Calypso Court [2001] QBCCMCmr 16 (12 January 2001)

P G DanielsREFERENCE: 0571-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17647
Name of Scheme:	Calypso Court
Address of Scheme:	4 Clifton Court NORTH WARD QLD 4810

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

Josephine Di Bartolo an occupier of lot 5



P G DanielsI hereby order that the By-laws of the Body Corporate for Calypso Court community titles scheme 17647 are not being contravened by the presence of a siren/light on the balcony of lot 5 as at the date of this order.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0571-2000

“Calypso Court” CTS 17647

The applicant, Josephine Di Bartolo, an occupier of lot 5, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that allows a siren/light to remain on the balcony of lot 5.

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)).

This application relates to a security system operating for the benefit of lot 5. A siren/light box has been mounted on the balcony of lot 5.

Richard Butler of Butlers Commercial Services Pty Ltd, the body corporate manager, forwarded a letter dated 28 September 2000 to a co-owner of lot 5 that states as follows:

“I have received an objection from Mike Downey, proprietor of unit 6, against the installation of a security system to unit 5 by your tenant.

The alarm went off at approximately 3.40am on the morning of 28 Sep. 00 and subsequently went off another 24 times until such time as the installer could contacted out to fix the problem.

The objection is made under bylaws 8 ‘appearance of the building’ and 22 ‘alteration to lots and common property’. I enclose a copy of the relevant bylaws.

Could you please advise your tenant of the body corporate’s requirement in that by affixing the siren and light mechanisms to the balcony wall a breach of the by-laws has been committed and that they must be removed.”

The applicant argues that by-laws 8 and 22 are not relevant to this matter.

Mr Butler has made a submission on behalf of the Body Corporate (the body corporate submission). In addition to by-laws 8 and 22, a contravention of by-laws 18, 35 and 38 is alleged. I will consider each by-law separately.

By-law 8 provides as follows:

“Appearance of building. A proprietor or occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his lot in such a way as to be visible from the common property or any other lot or any other lot PROVIDED THAT a proprietor or occupier of a lot may hang washing to dry naturally in the area so designated.”

It will be observed that there are two grouping of items in by-law 8. Both groupings contain specific items followed by general words. Applying the ejusdem generis rule of interpretation, the meaning of the general words is constrained by the preceding specific words.

The first group of words is “washing, towel, bedding, clothing or other article”. A siren light is not covered by the specific items nor is it an article of a like nature.

The second group of words is “sign, advertisement, placard, banner, pamphlet or like matter”. Once again, a siren light is not covered by the specific items nor is it an article of like nature.

I find that there has been no contravention of by-law 8.

By-law 18 provides as follows:

“Noise.

(a)

A proprietor or occupier of a lot, their guests, servants or agents shall not make or permit any noise likely to interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots or of any person lawfully using the common property. In particular no proprietor or occupier of a lot shall hold or permit to be held any social gathering in his lot which could cause any noise which unlawfully interferes with the peace and quietness of any other proprietor or occupier of a lot, at any time of day or night and in particular shall comply in all respects with the Noise Abatement Act 1979, as amended.

(b)

In the event of any unavoidable noise in a lot at any time the proprietor or occupier thereof shall take all practical means to minimise annoyance to other proprietors or occupiers of lots by closing all doors, windows and curtains of his lot and also such further steps as may be within his power for the same purpose.”

I have not reproduced paragraph (c) as it is not relevant.

In my view, a contravention of by-law 18 did occur when the siren “went off” soon after its initial installation. However, I would not order the removal of the siren/light on this basis. I am required to make a “just and equitable” order to resolve a dispute: section 223 of the Act. I do not believe such an order would be just and equitable as it was an isolated problem occurring soon after installation. There is no evidence before me that the problem has reoccurred.

By-law 22 provides as follows:

“22. Alteration to Lots and Common Property.

(a)	A proprietor or occupier of a lot shall not construct or permit the construction or erection of any fence, pergola, screen, awning or other structure or outbuilding of any kind within or upon a lot or on common property without the approval in writing of the Body Corporate.

.........

(c)	A proprietor or occupier of a lot shall not alter the external colour scheme of any structure on his lot without the approval in writing of the Body Corporate.”

I will initially consider paragraph (a). As with by-law 8, there is a list of specific words followed by general words. Applying the ejusdem generis rule of interpretation, the meaning of the general words is constrained by the preceding specific words.

The specific words in paragraph (a) are “fence, pergola, screen, awning”. The general words are “other structure or outbuilding”. The siren/light is not covered by the specific words nor is it a structure or outbuilding of a like nature.

I find that there has been no contravention of paragraph (a).

I will now consider paragraph (c). It is somewhat similar to by-law 11(1)(iii). The photographs provided with the application show the external colour scheme as white and the siren/light appears to be substantially white. In any event, given the size and location of the siren/light I do no think it could alter the external colour scheme. The applicant states the size of the siren/light is 13 cm².

I find that there has been no contravention of paragraph (c).

By-law 35 is a relatively detailed by-law relating to security keys. I will not reproduce it in my reasons. The By-law only allows owners and occupiers the right to be given keys in accordance with the requirements of the by-law. It seems to me that the Body Corporate is concerned that the applicant or owner of lot 5 may have given a security key to a security firm. However, that would not be a basis on which to require that the siren/light be removed. Action to address the matter would have to focus on the keys.

By-law 38 provides as follows:

“Requests to Secretary. A proprietor or occupier of a lot shall direct all requests for consideration of any particular matter to be referred to the body corporate to the Secretary and not to the Chairman or any member of the Body Corporate.”

By-law 14 is somewhat similar. A contravention of by-law 38 would not support an order being made that the siren/light be removed. If a contravention occurred, the Body Corporate may be entitled to require that a request be referred to the Secretary.

The body corporate submission then refers to the Environmental Protection Regulation 1998 (QLD), Environmental Protection (Noise) Policy 1997 (QLD) and the Townsville City Council By-laws. I have no jurisdiction to consider alleged contraventions of those laws and policy. My jurisdiction relates to the Act and community management statement (including by-laws): section 223 of the Act.

The body corporate submission states, “The Body Corporate believes that the siren and light mechanism, which is visible on the balcony, will detract from the value of the properties by indicating a security risk for the building.” I am unable to accept that this concern is real and substantial. In any event, I note that the body corporate submission states that security access is required to enter the front doors. I do not think that the siren/light would significantly add to the impression already given.

I will make an order that the by-laws of the scheme are not being contravened by the presence of the siren/light as at the date of my order. I have limited the effect of the order to the date it is made to ensure that the Body Corporate can take appropriate action should the siren/light cause a problem in the future such as the siren constantly “going off” without there being a security problem.