Palm Villas [2000] QBCCMCmr 468 (15 September 2000)

PJ HanlyREFERENCE: 0193-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10559
Name of Scheme:	Palm Villas
Address of Scheme:	20 Dunlop Court MERMAID WATERS QLD 4218

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

Gabi Elishav, the occupier of Lot 11



I hereby order that the application by Gabi Elishav, the occupier of Lot 11, for an order that the body corporate change the hours of operation of the common property sprinklers, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0193-2000

“Palm Villas” CTS 10559

The applicant, Gabi Elishav, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the body corporate alter the common property sprinkling times.

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)).

In the supporting grounds, the applicant states that the common property sprinkling system is located outside a bedroom window of Lot 11. He states that the system turns on at 5 am on Wednesday, Friday and Sunday and wakes him up. The applicant would prefer the system outside Lot 11 to operate from 11 pm three nights a week. He states that the body corporate has refused to change the sprinkling times.

A copy of the application was forwarded to the secretary for distribution to all members of the committee. Mr Tom Harrison from Active Bodycorp Management Pty Ltd responded to the application on behalf of the committee. Mr Harrison states that an automated sprinkler system has operated for most, if not all of the time since the scheme was established. He further states that the system is controlled from a central station and operates in four half hour stages from 4 am to 6 am. Mr Harrison further states that the system cannot be varied, other than the time of commencement and the operation period. Mr Harrison opposes the application for the following reasons:

1.	Some residents use common property grounds after 11 pm and their use of the common property would be interfered with if the sprinklers were in operation at this time.
2.	The present sprinkler cycle times have been selected to cause the least interference to residents and to maximise the effectiveness of the system.
3.	The noise created by the system is reasonable and there have been no other complaints received prior to the arrival of the applicant.
4.	The committee has responded to the concerns of the applicant by adjusting the height of a sprinkler jet and by removing a plant which was in the direct line of the spray from a sprinkler jet.

The body corporate has a duty under section 114 of the Act to “administer, manage and control the common property reasonably and for the benefit of lot owners; and comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.”

The regulation module applying to this scheme is the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). Section 109(1) of the Standard Module provides that the body corporate must maintain common property in good condition. The operation of the sprinkler system forms part of the management and maintenance of the common property lawn and gardens. The applicant considers that the operation of this system interferes unreasonably with the use of Lot 11.

The sprinkler system operates throughout the entire scheme and is integral to the proper maintenance of the common property. Mr Harrison has stated that the system has operated at the current times for a long period of time without complaint from residents, and that the system cannot be modified to provide an individual service to the common property surrounding a particular lot, in this case Lot 11. In my view, as the system cannot be modified to cater for the needs of individuals, the body corporate has an obligation to adopt an operation time which would benefit lot owners generally.

Mr Harrison included a copy of a letter from Mr Edwards, the owner of Lot 1, who states that while the noise from the sprinklers has been mentioned, the present operation times are considered to be the most appropriate for owners generally. I consider that the body corporate has adopted reasonable times given that sprinkling is most effective in the cooler hours of the day, and that there is every possibility that owners and occupiers will be using common property late at night. In my view, the applicant’s contention that the sprinklers could operate from 11pm to 1am does nothing to improve the situation. While these times may alleviate his problem, any noise could still interfere with those occupiers who may be sleeping at these times. Further, there is a greater likelihood that common property will be used at these times, and that a person’s lawful use of common property will be affected by the operation of the sprinkler system.

In addition, I consider that the committee has acted reasonably in response to the concerns of the applicant by performing work to reduce the noise of the sprinkler jets near Lot 11.

For these reasons, I am satisfied that the body corporate has acted reasonably and for the benefit of owners and occupiers generally in respect of this matter. Therefore, I have dismissed the application.
1n