Dearborn [2002] QBCCMCmr 609 (7 October 2002)

P J HANLYREFERENCE: 0385-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3820
Name of Scheme:	Dearborn
Address of Scheme:	21 Ford Street CLAYFIELD QLD 4011

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

Dennis Todd Dickman, the owner of lot 1



I hereby order that the application for an order that the owner of lot 3, Kym McCluskey, re-carpet her lot, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0385-2002

“Dearborn” CTS 3820

The applicant, Dennis Todd Dickman, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I believe that the floor covering recently removed (from lot 3) in the lounge room, hallway, bedrooms and kitchen should be replaced.

Section 223(1) of the Act 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 carpet and vinyl have been removed from the unit above him (lot 3), leaving exposed boards. The applicant further states that the impact on his living environment has changed dramatically, in that he can now hear all movements from the lot above, and only has peace and quiet when the owner is not home.

The owner of lot 3, Ms Kym McCluskey, was invited to respond to the application. In her submission, Ms McCluskey provided background to the dispute, and detailed her attempts to resolve the matter with the applicant. Ms McCluskey stated that when she is at home she removes her shoes, and doe not engage in any activities inside the lot which result in excessive movement or noise. Ms McCluskey further stated that she is willing to place rugs and runners in various traffic areas of the lot in order to minimise noise transmission.

The applicant responded to Ms McCluskey’s submission, but took the view that the rugs would need to cover a greater area than indicated by Ms McCluskey to keep the noise transmission to a tolerable level.

An inspection of both lots was conducted on 8 August 2002 by another departmental adjudicator, Mr Colin Young. The applicant and Ms McCluskey were both present at the inspection. Mr Young provided a report of his inspection for the file. Mr Young observed that the floor of lot 3 was polished wooden flooring, and that the floorboards appeared to be the original flooring laid at the time of construction of the building. Mr Young further observed that Ms McCluskey had placed rugs and carpet runners in various positions throughout the lot to reduce noise, after the applicant had complained. Mr Young reported that Ms McCluskey advised him that she and her partner removed their shoes when they were in the lot, and also requested their guests to do likewise. Mr Young observed that the applicant’s floor had similarly polished wooden floorboards, but that noise transmission was not an issue as his lot was on the ground floor. Mr Young arranged for another member of the Commissioner’s staff, who had accompanied him to the inspection, to walk through lot 3. This staff member, Ms Amelia Clarke, was wearing heavy leather shoes, and Mr Young stated that her footsteps could be clearly heard in lot 1. However, when the staff member removed her shoes and walked through the lot, Mr Young stated that the noise was much reduced, and would only be noticeable in the applicant’s lot if specifically listened for.

Mr Young had further discussions with the applicant and Ms McCluskey, and recommended that they attend mediation, in an attempt to reach a mutually acceptable resolution to the problem. The application was then referred to the mediation services offered by the Dispute Resolution Centre of the Department of Justice. Subsequently, the Centre advised the Commissioner’s office that Ms McCluskey was willing to attend the mediation, but that the applicant did not contact the Centre and so no mediation could be conducted.

The applicant subsequently advised that he wished to have the matter resolved by departmental adjudication.

This scheme was registered as a building units plan (now described as a building format plan) on 12 June 1992. It is now regulated by the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997. At the time of registration, however, the Building Units and Group Titles Act 1980 (BUGTA) was in force, and the by-laws applicable to the scheme were those found in the Third Schedule of BUGTA, together with two further by-laws relating to the exclusive use, and maintenance, of carparks. Those by-laws have continued in force (section 285(5)(a) of the Act).

By-law 1 provides that an owner shall not create any noise likely to interfere with the peaceful enjoyment of the owner of another lot or of any person lawfully using common property. There is no by-law regulating floor coverings, or requiring an owner to obtain body corporate approval for changes to floor coverings.

In addition, section 129 of the Act provides as follows:

129 Nuisances

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.

It appears that Ms McCluskey has already taken steps to minimise the noise transmission from her lot, by placing rugs and carpet runners in heavy traffic areas, and by removing her shoes when she is inside the lot. The applicant considers that rugs should be placed over more of the floorboards, and has provided a sketch of the additional areas. In my view this would be tantamount to having all of the floorboards re-carpeted. I do not propose to make such an order. There is a certain amount of noise which should be regarded as inevitable in community living as it is not possible to eradicate all noise. Furthermore, Ms McCluskey has not laid new flooring (not that she would have been prevented from doing so by the existing by-laws), but has simply utilised the existing floorboards. The fact that the original construction did not provide better soundproofing is not a matter over which Ms McCluskey had, or has, any control. The only other noise minimisation that Ms McCluskey might consider is to place felt under the legs of her chairs.