Jacaranda Close [2002] QBCCMCmr 100 (22 February 2002)

DP GardinerREFERENCE: 0562-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5993
Name of Scheme:	Jacaranda Close
Address of Scheme:	74 Wardoo Street ASHMORE QLD 4214

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

Ms Sue Nock, the Owner of lot 17 for an order that the occupants of lot 18 refrain from causing smoke and odours, due to the use of their barbecue from entering unit 17.2n


DP GardinerI hereby order that the application for an order that the occupants of lot 18 refrain from causing smoke and odours, due to the use of their barbecue from entering unit 17 is dismissed.2n
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0562-2001

“Jacaranda Close” CTS 5993

The applicant Ms Sue Nock, the Owner of lot 17, in an application dated 13th September 2001 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“ that the occupants of lot 18 refrain from causing smoke and odours due to the use of their barbecue from entering unit 17.”2n

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)).

In the supporting grounds, the applicant states that the conduct of the respondents which cause smoke and odours which emanate from the barbecue constitutes a nuisance and is a breach of by-law 1 of the community management statement. The Applicant also contends that the barbecue is used4-5 times per week with the smoke and odours which enter unit 17 are at levels which cause great distress and discomfort to the applicant.

At a body corporate meeting held on the 18^th September 2001, the use of the barbecue by the respondents was discussed at length with the Committee not being prepared to resolve that the occupiers of unit 18 cease the use of their barbecue.

Following the observation by the dispute should be sorted out between the parties, the Applicant’s solicitor requested the parties submit to formal mediation, However, the Applicant declined the offer of mediation by the Dispute Resolution Centre (DRC) as confirmed in the letter dated 10th January 2002.

In their response, the Respondents assert that the complaints did not arise until after the amicable relations with the applicant had deteriorated and that, apart from one occasion on 22 July 2001 when some fat was spilt on the hot barbecue plate which generated some smoke for about 5 minutes.

In recent correspondence, the Respondents assert that they have only used the barbecue once since last August to avoid exacerbating the situation. The Applicant however contends that current usage is perhaps once or twice a week with smoke or fumes filling the bedroom of the Applicant’s mother whose illness can keep her in bed for days, The applicant’s mother is said to be a chronic asthmatic and bronchitic who is said to have been ill for some 3 years.

In my assessment of this dispute, I have carefully considered all the information provided which is too voluminous to set out in full. There are clearly disputed questions of fact of some significance which I cannot resolve in the absence of oral testimony. However that does not prevent me from determining this matter by reference to those facts which are not controversial.

Circumstances such as those that arise here call for a commonsense approach and the use of knowledge gained about the use of barbecues which most members of the community possess or are likely to possess.

Applying such an approach, it seems to me that the ordinary use of a gas barbecue lasts no more than 15 to 20 minutes and that whatever odours that result do not generally produce concentrated smoke. Moreover, there is often little that can be practically done to prevent some odours wafting around as this is largely a function of air movement.

I note that the Applicant does not want to prohibit the use of the barbecue, rather that the Respondents refrain from causing smoke and odours from entering Unit 17.

I do not intend to make an order that is impossible to comply with or is onerous to the Respondents, as would be the case if I granted the order sought by the Applicant, nor do I intend to make an order prohibiting the Respondents from using their barbecue as such an order is not justified on the facts.

In the result, I order that the application is dismissed.







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