SOUTHERN EVER TRADING LTD v. THE INCORPORATED OWNERS OF JOY GARDEN

LDBM 8/2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 8 OF 2003

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J U D G M E N T

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Background

1. The Applicant is the registered owner of a flat known as Apartment B, 6^th Floor, Block II, Joy Garden, No. 3 Alnwick Road, Kowloon Tong, Kowloon, Hong Kong (“the Flat”).  The Flat was occupied by Mr and Mrs Chan Yu Ying Ian, who are both directors and shareholders of the Applicant.  The Respondent is the owners’ corporation of the said Joy Garden (“the Building”).

2. The Building was built in 1975 and has two blocks.  Each block has 7 floors and each floor has 4 units, i.e. Apartments A to D.  Each block of the Building is served by one lift.  The lifts were built by Otis Elevator Company (H.K.) Limited (“Otis”) and have been in use since the Building was first built.  All along the lifts have been maintained by Otis.  The machine room of the lift serving Block II (“the Lift”) is situated on the 7^th Floor right next to Apartment B on the 7^th Floor (“Flat 7B”), which is immediately above the Flat.  However, Flat 7B is smaller in size than the Flat and part of the machine room is immediately above the living room of the Flat.

3. According to the Re-Amended Notice of Application, the Applicant alleges that since about September 1999, the Lift has created continuous and excessive noise, and in or about June 2002, Mr and Mrs Chan could even feel the vibrations of the Flat when the Lift was in operation.  However, according to the evidence of Mr Chan Yu Ying Ian, he moved into the Flat in September 1999 and started to notice the noise of the Lift only at the end of 1999.  The vibration was first felt at the end of 2001.

4. The Applicant alleges that despite repeated requests and demand, the Respondent has failed to take out any remedial works on the Lift and permitted excessive noise and vibrations to come out from the Lift, and that the Respondent was and still is in breach of the relevant sections of the Building Management Ordinance, Cap. 344 (“the BMO”) and the terms of the Deed of Mutual Covenant (“the DMC”).  Thus, the Applicant claims for an order that the Respondent do forthwith take out remedial works and install an adequate vibration isolation system to lessen the vibration coming out from the Lift and reduce the noise level created by the Lift.  Alternatively, the Applicant seeks for an order that the Lift be replaced by a new one.  The Applicant also claims for various items of damages together with interest and costs.

5. The Respondent refutes the claim and contends that it has taken all reasonable, necessary and practicable steps to maintain the Lift in a state of good and serviceable repair and clean condition and hence it has discharged its duties under the BMO as well as the DMC.

The relevant provisions

6. The relevant sections of the BMO relied on by the Applicant are sections 18(1) and 34I of the BMO, which read as follows:-

(1)	Section 18(1):
	“The corporation shall –
	(a)	maintain the common parts and the property of the corporation in a state of good and serviceable repair and clean condition;
	….
	(c)	do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.”
(2)	Section 34I:
	“(1)	No person may –
		….
		(b)	use or permit to be used the common parts of a building in      such a manner as -
			(i)	unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or
			(ii)	to cause a nuisance or hazard to any person lawfully in the building.
	(2)	Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

7. The following terms of the DMC are relied on by the Applicant:-

(1)   Clause 3:

“Each undivided 634th part or share in the said premises and the full and exclusive right and privilege to hold use occupy and enjoy each Unit shall be held by the person or persons from time to time entitled thereto subject to and with the benefit of the easements rights privileges and obligations set out in the First Schedule hereto.”

(2)   Clause 4:

“The owner or owners for the time being of each Unit in the said premises shall at all times hereafter be bound by and shall observe and perform the covenants provisions and restrictions set out in the Second Schedule hereto.”

(3)   Paragraph 1 of the Second Schedule:

“To pay the due proportion of all costs, charges and expenses which may be or become payable for or in connection with the management of the said premises in accordance with the provisions of this Deed including but not limited to:-

….

(f)   The cost of operating, maintaining, repairing, servicing and renewing the lifts and communal lighting.”

The issues

8. In his opening, Mr So for the Applicant submits that there are 4 broad issues in this case as follows:-

(1)	Whether the Respondent owes the Applicant a duty to do something to combat the noise (the nuisance);
(2)	If so, whether the Respondent has done enough so far to solve the problem;
(3)	If not, should injunction be granted to compel the Respondent to do so; and
(4)	Should the Respondent be liable to the Applicant for damages suffered.

9. However, in his closing submission, Mr So submits that there are 2 preliminary hurdles for the Applicant.  The first question is whether the sound is noisy.  If it is, the second question is whether it is noisy enough to constitute “nuisance”, i.e. something which disturbs or wakes up people in sleep in the Flat when the Lift operates at night.  Mr So accepts that failure in overcoming any of these two hurdles defeats the Applicant’s case.

10. I think the main issues in this case are whether the noise and vibration created by the Lift constitute nuisance to the Applicant, and if so, whether the Respondent has failed its duties under the BMO and the DMC in combating the nuisance.

Nuisance

11. It is not disputed that the Respondent first received complaints about the noise of the Lift from the Applicant in 1999.  After receiving such complaints, the Respondent had discussed them at its management committee’s meetings and an owners’ meeting in order to resolve the matter.  Otis had also carried out various steps to reduce the noise of the Lift including sound isolation work on 20 August 2002.

12. The Environment Protection Department (“EPD”) has measured the noise level of the Lift on a number of occasions.  According to EPD’s measurement on 10 January 2001 at 8:30 p.m., the noise level was at 53db(A), which did not exceed the relevant daytime and evening noise limit (from 7:00 a.m. to 11:00 p.m.).  However, this level would exceed the night-time limit (from 11:00 p.m. to 7:00 a.m.) by 8 db(A).  As a result of that measurement, a Noise Abatement Notice dated 19 January 2001 was issued to the Respondent.  Another measurement in August 2001 showed that the noise level exceeded the night-time limit by 1 db(A), which was considered by EPD as insignificant.  All the other measurements showed that the noise levels were within the statutory limits of the Noise Control Ordinance, Cap. 400.

13. The Applicant’s expert, Westwood Hong & Associates Ltd. (“Westwood”) and the Respondent’s expert, Maunsell Environmental Management Consultants Ltd. (“Maunsell”) have also measured the noise level of the Lift.  According to Westwood’s survey on 29 October 2002 and its report, the noise level exceeded the statutory requirement.  On the other hand, According to Maunsell’s survey in early July 2005, the noise level did not exceed the statutory limit.  At the request of the Applicant, the Tribunal together with the parties had a site visit at the Flat on 11 July 2005.  Westwood and Maunsell also measured the noise level of the Lift on the same day and prepared their respective reports.  The noise level, which was measured during daytime, did not exceed the daytime limit.  However, according to Westwood, it would exceed the night-time limit.

14. The Applicant has also called another expert, Dr Albert So, to give evidence.  Dr So is of the view that the source of noise and vibration is the aged motor, the depreciation of the gear box and the brake set of the Lift, and the problems are aggravated by the lack of isolation pads between the machine and the I-beams.  With the I-beams being welded to the reinforced concrete, the excessive noise and vibration generated while the Lift is in operation are therefore directly transmitted to the living room of the Flat.

15. It is the Applicant’s case that because of the excessive noise coming from the Lift, Mr and Mrs Chan had suffered from insomnia.  Since January 2001, Mrs Chan had to rely on sleeping pills to sleep and since August 2002, she had to consult a psychiatrist.  They even had to move out from the Flat for fear of suffering personal injury, discomfort, annoyance or danger to health.  Since April 2005, the Flat has been rented to a tenant.  The tenant has indicated that it would only rent the Flat for 1 year and if the noise and vibration problems have not been solved by next year, it would not renew the lease.

16. On the question of whether the noise level has exceeded the statutory limit, I accept the Respondent’s submission that the Applicant has failed to establish that it was the case.  During the cross-examination of Dr Hong of Westwood, he admitted that the pattern of using the Lift would affect the noise level being recorded, and that the more frequent the Lift is used, the higher will be the noise level.  It is undisputed that the Lift would be used more frequently in the daytime and evening time than the night-time.  So the figure obtained in the daytime or evening time cannot represent the noise level in the night-time, and one cannot simply rely on the noise level recorded during daytime and apply it in the same way as a night-time figure.  These principles were also agreed by Dr So and Mr Tang of Maunsell.  Thus, it was wrong for EPD to issue the Noise Abatement Notice by using the reading obtained in the evening and applied it to the night-time period.  Similarly, it was wrong for Dr Hong to apply a daytime figure to the night-time period in his report of 11 July 2005.

17. The measurement taken by EPD in August 2001, although exceeded the limit by 1db(A), was considered by EPD to be insignificant.  As all the other measurements showed that the noise level was within the limit and there could be minor errors in obtaining the figure, I can accept that the overall noise level did not exceed the statutory limit.

18. As to Westwood’s measurements on 29 October 2002 and 11 July 2005, I accept the Respondent’s submission that Dr Hong has not established that he had applied the corrective factors, such as tonality, impulsiveness and intermittence, correctly to the measured noise level.  They were in fact different from those used by EPD.  Dr So, in his evidence, agreed that a surveyor could use his discretion to apply such corrective factors within a prescribed range.  However, there is no evidence to support that the highest corrections should be adopted.  Since EPD is an independent statutory body and has no conflict of interest with any of the parties, it has also made more measurements than Westwood, I will adopt the measurements of EPD, rather than those of Westwood, as the correct measurements of the noise level of the Lift.

19. As aforesaid, I find that the overall noise level measured by EPD did not exceed the statutory limit, and hence the Applicant has failed to establish that the Lift has created noise that is in breach of the statutory limit.  However, the Applicant’s case does not rest here.  Mr So submits that the true test for nuisance is not whether the noise has exceeded the statutory limit, but whether a reasonable man could tolerate the noise.  That was why Mr So invited this Tribunal to have the site visit on 11 July 2005 to hear the noise in real life.

20. Having the benefit of the site visit, I can say that whenever the Lift is moving, there is an audible sound created by the Lift which can be heard inside the Flat.  I agree with Mr So that the test for nuisance is whether a reasonable man could tolerate the noise.  The Respondent does not owe a duty to any particularly sensitive owner or resident.  The test is not whether the noise has exceeded the statutory limit.  However, the reasonable man test has to be an objective one.  One cannot simply use one’s own perception to say that it must be what a reasonable man would perceive.  To do so, it is in fact substituting an objective test with a subjective one.  It would not therefore be appropriate for me to say whether the noise level is acceptable to me.  There must be some kind of objective standard for reference.  The statutory limit is an objective standard, because it is designed to be the level accepted by most people.  As agreed by Mr So, the statutory limit is highly relevant, although not conclusive by itself, to the test of nuisance.

21. Applying this reasonable man test to the present case, I find that the Applicant has failed to establish that a reasonable man would be disturbed by the noise of the Lift.  Firstly, it is because that the noise has not exceeded the statutory limit.  I am not in any way suggesting that the statutory limit is the only or conclusive factor, but when the noise is within the statutory limit, it means that most of the ordinary people would be able to bear the noise.  In other words, a reasonable man would be able to bear it too.

22. Secondly, the evidence shows clearly that the Applicant is the only owner complaining about the noise.  There is no other owner, not even the owner of Flat 7B, complaining about the noise of the Lift.  Flat 7B is right next to the machine room of the Lift and should have similar noise disturbance as the Flat.  If the noise is so unbearable, the owner of Flat 7B should have similar complaints like the Applicant.  The owner of Flat 7B, i.e. Mr Fong Wing Kai, was called by the Respondent to give evidence.  Mr Fong’s evidence is that he and his family have been living there since 1998 and they do not feel any disturbance arising from the vibration or noise of the Lift.  Similarly, the owner of Flat 6C, Mdm Mok Siu Mui, was called and she also confirms that she and her family has lived there for over 10 years and never felt any vibration or noise from the Lift.  If the other owners can bear with the noise or vibration of the Lift, the only logical conclusion is that a reasonable man would be able to bear them too.

23. Moreover, the Flat has been rented to a tenant and there are occupants living there.  Although the evidence is that the tenant would live there for 1 year and see if the problems can be resolved by then, there is no evidence that the occupants find the situation so unbearable that they have to move out immediately.  Mr So submits that the ultimate question is whether any reasonable man in sleep in the Flat would be disturbed or seriously disturbed (woken up) by the surge of the Lift’s sound or noise.  If the occupants can bear the noise and vibration for 1 year, I think it is indicative that the problems are not as serious as depicted by the Applicant.

24. As to the vibration created by the Lift, Dr So’s evidence is that the Flat is affected by the vibration.  He made reference to the British standard as contained in the 1992 version of the “Guide to Evaluation of Human Exposure to Vibration in Buildings” and concluded that the vibration level has gone beyond the limit.    However, he admitted in his evidence that there is no relevant regulation or code of practice in Hong Kong governing the comfortable vibration limits in residential flats.  He also admitted that he is not sure if there are any previous or updated versions of the British standard he referred to.  Since there is no standard regulation in Hong Kong to be referred to and the British standard may not be directly applicable to the situations in Hong Kong, I find that the Applicant has not established that the vibration created by the Lift has gone beyond an acceptable level in Hong Kong.  The fact that there is no other owner complaining about the vibration also indicates that the vibration does not cause any nuisance to the other owners.  Thus, I do not find that the Applicant has proved that a reasonable man would be disturbed by the vibration.

25. In the circumstances, I find that the Applicant has failed to establish a case of nuisance against the Respondent.

Breach of the BMO or the DMC

26. Even if I were wrong and the Lift did cause nuisance to the Applicant, I do not find that the Respondent has been in breach of the BMO or the DMC as alleged by the Applicant.  The Lift has been built and maintained by Otis.  The maintenance agreement between the Respondent and Otis is the “extended coverage maintenance” which is the most expensive and comprehensive type of maintenance programme offered by Otis.  It includes regular planned maintenance, repair and replacement work.  Otis will replace all mechanical parts of the Lift at no additional costs to the Respondent except those affected by vandalism.  Following the Noise Abatement Notice, Otis has carried out improvement works to reduce the noise twice, one in 2001 and the other in August 2002.  The scope of the first improvement work was recommended by the Electrical and Mechanical Department.  The second improvement work was based on the Otis’ recommendations which modified EPD’s suggestion on 19 March 2002 for installation of insulation pads.

27. The Respondent only comprises of lay persons who do not possess expertise to maintain mechanical devices such as lifts and elevators.  I agree with the Respondent that it has already done its best to engage a sizeable and reputable lift maintenance contractor such as Otis to maintain the Lift.  The Respondent has even opted for the most expensive maintenance programme.  The Applicant alleges that the Respondent should have followed EPD’s suggestion to install insulation pads, but the Respondent should not be criticized for following Otis’ recommendations.  After all, Otis was the builder of the Lift and knows best how the Lift could be improved.  I think the Respondent has done all things reasonably necessary for the maintenance of the Lift and is not in breach of section 18(1)(c) or section 34I of the BMO. 

28. The Applicant suggests that the Lift should be “renewed” altogether, i.e. to replace it with a new one.  The Respondent is in fact considering replacing the Lift with a new one as the price of a new lift has dropped significantly.  However, I do not think that failure to replace the Lift with a new one constitutes a breach of the DMC.  Mr So submits that the words “renewing the lifts” in paragraph 1(f) of the Second Schedule of the DMC shows that the Respondent is obliged to replace the Lift with a new one when the Lift is too old.  I do not accept this submission at all.  First of all, paragraph 1(f) only says that the owners are bound to contribute the cost of renewing the lifts.  It does not impose a duty on the Respondent to renew the Lift.  Secondly, “renewing the lifts” in the context of paragraph 1(f) seems to me to confine to renewing the existing lifts, i.e. to restore the existing lifts to their original conditions, rather than to replace them with new lifts.  Thus, the Respondent is not in breach of the DMC as alleged by the Applicant.

Conclusion

29. Since it is my findings that there is no nuisance caused to the Applicant and the Respondent has not been in breach of the BMO or the DMC, the Applicant’s claims must fail.

30. I therefore make the following orders:-

(1)	The Applicant’s application be dismissed; and
(2)	Costs order nisi: The Applicant do pay the Respondent’s costs of the application with certificate for counsel and to be taxed on District Court Scale if not agree.  If there is no costs application by the parties within 14 days from the date hereof, the costs order nisi shall become absolute.