NSW: Flooring By-Laws – Are They Harsh?

This NSW article is about whether flooring bylaws are harsh.

According to the recent case of Norman v The Owners Strata Plan No 60182 [2022] NSWCATCD 152, they are not.

The applicant in the matter sought orders that the flooring by-law, which was made in November 2006, be invalidated as it stated that owners must not carry out flooring works unless they complied with the following conditions:

1. provide required documents, obtain approval, and insure flooring works;
2. comply with works requirements;
3. certify after completion and maintain flooring works;
4. indemnify, and accept liability for, flooring works and acknowledge that in the case of a failure to comply, the owners could take remedial action.

The explanatory notes to the by-law state that:

1. “certify” means an owner must obtain certification of flooring works from an engineer nominated by the owners corporation;
2. “maintain” means to ensure all flooring works comply with “noise / impact isolation product equal or better than an Impact Insulation Class (IIC) rating of 57 (Impact Sound 150 140- 7:1998+717-2:1998)”.

The applicant alleged the by-law exceeded the acoustic level required under the Building Code of Australia and was therefore harsh, unconscionable, and oppressive.

The Tribunal, in dismissing the application to invalidate the by-law, held the following:

1. the by-law applied to all lot owners and benefitted all lot owners by requiring an owner who carried out flooring works to give assurance that the works were done in accordance with international standards and to provide documents to this effect.
2. The by-law only interfered with the property rights of a lot owner who carried out flooring works in order to materially ensure other lot owners that unacceptable noise will not affect the enjoyment of their lot.
3. The requirement to comply with objective standards and give evidence of compliance are necessary from a rational view in order to enhance or preserve other lot owners’ enjoyment of their lots.
4. The by-law referred to the ISO standards to be adopted. The Tribunal was satisfied that both experts who carried out acoustic inspections were applying at least these ISO standards when they prepared a report based on Australian Standards.

The takeaway from this decision is that you should ensure that any flooring works carried out to your lot are carried out in accordance with the terms (in so far as they are reasonable) of any flooring by-laws applicable to your scheme. Further, it is not harsh, unconscionable or oppressive to restrict another lot owner’s property right (the right to carry out works) by requiring a recognised and reasonable standard for the work so as to prevent the unreasonable interference with another lot owner’s use and enjoyment of their lot, such as excessive noise.

Jasmin H.Singh & Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

This post appears in Strata News #630.

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Read next:

• NSW: A Comprehensive Guide to the Design & Building Practitioners Act 2020 – Regulation Update
• NSW: What Is An Unreasonable Reason To Refuse To Make A By-Law?

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

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