Dewsbury Park [2003] QBCCMCmr 150 (6 October 2003)

Last Updated: 17 May 2005

REFERENCE: 0059-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18314
Name of Scheme:	Dewsbury Park
Address of Scheme:	62 Dewsbury Street, MIDDLE PARK QLD 4074

TAKE NOTICE that pursuant to an application made under the abovementioned Act by The Body Corporate for Dewsbury Park

I hereby order that the owner of lot 21 (Dragica Peterson): 1. within 2 months, comply with by-law 8 of the scheme by means of removing her dog and cat from the scheme and keeping them removed; and 2. that the respondent be on notice, for a period of 1 year, that she is required to comply with by-law 22 (swimming pool), by-law 1 (noise), and by-law 6 (vehicles) along with taking all reasonable steps to ensure that her invitees comply with these by-laws.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0059-2003

"Dewsbury Park" CTS 18314

Application

Dewsbury Park Community Titles Scheme 18314 (Dewsbury Park) is a 31 lot residential scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by the Dewsbury Park body corporate (applicant) alleging that the owner/occupier of one of the units, Dragica (or ‘Debbie’) Peterson (respondent) has contravened a number of the Dewsbury Park by-laws.

The body corporate is seeking orders that the respondent:

• Remove a cat she is not approved to keep;
• Remove a dog she is no longer approved to keep;
• Ensure supervision of her children when they are in the pool or pool surrounds;
• Minimise noise (consisting of loud music and loud offensive language that is disrupting others);
• Cease parking on common areas;

Background

Dewsbury Park is a residential scheme containing 31 residential units. The complex also contains a swimming pool and a tennis court.

The body corporate has received a large number of complaints from a number of owners and occupiers in Dewsbury Park (present and past) about the conduct of the respondent. A number of written complaints were submitted with the application.

Animals

Complaints in respect of the respondent’s animals include:

• Residents being kept awake due to excessive barking from the dog;
• Residents being unable to open their back door without the dog barking continually;
• Continual barking from the dog on wet days when it is shut inside;
• The dog running on the common property without a leash;
• Residents being woken at 5am by the cat climbing their screen door;
• Residents continually chasing the cat from their back garden that is being used by the cat as a toilet;

By-laws regarding noise, pool use, and parking

There were also a number of written complaints alleging the respondent was responsible for excessive noise, requesting the respondent properly supervise her children in the pool area, and requesting the respondent cease parking on the common property. These complaints include:

• Excessive noise from continual yelling and bad language (sometimes audible on the other side of the complex), from loud music and TV, and from entertaining outside (sometimes until after 2am);
• Complaints about the unsupervised behaviour of the respondent’s children in the pool area; and
• Complaints about the respondent parking on the common property in front of her garage rather than inside her garage.

The residents making complaints seemed most concerned about the noise, one resident stating that the respondents shouting was sometimes audible from the other side of the complex, and several residents complaining about the respondent playing loud music from her unit apparently so that she could hear it from the pool area. Some residents indicated that the situation was serious enough that they wished to live elsewhere. One such complaint was:

"This is an official letter of complaint, about my neighbour Debbie Peterson, in unit 21....The bad language is usually morning and night. She screams at the girls and they scream back at her. It’s so bad that my husband wears earplugs if he wants to have a read and always wears them at night to bed so he can sleep. The trouble started over twelve months ago. I know this letter should have been written sooner, but I did complain to members of the committee and was told there was nothing that could be done. My husband and I are nearly ready for a breakdown our nerves are so bad...she complains to me about us flushing the toilet at night, and get that bloody dripping tap fixed, and keep your tele volume down. So now after 10 o’clock at night I make sure we never have a late shower and that all taps are fully turned off and we never flush the toilet after this time (unless it’s an emergency). I also have to sit nearly on top of the TV or I can’t hear it. ...The other day I was sat quietly watching TV when all of a sudden I heard this screaming. Shut up your f__ing moths and shut that f__ing noise. I thought to myself what’s going off now. I hadn’t heard anything before this. The next day our neighbour over the back said to Gordon. ‘Did you hear her last night? We were just sat outside having a quiet drink because it was our daughters 21^st birthday yesterday. We weren’t doing anything only having a talk but she must have heard us because all of a sudden she just started shouting abuse’. We are so sick of being abused and shouted at that we have put our unit up for sale".

Due to the complaints received, the body corporate made a number of formal and informal approaches to the respondent requesting her compliance with the by-laws, culminating in the issue of a notice of continuing contravention of a body corporate by-law and the bringing of this application.

The respondent has opposed the application and, in particular, states that any shouting and abuse by her is in response to verbal attacks upon her by committee members. The respondent has provided letters from friends supporting this allegation. Statements in these letters include:

• "Lyn has made vulgar, rude and incriminating comments to Debbie and has on various occasions caused stress to my youngest daughter, Sarah, while she has been a guest of Debbie’s on overnight visits. On numerous occasions Lyn has approached Sarah while in the swimming pool and told her to get out of the pool, as there are not adults supervising...My daughter is over the age of 12 and when she has told Lyn this, the reply has been ‘no you’re not, you’re too small to be 12 years old’...She has called her [the respondent] names that are very discriminating and slanderous. These include words such as slut, whore and called her a drunk. Debbie is none of these and Lyn has yelled these at her in front of the children";
• "At approx 1630hrs the children wanted to go for a swim. The children were three aged 12, one aged 11, one 9 and the youngest 4 years. The three 12 year olds are all very good friends and at first went to the pool together. They were not supervised at this point...The younger three wanted to also swim so shortly after they went into the pool area and started swimming. They can all swim and at this point I was standing in the two bay car park at the side of the pool cleaning out Debbie’s car which I had borrowed over the weekend. From this point I was able to see all the children. Especially my four-year-old who I was keeping a close eye on. Within minutes of the children entering the pool area a lady who I believe to be Mrs Lynne Jennings was leaning over the fence on the opposite side from me yelling at the children to get out of the pool. Debbie’s children said they didn’t have to so these women started yelling calling Debbie a bad mother, a drunk stating ‘where is your mother. Drunk again. Get home you are not allowed in the pool’. Mrs Jennings didn’t ask who was watching them and was not aware that I was on the other side of the pool.";
• "On a recent visit, it was a Saturday night around 11pm I was at a BBQ at Debbie’s and the lady next door leaned over the fence and asked us to keep the noise down this lady was seen to look over the fence a few times during the evening. I didn’t think we were noisy just talking, we did have music playing but, from a portable tape player. Debbie apologised and turned the music down. A few minutes later Mrs Jennings was banging on the front door yelling abuse at us. This has happened a few times before."

In response to this the secretary of the body corporate submitted the following:

"I have known Lynne [Jennings] for approximately two years, and have worked closely with her since becoming secretary of the Body Corporate Committee. In that time, I have never heard Lynne shout or yell at any children within this complex. I have two children myself, and would have no hesitation whatsoever, in leaving my children in Lynne’s care. As I have been on the receiving end of Debbie’s [the respondent’s] verbal attacks, I try to avoid any confrontation with her. She is very intimidating, and as I am on my own with two young children, I feel it is better not to approach her or her children. This means, unfortunately, that Lynne is left to try and ensure that Debbie and her children adhere to the by-laws. Lynne has asked Debbie’s children to leave the pool area on numerous occasions, and at no time have I ever heard Lynne shout at the children. We believe that Debbie’s children are underage for swimming unsupervised"

Submissions

The body corporate’s submissions were to the effect that the respondent has infringed the by-laws of the scheme by engaging in conduct as alleged in the complaints provided, and that she continues to infringe those by-laws.

The body corporate also conducted a survey of owners (excluding the respondent) asking if the owners wished the body corporate to seek the orders listed below. A summary of the number of owners responding ‘Yes’ or ‘No’ to each proposed order is specified below:

That the owner of Unit 21, Ms Debbie Peterson -	Yes	No
1. Remove her dog from the property following a number of complaints	23	2
2. Remove her unauthorised cat from the property	23	2
3. Cease parking a vehicle in common areas or across her driveway	22	2
4. Stop allowing children to utilise the pool unsupervised	24	1
5. Control noise level and interference with neighbouring properties	23	2

The respondents’ main submissions were to the effect that:

• Permission to keep my dog reversed – "I was granted permission to keep a dog and to have our pet Friday removed would devastate myself and my two children...I dispute that my dog is a problem to the complex as now especially as it is growing up from a pup to a dog it is very much under our control...The dog does not bark";
• Permission has not been granted to keep a cat – "I have not been granted permission to keep a cat. However, I would like to offer in defence of having a cat that the cat was a Christmas Gift and was not asked for or at the time wanted by me. However, my children do love this cat...and I do believe that others in the complex do own cats";
• Parking my car across my driveway – "I don’t feel at any time I have restricted anyone from access of his or her property...I have at times had visitors with station wagons who have parked their car on an angle in front of my garage ...I have spoken to friends about the complaints and they have ceased to park like this";

• My children swimming unsupervised in the pool – "One of my daughters is twelve and therefore able to swim unsupervised...She has friends of the same age who swim with her and I feel I need to complain about the way my daughter and her friends are restricted from entering the pool and ordered out on many occasions by Ms Lynne Jennings who has not taken the children’s word that they are of age and would not listen to friends parents that the child is 12 stating the child is ‘too short to be 12’.";
• Excessive use of loud, foul language/loud music/verbal abuse – the respondent has made submissions to the effect that allegations of use of loud, foul language are "not correct" and she feels subject to a "witch hunt" as she herself is subject to "verbal attacks on myself by committee members". The respondent submits that due to being "unable to leave my door without derogatory comments being projected at my children, my visitors and myself" she is "guilty of in turn yelling back when I am being cornered time and time with many many complaints to the extent that I am so stressed I do become abusive back". Further, the respondent says that "I have had guests over late on occasions, as I am sure many other residents within the complex socialise. I work full time and do restrict my socialising to the weekends I also feel that my music is not loud. I am aware that the units adjoin and I think that it is reasonable to expect some noise at times I can hear TV and music from neighbours as well but I accept this as part of living in a complex community";

A submission from one of the respondent’s friends was made as follows:

"I kept an open mind to the problems Debbie was having which just sounded like a neighbourhood feud. But now I fully support Debbie in her belief she is being harassed by some of the people in the complex and especially Mrs Jennings who in turn appears to be recruiting against her. I believe that Debbie, her children and her friends can not do anything right in these peoples eyes, and I am of the belief that you will always receive complaints about Debbie while this person is so active in the Body Corp."

Decision

By-laws for the scheme

The Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)).

By-law regarding animals

The Dewsbury Park by-law regarding animals is:

8. Keeping of animals.
(a) Subject to Section 30(12) a Proprietor or occupier of a Lot shall not, without the approval in writing of the Committee of the Body Corporate, keep any animal upon his Lot or the common property
Which consent may at any time be withdrawn.
(b) on approval, the animal must be kept within a fenced area of the Lot and restrained from wandering on to the common property or the property of other unit owners.
(c) on approval, the Proprietor or occupier of the Lot shall ensure that noise from the animal shall be kept to a minimum so as not to interfere with the peaceful enjoyment of other occupants of other Lots on the parcel.
(d) not withstanding the provisions of any other By-laws, a Proprietor or occupier of a Lot or an invitee of a Proprietor or occupier of a Lot shall not bring or keep any animal onto or upon the common property occupied by Change Room, Swimming Pool, Tennis court and B.B.Q areas.

The respondent admits that she is keeping a dog. The respondent sought and obtained permission to keep her dog. She was granted this permission subject to several conditions and advice that permission would be withdrawn if those conditions were breached or complaints were received. Complaints were received and the respondent admits certain conditions were breached. I conclude that the body corporate was entitled to withdraw this permission, as it did.

The respondent also admits that she has never had permission to keep her cat. It is no excuse to say the cat was received as a gift and not asked for.

It therefore appears that the respondent is contravening by-law 8 by keeping a dog and a cat without permission. However, before I grant the orders sought, I need to be satisfied that the committee is not seeking to enforce the by-law unreasonably.

For example, in respect of the dog, it appears arguable that the respondent will suffer some unreasonable detriment in that she and her children had an approval to keep the dog and grew attached to the dog but now have had the approval withdrawn. However, in the circumstances, this argument cannot stand as the initial terms of approval for keep the dog clearly stated that the approval would be withdrawn if the conditions of the approval were not kept.

In respect of the cat, the appropriate course of action would normally be for the respondent to follow the requirements set out in the by-law and apply to the committee for permission to keep the cat. The committee would need to act reasonably in deciding whether or not to grant this approval. This approval would need to be granted or refused on its merit and the committee would not be able to unfairly discriminate between different residents in making this decision. However, complaints have already been received about the cat, the committee has applied for removal of the cat and 23 lots have specifically stated that they support removal of the cat. It seems to me that it is open for the committee to refuse permission based on complaints already received. I am therefore willing to accept the bringing of this application by the committee as sufficient indication that the committee has considered whether permission to keep the cat should be granted and effectively decided not to grant that permission.

The committee has not acted unreasonably in withdrawing their approval for the dog and in refusing approval for the cat. Therefore, retention of these animals by the respondent is in contravention of by-law 8.

By-law regarding supervision of children in pool

The Dewsbury Park by-law regarding the pool is:

22. Use of the Swimming Pool
In relation to the use of the swimming pool, and adjacent fenced areas, a Proprietor or occupier of a Lot shall ensure:
(a) that his invitees and guests do not use the same or any of them unless he or another Proprietor or occupier accompanies them,
(b) that children below the age of 12 years are not allowed in or around the same or any of them, unless accompanied by an adult, Proprietor or occupier exercising effective control over them;
(c) that glass container or receptacles of any type are not taken to or allowed to remain in or around the pool;
(d) that he and his invitees shall exercise caution at all times and shall not run, or splash, or behave in any manner that is likely to interfere with the use and enjoyment of the pool by other persons;
(e) the dress standard for the pool may be altered by the Committee from time to time, the present standard shall be in line with the bathing costumes as approved for bathing at the Brisbane City Council Public Pools, and unless otherwise determined the present standard shall vary in accordance with the Brisbane City Council standards;
(f) drunk and disorderly behaviour is not permitted in the pool area;
(g) that only Resident Proprietors/Tenants and their respective guests be permitted to use the pool and tennis court.

I interpret by-law 22(b) as placing a high standard of supervision on children under the age of 12. It is not enough that children under 12 be supervised by an adult for safety purposes. The supervision must be by an adult owner or an adult occupier. Further, the supervision requires "effective control" which is a higher standard than supervision for safety purposes and would require control of children so that the children do not contravene the by-law (for example, by-law 22(d) prohibiting running, splashing or behaviour likely to interfere with the use and enjoyment of the pool by other persons).

I accept the respondent's submission that her older daughter is 12. However, it remains clear that the respondent has contravened this by-law. Firstly, the respondent has contravened the by-law by allowing her younger daughter to use the pool unaccompanied by an adult owner or occupier. Secondly, the respondent has contravened the by-law by allowing the children of guests to use the pool unaccompanied by an adult owner or occupier (on the terms of by-law 22(b) accompaniment by an adult guest is insufficient).

Due to these contraventions, I am willing to make the order sought by the body corporate prohibiting future breaches of by-law 22 by the respondent. I will make this order effective for a period of 1 year. The effect of this order will be that any contravention of by-law 22 by the respondent in the next year can be dealt with immediately by the body corporate by application to the Magistrates Court. After one year the respondent will still be required to comply with by-law 22 (as is the case with all other occupiers), however any contraventions will need to be dealt with in the usual way of a future contravention notice being issued prior to application to the Magistrates Court.

Having made the finding that there are clear contraventions of by-law 22 and it is appropriate to make the order sought, I think it is necessary to make some comments about the appropriateness of the actions of the body corporate in seeking to enforce the by-law.

The body corporate has made allegations of deliberate and repeated breaches of by-laws by the respondent, along with threatening and abusive behaviour initiated by the respondent. The respondent has alleged members of the committee, particularly Lynne Jennings, have initiated threatening and abusive behaviour against her. On the evidence before me it is difficult to determine who has initiated the threatening and abusive behaviour or the exact extent of this behaviour. Nevertheless, it seems to be in the power of the body corporate to avoid any circumstances likely to give rise to a continuation of this behaviour.

The body corporate may choose to enforce the by-laws by providing residents with informal verbal reminders for minor or occasional breaches of the by-laws. However, it is inappropriate to implement continual supervision amounting to harassment or continue with verbal requests when they are proving ineffective and resulting in abuse on both sides. The Act specifically provides for a two step process for forcing compliance with by-laws. Firstly, by issuing a contravention notice and, secondly, by bringing a proceeding before the Magistrate’s Court if the contravention notice is ignored. If informal regulation of the by-laws is failing, the body corporate should simply follow this legislative process.


Alternatively, some actions of occupiers may amount to a police matter instead of, or in addition to, a breach of the by-laws. For example, noise made by an occupier that is clearly audible at a person’s residence and excessive in the circumstances may be appropriately dealt with by a complaint to the police by that person rather than by verbal warnings from the body corporate.

On the respondent’s part, adherence to the by-laws seems to be the best way to avoid future conflict.

One outstanding point is the ongoing issue of whether the respondent’s eldest daughter and her friends are over 12 years old. The committee is expected to act reasonably in the enforcement of by-laws. It seems unreasonable for the committee to require any more than a simple written or verbal assurance from the parent or guardian of a child that the child is of a particular age, unless the committee had some clear evidence to the contrary.

By-law regarding noise

The Dewsbury Park by-law regarding noise is:

1. Noise.
(a) A Proprietor or occupier of a Lot, their, servant or agents shall not make or permit any objectionable noise in the dwelling or upon the parcel or interfere in any way with the peaceful enjoyment of other Proprietors or occupiers of Lots or those having business with them or of any person lawfully using the common property.
(b) In the event of an unavoidable noise in a Lot at any time the Proprietor or occupier thereof shall take all practical means to minimise annoyance to other Proprietors or occupiers of Lots by closing all doors windows and curtains of his Lot and also such further steps as may be within his power for the same purpose.

The complaints from a number of residents clearly indicate that there have been numerous incidents where the respondent has contravened by-law 1 through creating excessive noise. In particular, it seems excessive for the respondent to play music inside her unit that is audible from the pool area. Further, it is excessive for voices from within the respondent’s unit to be audible from units across the complex from the respondent’s unit.

In addition, by-law 1(b) provides that in the event of an unavoidable noise the occupier shall take all practical means to minimise annoyance to other occupiers by closing all doors, windows and curtains of his lot and also such further steps as may be within his power for the same purpose. The respondent is correct in submitting that "I am aware that the units adjoin and I think that it is reasonable to expect some noise at times I can hear TV and music from neighbours as well but I accept this as part of living in a complex community". Further, on a very hot day it may be impractical to stay inside with all doors, windows and curtains shut. However, for a social event that continues late at night, it appears reasonable for the respondent to ask guests to move inside and to shut doors and windows to minimise the disturbance to other residents.

Due to the contraventions by the respondent, I am willing to make the order sought by the body corporate prohibiting future breaches of by-law 1 by the respondent. Similar to the order prohibiting further breaches of by-law 22, I will make this order effective for a period of 1 year.

I also re-iterate my comments about the importance of the body corporate considering an appropriate manner in which to enforce the by-laws and the need to avoid situations likely to lead to abusive behaviour.

By-law regarding parking

The Dewsbury Park by-law regarding noise is:

6. Vehicles and use of Private roads and other Common Property
(a) The private roadway, pathways, drive and other common property and any easement giving access to the land shall not be obstructed by any Proprietor or the tenants, guests, servants, employees, servants, children, invitees, licensees of a Proprietor or any of them or used by them for any purpose other than the reasonable ingress and egress to and from their respective Lots or the parking areas provided.
A Proprietor or occupier of a Lot shall not,
(b) subject to By-law No 8, permit any invitees’ vehicles to be parked on the roadway forming part of the common area at any time. Any invitees shall park their vehicles in the visitors’ parking bays on the common property, and shall use such area only for its intended purpose of casual parking;
(c) permit any occupation of a caravan on a Lot;
(d) within the parcel, regularly park in the same car parking space situated on the common property. For
the purpose of the By-law regularly means for not longer than ten (10) hours per day over three (3)
consecutive days (1 day being 24 hours)
(e) except where accommodated within a garage or carport, a Proprietor or occupier shall not park or stand or permit the parking or standing of any caravan, trailer, boat or motor vehicle upon his Lot unless for the purpose of immediately loading or unloading the same.
(f) exceed the speed limit nominated by the Body Corporate in a general meeting from time to time (the "speed limit") while driving any motor propelled vehicle on the common property and shall use his best endeavours to ensure that his invitees do not exceed the Speed Limit in such circumstances
(g) the speed limit for the time being shall be 10 kph

There have been a number of occasions when the respondent, and her invitees, have contravened this by-law and contraventions continued despite a letter from the body corporate to the respondent requesting compliance. By-law 6 clearly provides that vehicles should not be on the scheme unless garaged on the lot, validly parked in visitors’ parking bays, driving through the scheme, or standing on the scheme for the purpose of being immediately loaded or unloaded.

Due to the contraventions by the respondent, I am willing to make the order sought by the body corporate prohibiting future breaches of by-law 6 by the respondent. Similar to the order prohibiting further breaches of by-law 22 and by-law 1, I will make this order effective for a period of 1 year.

Order

There is clear evidence of contravention of by-laws by the respondent. I therefore grant the application according to the orders above.