Vila Hermosa [2002] QBCCMCmr 673 (15 November 2002)

DJ ReardonREFERENCE: 0348-2002

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 common property (copy attached).

•	Removal of trampoline from unit 17 would significantly reduce the noise levels emanating from the rear of this unit.
•	Prohibit the common property being used as a playground.
•	Removal of signage from front door.
•	(An Occupier of Lot 17) be placed on notice and advised she can no longer allow the children to deny us the peaceful enjoyment to which we are entitled.”

is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0348-2002

“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 common property (copy attached).

•	Removal of trampoline from unit 17 would significantly reduce the noise levels emanating from the rear of unit.
•	Prohibit the common property being used as a playground.
•	Removal of signage from front door.
•	(An occupier of Lot 17) be placed on notice and advised she can no longer allow the children to 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, an Occupier of Lot 17, and the Owner of Lot 17 to make a written submission about the application. The Resident Manager for the scheme, and the Occupiers of Lot 17 have made submissions about the application. In accordance with section 196 of the Act, the Applicants requested and were provided with copies of the submissions, and have provided a written reply to the submissions and an audio recording of noise purportedly generated by other occupiers of lots 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 informed the Commissioner that mediation was not conducted. As a result, on 2 September 2002, the Commissioner made a supplementary case management recommendation that the application should be determined by departmental adjudication.

3. Matters in dispute

This application concerns the Applicant’s assertions that the Occupiers of Lot 17 are breaching the by-laws for the scheme, and interfering with the peaceful enjoyment of the Applicants’ lot.

The issues raised in this application primarily relate to noise and use of common property. 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 have made an order in relation to application 0347-2002 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 as part of 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 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 lots and the common property. However, 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 specific matters raised by the Applicants as orders sought in this application.

3.1	Removal of trampoline from unit 17 would significantly reduce the noise levels emanating from rear of this unit.

From the material before me, I understand that a trampoline has been placed in the private yard of Lot 17. In the supporting grounds to the application, the Applicants state that children playing in the private yard of Lot 17 engage in “extremely rowdy and unruly behaviour, that very often spills out into the common areas within the complex”. Clearly, the Applicants main concern in this regard is that the presence of the trampoline encourages noise in breach of the by-laws for the Body Corporate, and section 129 of the Act. I do note that in their reply, the Applicants state that since making this application noise has been significantly reduced, however they are still seeking an order in this regard to ensure that the noise does not reoccur.

The community management statement for “Vila Hermosa” includes the following by-law concerning noise:

“1. Noise 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.”

In their submission, the Occupiers of Lot 17 indicate that they have one child, a daughter. The Occupiers of Lot 17 also state that they have received one complaint directly from one of the Applicants about noise, and agreed to ensure that the noise generated by their daughter and her friend who was present at the time, would be minimised.

The Resident Manager in his submission, states that the Applicants have made a number of complaints about noise being generated in the yard of Lot 17, however on each occasion, and upon investigation, has found that the noise generated by the children playing in the area was reasonable, and their behaviour was not unruly.

As part of the supporting grounds to the Application, the Applicants have included an audio recording, purportedly of noise being generated by children in Lot 17, which I have listened to. While, I note that the recording includes what sounds like a child yelling, in my view, the recording was brief (about 3 minutes), and for the most part the noise purportedly being generated by children in Lot 17 was only minimally louder than background noise on the tape.

In the circumstances, and on the basis of the material before me, I am not satisfied that children playing in the yard of Lot 17, on or near the trampoline in Lot 17 have breached the by-laws of the Body Corporate, or section 129 of the Act. As such, I do not consider that an order requiring the Occupiers of Lot 17 to remove the trampoline is warranted at this time.

While I do not consider that the noise generated by the Occupiers of Lot 17 is excessive or in breach of the by-laws, I would remind the Occupiers of Lot 17 that as far as possible it is important to endeavour to ensure that noise is kept to a minimum so as to not unreasonably disturb other owners or occupiers of lots included in the scheme. However, I would also remind the Applicants that living in close proximity to a significant number of people, it is likely and in my view reasonable that they will experience some noise generated by other owners and occupiers of lots included in the scheme.

3.2	Prohibit the common property being used as a playground.

From the material included with the application, I understand that the Applicants have concerns about children using the common property driveways as play areas. However, the Applicants certainly do not indicate that the Occupiers of Lot 17’s child is the only child playing in these areas. To the contrary, it seems to me that a number of children play on these areas.

While I agree that this matter is of concern as a safety issue, it seems to me that this order sought is not appropriate to be made in an application against the Occupiers of Lot 17 as in my view, it is not the duty of the Occupiers of Lot 17 to ensure that all owners and occupiers comply with the by-laws and section 129 of the Act regarding children playing on the common property driveway. In any event, I am not satisfied that I have been provided with sufficient information to conclude with certainty that the Occupiers of Lot 17’s daughter is causing a nuisance on the common property driveways.

For this reason, I intend to dismiss this part of the application. However, I would state that I consider that there is some merit in the Applicants safety concerns in this regard, and is a matter that the Body Corporate should take into consideration for appropriate action.

3.3	Removal of signage from front door.

In the supporting grounds to the application, the Applicants state, “An amateur hand painted sign has been painted on the front door (of Lot 17). This is not conducive to the aesthetics of the complex.”

In their submission, the Occupiers of Lot 17 indicate that there is no hand painted sign on the front door of Lot 17. In their reply to submissions, the Applicants state that as at 1 July 2002 “the sign had been removed”. As this matter does not appear to be a continuing issue, I do not intend to consider it further, or to make any further comments in relation to it.

3.4	(An Occupier of Lot 17) be placed on notice and advised she can no longer allow the children to deny us the peaceful enjoyment to which we are entitled.

For the reasons outlined above, and on the material before me, I am not satisfied that the Occupiers of Lot 17 have, or have allowed their daughter to unreasonably interfere with the peaceful enjoyment of other lots included in the scheme. For this reason, I also intend to dismiss this part of the application.