Vila Hermosa [2002] QBCCMCmr 672 (15 November 2002)

DJ ReardonREFERENCE: 0347-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27968
Name of Scheme:	Vila Hermosa
Address of Scheme:	28 Keona Road McDOWALL QLD 4053

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

David Deane and Doreen Deane, the Occupiers of Lot 15


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

“We are seeking an order to have the By-Laws for the Body Corporate for Vila Hermosa enforced, in particular, those pertaining to noise and keeping of animals (copy attached)

•	Removal of bird(s) kept at unit 24.
•	Prohibit the indiscriminate use of monotone whistle.
•	Prohibit playing of the piano.
•	(The Occupiers of Lot 24) be placed on notice and advised they and their children can no longer deny us the peaceful enjoyment to which we are entitled.”

2n
is dismissed.

I further order that within 4 weeks of the date of this order, the Body Corporate must provide the occupiers of each lot included in the Vila Hermosa community titles scheme with a copy of the by-laws, as recorded in the community management statement.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0347-2002

“Vila Hermosa” CTS 27968

1. Orders sought

The Applicants, the Occupiers of Lot 15, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“We are seeking an order to have the By-Laws for the Body Corporate for Vila Hermosa enforced, in particular, those pertaining to noise and keeping of animals (copy attached)

•	Removal of bird(s) kept at unit 24.
•	Prohibit the indiscriminate use of monotone whistle.
•	Prohibit playing of piano.
•	(The Occupiers of Lot 24) be placed on notice and advised they and their children can no longer deny us the peaceful enjoyment to which we are entitled”.

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)).

2. Application and submissions

This dispute resolution application was made on 11 June 2002. On 18 June 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) invited the Committee for the Body Corporate, the Body Corporate Manager, the Occupiers of Lot 24, and the Owners of Lot 24 to make a written submission about the application.

The Resident Manager for the scheme, and the Occupiers of Lot 24 have made a written submission about the application. The Applicants requested and were provided with a copy of the submissions in accordance with section 196 of the Act. The Applicants have made a written reply to the submissions, and provided an audio recording of noise purportedly generated by other occupiers of lots included in the scheme.

On 26 July 2002, the Commissioner made an initial case management recommendation that the application should be the subject of Dispute Resolution Centre mediation. Unfortunately, in a letter dated 23 August 2002, the Dispute Resolution Centre notified the Commissioner that no mediation was conducted. As a result, on 2 September 2002, the Commissioner made a supplementary case management recommendation that the application should be the subject of departmental adjudication.

3. Matters in dispute

This application primarily concerns the Applicants’ assertion that the Occupiers of Lot 24 are generating unreasonable noise, and detracting from their peaceful enjoyment of Lot 15.

The Applicants have provided a copy of a document titled BY-LAWS FOR THE BODY CORPORATE FOR VILA HERMOSA (ABRIDGED VERSION). I note that this documents is somewhat different to the by-laws recorded for the Body Corporate in its community management statement. In my view, owners and occupiers of a lot included in the scheme must comply with the by-laws for the scheme, as outlined in the community management statement. To ensure that all occupiers are aware of the full by-laws with which they are required to comply, I intend to order that within 4 weeks of the date of this order, the Body Corporate must provide the occupiers of each lot included in the scheme with a copy of the by-laws as recorded in the community management statement for the scheme.

In accordance with section 53 of the Act, the community management statement for a community titles scheme (including the body corporate by-laws), is binding on the body corporate, and all owners and occupiers of lots included in the scheme. Generally by-laws make provision for issues such as noise, keeping of animals and parking on common property.

I would also refer all parties to section 129 of the Act, which makes provision for nuisances in the context of a community titles scheme in the following terms:

“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.”

In my view, the purpose of the by-laws for a community titles scheme, and section 129 of the Act, is to ensure that owners and occupiers of lots in a community titles scheme can reasonably and lawfully use and enjoy their lot, and the common property. I also consider that it is important to note that the Body Corporate has an obligation to reasonably enforce the by-laws for the scheme.

I will now turn to the individual issues raised by the Applicants in this application

3.1 Removal of bird(s) kept at unit 24

In the application, the Applicant’s seek the removal of birds currently being kept on scheme land by the Occupiers of Lot 24. In his submission, the Resident Manager indicates that the bird is a cockatiel, and that the previous resident manager had allowed the Occupiers of Lot 24 to keep the bird.


The keeping of animals on scheme land is addressed in by-law 11 of the Body Corporate’s by-laws in the following terms:

“11. Keeping of animals The occupier of a lot must not, without the body corporate’s written approval-

a.	bring or keep any animal on the lot or the common property; or
b.	permit an invitee to bring or keep an animal on the lot or the common property.

The occupier must obtain the body corporate’s written approval before bringing, or permitting an invitee to bring, an animal onto the lot or the common property”.

It is clear from a reading of the above, that the by-law does not purport to be a complete prohibition of the keeping of animals on scheme land. Rather, the by-law provides the Body Corporate with discretion in terms of whether or not to allow an owner or occupier to keep an animal on a lot or common property. In my view, in exercising this discretion, the Body Corporate has an obligation to act reasonably.

It seems to me that the Occupiers of Lot 24 have been given some form of express or implied approval for keeping their bird on scheme land, either through a statement made by the previous manager, or the acquiescence of the Body Corporate in failing to require the Occupiers of Lot 24 to remove the bird. I do wish to make it clear that the discretion to allow an occupier of a lot to keep an animal pursuant to the above by-law is one for the Body Corporate, and not the Resident Manager to consider. However, if an occupier brings an animal onto the scheme land without approval, the Body Corporate does have an obligation to promptly take steps to enforce the by-law. I consider that it would not be reasonable for a body corporate to require an occupier to remove an animal that they have kept on scheme land for a significant period of time (and as a result, assumed some implicit approval for the animal), without some good reason for delaying enforcing the by-law.

Further, I am not satisfied that the Applicants have demonstrated that the bird is causing an unreasonable nuisance to them. I have listened to the audio recording provided by the Applicants and I am not convinced that the noise of the bird chirping is excessive. In addition, I am not satisfied that the Applicants have shown with any certainty that the bird is causing a rodent problem.

For these reasons, I do not intend to require the Occupiers of Lot 24 to remove their bird from the scheme land.

3.2 Noise issues

The other matter raised is the Applicant’s assertion that the Occupiers of Lot 24 generate excessive and unreasonable noise in the following ways:

•	Playing a piano,
•	Blowing a whistle,
•	Yelling, and singing.

As mentioned above, the Applicants have provided an audio recording purportedly of noise being generated by the occupiers of lots included in the scheme. The purported recording of the Occupiers of Lot 24 lasts approximately 7 minutes, and on the whole I found it unconvincing. While I noted the sound of a piano, a child singing, a bird chirping and what sounded like a child yelling, in my opinion the noise complained of was rarely significantly louder than the background noise on the tape. At one point of the recording the noise is somewhat louder, however, there is a significant amount of distortion and background noise, possibly due to that part of the recording being made outdoors.

In his submission, the Resident Manager indicates that on a number of occasions he has investigated the Applicants complaints regarding the Occupiers of Lot 24. The Resident Manager does not indicate that in his view the noise being generated by the Occupiers of Lot 24 is excessive or unreasonable.

In the circumstances, I am not convinced that the Occupiers of Lot 24 are generating excessive or unreasonable noise. As such, I intend to dismiss this application.

I do wish to remind all parties that occupiers of lots included in a community titles scheme have an obligation to comply with the by-laws and section 129 of the Act, and should make every effort to avoid disturbing other occupiers. However, living in close proximity with other people, it is likely (and in my view not inherently unreasonable), that occupiers will experience some noise generated by other occupiers going about their daily business and routines.