Costa Brava [2002] QBCCMCmr 249 (29 April 2002)

DP GardinerREFERENCE: 0049-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10477
Name of Scheme:	Costa Brava
Address of Scheme:	2315 Gold Coast Highway MERMAID BEACH QLD 4218

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

DP GardinerI hereby order that the application is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0049-2002

“Costa Brava” CTS 10477

The applicant Body Corporate for Costa Brava, the Body Corporate of lot all, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“That the owners of Lot 5 take whatever steps are necessary to reduce the noise emanating from the lot due to the removal of the carpet and the now timber floors.”

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 owner of lot 5 was requested on 8/9/10, 9/9/01 and 13/9/01 to take action to reduce noise level, caused by wooden floors, by the Chairman, in terms of the by-law 10 which states “ a proprietor or occupier of a lot shall not upon the parcel create any likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.”

The application is dated the 23^rd January 2002.

In its letter to the respondent dated 19 October 2001, the applicant:

• referred to the removal of carpet thereby exposing timber floors which, as the common area between lots was constructed of timber, result in noise from an upper lot passing to lots below..

• advised that complaints had been received regarding noise from lot 5.

• Requested that serious consideration be given to reducing the noise level (footsteps) by re-installing carpets or supplying rugs.

In her reply dated the 23^rd October 2001, the respondent advised that measures had been taken to minimise the noise level by placing a rug in each room and that the occupant had spoken to the tenant below and was taking off his shoes while in the lot.

In addition to the information contained in the letter dated 23^rd October 2001, the respondent in her submission received on 4 February 2002 advises:

•	That the lot comprises one bedroom and lounge room combined with a kitchen.
•	That her son works during the day when the downstairs tenant is asleep, and when he is at home maintains a quiet lifestyle.

I have carefully read all the information that has been provided, including the submissions supplied by the owners of lots 2, 3 and 4 and the tenant of lot 3. Whilst I have not referred to those submissions in detail, due regard and weight has been given to their content.

This is a scheme comprising 5 lots to which the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies. Of the 5 lots, submissions have been received from 3 of the lot owners apart from the respondent. The owner of lot 1 has not responded to this application

I have viewed the plans which depict levels A and B of the scheme which reveal that lot 5 is located directly above lot 3 with each lot having an area of 45 square metres.

Given that the flooring separating the first floor (where lot 5 is located) from the ground floor is constructed of timber, it is to be expected that usage of the first floor level will produce sounds audible on the ground floor, particularly directly below.

This issue was raised by the body corporate in its letter of 19 October 2001 with the suggestion being made that rugs should be laid. The respondent acted on this suggestion very promptly and laid rugs as advised by the body corporate manager.

In my view, the respondent has done everything that could be reasonably expected to reduce the noise level to an acceptable level, particularly when regard is given to the small size of the lot..

In the result, I do not think any proper basis has been shown warranting the making of the order sought by the applicant. It follows that the application is dismissed.






2n