Teneriffe Hill Apartments [2000] QBCCMCmr 24 (21 January 2000)

C G YOUNGREFERENCE: 0779-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24567
Name of Scheme:	Teneriffe Hill Apartments
Address of Scheme:	Cnr Florence & Chermside Streets TENERIFFE QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate,

I hereby order that Anthony Thomas FERGUSON, the owner of Lot 63, must -

(a)	not make any further noise in his lot that is likely to interfere with other occupiers in the peaceful enjoyment of their lots, including the continued playing of loud music and singing late at night and in the early hours of the morning; and

(b)	take reasonable steps to ensure that in future his invitees do not behave in a manner likely to interfere with other occupiers in the peaceful enjoyment of their lots, including the playing of loud music and singing late at night and in the early hours of the morning.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0779-1999

“Teneriffe Hill Apartments” CTS 24567

This is the final order to an application by the body corporate which has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Immediate interim order on the Lot owner and their invitees to comply with the By-Laws concerning noise nuisance and disturbance of other occupiers – specifically By-Laws 2, 7 & 33 as attached.

The applicant also sought an interim order in the matter and on 21 January 2000 the following Interim Order 779-1999 was issued –

C G YOUNGI hereby order that the application for an interim order that the owner of Lot 63, Anthony Thomas Ferguson, comply with, and ensure his invitees comply with, the body corporate by-laws concerning noise nuisance and disturbance to other occupiers, is dismissed.2n

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)).

Since the making of the interim order, the dispute has been referred to the Dispute Resolution Centre of the Department of Justice for an attempt to settle it through mediation. This was in accordance with the views I expressed in the Reasons to the interim order, “Secondly, noise is one of a number of social problems that can arise in community title schemes where persons live in units that have common boundary structures or are otherwise sited closely to each other. Rather than an imposed order, many such social problems are better resolved through mediation and it is practice for applications concerning noise nuisance to be referred to the Dispute Resolution Centre, Department of Justice for resolution of the problem with the assistance of a trained mediator.”

While the body corporate was willing to participate in mediation, the respondent Ferguson did not respond to the invitation of the Centre. The matter was then returned to this office and the applicant subsequently requested that the application proceed to adjudication.

Apart from the lack of response to mediation, the respondent Ferguson has also not responded to the invitation by this office to address the matters raised against him in the application. In the absence of any response, I am left to determine the matter based on the evidence submitted by the applicant and a response received from one of the aggrieved occupiers in the complex, Anthony Blaney of Lot 43. I also note that the three voting members of the body corporate committee have resolved to make this application on behalf of the body corporate.

The application includes a submission from the on-site Building Managers, Leigh and Robyn Frischkorn, as to their involvement in complaints against the respondent over noise made by both the respondent and his invitees. They give details of three such occasions which they documented, though say they are aware of “many other occasions where we have asked them nicely to quieten down”. The three occasions were 8 June, 5 November and 21 December 1999, all involving party music and dance noise. The first two instances resulted in visits from the Police in the early hours of the morning in response to noise complaints. On the third occasion, as on the second, the respondent allegedly swore at those persons requesting the noise cease.

The Body Corporate Manager, Kim Jordan of Body Corporate Management, states that complaints have been made to his office about late evening noise from the respondent’s lot by a number of complex occupiers. The evidence is of continuing noise despite repeated requests to cease.

Blaney of Lot 43 confirms much of the statements of the Building Manager and the Body Corporate Manager. His lot is located above the respondent’s lot. He confirms that the respondent has made unacceptable noise in the way of “music, singing and aggressive behaviour”. He states that it is not only residents from within the complex who have complained but also neighbours from across the street. His particular complaint is that the noise occurs during weeknights and without warning.

The previous occupiers of Lot 62 who also complained of noise by the respondent, has since left the complex and no submission has been sought from them.

Section 129 of the Act requires that an occupier of a lot must not use, or permit their lot to be used, to cause a nuisance or to interfere unreasonably with another’s use and enjoyment of their lot. The inclusion of a social behaviour provision in the legislation itself, which is otherwise concerned with administrative issues, property and financial rights and the like, emphasises the importance placed on compromises in behaviour necessary for harmonious living in community title schemes. This provision has been augmented by the body corporate in formulating and adopting By-law 2 which sets out a series of rules governing noise. It includes a specific provision against social gatherings creating noise which interferes with another’s quiet enjoyment of their lot; a duty to control the noise levels of musical and sound equipment; a restriction on the playing of musical instruments; and a general duty to restrict noise especially after 10 pm. By-law 7 imposes a duty on occupiers to take reasonable steps in controlling the noise of their invitees.

Unlike a block of flats, a community titles complex comprises individual owners of lots which are generally occupied by their owners rather than rented out. The expectation of all occupiers, and particularly resident owners, is that they have the quiet use and enjoyment of their lots which includes an accommodation of the reasonable, but not unreasonable, noise of other occupiers.

From the evidence before me, which has not been denied by the respondent despite an invitation to respond, the occupier and owner of Lot 63, Anthony Thomas Ferguson, has breached his duty both under the legislation and the body corporate by-laws, firstly, not to create noise that is unreasonable and which interferers with other occupier’s quiet enjoyment of their lots and secondly, a failure to take reasonable steps to ensure his invitees do not behave in a similar manner.

As mentioned in my Reasons to the interim order, “The legislation provides for severe penalties against owners or other occupiers who breach an order of an adjudicator and it is therefore in everyone’s interest if the matter can be resolved between the parties themselves by mediation.”. It would have been preferable for the parties to have attempted to resolve the matter through mediation when some compromise arrangements may have been reached in the matter. However, the respondent has chosen not to participate in that process and an order has therefore been made against him not to continue the behaviour, or so permit his invitees, and the body corporate may prosecute any instances of non-compliance under the relevant provision of Part 11 of Chapter 6 to the Act.