office for conciliation if nothing happens.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #210.

Question: Is it legal to have floorboards in an upstairs unit? I am sure you can understand, at times we are disturbed by the noisy floorboards upstairs.

My partner & I rent a unit on the Gold Coast. We live on the 2nd floor in a walkup of 3 floors.

The owner of the upstairs unit recently ripped up the carpet and put down floorboards.

Unfortunately, they did not have the courtesy to advise us and we had to endure a great deal of noise for about 4 weeks.

Anyway, my question is: Is it legal to have floorboards in an upstairs unit? I am sure you can understand, at times we are disturbed by the noisy floorboards upstairs.

We would be most grateful for your reply.

Answer: For us what matters is not the style of flooring but the interference that comes from the use of it.

The age-old issue!

For us what matters is not the style of flooring but the interference that comes from the use of it.

The threshold standard at law is ‘unreasonable’ interference. It follows then that ‘reasonable’ interference is acceptable. The price of community living is living in compromise.

On this particular issue, there are two things that come to mind. The first was the interference during the installation of the flooring. We think it is completely reasonable for there to be a by-law which allows for the committee to approve and impose conditions around renovation works. This then gives a committee the ability to dictate times and other conditions around renovations that means the interference with neighbours is as least disruptive as possible.

The second is the ongoing interference that may be caused by the use of the floor. That will depend very much on the circumstances. If there is a 10-year-old child up there bouncing a basketball around all hours of the day and night then that is likely to be unreasonable interference. If there is an 80-year-old grandmother who slides around in slippers all day then there is likely to be no interference at all – not even ‘reasonable’ interference! That interference (or not) will exists regardless of the type of flooring.

For us, that is a very important distinction. It is not the floor itself that causes interference – it is the use of it. Granted, harder flooring surfaces might not muffle the sound as much as carpeted floors, but it still comes down to its use.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #136.

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