San Siena [2002] QBCCMCmr 665 (8 November 2002)

DJ ReardonREFERENCE: 0512-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26908
Name of Scheme:	San Siena
Address of Scheme:	121 Sir Fred Schonell Drive, ST LUCIA QLD 4067

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

Iris McVie,


DJ ReardonI hereby order that the application for the following order of an adjudicator

“That the air conditioning unit for Lot 6 NOT be installed UNTIL there is evidence of compliance with the following:

a.	with all by-laws
b.	with all building requirements
c.	all noise level requirements, and
d.	copies of all relevant approvals be submitted.”

is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0512-2002

“San Siena” CTS 26908

1. Orders sought

The Applicant, a Co-owner of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“That the air conditioning unit for Lot 6 NOT be installed UNTIL there is evidence of compliance with the following:

a.	with all by-laws
b.	with all building requirements
c.	all noise level requirements, and
d.	copies of all relevant approvals be submitted.”

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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)).

The “San Siena” community titles scheme consists of 10 lots and common property, and was originally created under a building format plan of subdivision, registered on 25 May 1999. The community management statement for “San Siena” indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2. Application, submissions and interim order

This dispute resolution application was made on 27 August 2002. On 29 August 2002, I issued the following interim order in respect of the application:

“I hereby order that the Owners of Lot 6 must not install an air conditioning unit on the balcony of Lot 6 until this application has been finally determined.”

On 30 August 2002, the Commissioner for Body Corporate and Community Management invited the Committee for the Body Corporate, the Owners of Lot 6, and all other owners of a lot included in the scheme, to make a written submission about the application. The Committee and the Owners of Lot 6 have made written submissions about the application. While the Applicant was advised of her right to obtain copies of submissions in accordance with section 196 of the Act, and to reply to the submissions, she has declined to do so to date.

On 1 October 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

3. Matters in dispute

This application concerns a proposal that the Owners of Lot 6 be authorised to install an air conditioning unit on the balcony of Lot 6.

The registered building format plan creating “San Siena” indicates that Lot 2, the Applicant’s Lot, is located beneath Lot 6. I understand from the material before me that the Owners of Lot 6 wish to install an Inverter Wall Mounted air conditioning unit, with the external condenser of the unit to be located on the balcony of Lot 6 behind a concrete balustrade. I also understand that excess water generated by the unit is to be discharged into a common property downpipe located near lots 9, 6 and 2.

The Applicant has provided a copy of the minutes of a meeting of the Body Corporate Committee held on 31 July 2002, at which the Committee authorised the Owners of Lot 6 to install the air conditioning unit.

After reviewing the supporting grounds to the application, I understand that the Applicant’s main concern regarding the installation of the air conditioning unit is that the operation of the unit, including the discharge of water into the common property downpipe, will generate noise that will unreasonably interfere with the peaceful enjoyment of her unit. The Applicant appears to be particularly concerned that the noise will prevent her from sleeping in her bedroom with the window open.

4. Determination

Issues of noise and nuisance in a community titles scheme are generally addressed both in the Act, and the community management statement for the scheme. The community management statement for “San Siena” includes the following by-law concerning noise:

“1. The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.”

Section 129 of the Act prohibits occupiers of lots creating nuisances 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”.

I consider that it is important to note that the Applicant has not alleged that the Occupiers of Lot 6 have breached either the above by-law, or section 129 of the Act to date. Rather, the Applicant considers that if the air conditioning unit is installed, it is likely that the use of the air conditioner will be in breach of the above by-law, and presumably section 129. The Applicant also appears to consider that the Committee did not adequately address her concerns regarding noise prior to approving the installation of the air conditioner.

The Owners of Lot 6 have made a detailed submission regarding the proposed air conditioning unit. In summary, the air conditioner that the Owners of Lot 6 are proposing to install is a Mitsubishi Inverter Model MSZ-G2OUV. The specifications of the air conditioner provided to me indicate that the “indoor” sound level of the unit is 37 to 45 decibels, and of particular importance in this case, the “outdoor” sound level is 50 decibels.

In considering this application, I have had regard to the Environmental Protection Regulation 1998 (“the Environmental Regulations) which impose conditions regarding noise generated by a number of activities, including the use of air conditioners. While an interpretation of whether an owner or occupier of a lot in a community titles scheme is breaching the by-laws for the scheme or section 129 of the Act does not strictly require reference to the Environmental Regulations, I do consider that this is a reasonable way to assess whether or not the Owners and Occupiers of Lot 6 are likely to generate unreasonable noise by operating the proposed air conditioner.

It seems to me that the Environmental Regulations require that noise generated by an air conditioner, when measured at a neighbour’s property, must not exceed:

•	50 decibels between 7.00am and 10.00pm, and
•	5 decibels above background noise, or 40 decibels (whichever is higher), between 10.00pm and 7.00am.

Clearly, as the air conditioner has not been installed to date, it is not possible to measure the actual noise generated by the unit, as heard by surrounding unit occupiers. However, as stated above, the specifications provided to me indicate that the air conditioner generates 50 decibels of outdoor noise. I also note that the Owners of Lot 6 are planning to install the unit behind a concrete balustrade, which may significantly reduce the noise levels generated by the unit and experienced by the Applicant. As such, I consider that it is highly likely that the noise generated by the air conditioner between 7.00am and 10.00pm will be within the guidelines set down in the Environmental Regulations. In addition, it seems to me to be probable that the noise generated by the air conditioner between 10.00pm and 7.00am will also be within the relevant guidelines. I also consider that it is unlikely that the discharge of water into the common property downpipe will cause any significant disruptive noise.

On the basis that it is likely that the air conditioner will operate within the above guidelines, I do not intend to prevent the Owners of Lot 6 from installing the air conditioner as proposed and approved by the Committee. In addition, I would comment that in my view, the Committee has reasonably assessed and decided the request of the Owners of Lot 6 regarding the air conditioner. For this reason, I intend to dismiss the application for an order preventing the installation of the air conditioner.

However, I do remind all parties that once the air conditioner is installed, it is the responsibility of the Occupiers of Lot 6 to ensure that the use of the air conditioner complies with the relevant Environmental Regulations, the by-laws of the Body Corporate, and section 129 of the Act. For example, if the actual noise generated by the air conditioner as measured from the Applicant’s lot measures 50 decibels, it may be that the Occupiers of Lot 6 cannot operate the air conditioner between 10.00pm and 7.00am in order to comply with the Environmental Regulations (depending on the measurement of background noise). In any event, if the Applicant considers that the actual noise generated by the air conditioner does not comply with the guidelines in the Environmental Regulations, the Act or the community management statement, she would be entitled to approach the local authority to enforce the Environmental Regulations, or to make a further dispute resolution application to this Office.