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McLeod v Body Corporate for Stradbroke Tower and Villas[2015] QCATA 146

McLeod v Body Corporate for Stradbroke Tower and Villas[2015] QCATA 146

CITATION:

McLeod v Body Corporate for Stradbroke Tower and Villas [2015] QCATA 146

PARTIES:

Lee McLeod

(Appellant)

v

Body Corporate for Stradbroke Tower and Villas CTS 16502

(Respondent)

APPLICATION NUMBER:

APL075-15

MATTER TYPE:

Appeals

HEARING DATE:

10 September 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Howard

DELIVERED ON:

30 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is dismissed.

CATCHWORDS:

APPEALS – BODY CORPORATE AND COMMUNITY TITLES – where lot owner sought approval to install hard – wood flooring under by – laws of CTS – where by – laws provide that any approval may require a noise attenuation level up to FIIC 77 must be met – where Adjudicator made orders giving approval subject to condition a noise attenuation level of FIIC 65 be met – whether noise attenuation condition is reasonable

Body Corporate and Community Management Act 1997 (Qld), s 94, s 180, s 269, s 271, s 276, s 289

Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294

APPEARANCES:

APPLICANT:

Mr N J Shaw of Counsel instructed by Hynes Legal Pty Ltd appeared for Lee McLeod

RESPONDENT:

Mr K C Kelso of Counsel instructed by Woods Prince Lawyers appeared for Body Corporate for Stradbroke Tower and Villas CTS 16502

REASONS FOR DECISION

  1. [1]
    This proceeding concerns an appeal from the decision of an Adjudicator made under the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’).
  2. [2]
    Ms Lee McLeod is the owner of Lot 34 in a 108-lot community title scheme (CTS) Stradbroke Tower and Villas CTS 16502. It consists of a 22 level tower and three level villas building. Ms McLeod wishes to replace the flooring in her unit and lay hardwood flooring on a cushioned underlay. The proposed flooring would result in a Field Impact Isolation Classification (‘FIIC’) of 59 (plus or minus 2). FIIC is a measure of noise isolation.
  3. [3]
    Hard flooring had been laid in some units prior to 2003 and these units caused disturbance to the lots beneath them. In 2003 by-law 46 was enacted. It required lot owners to seek approval before laying hard flooring in by-law 46(a). It provided that the body corporate may impose conditions under by-law 46(b)(i) including about acoustic levels to be achieved of a FIIC of 77 in the lounge and dining room, and a FIIC of 60 in the kitchen. If compliance with the by-law was not achieved, the Body Corporate could require removal of the flooring works: by-law 46(e). An expert report obtained by the body corporate several years later showed that the existing carpeted floor coverings achieved a rating of FIIC 82. The Body Corporate therefore considered the FIIC levels referred to in by-law 46 (b)(i) were reasonable in the context of a building which it described as of a ‘high quality 6-star standard’.[1]
  4. [4]
    As required in by-law 46, Ms McLeod sought the written approval of the committee of the body corporate for laying timber flooring. Approval was given, but on the condition that Ms McLeod achieve a FIIC of 77.
  5. [5]
    Ms McLeod then made application to the Office of the Commissioner for Body Corporate and Community Management, on the basis that the condition imposed of FIIC 77 was unreasonable and seeking orders that approval be given for her to install her chosen timber flooring which would result in an acoustic isolation level of FIIC 59. She did not (despite making submissions to this effect) seek orders in her application that by-law 46 or those parts of it specifying the maximum FIIC ratings be invalidated because they were unreasonable or oppressive.[2] 

The Adjudicator’s decision

  1. [6]
    After conducting an investigation and receiving various submissions and acoustic reports from both parties, an Adjudicator made orders as follows:

I hereby order that the Applicant Lee McLeod, owner of Lot 34, may install timber or hard flooring of her choice in the living and bedroom areas of Lot 34 on the condition that such flooring when installed results in a noise isolation measurement of not less than FIIC 65 or equivalent.

I further order that the body corporate may require the Applicant to demonstrate that the installed floor achieves a level of FIIC 65 or equivalent.

And I further order that the body corporate may require the Applicant to remove the installed floor or rectify the installed floor both within a reasonable time, if the floor as installed fails to achieve a level of FIIC 65 or equivalent, in accordance with scheme by-law 46(b)(iii) save for any wording therein taken to refer to by-law 46(b)(i).

  1. [7]
    The Adjudicator noted that her jurisdiction to make orders on the application was under s 276(1) of the BCCM Act, which provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the BCCM Act.[3]
  2. [8]
    She found that by-law 46 does not require the achievement of the maximum acoustic levels,[4] (although she made the observation that on the evidence gathered and before her, a measurement of FIIC 77 is not achievable with hard floorings and that the level is therefore unreasonable).[5] She held that the body corporate was entitled to attach reasonable conditions to a by-law.[6] She further considered that by-law 46(a) could stand independently of by-law 46(b)(i).[7] She held that the body corporate must act reasonably in enforcing the community management statement and performing its duties in accordance with s 94(2) of the BCCM Act. She considered what was meant by reasonable and how it was to be determined.[8] She held that it was for Ms McLeod to show that conditions sought to be imposed are unreasonable.[9]
  3. [9]
    She accepted that the condition on the approval granted to Ms McLeod relating to the acoustic level requirements, was unreasonable.[10] However, the body corporate, having obtained expert reports and having by then accepted that a FIIC of 77 was not achievable with hard floors, proposed a condition of FIIC 65.[11] Its most recent expert report indicated that a FIIC of 65 was achievable having regard to the construction of the unit complex and available products/treatments without interfering in the ceiling space in other units.[12]
  4. [10]
    She noted that the body corporate did not have an expert report to the effect that an FIIC 65 is necessary to provide a proper level of noise protection to other residents.[13] However, she was satisfied that the onus was on Ms McLeod, who merely asserted that her proposed installation would result in a FIIC reading greatly superior to the requirements of the Building Code of Australia (‘BCA’), to demonstrate unreasonableness.[14]
  5. [11]
    The Adjudicator found that the body corporate was ‘entitled to seek a high standard of noise isolation, which may be higher than in other buildings.’[15] She found a FIIC 65 was not an unreasonable condition, even though it was significantly greater than required by the BCA. She considered that although that may make compliance with the condition more expensive or inconvenient, that did not mean the body corporate was unreasonable.
  6. [12]
    She made orders as set out earlier.

The appeal

  1. [13]
    Ms McLeod has now appealed to the Appeal Tribunal. A party may apply to the Appeal Tribunal from the decision of an Adjudicator on a question of law only.[16]
  2. [14]
    Ms McLeod seeks orders that the Adjudicator’s decision be set aside and in substitution orders be made that:
    1. a)
      Ms McLeod may install hard flooring with an anticipated FIIC of 59 and actual FIIC of not less than 57; and
    2. b)
      The body corporate may require that Ms McLeod demonstrate that the installed floor achieves a level of FIIC 57 or equivalent;
  3. [15]
    She also seeks orders for costs. The body corporate opposes the application and seeks orders that the appeal be dismissed.
  4. [16]
    For the reasons explained in the following paragraphs, we conclude that the appeal is without merit.

The grounds of appeal

  1. [17]
    The grounds of appeal are lengthy. They were conveniently and succinctly summarised by Ms McLeod’s counsel at hearing to the following effect:-
    1. a)
      Grounds one and two: the Adjudicator erred in finding it was reasonable for the body corporate to seek a high standard of noise isolation;
    2. b)
      Ground three: the Adjudicator erred in finding that cost and inconvenience did not affect the reasonableness of the condition imposed;
    3. c)
      Ground four: the Adjudicator failed to discharge the obligation to investigate the application pursuant to sections 269 and 271 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’).
  2. [18]
    Counsel also clarified that to the extent that the grounds of appeal as framed in the application for appeal may appear to raise fact and law, the facts found by the Adjudicator are not challenged. Further, Ms McLeod’s counsel indicated that she pressed ground four only if the Tribunal found that there was insufficient evidence regarding the reasonableness of a FIIC of 65.

Did the Adjudicator err in finding that it was reasonable for the body corporate to seek a high standard of noise isolation?

  1. [19]
    Ms McLeod submits that the Adjudicator found that the Body Corporate was entitled to seek a high standard of noise isolation ‘which may be higher than in other buildings’,[17] in the absence of evidence to support such a finding. She argues that having found that the standard initially sought to be imposed by the Body Corporate of attaining FIIC 77 was not reasonable,[18] that the BCA ought to have been adopted as the appropriate objective standard. In particular, Ms McLeod argues that it was not reasonable to conclude that the Body Corporate was entitled to require a high standard or ‘6 star’ standard.
  2. [20]
    While acknowledging that she bore the onus generally of establishing her case,[19] (and although it is not an error relied upon in her grounds of appeal) as far as it affects the determination of reasonableness, Ms McLeod submits that in paragraph [27], the Adjudicator, in effect, misdirected herself in determining that Ms McLeod bore the onus. In context, she argues the Body Corporate was required to demonstrate the reasonableness of its actions in requiring attainment of FIIC 65 as a sufficient level of protection for other residents but as the Adjudicator noted[20] that the Body Corporate did not have an expert report to this effect.
  3. [21]
    Ms McLeod argues that as the Adjudicator accepted that as a condition requiring attainment of FIIC 77 was not reasonable,[21] then the only objective standard is the Building Code of Australia (‘BCA’). She says that it sets minimum standards which, as the Adjudicator accepted, her proposal significantly exceeded.[22] She contends that the Adjudicator failed to take into account the BCA, and thereby in error concluded that the Body Corporate could demand a higher standard of noise isolation.
  4. [22]
    The Body Corporate submits that the focus of the hearing was on the FIIC of 65 proposed by it, pointing out that both parties had the opportunity to obtain additional evidence. It argues that the BCA sets minimum standards for construction purposes: it does not provide for levels of noise isolation which may be appropriate for good neighbourly relations in a CTS context. Rather, it submits the Body Corporate has the power to set that standard and must act reasonably in doing so.
  5. [23]
    It submits that if the Body Corporate considers good neighbourly relations is a relevant consideration, then it is reasonable for it to seek to achieve the highest possible level of noise level attenuation protection, having regard to   the decision taken by Body Corporate members to insert by-law 46 in 2003 to avoid future noise isolation problems. On the evidence, this was a FIIC of 65. Further, the Body Corporate submits that it is wrong to focus, as Ms McLeod does, on an ‘objective’ standard (that is, the BCA) to determine whether the FIIC of 65 is reasonable, because the issue is whether it is objectively reasonable in this building.
  6. [24]
    Both parties rely upon Re Body Corporate for Viridian; Kjerulf Aisworth & Ors v Martin Albrecht & Anor (‘Viridian’),[23] in which the Appeal Tribunal usefully summarised relevant general principles for determining reasonableness. It was also relied upon by the Adjudicator. Ms McLeod relies on some discrete principles drawn from the decision,[24] whereas the Body Corporate submits that the factors must be read as a whole. It relies upon all of them, while drawing our attention to several other of the factors.[25] The Adjudicator applied the decision in paragraph [28] of her reasons. She said, referring to the decision:

…. (The learned Member)  ‘said that it was not the task of the tribunal to determine whether the decision made by the body corporate was the correct one and that it need not be a decision with which all people or even most people agree. If the decision made was one which could objectively be arrived at by a body corporate which had considered all the existing circumstances, then it would not be unreasonable.’ [26]

  1. [25]
    The principles for the determination require, in general terms (without restating them as they are lengthy), evaluating the known facts, circumstances and considerations; ignoring irrelevant information, opinion and argument; and considering relevant arguments.
  2. [26]
    Similarly to the case in Viridian, the Adjudicator’s function here was to determine whether the body corporate has contravened the BCCM Act within s 276(1)(a) and determine whether to make an order which was ‘just and equitable’, rather than to decide whether the Body Corporate had acted reasonably.[27] As the Appeal Tribunal observed in Viridian, the burden of proof lies with the party asserting the contravention. Accordingly, the burden was on Ms McLeod to satisfy the Adjudicator that the Body Corporate had not acted reasonably, contrary to s 94 of the BCCM Act. It follows that the Adjudicator did not misdirect herself in finding that the onus was on Ms McLeod to satisfy her that the Body Corporate had not acted reasonably. It was not for the Body Corporate to establish that a FIIC of 65 was necessary to provide a sufficient level of protection.
  3. [27]
    We have concluded that the Adjudicator was entitled to find that the level of noise isolation of FIIC 65 contended for by the Body Corporate at hearing was not unreasonable.
  4. [28]
    We do not accept that she found that the building had a ‘6 star’ rating. She noted the Body Corporate’s submissions to this effect and endeavoured to understand the basis for the submission as footnote 9 (which is a footnote to her finding that the Body Corporate was ‘entitled to seek a high standard of noise isolation, which may be higher than in other buildings.’[28]) indicates. However, we do not accept that the footnote can be read as a finding to that effect. Further, although she did not articulate it specifically when concluding that a FIIC of 65 was not unreasonable, she had evidence before her that in 2003 by-law 46 was inserted into the CTS because of noise-related issues between residents in circumstances when hard flooring had been constructed in some units.[29] In this regard, we consider that it is sufficiently clear that it was this history (and the related contention by the Body Corporate that the building was of a high, or 6 star, standard), that she referred to when finding that it was entitled to require a higher standard of noise isolation than may be required in ‘other buildings.’ 
  5. [29]
    Further, in respect of the BCA, the Adjudicator had regard to it at paragraph [27]. It is a minimum construction standard with which builders must comply. It does not set levels for the purposes of good neighbourly relations and she was not obliged to apply it in that context as the test of objective reasonableness of the body corporate’s approach. She acknowledged that the FIIC which would be achieved by the proposed renovation would be ‘greatly superior to that required by the’ BCA. Not all bodies corporate may concern themselves with attaching noise attenuation conditions to renovations, as does by-law 46. That is irrelevant. She acknowledges its irrelevance in her finding that it was entitled to require a high standard ‘which may be higher than in other buildings.’ In context, we conclude that she says this because she did not consider what was required in other buildings (which may not have by-laws about noise isolation and where the BCA minimum levels of noise isolation may be in place) to be relevant. This Body Corporate was entitled to require it irrespective of arrangements in other buildings. Here this is made clear by her next finding as follows:

….I find in the circumstances that an (sic) FIIC of 65 is not an unreasonable condition, even though it may be significantly higher than required by the … BCA. [30]

  1. [30]
    Accordingly, the complaint made that the Adjudicator did not have evidence on which to base her finding that a condition of a FIIC of 65 was not unreasonable must fail.

Did the Adjudicator err in finding that cost and inconvenience did not affect the reasonableness of the condition imposed?

  1. [31]
    Ms McLeod submits that cost must be relevant to whether a condition is reasonable or oppressive, but that the Adjudicator made no finding as to cost. She argues that if that is not an error then it follows that no matter how expensive compliance might be it could never be unreasonable on the basis of cost.
  2. [32]
    The Body Corporate submits that it was in order for consideration to be given to costs of compliance that the parties had the opportunity to obtain quotations, which the Adjudicator referred to in her reasons.[31]
  3. [33]
    Firstly, we do not accept that oppressiveness is relevant here: s 94 refers to the requirement for body corporate to act reasonably. [32]
  4. [34]
    We do not accept that the Adjudicator made a finding to the effect that cost and inconvenience did not affect reasonableness. She set out the evidence provided by the parties about cost and inconvenience at length in paragraphs 15 to 20 of her reasons. Subsequently, she found as follows:

‘…Provided that the condition does not negate the consent then it is a matter for owners whether they wish to install hard flooring. The fact that it is more inconvenient or expensive to do so in order to comply with the condition does not make the body corporate unreasonable.’[33]

  1. [35]
    We are satisfied that it is sufficiently clear that her finding, although poorly framed, was that although there is (additional) cost or inconvenience to comply with the condition, that  does not render the condition unreasonable in the circumstances of this matter. It must be assessed having regard to all of the relevant circumstances. Cost is only one factor to be considered and balanced in all of the circumstances of the case.
  2. [36]
    The ground of appeal must fail.

Did the Adjudicator err by failing to discharge her obligation to investigate?

  1. [37]
    This ground is only pressed if we conclude that there is insufficient evidence of reasonableness. As we have not, we do not need to deal with this ground.

Orders

  1. [38]
    We make orders dismissing the appeal.

Footnotes

[1]  Reasons for decision, [11].

[2]  See BCCM Act, ss 180(7) and s 276.

[3]  Reasons for decision, [3].

[4]  Ibid, [22].

[5]  Ibid, [35].

[6]  Ibid, [23].

[7]  Ibid, [22].

[8]  Ibid, [28] relying upon Re Body Corporate for Viridian; Kjerulf Aisworth & Ors v Martin Albrecht & Anor (Viridian) [2014] QCATA 294.

[9]  Ibid, [25].

[10]  Ibid.

[11]  Reasons for decision, [22].

[12]  Ibid, [18], [19], and [22].

[13]  Ibid, [27].

[14]  Ibid.

[15]   Ibid, [29].

[16]  BCCM Act s 289(2).

[17]  Reasons for decision paragraph [29], first sentence.

[18]  Ibid, [25].

[19]  Ibid.

[20]  Ibid, [27].

[21]  Ibid, [25].

[22]  Reasons for decision, [27].

[23]  [2014] QCATA 294, at [84].

[24]  Ibid, [84], at (d), (n) and (o).

[25]  Ibid, [84] at (g), (h) and (m).

[26]  Reasons for decision at [28].

[27]  Reasons for decision, at [92] – [94].

[28]  Reasons for decision, at [29].

[29]  Reasons for decision, at [11].

[30]  Reasons for decision, [29].

[31]  Ibid, [15]-[20].

[32]  Oppressiveness is relevant to s 180(7) of the BCCM Act.

[33]  Reasons for decision, [29].

Close

Editorial Notes

  • Published Case Name:

    McLeod v Body Corporate for Stradbroke Tower and Villas

  • Shortened Case Name:

    McLeod v Body Corporate for Stradbroke Tower and Villas

  • MNC:

    [2015] QCATA 146

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Howard

  • Date:

    30 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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