Teneriffe Hill Apartments [2000] QBCCMCmr 25 (21 January 2000)

C G YOUNGREFERENCE: 0779-1999

INTERIM 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,

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

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

“Teneriffe Hill Apartments” CMS 24567

The applicant body corporate 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 has not sought any further order in the matter, though at item 12 of the application the applicant has indicated that mediation with the respondent may assist in resolving the dispute.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In support of the order sought, the applicant has given brief details of the respondent’s behaviour and attached copies of relevant correspondence between the Body Corporate Manager and the Building Manager, the owner of Lot 43, and the respondent (Ferguson).

The behaviour being complained of is noise nuisance, including: loud music; music after a reasonable hour at night; shouted abuse directed to persons complaining of the noise; and stomping on the unit floor allegedly as a deliberate measure to disturb the occupiers of the lot below. The application adds that the police have spoken to the respondent on at least two occasions in response to complaints regarding noise.

The letter from the Body Corporate Manager to the respondent dated 9 June 1999, mentions complaints being received from a number of occupiers. The owner of Lot 43 states that neighbours both within and without the scheme have called out to them [the respondent and invitees] to keep the noise down.

Generally, before an interim order is made which may affect a person, that person will be invited to make a submission in answer to the matters raised by the applicant. That has not been done in this instance for the following two reasons. Firstly, applications regarding noise are not viewed by adjudicators as warranting an interim order; interim orders are only issued where they are necessary because of the nature or urgency of the circumstances of a dispute. Noise nuisance does not constitute grounds for urgency, nor is it of such a nature than requires an interim order except perhaps in extreme circumstances. 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.

I have recommended that, concurrent with the issue of this order, submissions be sought from the respondent and other interested parties, following which the dispute be referred to the Dispute Resolution Centre.

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. For that reason I urge the parties to enter into the mediation process with a positive attitude and a desire to achieve an acceptable settlement of the dispute.