Xanadu East [2000] QBCCMCmr 510 (4 October 2000)

P G DanielsREFERENCE: 0305-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26380
Name of Scheme:	Xanadu East
Address of Scheme:	3582-3600 Main Beach Parade MAIN BEACH QLD 4217

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

Yoshiteru Kikuchi the owner of lot 68



P G DanielsI hereby order that the application for an order that:

The owner of Unit 71 restore the carpet floor as it was originally before replacement with tiles.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0305-2000

“Xanadu East” CTS 26380

The applicant, Yoshiteru Kikuchi, the owner of lot 68, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

The owner of Unit 71 restore the carpet floor as it was originally before replacement with tiles.

Section 223(1) 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)).

The applicant, Yoshiteru Kikuchi, the owner of lot 68, seeks an order that the owner of lot 71 Margot Tims replace tiles in certain areas on the floor of her lot with carpet. Mr Kikuchi claims that impact sounds are coming through the floor of lot 71 into his lot. He claims that the sounds diminish the peaceful enjoyment of lot 68. Lot 68 is directly beneath lot 71. The matter has been raised with the body corporate manager and Committee. However, there has been no resolution of the dispute.

Ms Tims became the owner of lot 71 in July 1999. She states that with the full knowledge and approval of the developer’s representative she arranged for the tiling work to be done in August 1999.

All of the lots in the scheme generally have some floor areas that are carpeted and other areas tiled. The entrance way, laundry, kitchen and bathrooms are all tiled. The bedrooms, dining and lounge areas are carpeted.

I inspected lots 68 and 71 on 28 September 2000. The areas in lot 71 that are tiled and which are carpeted in lot 68 are the dining and lounge areas, the hallway leading past the two bedrooms and the wardrobes of the bedrooms. The main bedroom has a walk in wardrobe. It is these areas which the applicant wants carpeted.

I observed that Ms Tims had taken certain action to alleviate the force of impact sounds on the tiled surface. The legs of the lounge chairs and foot rest all had felt underneath them. Dining chairs had rubber stoppers on their legs. A number of mats had been laid over the tiled walking area. However, a significant amount of the area did not have mats.

During my inspection I arranged for a trainee clerk working with the Department of Natural Resources, Peter Armstrong, to make various impact noises on the floor of lot 71 while I listened for any resulting noise in lot 68. I arranged for Mr Armstrong to walk hard, moderately and softly initially with leather business shoes on and then shoes off on the areas in lot 71 that are tiled and which are carpeted in lot 68. The only area excluded was the wardrobe of the smaller bedroom. That particular tiled area is quite small.

The test was of course entirely subjective. There was no expert evidence submitted in support of the application. My aim was to obtain an impression of how strongly impact sounds are being transmitted into lot 68.

The results of the test were as follows.

Hallway leading to the two bedrooms, dining and lounge areas: Hard walking, with shoes on and off was clearly audible. A thumping sound was made. Moderate walking, with shoes on and off was barely audible. Soft walking was not audible at all.

Wardrobe of the main bedroom: With shoes on hard walking was clearly audible. Moderate walking was barely audible and soft walking was not audible. Without shoes on, only hard walking was audible.

Moderate closing of the minor bedroom door: The noise was barely audible.

My examination indicated that moderate impact noise should only be barely audible in lot 68. However, significant impact sounds can be clearly heard.

The question that needs to be addressed is whether the owner of lot 71, Ms Tims is contravening the by-laws for the scheme or the Act.

The relevant By-laws are as follows:

“3. STRUCTURAL ALTERATIONS PROHIBITED

3.1 No structural alterations shall be made to any Lot (including alterations to gas, water or electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony, if any, of any Lot and including the installation of any air-conditioning system) without the prior written consent of the Committee.

...

18. NUISANCE

18.1 No noxious or offensive trade or activity shall be carried on upon the parcel or in any Lot nor shall anything be done thereon which may be, or may become an annoyance or nuisance to the neighbourhood or which may be likely to interfere with the peaceful enjoyment of the lot owners and occupiers of other Lots or any person lawfully using the common property in particular and without limiting the generality of the foregoing:-

(a) no loud noises, noxious odours, exterior speakers, horns, whistles, bells or other sound devices (other than security or warning devices used exclusively for such purposes), noisy or smoking vehicles, large power equipment or large power tools, unlicensed off-road motor vehicles or items which may unreasonably interfere with television or radio reception of any residence shall be located used or played on any portion of the parcel or exposed to the view of other lot owners or occupiers without the prior written consent of the Body Corporate;

...

(d) in the event of any unavoidable noise in a Lot at any time the occupier or lot owner thereof shall take all practical means to minimise annoyance to other residents by closing all doors, windows and curtains of their Lot and also such further steps as may be within their power for the same purpose;”

27. OBSERVANCE OF THESE BY-LAWS

27.1 The duties and obligations imposed by these By-Laws on a lot owner or occupier of a Lot shall be observed not only by such lot owner or occupier but by the tenants, guests, servants, employees, agents, children, invitees and licensees of such lot owner or occupier. A lot owner or occupier of a Lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the lot owner or occupier of another Lot or of any person lawfully using the common property.

Section 129 of the Act is also relevant. It provides as follows:

Nuisances

129. The occupier of a lot included in a community titles scheme must

not use, or permit the use of, the lot or the common property in a way

that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot

included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common

property by a person who is lawfully on the common property.

The applicant has suggested that By-law 3 applies to this matter. He has asked for proof of the consent of the Committee for the tiling work done. I find that By-law 3 is not relevant to this matter. I find that changing a floor covering is not a structural alteration to a lot. In any event, the real issue in this case is not whether Committee consent has been obtained but rather whether the noise results in a contravention of the nuisance by-laws or section 129 of the Act.

By-law 18 relevantly proscribes anything being done in a lot “... which may be likely to interfere with the peaceful enjoyment of the lot owners and occupiers of other Lots...” Additionally, By-law 27.1 requires that lot owners and occupiers “... shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the lot owner or occupier of another Lot...”

Paragraphs (a) and (b) of section 129 are relevant. Paragraph (a) prevents a lot being used in a way that causes a nuisance. Paragraph (b) prevents a lot being used in a way that interferes unreasonably with the use or enjoyment of another lot. As the law of nuisance incorporates the concept of the reasonable use of land, the paragraphs have a similar effect.

A prominent legal writer, Fleming states the following about the law of nuisance in his work “The Law of Torts”:

“To constitute a legal nuisance, the annoyance or discomfort must be substantial and unreasonable. Life in organised society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference, and must take a certain amount of risk in order that all may get on together. The very existence of organised society depends on the principle of give and take, live and let live, so that the law of torts does not attempt to impose liability or shift the loss in every case where one person’s conduct has some detrimental effect on another. Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances.

The paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other... Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two-sided affair. It is viewed not only from the standpoint of the defendant’s convenience, but must also take into account the interest of the surrounding occupiers. It is not enough to ask: is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, is he using it reasonably, having regard to the fact that he has a neighbour?”

I find that there is no contravention of section 129 of the Act. In my view, lot 71 is not being used unreasonably by having parts of the floor tiled that are carpeted in other lots. My own assessment indicates that moderate impact noises are only barely audible in lot 68. I take into account that lot 71 is generally occupied by persons on holidays. It may be expected that such persons would make more and louder impact noises than an owner/occupier. However, if that does occur the fault lies with the occupiers rather than the floor.

In respect of By-law 18.1 I will initially address the opening paragraph of the By-law and then specifically consider paragraphs (a) and (d). I find that there is no contravention of the opening paragraph of By-law 18. In my view, the tiled floor does not interfere with the peaceful enjoyment of lot 68. Moderate impact sounds are barely audible. If occupiers create large impact sounds, then the fault lies with the occupiers rather than the floor. As I have found that there is no contravention of the opening paragraph of By-law 18 I also find that there has been no contravention of By-law 27.1. By-law 27.1 is also directed at actions likely to interfere with the peaceful enjoyment of a lot.

The only part of paragraph (a) of By-law 18.1 that is relevant is the phrase “loud noises”. It is difficult to connect that phrase to the remainder of the paragraph. Despite that difficulty, I find that there is no contravention of the By-law. The tiled floor itself if not a “loud noise” and the moderate use of the floor does not result in loud noises in lot 68.

Paragraph (d) provides that a lot owner must take steps to minimise annoyance to other residents in respect of unavoidable noise. In this case, Ms Tims has taken some action. I have referred to it above. She has taken action to lessen the noise from moving chairs and placed mats throughout the lot. I find that there is no contravention of paragraph (d).

In light of my reasons above, I dismiss the application.