QLD: Hard flooring in bodies corporate

This article, supplied by Holly Oddo from Mahoneys, discusses the legal complexities surrounding community title schemes’ ability to regulate hard flooring installations by imposing acoustic rating requirements, emphasising the need for reasonableness and adherence to legislative boundaries.

In contemporary community title schemes, it is commonplace for an owner to want to improve their lot through the installation of hard floor coverings, such as timber, marble vinyl planking or tiles.

This often is accompanied by concerns from other lot owners that the hard flooring will generate greater noise and detract from the use and enjoyment of common property and another lot, particularly where carpet presently exists.

The question which arises is, can bodies corporate regulate hard flooring through the imposition of a preferred acoustic rating?

The answer is largely contingent on the substance of the by-laws.

The by-laws may:

1. require a lot owner to obtain the approval of the body corporate to make lot improvements, such as the installation of hard flooring (in which case, there is an avenue for the body corporate to impose a preferred acoustic rating as a condition of its approval); or
2. require a lot owner to ensure that hard flooring meets a preferred acoustic rating.

However:

1. the body corporate must act reasonably in a decision to approve hard flooring under the by-laws, including a decision to impose a preferred acoustic rating, pursuant to section 94(2) of the Body Corporate and Community Management Act 1997 (Act); and
2. a by-law cannot be unreasonable, oppressive or inconsistent with the legislation pursuant to section 180(7) of the Act.

In this context, adjudicators have found that it is open to a body corporate to impose a preferred acoustic rating, but only where the acoustic rating does not:

1. exceed the threshold of a nuisance or unreasonable interference set out at section 167 of the Act;
2. require a lot owner to improve upon the acoustic rating which presently exists for the hard flooring already installed within the lot; or
3. amount to a de facto prohibition on hard flooring. In other words, the acoustic rating must be capable of being achieved, or the committee must have the discretion to approve the hard flooring, if the acoustic rating cannot be achieved.

These principles are set out in the following extracted decisions:

1. In Marquis On Main [2013] QBCCMCmr 52 where it was found:

The acoustic report states that the floor impact noise transmission from lot 4 to lot 2 is LnTw of 53dB and therefore the results are well within the BCA standards. While I do not doubt that there has been a noticeable increase in noise since the carpet was replaced with hard flooring, I am not satisfied that the level of noise transference between the two lots “would interfere unreasonably with the life of another lot owner of ordinary sensitivity” and therefore the application is dismissed.

2. In W4 [2017] QBCCMCmr 555 it was found:

As in the 3 Parkland Boulevard case, it is likely to be unreasonable for the body corporate to require a higher measurement of noise isolation than currently existing where hard surfaces are already present. Owners are not expected to increase sound isolation, and that it is likely that other lots are in a similar position

As a matter of law and in the absence of any submissions to the contrary, I consider that the performance specifications listed in by-law 49.2.1 are oppressive and unreasonable and therefore, invalid.

3. In The Republic Apartments [2022] QBCCMCmr 290 it was found:

There is no evidence before me that the by-law is impossible to comply with. It may not be easy to achieve an LnTw of 55 or lower, but QCAT has accepted that it is not unreasonable for a body corporate to impose a high standard of acoustic amenity, so long as the standard does not amount to de facto prohibition on hard flooring…

In order to impose and enforce a preferred acoustic rating, it is helpful to have evidence (such as an acoustic report) which confirms that the preferred acoustic rating is achievable and required to avoid a nuisance or unreasonable interference.

Mahoneys’ dedicated body corporate team regularly advise lot owners and bodies corporate on hard flooring applications. Feel free to contact us if you need assistance.

Holly Oddo
Mahoneys
E: hoddo@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #736.

This article has been republished with permission from the author and first appeared on the Mahoneys website.

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Read next:

• QLD: Q&A Oppressive or Unreasonable Strata Bylaws
• QLD: Q&A The very noisy floorboards upstairs disturb our peace
• QLD: Q&A Can the Body Corporate Test Noise Levels in My Unit?

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