Allenby [2003] QBCCMCmr 372 (7 February 2003)

Last Updated: 7 September 2007

DJ ReardonREFERENCE: 0464-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9398
Name of Scheme:	Allenby
Address of Scheme:	40 Allenby Street SPRING HILL QLD 4000

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

Brian Noonan and Margaret Noonan, the Owners of Lot 7,

DJ ReardonI hereby order that the Occupiers of Lot 6 shall ensure that they, and their invitees comply with section 129 of the Act relating to nuisances.

I further order that the Occupiers of Lot 6 shall ensure that they, and their invitees comply with the by-laws of the Body Corporate, particularly those relating to noise.

I further order that the Body Corporate for "Allenby" shall in future take all reasonable steps to enforce the community management statement for the scheme, including the by-laws.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0464-2002

"Allenby" CTS 9398

1.	Order sought

The Applicants, the Owners of Lot 7, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"The Body Corporate has failed to respond to complaints regarding the consistent breach of by-laws by the occupants unit 6 and it is requested that an order be made to compel the Body Corporate to take the appropriate action to require the building manager to take the appropriate action."

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 "Allenby" community titles scheme consists of 22 lots and common property. The community management statement for "Allenby" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

2.	Application and submissions

A large amount of documents have been submitted regarding this application. In the interests of clarity, I intend to set out below a summary of the administration of this application, and this Office’s endeavours to ensure that procedural fairness was afforded to both the Applicants, and the Occupiers of Lot 6.

This dispute resolution application was made on 6 August 2002. The Applicants originally named a service contractor and letting agent for the Body Corporate as the other party to the dispute. On 13 August 2002, a staff member of this Office contacted the Applicants on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner"), and requested that the Applicants amend the application, specifically the party named as a respondent to the application, to bring the application within the terms of section 182 of the Act, and therefore, the jurisdiction of this Office. The Applicants requested that the Body Corporate be identified as the other party to the dispute via a facsimile of 13 August 2002.

The Applicants submitted further material in relation to the application under cover of a letter dated 23 August 2002. The Commissioner has allowed this material to be included as part of the original application.

At the Commissioner’s invitation and in a letter received on 30 August 2002, the Applicants requested that the Occupiers of Lot 6 be added as another party to the application.

On 4 September 2002, the Commissioner invited the Committee for the Body Corporate, and the Occupier of Lot 6, to make written submissions about the application. The Commissioner later extended the time for making written submissions about the application at the request of the Occupier of Lot 6.

In a letter dated 14 October 2002, the Applicants submitted further material in relation to the application. As the Commissioner had already provided affected persons with a copy of the application and notice inviting submissions about the application, the Commissioner required the Applicants to serve a copy of the further material, and a notice extending the time for written submissions to the Occupiers of Lot 6 and the Committee for the Body Corporate. The Applicants provided a statutory declaration confirming that the Commissioner’s instructions had been carried out. The time for making written submissions was extended by the Commissioner at the request of the Occupier of Lot 6.

The Body Corporate Manager for the scheme (on behalf of the Committee), the Owner of Lot 9 (previously a committee member), and the Occupiers of Lot 6 have made submissions about the application.

I also have before me, a submission made by an occupier of a property in the vicinity of the scheme land, which I have decided not to consider in determining this application. In my view, the dispute resolution provisions of the Act, and therefore, the dispute resolution service provided by this Office concern disputes within a community titles scheme. Persons who are not occupiers or owners of a lot included in the scheme have no capacity to make an application to this Office regarding concerns they have with a community titles scheme, or an owner or occupier of a lot included in the scheme. Similarly, I do not consider that a non-owner/occupier of a lot has capacity to make a submission about an application. If such a person is experiencing problems with a body corporate, or an owner or occupier of a lot, the person should consider obtaining their own advice on remedies that may be available to them.

On 27 November 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

In accordance with section 196 of the Act, the Applicants requested and were provided with copies of the submissions made about the application. The Applicants provided a written response to the submissions under cover of a letter dated 6 January 2003.

In facsimiles dated 3 January 2003, and 8 January 2003, the Occupiers of Lot 6 make further submissions regarding the application. While these submissions were accepted, the Applicants were provided with copies of the submissions in the interests of procedural fairness. The Applicants have made written replies to the submissions of 3 January 2003 and 8 January 2003.

3.	Matters in dispute

This application primarily concerns excessive noise, and nuisances, allegedly caused by the Occupiers of Lot 6, and their invitees. The Applicants also claim that the Body Corporate, and the Building Manager (a service contractor for the Body Corporate), have failed to properly and adequately address their concerns regarding the conduct of the Occupiers of Lot 6.

While I have read the voluminous material submitted by parties in relation to this application, I do not intend to restate in detail the allegations and counter allegations made in the material. I am satisfied that the main parties to this dispute, that is the Applicants and the Occupiers of Lot 6, are fully aware of the material before me.

4.	Determination

4.1 The Applicants and the Occupiers of Lot 6

As a starting point, I wish to state that I do not consider that adjudication is an appropriate, or particularly effective way of resolving this type of dispute. The Allegations made by the Applicants are largely denied by the Occupiers of Lot 6. Both the Applicants and the Occupiers of Lot 6 have made much of character references and the like as evidence of their reasonableness and credibility. Both the Applicants and Occupiers of Lot 6 have provided statements from other owners and occupiers supporting their respective positions on the issues. After reading the material presented, it seems to me that there is little scope for me to objectively assess and determine the majority of allegations made in the material.

While I note that one of the Applicants has previously met with one of the Occupiers and the Body Corporate Manager in an endeavour to address the issues raised in the application, in the circumstances, I urge both the Applicants, and the Occupiers of Lot 6 to consider formal mediation as a means of resolving any ongoing difficulties regarding noise and nuisances. In this regard, parties should note that the Dispute Resolution Centre of the Department of Justice offers a free mediation service.

Notwithstanding the above, now that this dispute resolution application has been referred to me, I consider that I have a duty to consider whether there is a just and equitable order or orders that should be made to determine this application.

Generally, the by-laws for a body corporate make provision for "social" issues that can affect day-to-day living in a community titles scheme. By-laws can provide for a variety of matters including noise, parking, and the keeping of animals. Of relevance in this application are the following by-laws, which form part of the community management statement for "Allenby":

"10. A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property."

"15. A proprietor or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any other person lawfully using common property."

In addition, section 129 of the Act makes specific provision for "nuisances" in the context of a community titles scheme. Section 129 provides:

"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."

Turning to the material submitted in relation to this application, it seems to me that there have been at least a couple agreed instances where altercations or other disturbing events have occurred at Lot 6.

For example, in the material submitted by the Occupiers of Lot 6, they admit to one of the disturbances complained about by the Applicants, however indicate that they were generating noise in the course of video recording a role play about domestic violence. The Occupiers of Lot 6 indicate that "(w)e were trying to make it as realistic as possible." While I have no doubt that educational videos of this nature have an important community and educational role, I would suggest to the Occupiers of Lot 6 that perhaps a residential unit is not an appropriate place to be simulating scenes of domestic violence, particularly if neighbours are unaware that the violence is simulated. It should go without saying that hearing a violent and abusive exchange is likely to significantly distress and concern neighbours. I do not accept that the benefits of this type of video justify the Occupiers of Lot 6 subjecting their neighbours to violent, although simulated, exchanges.

The Occupiers of Lot 6 also admit to an altercation, which included swearing, on the afternoon of 4 July 2002, as alleged by the Applicants and confirmed by a person visiting the Applicants at the time. While there is some disagreement about which of the Occupiers of Lot 6 was swearing and whether or not the exchange could be properly described as violent, I accept that an argument did take place, and was of sufficient volume to be heard by and disturb the Applicants and their visitors.

In the circumstances, I am satisfied that at least on these occasions; the Occupiers of Lot 6 have failed to comply with their obligations under the by-laws for the Body Corporate and section 129 of the Act. For this reason, I intend to order that the Occupiers of Lot 6 shall comply with both the by-laws for the Body Corporate relating to noise, and section 129 of the Act as it relates to nuisance.


4.2 The Role of the Body Corporate

As stated previously, the by-laws for a body corporate form part of the community management statement for the scheme, which is binding on the body corporate, owners of lots included in the scheme, and occupiers of lots included in the scheme.

Two of the general functions of a body corporate are to "administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme", and to "enforce the community management statement (including the by-laws affecting the common property".

I am not totally satisfied that the Body Corporate has fulfilled its role in relation to enforcing the by-laws applying to the scheme. On at least two occasions, the Body Corporate has served a notice of contravention of by-laws on the Occupiers of Lot 6, however it does not appear that any action has been taken to enforce those notices. In the material, the Body Corporate makes reference to legal advice detailing concerns about the cost of enforcing the by-law contravention notice.

It seems to me that if a body corporate is satisfied that breaches of by-laws are occurring such that it is also satisfied that a notice of contravention of by-laws should be served on the relevant owner or occupier, the Body Corporate should ensure that the notice is complied with, and if it is not, the Body Corporate should take steps to enforce the notice through an action in the Magistrate’s Court, or application to this Office.