Kenzie Court [2002] QBCCMCmr 424 (28 June 2002)

DP GardinerREFERENCE: 0692-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20050
Name of Scheme:	Kenzie Court
Address of Scheme:	Cnr Nicol Way & Turner Drive BRENDALE QLD 4500

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

Mr Kevin John Woodland, the Owner of lot 38



DP GardinerI hereby order that the respondent is prohibited from playing music or otherwise creating a noise which interferes with the peaceful enjoyment by any other lot owner of their lot or the common property.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0692-2001

“Kenzie Court” CTS 20050

The applicant Mr Kevin John Woodland, the Owner of lot 38, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the respondents cease playing music late at night and in the early hours of the morning which interferes with the applicant’s peaceful enjoyment of his lot.


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 respondent has been playing tapes or compact discs of the following nature:

(a) a funeral service with wailing & crying etc;

(b) a sermon by a modern day preacher;

(c) Music compatible with music at a crematorium,

These tapes being played from 10:30 pm to midnight, 2:30 am to 5:00 am and for about an hour on and an hour off daily.

In her reply, the respondent says:

• She has ceased playing loud music between 10 pm and 7 am.

• When playing music after 5 am, she uses ear phones.

• She has the right to play music after 7 am which she will do with no ear phones.

I am encouraged by the respondent’s remarks that she has stopped playing music between 10 pm and 7 am without using earphones. However, the applicant must be mindful of the requirements of by-law 1 which provides:

1.

NOISE

1.1	the occupier of a lot must not create any noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.
1.2	Special consideration must be given to minimising the volume of noise between the hours of 10 pm and 7 am.

Given the history of this matter, I order the respondent to desist from playing music which does, or is likely to, interfere with the peaceful enjoyment by the applicant of his us of his lot and common property.



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