What was the outcome of Tenancy Tribunal case 9044064?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9044064?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9044064?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9044064?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10418873-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9044064?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9044064?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9044064?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9044064?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10418873-Tribunal_Order.pdf.

Auckland Central, Auckland Tenancy Tribunal Case 9044064 — Unit Titles

Order

The application is dismissed.

Reasons

Both parties attended the hearings.
The applicant claims that the Body Corporate (“BC”) has breaches its duty to her in terms of maintaining the water pump in such condition that it did not emit undue noise, affecting her quiet enjoyment of her apartment, her sleep and, consequently, her health.
Significant detailed material has been produced by the parties in support of their respective positions, including reports by Marshall Day, Philip Crow (CEW Management (NZ) Ltd), PASLR Crucial Services Ltd and a variety of other written material.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the unit owner) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.
For completeness, the BC objects to the admissibility of Mr Crow’s opinions in relation to the appropriate outcome for this decision, and his opinions on costs. I agree with this submission.
An expert witness may give opinion evidence on matters within their expertise, they are bound by the Code of Conduct for Expert Witnesses contained within schedule 4 of the High Court Rules, and the evidence must be substantially helpful. An expert witness must be independent and impartial, and their primary role is to assist the Court or Tribunal.
Mr Crow’s opinions in relation to the proper determination of this matter go beyond his expertise. They are not substantially helpful. At best, Mr Crow strays into advocating for the complainant. At worst, they are an effort to usurp the role of the Tribunal. I have entirely disregarded the evidence at paragraphs 20-23 of Mr Crow’s report dated 4 April 2024. Background and evidence
The premises is an apartment in a residential complex in Central Auckland. The building is around 30 years old, and there is no evidence to suggest it is not fully consented, or that it was not constructed in accordance with the Building Code applicable at the time of construction.
The applicant purchased her apartment and resides in it as an owner occupier.
Since moving in, the applicant has been troubled by a persistent noise, which she attributes to the water pump which services that apartments.
The noise is intermittent but regular and persistent. It disturbs the applicant’s sleep.
There is no evidence to suggest that the occupants of other apartments have the same complaint.
There is no real argument that the noise originates from the water pump. However, the precise reason it makes noise is not agreed. The applicant says it is because of the improper installation of the pumps without proper footings to reduce vibrations.
The BC says that the noise may exist and may come from the pump. However, it is simply a consequence of residing in an older building, within the CBD. Some noise is inevitable, and this is not of such a volume that it constitutes a breach requiring remedy by the BC.
It is common ground that the BC is responsible for maintaining the pump pursuant to section 138 of the UTA.
An acoustic assessment conducted by Marshall Day in May 2023 noted the pump was audible in the applicant’s apartment at intermittent but regular intervals. Marshall Day recorded the volume of the pump in the applicant’s apartment as 25dB. However, the noise is both tonal and intermittent which makes it both more noticeable and more annoying. Marshall Day applied the New Zealand environmental noise standard NZS 6802:2008 which refers to noise with a special audible character (SAC) and applies a penalty of up to 5dB for a sound that has a SAC. This means that the 25dB measured would be assessed as 30dB.
Marshall Day also notes that NZS 6802:2008 recommends design sound levels for building interiors. It says that sleeping areas in inner city areas should have noise levels of 35 to 40dB at night.
Further noise readings taken by Marshall Day in December 2023 recorded the noise as reaching 32dB at its loudest. With the SAC adjustment the noise reached 37dB. The BC suggests that this second report cannot be relied on to link the noise to the pump as there were no concurrent measurements in the pumproom on that occasion.
The BC refers to the Auckland District plan which assessed noise and set limits for the central city. The BC submits that the District Plan was established, and the noise levels enforced under the Resource Management Act 1991.
The District Plan has, of course, been largely replaced by the Auckland Unitary Plan as at 15 November 2016, and only remains relevant for the portions of the Unitary Plan currently under appeal. This has no particular bearing on the argument as the Unitary Plan also deals with noise and vibration and make specific reference to NZS 6802:2008 when setting the acceptable noise levels, including taking into account noises with SAC. The Unitary Plan allows:
The levels in business zones are higher again. It is questionable whether this building is zoned residential or city centre business, and as I did not hear evidence on this point, I make no determination of it.
Given the purpose of the building, and in fairness to the applicant I have adopted the residential noise levels for this decision. Analysis
The BC Operational Rules state:
Rule 32(b) of the BC operational rules further states:
Section 105(4)(a) of the UTA states that the BC operational rules are binding on the BC as well as unit owners.
The Resource Management Act authorises territorial authorities to put in place their own district plans.
Accordingly, the BC operational rules require compliance with the Unitary Plan.
I note that Mr Crow considers the Unitary Plan to be irrelevant as it “applies to building to building, ie external noise, and not to noise within each individual building which is covered by the Building Act.” I do not accept this submission. The Resource Management Act and the Unitary plan allow Council noise control staff to enforce noise limits and it would be absurd to suggest that noise from a neighbouring apartment could not be dealt by noise control staff, but noise from across the street could be. There are no such restrictions in either the Resource Management Act or the Unitary Plan. The Building Act 2004 and associated Building Code require building to be constructed in such a way as to prevent undue noise transmission, but do not set levels of acceptable noise. The two Acts are not mutually exclusive.
Section 138 of the UTA states: 138 Body corporate duties of repair and maintenance (1)The body corporate must repair and maintain— (a)the common property; and (b)any assets designed for use in connection with the common property; and (c)any other assets owned by the body corporate; and (d)any building elements and infrastructure that relate to or serve more than 1 unit.
The water pump is part of the infrastructure of the building which serves more than one unit. Accordingly, the repair and maintenance of it are the responsibility of the BC. That is not disputed by the BC.
Ultimately, the question for determination is whether the noise emitted by the pump is such that it breaches the BC rules or the associated legislation (the Resource Management Act and the Unitary plan essentially). If it is, then I consider that there would be an obligation for the BC to repair it so that the noise is reduced to an acceptable level.
In terms of assessing the noise levels in the applicant’s apartment, I accept the report from Marshall Day is the best, independent, evidence of the noise levels in the apartment.
I do not accept the submission that Marshall Day’s second report is not directly related to the noise of the pump. At the time of undertaking the second set of readings Marshall Day was clear that the pump was the likely cause and I accept that the readings relate to the noise of the pump. I also note that the Marshall Day reports refer to external sounds (sirens and a helicopter) as being louder than the pump, so I conclude they were aware of the possibility of external noise and took steps to ensure they were measuring the pump as accurately as possible. I understand this was done, in part, by focusing on the noise frequency the pump operates at.
I accept that the pump creates 37dB of noise at its loudest.
I do not consider that the time of day the tests were taken would impact the readings taken as suggested by the BC. It is a mechanically based noise, and there is no evidence to suggest that it changes according to time of day. For completeness, I note the applicant’s evidence that it is noisier in the evening, but that relates to water usage (and consequently pump operation) rather than being time specific.
I do accept the applicant’s evidence that the noise affects her more at night when she is trying to sleep.
I have reached my conclusions by adopting the highest noise reading suggested by Marshall Day, being 37dB. I have adopted the night-time noise limits set out in the Unitary Plan, being 40dB to reflect the fact that the impact on the applicant is greater at night. That level is also consistent with the 35dB-40dB range recommended by NZS 6802:2008 (and on which the Unitary Plan levels are based).
Accordingly, I am not satisfied that the noise of the pump exceeds the levels set out in the Unitary Plan, and consequently I am not satisfied that the BC has breached its obligations to the applicant.
The application is dismissed.
Despite this finding, I do have sympathy for the applicant, and I acknowledge the impact the persistent noise has on her. I also acknowledge how close to the noise limits this pump comes. I would urge the BC to consider allowing the proposed repairs to be carried out at the applicant’s cost, albeit by contractors the BC are happy with. I cannot compel this, but would suggest, at the very least, that this option is tabled for consideration at an AGM, if the applicant so desires. Costs
In relation to costs, there is a very limited jurisdiction to award costs set out in s102 if the Residential tenancies Act 1986.
Section 102 states: 102 Costs (1)Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2)The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a)where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b)where any of the parties was represented by counsel: (c)where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner: (d)where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause. ..... (4)If the applicant— (a)has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application: (b)has been partly successful in his or her claim, the Tribunal may order that the respondent pay the applicant the filing fee paid for the application.
This application does not fall within any of the criteria is section 102(2) and accordingly section 102(1) prohibits the ordering of costs.
As the applicant has not succeeded in her claim, the filing fee is not reimbursed.

Tenancy Tribunal case 9044064 — Unit Titles in Auckland Central, Auckland

At a glance

Tenancy Tribunal case 9044064 — Unit Titles in Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions