The current trend away from carpet to hardwood flooring has introduced new challenges, both technical and legal, in dealing with the transfer of noise in strata buildings.
It is important for lot owners to understand early in the process how these challenges are addressed in NCAT if legal proceedings are commenced as the evidence plays a major part in these types of disputes.
Obtaining preliminary advice will assist you in understanding what evidence will be required to meet the onus of proof. Once the evidence is obtained, which is usually a combination of expert evidence and lay evidence (i.e. witness statements) you will then be in a much better position to evaluate your legal rights and the options available to resolve the issue. You will also be in a much better position to avoid litigation and resolve the matter via settlement negotiations or mediation.
It is especially important for the complainant in these cases to understand the nature and extent of the evidence which is required as, in the event that the issue proceeds to a hearing in NCAT, it is the complainant who carries the onus of proof.
Following are a few helpful tips to consider.
- In a general sense, it is beneficial to consider the noise issue as three stages:
- What was the acoustic performance of the building prior to the noise issues occurring.
- When did the acoustic performance of the building change, what caused the change.
- What is the acoustic performance of the building at present.
- The test which applies in these cases is an objective test (as opposed to a subjective test). If the issue proceeds to a hearing in NCAT a decision will be made on an objective basis based upon the evidence tendered by the parties.
- The test involves weighing up whether the noise is excessive and this is usually done by comparing the noise levels against an recognised standard (such as the standards in the National Construction Code).
- There may be other standards which apply, such as a standard a specified in the by-laws. It is important that all the applicable standards are identified prior to preparing the evidence and in particular the expert evidence.
- For example, the National Construction Code sets the standard for impact noise transmission at not greater than 62dB (this is a measure of the noise produced by the hard floor surface).
- The National Construction Code is recognised as a minimum national standard. However, in our experience, many acoustic experts believe that 62dB is too high and it is possible the by-laws of your property may provide for a lower standard.
- Newer buildings may have a verified AAAC rating (a ranking system developed by the Association of Australian Acoustical Consultants) however changes to the building or surrounds may cause this to change. This is something the expert should be briefed to consider.
- Sometimes noise complaints arise whilst the units in question actually perform better than the minimum requirement of the National Construction Code. If this is the case this is something which needs to be considered in consultation with the expert.
- The expert evidence required will usually be from a report from an acoustic engineer. The engineer will need to inspect the units and assess the construction and location of the building, taking various types of noise measurements.
- Lay evidence (i.e. witness statements) will usually need to be prepared setting out the times and frequency of the noise, the types of noises, where the noise is originating from, and the effects of the noise on the peaceful enjoyment of the unit. A noise log should be prepared and actual sound recordings of the noises taken.
- In addition to proving the noise is excessive, evidence may need to be obtained in relation to what work needs to be undertaken to resolve the issue. Quotations and advice may need to be obtained from flooring contractors regarding the availability of suitable products and materials, such as flooring underlays, to reduce or eliminate the noise and the cost associated with installation.
A claimant is required to attempt mediation prior to commencing proceedings and although evidence is not required for a mediation it would be advantageous to have as much of the evidence ready by the time the mediation takes place as this could assist the parties in reaching an agreement which may be drafted in more specific terms than would otherwise be the case.
It should be remembered that if the issue proceeds to hearing there will likely be expert and lay evidence submitted by all of the parties, the experts will likely be cross-examined and the Tribunal Member will make a determine the matter based upon the objective evidence provided. The Tribunal Member will not take into consideration any evidence which is subjective.
As the evidence plays such an important role in these cases it is worthwhile and usually more cost effective to obtain legal advice in relation to how the evidence should be prepared early on in the process.
The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.