What was the outcome of Tenancy Tribunal case 9038764?

The tribunal order states: Body Corporate 180506 is to either:

How much money was awarded in case 9038764?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9038764?

The primary dispute was Mould & damp. Related themes: Healthy homes, Unit Titles.

Where can I read the official tribunal order for case 9038764?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10281959-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9038764?

The tribunal order states: Body Corporate 180506 is to either:

How much money was awarded in case 9038764?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9038764?

The primary dispute was Mould & damp. Related themes: Healthy homes, Unit Titles.

Where can I read the official tribunal order for case 9038764?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10281959-Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9038764 — Mould & damp

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Order

Body Corporate 180506 is to either: a. operate the toilet extractor fan system at no greater than 15Hz between the hours of 6pm and 7am daily, or b. insulate the ducting, install a damper or otherwise carry out such works to the toilet extractor fan system which results in noise emitting from the extractor fan system being no greater than had the fan been operated at 15Hz.

In the event Body Corporate 180506 elects to carry out order 1b above, Body Corporate 180506 is entitled to recover expenses for the work from Lois Chan pursuant to section 126 Unit Titles Act 2010.

The issue of costs is reserved.

Reasons

Both parties attended the substantive hearings on 18 July 2023 and 27 March 2024. Counsel Benjamin Thomson and Katerina Wendt represented the applicant and the body corporate respectively.

Mrs Lois Chan has filed an application that seeks a work order against Body Corporate 180506 in respect of noise she has heard in the entrance area of her apartment which she says is disturbing her quiet enjoyment of her unit at the unit title development at Quay West.

The majority of the 165 units in the Quay West are residential apartments. A small number of units (30) are used as hotel rooms in a Sebel hotel pool, which are located throughout the Quay West building.

The applicant Mrs Chan lives in a unit on level 32. There are three other units on that level. The body corporate is reluctant to describe those units as penthouses, but they are the highest residentially occupied floor of the building and is located below the top level of the building which is a plant room. The plant room contains the HVAC or ‘heating, ventilation and air conditioning’ machinery that services the whole building. This includes four extractor fans located in various areas in the plant room and above the four units. The body corporate says that the floor of the plant room is constructed with special acoustic dampening concrete.

At the initial 18 July 2023 hearing, the applicant through Mr Thomson’s memorandum sought an order for the body corporate to operate the communal toilet extractor fan system at 15Hz (or below) so that “problematic noise” cannot be heard by the applicant.

The body corporate’s building manager Kesh Nand stated at the July 2023 hearing that the extractor fan system had been operated at 15Hz for the past two weeks and continues (and can continue to be) at the requested 15Hz level.

Given that the remedies sought by the applicant appear to have been addressed, and subsequent inspection of the plant room in late 2023 confirms that the extractor fan system had been operated at 15Hz, there was optimism that the matter can be resolved amicably subject only to the issue of costs.

However, the body corporate subsequently advised that it is not possible for the toilet extractor fan system, which all parties now accept as the sole source of the offending noise or source of disturbance to the applicant, to continue to be operated at 15Hz. The fan system is now operating at about 30Hz which the applicant says is interrupting her quiet enjoyment of her unit.

The body corporate says that the extractor fan system being operated at 15Hz is too low for the high rise unit title development in question.

Counsel for the body corporate submits that extraction speed required at any given time will depend on the air extraction requirements of the building based on recommendation from ventilation consultants, and any changes to those requirements, as explained by body corporate committee chairman Michael Corry.

The body corporate’s ventilation engineer has recommended against such a low speed and according to Mr Corry, owners have complained that it results in insufficient moisture extraction from bathrooms.

The body corporate’s position is that the 15Hz level of operation of the fan system is not sustainable and does not meet G4 of the Building Code which requires that a building has adequate ventilation consistent with its occupancy and intended use.

The material issues in this dispute are as follows: a. Whether the body corporate’s infrastructure has breached the applicant’s entitlement to quiet enjoyment; and b. Whether the body corporate should undertake mitigation so that when the toilet extractor fan is required be operated at a speed of in excess of 15Hz, the body corporate does not do so between the hours of 6pm and 7am daily, and if such operation is required within those hours in excess of 15Hz, that the Body Corporate manages, repairs and maintains the extractor system so that it does not cause a problematic noise that measures in excess of both 39dBA and 33NC values. Has the body corporate’s infrastructure breached the applicant’s right to quiet enjoyment

Pursuant to section 79(d) Unit Titles Act 2010 (‘UTA’): Rights of owners of principal units An owner of a principal unit... (d) is entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers, or the body corporate or its agents, except as authorised by this Act or the regulations.

Section 79(d) UTA only permits interruption to a unit owner’s right to quiet enjoyment to the extent that it is authorised by the UTA or the regulations.

While “quiet enjoyment” is a familiar concept under the UTA and the Residential Tenancies Act 1986 (‘RTA’), it is not defined in either legislation.

Quiet enjoyment derives its meaning from the common law under which a covenant for quiet enjoyment is implied into tenancy agreements which do not include express covenants for quiet enjoyment. Pearson LJ explained the meaning of this implied covenant in the Kenny v Preen [1963] 1 QB 499 (CA) at 511 in the following terms: The implied covenant for quiet enjoyment is not an absolute covenant protecting a tenant against eviction or interference by anybody, but is a qualified covenant protecting the tenant against interference with the tenant’s quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. I think the word ‘enjoy’ used in this connection is a translation from the Latin word ‘fruor’ and refers to the exercise and use of the right and having the full benefit of it, rather than to derive pleasure from it.

Butterworths Land Law in New Zealand explain “quiet enjoyment” in similar terms: The covenant for quiet enjoyment is an undertaking against interruption in the possession of the property leased. In this context the word “quiet” is used in the sense of “peaceful” and not in the acoustic sense: it does not mean that the landlord impliedly undertakes that the tenant will be free from the nuisance of noise. The word “enjoy” refers to the exercise and use of the right and having the full benefit of it, rather than deriving pleasure from it. There are two aspects of the covenant of quiet enjoyment: first a limited undertaking as to title; and secondly an undertaking against interruption of possession.

However, as District Court Judge Joyce KC held in Lucas v Patterson [2005] DCR 76, section 38(2) RTA significantly expands the scope of quiet enjoyment beyond its traditional definition. His Honour explained: [24] It is indeed a commonplace to describe the covenant for quiet enjoyment as one whereby the tenant shall be entitled peaceably to hold and enjoy the demised premises during the term without interruption by the landlord or any claimant to a superior title. ... [25] If it had stood on its own, s 38(1) could be identified as simply statutory embodiment of the usual ingredients of a contractual covenant for quiet enjoyment, or indeed that which would almost inevitably have to be implied anyway. [26] But s 38(2) is a significant departure from the usual confines. Its references to “comfort or privacy” as well as “peace” extend, for the immediate statutory purpose, the concept of “quiet enjoyment” so as to make the entitlement very much more like one where “quiet” carries its everyday auditory meaning. [27] Alston’s text Residential Tenancies, 3rd ed at 6.3 suggests that a stronger duty seems to be imposed on the landlord by subsection (2) than subsection (1) on its own. In the terms already discussed, I am inclined to agree. But I would opt for “wider” rather than “stronger”.

The authors of New Zealand Land Law (online looseleaf ed, Brookers, Wellington, 2009) at [LS8.01] comment that the right to quiet enjoyment will be breached “if in some way the acts of the landlord, or a person claiming under or through the landlord, interfere physically and substantially with the tenant’s possession.”

Guidance on the meaning of “quiet enjoyment” can also be drawn from the common law tort of nuisance, which includes noise nuisance.

Based on those common law authorities on the meaning of quiet enjoyment, I agree with Ms Wendt that proving a noise nuisance requires both an “unreasonable” and “substantial” interference with a person’s right to the use or enjoyment of an interest in land”. See Todd on Torts (8th Ed, Thomson Reuters New Zealand, Wellington, 2018) at 10.2.

The authors of Todd on Torts explain the unreasonableness criteria thus:

The standard is objective, not subjective. It is only an actionable nuisance or breach of a person’s (in this case, a unit owner’s) quiet enjoyment when it exceeds what an ordinary person in the plaintiff’s position can reasonably be expected to tolerate.

Acoustic engineers engaged by both parties have agreed on the following: a) A standard that can be used to assess noise compliance in this case is AS/NZS 2107:2016 (Acoustics - Recommended design sound levels and reverberation times for building interiors); b) The tested noise result in the applicant’s entrance when all equipment was operational including the toilet extractor fan was 39dB LAeq; and c) This result falls below the range in AS/NZS 2107:2016 for “apartment common areas” of between 45-50 dB LAeq and within the range for “living areas” of 35-45 dB LAeq.

Where the experts’ views differ is that the applicant’s expert considers the applicant should be entitled to a noise level at the lower end of the 35-45 dB LAeq range in her entrance.

Given that the standard of reasonableness of interference is to be measured objectively: a. I disagree that as owner of a penthouse unit, the applicant should be treated differently from other unit owners. b. I do not accept that because she uses the entrance of her unit as a living area, that area should be reclassified as a living area. c. I agree with Ms Wendt that the applicant is not entitled to a quieter entrance than other owners because she chooses to use it as a sitting area.

Ultimately, and objectively, I find that the noise level of 39dB LAeq at the entrance of the applicant’s unit with the toilet extractor system being operated at up to 30Hz level has not breached the applicant’s right to quiet enjoyment. There has therefore not been an “unreasonable” and “substantial” interference with the applicant’s right to the use or enjoyment of an interest in land under section 79(d) UTA.

Having determined that the body corporate has not breached the applicant’s quiet enjoyment under section 79(d) UTA, I now consider whether it is still appropriate for the body corporate to be required to undertake mitigation which either limits the times that the toilet extractor fan is operated in excess of 15Hz or otherwise manages, repairs and maintains the toilet extractor system so that it does not cause a “problematic noise” to the applicant that measures in excess of both 39dBA and 33NC values. Should the body corporate be required to undertake mitigation and work to the toilet extractor fan system so that it does not cause a “problematic noise” to the applicant?

Ms Wendt submits that as the body corporate has not breached the applicant’s quiet enjoyment right, it is not necessary to address the work order sought by Mrs Chan.

In his witness statement, Mr Corry says that on 19 December 2023 he spoke to the ventilation engineer Anthony Broach who said he was surprised to hear that the fan speed had been lowered to 15Hz. Mr Broach advised that extractor fan exhaust flow rates must comply with G4 of the Building Code for each and every bathroom in the building. At 15Hz, he considers it might work sometimes, but is “probably too low” and that is why there have been complaints of bathrooms steaming up. Mr Broach told Mr Corry it is best practice to oversize the flow rate slightly to account for temperature changes and ducting alterations.

Mr Corry says that at 15Hz, complaints have been received that with climatic temperature variations of late, there have been issues of extracting moisture from some bathrooms, misted mirrors and excess moisture on walls, hitherto non- existent problems. From time to time, other residents have their own HVAC ducting either shortened or extended, depending on renovation to bathrooms, and this in turn, requires adjustment of the fan speed for the whole building.

Mr Corry opines that it is imperative that the building engineers have the right and duty to adjust the usage and speed of all four extractor fans as and when climatic variations occur, bathroom usage alters and domestic bathroom and toilet equipment breaks down as it does from time to time. That requirement cannot be hampered by any set time for the fans to be regulated and this is given proscriptive legal effect in terms of the Building Code.

While I acknowledge Mr Corry’s expressed sentiments in principle, I consider that the body corporate should continue to assist the applicant to eliminate the noise which she subjectively but clearly finds problematic. This is despite the likelihood that the applicant has a heightened sensitivity to particular noises.

Both parties have been able to agree that the toilet extraction fan system was the source of the noise to the applicant. That system is part of common infrastructure that serves multiple units.

Under section 138(1) UTA, the body corporate must repair and maintain building elements and infrastructure that relate to or serves more than 1 unit. As such, the obligation to repair and maintain the toilet extractor fan system falls squarely on the body corporate.

Only the body corporate has the power to access and carry out works to the toilet extractor fan system and its associated ducting. Unit owners such as the applicant do not have the ability to turn it off in respect of their unit or reduce the speed at which it operates.

The body corporate’s experts Acoustic Engineering Services suggested works to the ducting that could resolve the noise issue or reduce its impact. This work to the ducting has not been undertaken.

The body corporate’s second experts, Agile Engineering Consultants, initially recommended that fan be operated at a speed of 15Hz or below. The body corporate adopted that advice which initially resolved the issue in July 2023 but for reasons set out in Mr Corry’s witness statement, that operation speed of 15Hz cannot now be maintained.

Section 126 UTA provides that where the body corporate does any repair, work, or act that it is required or authorised to do, by or under this Act, or by or under any other Act, but the repair, work, or act is substantially for the benefit of 1 unit only, the expense incurred by the body corporate in doing the repair, work, or act is recoverable by it as a debt payable by the unit owner concerned.

I consider that the provisions under section 126 UTA allow work to be carried out by the body corporate to eliminate the problematic noise complained by the applicant. This is notwithstanding my finding on the first issue that the body corporate has not breached the unit owner’s right to quiet enjoyment which standard is measured purely on an objective scale.

While I find on balance that the applicant likely has particular noise sensitivities, I consider that section 126 UTA paves the way for the body corporate to explore other constructive options to help eliminate the applicant’s suffering from noise she finds problematic.

The absence of fault on part of the body corporate in that there was no legal noise nuisance or breach of objective quiet enjoyment requirements does not resolve the application entirely. The body corporate carries a residual obligation to undertake work that is substantially for the benefit of 1 unit only and on-charging the unit owner the expenses for such work.

Consequently, while the noise level measured in the applicant’s entrance was within the applicable noise standard range, I consider it unconscionable to require the applicant to continue to suffer knowing that more can be done by the body corporate to explore further options that can alleviate the applicant’s exposure to the problematic noise in her unit.

I accept Mr Thomson’s submission that this would be a pragmatic way to deal with the mater and as the UTA intended and the problem would have at least been resolved and the costs the parties were incurring would have come to a halt.

There is considerable force in Mr Thomson’s argument that if the body corporate says it cannot follow Agile Engineering Consultants’ original advice and operate the fan at the lower speed, then why can they not undertake the works suggested by Acoustic Engineering Services and inspect/repair the ducting/damper or insulate the ducting adjacent to the unit to negate the problem.

I consider on the evidence adduced by the parties that the problematic noise may be eliminated by the body corporate insulating the ducting or installing a damper to the toilet extractor fan system which results in noise emitting from the extractor fan system being no greater than had the fan been operated at 15Hz.

Accordingly, I accede to the applicant’s revised orders sought for the body corporate to undertake mitigation to either: a. operate the toilet extractor fan system at 15Hz at certain times, or b. insulate the ducting or install a damper to the toilet extractor fan system or undertake such other work which results in noise emitting from the extractor fan system being no greater than had the fan been operated at 15Hz.

For the avoidance of doubt, in the event the body corporate elects to insulate the ducting or install a damper or undertake such other work to the toilet extractor fan system instead of operating the toilet extractor fan system at 15Hz, the body corporate is entitled to recover the money expended for the work from the applicant pursuant to section 126 UTA.

My ruling on the issue of costs is reserved though I express a preliminary view that costs should lie where they fall given that both parties were partly successful on the two material issues before the Tribunal.

I give leave to the parties to seek costs and file further submissions on costs based on the following timetable: a. Counsel for the applicant to file a memorandum on costs within 7 days of receipt of this decision; and b. Counsel for the body corporate to file its memorandum on costs within 7 days of receipt of the applicant’s memorandum.

A decision on costs will then be made on the papers.

Order