Image Credit: ADOBE STOCK
November 05, 2020 - 12:35 PM
A Kelowna woman will no longer be able to have a relaxing soak in her hot tub after a civil tribunal sided with her neighbour and ruled the tub was too loud.
The hot tub's owner, Debra Balmer, had been in dispute with her neighbour, Thomas Westerby, over the noise created by the tub. Westerby said it was keeping him awake at night.
Westerby argued the tub caused "a nuisance" to him through unreasonable noise and vibration and was also unhappy by an "unsightly" Styrofoam wall Balmer placed between the two neighbours' patios in an effort to mitigate the sound.
On Oct. 28 a Civil Resolution Tribunal ruled in Westerby's favour, ordering Balmer to stop using the hot tub unless the noise could be kept to a reasonable level.
"I accept that the noise created a nuisance for Mr. Westerby and interfered with (the) use and enjoyment of his strata lot and patio," Tribunal member Julie Gibson said in the decision.
Balmer argued she was entitled to use her hot tub and had received permission from the strata before installing it.
"I agree, but only to the extent that her use does not unreasonably interfere with the quiet enjoyment of other strata lot owners. I have found that Ms. Balmer’s hot tub use, as it stands, is a nuisance," Gibson said.
The hot tub dispute dates back to 2013 and Balmer did make several attempts to try to control the noise and vibration. She installed insulation around the hot tub and fitted a timer to stop it from running at night. She also placed soundproof insulation on the wall between the two patios and at one point installed a Styrofoam wall between the patios to help ease the sound.
Westerby wrote to the Strata to complain about the "unsightly" Styrofoam wall and Balmer offered to replace it if the two could agree on a suitable alternative. It appears an alternative was never found.
Sound readings were conducted and ranged from 68 decibels when standing next to the tub, to 45 decibels when inside her apartment with the patio door closed. Inside Balmer's apartment but standing next to the wall she shared with Westerby produced a reading of 55 decibels.
The strata were involved in the dispute and in May 2019 dismissed Westerby's claim the tub made excessive noise. In March the Strata wrote to Westerby saying they wanted no more to do with the hot tub issue.
Sometime afterwards Westerby launched the Civil Resolution Tribunal case against Balmer.
The Tribunal member ruled that as the noise level exceeded the World Health Organization guidelines of 50 decibels – a quiet office is 40 – the hot tub did create a nuisance and ordered Balmer to cease using her hot tub.
Balmer can, however, use the tub again, if she can mitigate the noise level to an acceptable level and provide a report from an acoustical engineer with the details.
The Tribunal member also says it has no power to order Balmer to remove the Styrofoam wall, although agrees that it is unsightly.
Ultimately, Balmer is left with a hot tub she's not allowed to use and $275 in fees to pay.
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