Maria Creek Estate [2000] QBCCMCmr 111 (29 February 2000)

RA MeekREFERENCE: 0515-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	51 Rebecca Jane Parade KURRIMINE BEACH Q 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by:

Michael John TAIFALOS and Shirley MATTHEWS as co-owners of Lot 1; and Ivan ANDRIJEVIC and Carmelina ANDRIJEVIC as co-owners of Lot 4,

(1) RA MeekI hereby order that, having regard to the interests of all owners and occupiers of lots included in “Maria Creek Estate” scheme, I find that By-law 1 contained in the community management statement recorded on 9 September 1999 is unreasonable and the body corporate must, within three (3) months of the date of this order, lodge a request with the Registrar of Titles to record a new community management statement to remove the by-law, unless the by-law has been removed by the recording of a new community management statement in compliance with paragraph (b) of part 2 of this order.

(2)	I further order that –

(a) the annual general meeting held on 23 August 1999 is invalid and all of the resolutions purported to have been passed at the meeting are invalid and of no force or effect, including those resolutions for the amendment of the by-laws; and

(b) in consequence of this, the body corporate must, within three (3) months of the date of this order, lodge a request with the Registrar of Titles for the recording of a new community management statement to remove those by-laws. y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0515-1999

“Maria Creek Estate” CMS 25253

The applicants, Michael Taifalos and Shirley Matthews of Lot 1 jointly with Ivan Andrijevic and Carmelina Andrijevic of Lot 4, have sought a number of orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”). The applicants have misunderstood the particular requirements of Items 10 to 13 of the application form and consequently the orders sought by them have to be determined from an examination of the whole of the application.

At Item 10, where applicants are asked to state the order(s) they are seeking, the applicants have spoken in general terms concerning on-going problems with the respondent, Peter Hablethwaite, namely that the respondent creates grievances and then bombards them with correspondence on the matter, as well as employing double standards in using machinery himself for certain tasks which he then complains of if the applicants act similarly. These are, as I have stated, allegations of a general nature that are not capable of being determined by an order of an adjudicator.

At Item 11, where applicants may request an interim order, the applicants complain of the respondent poisoning and burning grass on his lots and also that he does not regularly mow the lots. This complaint concerns maintenance of a lot and the creation of a nuisance and hazard affecting other owners, and is therefore capable of being the subject of an order.

At Item 12, where applicants are asked whether they desire the dispute to be resolved by either a specialist mediator or specialist adjudicator, the applicants complain of the respondent’s hostile and abusive attitude at meetings of the body corporate.

At Item 13, where applicants are asked to set out the grounds supporting the order(s) being sought, the applicants set out a number of complaints against the respondent.

I imagine the respondent, when invited to respond to the application by this office, faced the same problems as I had in determining just what are the disputes put in issue for resolution. The course I have adopted in identifying these issues has been to assess the whole of the narrative of the application. If after doing this I had considered the respondent had not sufficiently addressed the issues in his response to the application, I would have given him a further opportunity to do so. However, this was not found to be necessary.

Before identifying those issues, it is relevant to mention that a separate application by two of the applicants, the Andrijevic’s, has been lodged against the Hablethwaites as the respondents. This further application, Application No. 719-99, makes similar allegations against the respondent Peter Hablethwaite’s allegedly highhanded manner in dealing with other owners and the need to clarify the by-laws, though it does focus on the issue of the Andrijevics being refused permission to have the electrician of their choice connect electrical power to their lot. An order to Application 719-99 will be issued concurrently with the order to this application.

I have identified the following as being the issues raised by the applicants for resolution-

1. “We would like Peter Hablethwaite to stop poisoning & burning his grass and maintain his lots with regular mowing. His practices are detrimental to the general look of the estate, and well being of the residents.”

2. “Advice as to whether AGM called for on 23 August 1999 is valid. Last AGM was held Dec 1998.”

3. “Objection to holding meetings at Peter Hablethwaite’s residence as he is hostile and intimidating.”

4. “We question the legality of Peter Hablethwaite’s proposed amendments.”

5. “We do not understand what level of noise is acceptable to Peter Hablethwaite.”

I think it is also relevant in understanding the current application that a brief history of scheme disputes be included in these reasons. Putting aside Application 444-98 made jointly by Taifalos and Matthews which was withdrawn before an order was made, the respondent and his wife Marcia were the applicants in the only other application for the scheme. In that application they sought to have Andrijevic abide by (then) By-law 1 concerning noise, and (then) By-law 9 concerning the regulation of noise generating machinery. In Order 321-98 the adjudicator dismissed both limbs to the application, reasoning that Andrijevic had not breached the first by-law by making any unreasonable noise, and that the second by-law was itself an unreasonable by-law.

The Hablethwaites appealed the order in the District Court Cairns, Appeal No.72 of 1998, but subsequently withdrew the appeal. I note the respondent Peter Hablethwaite in a letter dated 13 December 1999, states that they only withdrew the appeal “because of (the) stress” it was causing him.

Following advice that the same adjudicator (PJ Hanly) was to adjudicate both this application and Application 719-99, the Hablethwaites wrote to the Commissioner for Body Corporate and Community Management (“the Commissioner”) alleging that the adjudicator was prejudiced against them by virtue of the previous order, and that another adjudicator should adjudicate both matters. In a letter dated 21 January 1999 to the respondent, the adjudicator, while refuting the allegation, disqualified herself from dealing with both applications and the matters were subsequently allocated to me for determination.

There is extensive correspondence from the respondent on file concerning both the above and other matters. The volume of material has, I believe, been the major cause of the delay in both matters being resolved. I note from the file that the respondent declined to participate in a tele-conference between the parties and the (then) adjudicator on the grounds that he no longer has the ability to respond spontaneously in such situations because of health damage caused by two strokes. However, he did suggest that any conference could be conducted through a series of facsimile responses. In recognition of his disability and his wishes, I have not pursued a tele-conference with the parties which, because of their location, would otherwise have been relied on in establishing various facts. This has caused some difficulties in establishing the evidence of the parties in relation to particular matters. However I do not intend to take up the suggested alternative of a facsimile exchange with both parties as I do not believe the benefit will justify the time spent, apart from the obvious disadvantage of a paper exchange of ideas.

By letter dated 10 December 1999, the Commissioner advised the respondent that a case management decision had been made referring the matter to departmental adjudication. Subsequently, the respondent requested that a specialist adjudicator decide the application. The legislation provides that a specialist adjudicator, who in practice is generally a senior barrister in private practice with the expertise to deal with the disputed subject matter, may resolve disputes. The Commissioner responded that she believed that she could not refer the matter to specialist adjudication as an initial case management decision had already been made. I might also point out in respect to specialist adjudication that, generally, the parties must both agree a fee with the specialist adjudicator and how the payment of the fee it is to be shared between them. I am unsure whether the respondents, or the applicants, are aware of this and would be prepared to meet the substantial costs involved

Subsequent to the matter being referred to departmental adjudication, the respondent also canvassed mediation as a means of resolving these and other disputes between owners. However the case management referral of this application to departmental adjudication also precludes a referral to mediation as well as to specialist adjudication. If the parties are dissatisfied with this order, or have other problems still to be resolved, there is nothing to prevent the parties from privately approaching the Dispute Resolution Centre of the Department of Justice, or a private mediator, to attempt a mediated solution.

I have taken some time in documenting the history of this and other disputes brought before this office because the large volume of correspondence from the respondent on these matters evidences his regard for detail and a quickness to bring others to account for even minor breaches of procedure and protocol.

I will now turn to determining the issues I have identified, in their numbered order.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

1.	“We would like Peter Hablethwaite to stop poisoning & burning his grass and maintain his lots with regular mowing. His practices are detrimental to the general look of the estate, and well being of the residents.”

I agree with the respondent’s submission to the application that the method of grass control and disposal must be looked at in the context of the scheme. This is a scheme comprising, after taking into account the exclusive use areas that attach to each lot, nine acreage or part-acreage lots. The scheme is bounded by bush and a creek, and the ground is extremely sandy.

The respondent admits that his lots were uncommonly overgrown during a recent period when he was absent from the scheme. This was because the person he had made arrangements with had not carried out the maintenance tasks he had agreed to. The situation required a degree of burning and poisoning that the respondent admits was beyond what he normally has to do. He also states that the applicants for both lots employed similar measures when initially clearing their respective lots, and, further, Andrijevic had in fact sold him a quantity of the poison Andrijevic had used to kill weeds on his own lot.

The respondent agrees that large burn-offs are undesirable but believe he should be able to maintain his lots by employing the practices of spot burning (with a “Firebug”) and spot spraying (using the weedkiller “Roundup”). The respondent states that Taifalos lent him the use of his “Firebug” to test before the respondent decided to purchase his own.

Section 129 of the Act provides that the occupier of a lot must not use their lot in a way that causes a nuisance, a hazard or which interferes unreasonably with another’s use or enjoyment of their lot or the common property. Smoke from burning and spray drift from poisoning can cause a nuisance, or constitute a hazard, or effect another’s use and enjoyment of scheme property. By-laws also commonly deal with the question of nuisance. Whether an act is a nuisance or not turns on the question of reasonableness.

It seems to me that in consideration of the size and nature of the lots comprising the scheme, the use of spot burning and spot poisoning, providing a weedkiller acceptable for domestic use such as “Zero” or “Roundup” is used, is both reasonable and necessary in the circumstances. It appears in any case that the use of both measures has, at least in the past, also been adopted by the applicants of both lots. In employing both means of weed control, of course owners will need to comply with local government regulations controlling burning and poisoning.

The applicants have not provided sufficient evidence of a state of affairs that requires an order in this matter.

2.	Advice as to whether AGM called for on 23 August 1999 is valid. Last AGM was held Dec 1998.”

It is unclear from the above wording whether the applicants are either, (a) asking whether the annual general meeting can be held on the date nominated in view of the timing of the previous annual general meeting, or (b) seeking a determination of the validity of the meeting based on an assessment of the documentation (attached to the application) and events relating to the meeting. I will canvass both possibilities.

In regard to (a), I note in a letter to the Commissioner dated 8 December 1999, Marcia Hablethwaite, in the capacity of secretary/treasurer, states as follows, “The Chairman and myself decided the first financial year for which accounts would be prepared and the years thereafter should be on 30^th June. That decision did not require a resolution nor a minute, what it did require under the Act was to hold the next AGM within three months after 30^th June, which was done.”

Both the decision and the suggested consequence under the Act are incorrect. “Maria Creek Estate” was registered as a community tiles plan on 3 March 1998 under the current Act. The “financial year” for a body corporate is defined in the Schedule 4 Dictionary to the Act as –

“financial year”, of the body corporate for a community titles scheme (other than a community titles scheme established for an existing 1980 Act plan under the transitional provisions), means—

(a) the period from the establishment of the scheme until the end of the month immediately before the month when the first anniversary of the establishment of the scheme falls, and each successive period of 1 year from the end of the first financial year; or

(b) if an adjudicator changes the financial year of the body corporate—the period fixed by the adjudicator as the financial year and each successive period of 1 year from the end of the period.

The initial financial year for the body corporate was therefore 3 March 1998 to 28 February 1999 and thereafter will be from 1 March to 28 February each year. This timing can only be changed by adjudicator’s order made pursuant to section 229 of the Act. The decision by the Hablethwaites to set the end of the body corporate financial year themselves, has no legal effect and the date remains as determined by the legislation.

Section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the “Standard Module”), which is the regulation module notified in the commencing community management statement for the scheme, requires that annual general meetings must be held within 3 months of the end of each financial year. The body corporate must therefore hold its annual general meetings sometime between 1 March and 31 May each year. The 1999 annual general meeting having been held on 23 August 1999 was therefore held out of time.

I note in a letter dated 5 August 1999 from the applicants addressed to Marcia Hablethwaite as secretary, they advise her that the meeting should not be held as advised in the notice of meeting (23 August) but in December because the previous annual general meeting was held in December. All 4 co-owners signed the letter.

In regard to (b), the legislation sets out certain minimum requirements for the convening and holding of annual general meetings (see sections 42 and 45 of the Standard Module in particular). The copy of the notice attached to the application shows the notice is a handwritten, single page document. The agenda does not follow the legislative requirements in many respects. Motion 2 appears to be a personal account to the other two owners to reimburse the respondent for certain expenses which were of a body corporate nature; there are no body corporate accounts for an administrative fund and a sinking fund (see section 100 Standard Module for required financial institution accounts). There is no statutory motion for the appointment of an auditor (see section 45(3)(b)) and no budget for the coming financial year (see section 94 and sections 45(3)(c) & (d) - the sinking fund budget requires a 10 year projection of estimated costs (see section 94(3)). No proxy forms were forwarded with the notice (see section 42(3)). Section 11(1) requires an election of committee members at each annual general meeting, except in the circumstances described in the balance of the section which do not apply here; section 12 and onwards then set out the election process consisting of a notice inviting nominations, a ballot paper (voting in secret unless resolved otherwise) and a count and declaration of positions. The election process must be secret unless the body corporate decides otherwise.

The respondent has submitted that at the previous annual general meeting held on 15 April 1998, Peter Hablethwaite was elected permanent chairperson and Marcia Hablethwaite was elected permanent secretary. He submits that section 91(3) of the Act and section 25(1) of the Standard Module are the authority for this. That is not correct. Section 11(1) requires that elections must be held at each annual general meeting – there is no provision for “permanent” election of committee members. Section 25(1) is merely a safety net provision for when elections are either not held or for some reason do not survive (for example, disallowed by an adjudicator or the courts). Marcia Hablethwaite has submitted, in response to my facsimile inquiry, that a notice seeking nominations for committee positions was forwarded to the other owners. However while I have copies of most if not all other documents relating to the meeting, I have no copy of such a notice. It would have had to be provided earlier than the notice of meeting though Marcia Hablethwaite has in her reply mentioned it along with the other items shown in the notice of meeting, including nominating for the Architectural Garden Review Committee (the “Review Committee”- see later). I also note that invitations were not sent to owners on the occasion of the previous annual general meeting.

I am concerned that the other owners may have been deprived of the chance to gain a position on the committee because either: they did not receive an invitation to nominate; the previous “permanent” elections were seen as precluding any change on this occasion; or they did not attend, nominate or send voting papers as they considered the meeting was invalid because it was not being held within time. The applicants could well have nominated for a position and, with a maximum of seven possible members (numbers are not limited to the number of lots or owners), may well have been elected. The committee declared elected at the meeting consists of Peter, Marcia and Sandra Hablethwaite.

I shall deal separately with the motions for the amendment of the by-laws later in these reasons at Issue (4). I shall leave my determination of the validity of the meeting until after those motions have been examined. In doing so I am mindful that the position of the courts is to preserve the decisions of a meeting unless some owners have been disadvantaged in some fundamental manner. It is sufficient to say at this time that there were a series of deficiencies in the notice of meeting and in the manner of calling the meeting.

3. “Objection to holding meetings at Peter Hablethwaite’s residence as he is hostile and intimidating.”

The respondent has said in his response to the application that he has no objection to the holding of general meetings on Lot 1. While the above quote contains words alleging the respondent displays hostility towards the applicants, the respondent has in turn alleged that Mr Andrijevic has shown an aggressive nature towards him.

It seems to me from the respondent’s submission that he will likely respond favourably to suggestions that meetings be held on other lots, or perhaps some neutral location. I do not intend to make an order on this issue, as it appears to be a matter which owners will be able to determine satisfactorily between themselves. The law provides that meetings are to be held wherever the body corporate decides, except that section 44 of the Standard Module provides that owners of at least 25% of the total lots in a scheme can, by notice, prevent a meeting being held more than 15 kilometres from the scheme.

4. “We question the legality of Peter Hablethwaite’s proposed amendments.”

I have before me a copy of the notice of meeting which includes as Item 4 on its agenda –

“Submission of motions to be decided by special resolution – see p.2 for motions”.

Page 2 then states –

“Motions for decisions by special resolution for (a) see s.11 Regulation Module, for (b) s.55 of the Act. Proposed by P & M Hablethwaite of lot 3.”

Page 2 then lists out what are intended to be motions to amend the by-laws of the body corporate. It commences with two by-laws defined as (a)(i) and (a)(ii). There is nothing to show whether they are additional by-laws, a repetition of existing by-laws or existing by-laws altered in part, nor are there any introductory words in explanation. Following under (b) are the words, “Proposed amended By-laws 1.3.5.8.9. follow:” after which are shown individual by-laws with those same numbers, on pages 2 and 3.

Only by a close and matching examination of the motions with a copy of the current by-laws, is it possible to determine the intention of these motions and what the final composition of the by-laws was intended to be. From my reading of them, the intention was that (a)(i) and (ii) are indeed new by-laws, or more correctly, after examining the by-laws set out in the community management statement (“CMS”), were parts of a new by-law, By-law 17. The motions referring to by-laws 1, 3, 5, 8 and 9 were intended to replace the previous by-laws of the same number.

The legislation sets out at section 50 the procedure to be followed by a body corporate when replacing its CMS for the purposes of amending one or more of the matters contained within it, including an amendment of the by-laws.

Section 50 states –

Subsequent community management statement

50.(1) The existing statement for a community titles scheme cannot be amended, but a new community management statement for the scheme may be recorded in the place of the existing statement.

(2) The new community management statement may be recorded only if the body corporate—

(a) consents to the recording of the new statement; and

(b) endorses its consent on the new statement.

(3) For giving its consent under subsection (2)(a), the body corporate must have before it the new community management statement in the form in which it is to be recorded.

(my underlining)

Sub-section (3) clearly requires that the CMS must be before the meeting in its final form, that is, as a fully completed Land Registry Form 14. It is not sufficient that owners are provided with one or more motions purporting to be the amendments which will be incorporated into a CMS. That is, it is not sufficient that a body corporate pass motions dealing with matters to be incorporated into a CMS at some later time.

The reason is obvious in the instant case where owners have had to determine for themselves what the final by-laws in the CMS will be. It requires them to have a copy of the previous by-laws on hand and to comprehend what the series of motions propose. Apart from the difficulty involved in this exercise, owners will then need to rely on the secretary to faithfully record the changes in the CMS to be recorded. With a CMS before them in its final form, and the meeting endorsing its consent on the CMS document, owners will know exactly what by-laws they will be bound by.

In response to my inquiry as to whether a copy of the CMS was served on owners with the notice of meeting, Marcia Hablethwaite in her facsimile letter of 22 Febuary 2000 said this did not happen but then went on to say that “all the evidence indicates it (the CMS) was (tabled at the meeting)”. The minutes do not show that the CMS was present. In any case, it has been the practice of adjudicators in deciding matters involving section 50(3) of the Act that the words “the body corporate must have before it the new community management statement in the form it is to be recorded” must be interpreted to mean that all owners must receive a copy of the CMS with the notice of meeting so that they may make an informed decision on the relevant motion. That is, it is not sufficient that the CMS be merely available at the meeting because this would mean that persons voting by voting paper will not have had the essential benefit of viewing the proposed changes to the CMS in its registrable form.

In considering together both the failure of the body corporate to follow the legislative requirements in respect of the by-law amendment motions, and the deficiencies in both the notice of meeting and the calling of the meeting found in (2), I consider that the whole of the meeting should be declared invalid and I have made an order to this effect.

This means that the resolutions passed at the meeting are of no effect. The only resolutions of consequence are those seeking to amend the by-laws, and because of the order the current CMS containing the changed by-laws must be replaced. I am fully aware that the Hablethwaites, with 7 of the 9 lot votes and 700 of the 900 contribution lot entitlements, hold sway in respect of special resolutions (see section 98 of the Act) and therefore could easily convene a meeting and have an identical CMS agreed to (assuming the deficiencies pointed out are not repeated). However, for reasons that will be apparent after a reading of my comments in respect of the next issue (5), I am hopeful that the owners will take the opportunity to reconsider all of the by-laws before they replace the CMS. It is for this reason that I have allowed a period of 3 months for the CMS to be replaced, in the hope that a compromise set of by-laws can be negotiated between owners (though see (5) regarding By-law 1).

5. “We do not understand what level of noise is acceptable to Peter Hablethwaite.”

The decisions by the Review Committee (see my comments regarding this committee in the Reasons to Order 719-99) regarding what is acceptable and unacceptable noise, appear to lie at the heart of the discord between the respondent and the other owners. While the respondent may well say in his submission that “ Mr Hablethwaite is not the arbiter of noise levels, the Body Corporate is, which is a separate entity”, the reality is that he and his wife, as the owners with overwhelming voting power and the sole members of the Review Committee, are effectively the voice of the body corporate. Furthermore, despite the disclaimer, the respondent also appears to regard this as the reality in his letter of 25 August 1998 to Mr Andrijevic regarding the imminent annual general meeting, when he states –

“At the meeting tomorrow I will read the proposed resolution & we will then vote on it. As Marcia & I have seven votes the resolution will be carried & the meeting will be closed.

You are of course entitled to attend & vote however I thought I would tell you that it won’t make any difference if you vote or not, so you may not want to waste your time.”

That is a telling statement as to how the body corporate operates. I have already pointed out that the Hablethwaites have the voting power to pass special resolutions for a substitute CMS containing amended by-laws. However, the mere passing of a resolution and the subsequent recording of the CMS by the Registrar of Titles, does not make bad by-laws good. In fact section 58(2)(b) of the Act specifically warns that the recording of a CMS does not mean that the by-laws it contains are valid and enforceable. That is, the recording of by-laws does not mean they are valid by-laws.

Additionally, while the committee or the body corporate in general meeting may decide in the first instance as to the applicability of a by-law in a particular situation, that decision is open to review by an adjudicator and the courts.

Summarising in plain words: a recorded by-law seeking to control, for example, equipment noise, may not necessarily be a by-law a body corporate is able to make; and secondly, even if a by-law concerning noise is a valid by-law, then a decision by the body corporate that a person has breached the by-law in a particular instance may be overturned by order if the decision was unreasonable.

The applicants have given several instances of the unreasonableness of both the “old” by-laws concerning machinery noise (By-law 9) and the first paragraph of “new” By-law 1. New By-law 1 is a composite of old By-laws 1 and 9, but with some relaxation in the time and day restrictions. The relevant parts of the by-laws are as follows –

Old By-law 9 (in part):

Noisy machinery and the like e.g. lawn mowers, generators, chain saws etc., shall be operated only between the hours of 7.30am – 4.30 pm on only two days per week nominated by the Body Corporate.

New By-law 1 (in part):

Noisy machinery and the like e.g. lawn mowers, generators, chainsaws etc shall only be operated between the hours of 7:30am – 4:30pm on only two days per week Monday to Friday nominated by the Body Corporate and on Saturdays.

A lot owner intending to build must advise the Architectural and Garden Review Committee which will consider extending the noise days from 3 to 6 per week and allowing the start time of 7am.

The applicants ask, firstly, do the new and old by-laws prohibit them from operating their tractor to tow a fishing boat trailer outside of the nominated hours of 7.30am and 4.30pm? Secondly, must they finish mowing, regardless of nearing completion, at 4.30pm? Thirdly, with a wet climate, shouldn’t owners themselves be able to nominate the fixed number of days per week they are permitted to use mowers, chainsaws etc?

I have read the adjudicator’s reasons to Order 321-98 issued on 23 October 1998 in respect of an application by the Hablethwaites against Andrijevic concerning alleged breaches of By-law 9. The noise complained of at that time was the result of Andrijevic preparing the grounds of his lot and in preparation for building a dwelling. I agree with the view expressed by the adjudicator that to put in place by-laws restricting the use of drills, saws and nail guns in building construction, and heavy machinery in site preparation, because of the noise, was an unreasonable restriction on owners.

The Johnstone Shire Council has as its local law policy for residential construction sites, the following restrictions in respect of power tools, concreting equipment, generators, and the like – from 7 am to 7 pm Monday to Saturday; 8 am to 6 pm on Sundays and Public Holidays. The same time and day restrictions apply in respect of residential premises for the use of lawn mowers, power tools and hammers.

While owners are bound by these restrictions as residents within the local government area, the body corporate is not bound to adopt the same times in formulating its by-laws. However, in the circumstances of the scheme, they appear to me to be a reasonable guide for the body corporate to adopt in seeking to impose noise restrictions on the use of machinery or tools in both the situations of house construction (power tools etc) and day to day living (lawn mowing). In a hot, sub-tropical climate I consider it to be totally unreasonable to expect an owner not to mow after 4.30pm. – in fact, mowing after 4.30pm in the cooler part of the day would be the better choice! It is also unreasonable to restrict an owner in the use of their lawn mower to Saturdays and two other nominated days. It is also quite unreasonable to restrict building and construction to finish at 4.30pm each day and for the body corporate, at its discretion, to be able to restrict construction to 3 days a week. Site and building construction will be a one-off event for each lot, with only limited periods of construction after each main dwelling is completed. If the by-law were to continue in its present form, future purchasers would be faced with both delays in having their home completed and likely increased costs through the inconvenience caused to builders and tradespersons having to continually suspend and restart work.

The respondent states that new By-law 1 incorporates a relaxation of the restrictions contained in old By-law 9 as to starting times and days, and should be acceptable to owners. Clearly it is not acceptable to them nor do I think that it should be for the reasons I have given above.

Section 223(3)(i) of the Act provides that an adjudicator may find a by-law to be unreasonable and require that it be removed from the by-laws of a scheme. This section states –

223. Orders of adjudicators.

(3) Without limiting subsections (1) and (2), the adjudicator may, for example –

(i) if satisfied a by-law (other than an exclusive use by-law) is, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable, order the body corporate to lodge a request with the registrar for the recording of a new community management statement—

(i) to remove the by-law; and

(ii) if it is appropriate to restore an earlier by-law—to restore the earlier by-law; or

While I do not consider that the by-law could be fairly described as “oppressive”, which is categorised as the “cruel or unjust exercise of authority or power” (see The New Shorter Oxford English Dictionary,1993 Edition, at page 2010), I do consider that it is “unreasonable” in its restrictions on owners. I have therefore made an order based on the unreasonableness of By-law 1 in the terms set out in the order. This order is made in the particular circumstances of the scheme, especially in consideration of the size and configuration of the lots and common property, and is not meant to apply generally to schemes either in this local government area or other local government areas.

Accordingly, when the body corporate is considering the composition of its noise by-laws to be incorporated in its replacement by-laws, it should be guided by the time limits set by the Johnstone Shire Council in restricting noise relating to the use of machinery in construction, lawn mowers, power tools, etc. Although the respondent may be dissatisfied with this view, I consider that it is both an objectively based and reasonable solution to what has been a source of conflict, including the threat of physical harm, which owners seem incapable of resolving themselves. If the respondent is of a mind to re-impose similar timing restrictions in new By-law 1, then other owners might consider an application for the by-law to be struck out and for a further order to be made in the matter.

I have not been asked in the application to determine by order the validity or reasonableness of any of the other by-laws and therefore I will not do so. However I wish to make some brief comments in support of my earlier suggestion that owners should take the opportunity to review them in view of my order. That is, rather than putting forward the same by-laws, owners might consider either changing, removing or adding to them. In looking at the new by-laws, in some cases only clarity is required while others need to be scrutinised as to their validity.

For example, By-law 9 should be clarified if it is to be retained - see my reasons to Order 719-99; the setting of a value in By-law 5 should be scrutinised; does By-law 8 only apply to By-law 9 or does it preclude a committee determining, for example, what are reasonable steps under By-law 2? – also, what category of resolution is meant by “vote”; the restraint under By-law 12 should be scrutinised; is By-law 13 meant to discriminate against tenants (see section 37(4) of the Act preventing such discrimination); the requirement in By-law 14 should be scrutinised - is it intended an offender is to assume the costs of all road repairs, or just that caused by the offending vehicle, if ascertainable; Public Risk insurance is regulated by law (see section 136 of the Standard Module), and may alter from the current $10m; the manner of calling meetings is regulated, including the provision of proxies, company nominee forms, voting papers, financial statements, etc to owners, as is the manner of voting (see Part 4 of the Standard Module).

It should be obvious from these comments that the suggested review of the by-laws is necessary.
The by-laws should be clearly drafted to prevent avoidance by those whom they seek to regulate, and abuse by the body corporate in applying them. If the body corporate merely reinstitutes the same by-laws it will likely lead to disputes over both interpretation and application which is in no one’s interest. This office offers an Information Service on Freecall 1800 060 119 and its members will assist owners where possible.

For the same reasons that I have found new By-law 1 unreasonable, I also regard old By-law 9 unreasonable and therefore in my order I have not ordered its reinstatement.

As a final comment, the respondent has stated that he is tired of the conflict between themselves and the other owners and is seriously considering the option of dissolving the scheme (see Part 10 of Chapter 2 of the Act) and converting the lots into freehold title lots. That is a matter that will require a resolution without dissent of owners, though there is provision for an approach to the courts for a dissolution order where it is just and equitable to do so. This is a matter that only owners can determine for themselves, however it could be one of a number of options to be discussed if mediation is sought.