Kansas Court [2003] QBCCMCmr 390 (18 February 2003)

Last Updated: 7 September 2007

P J HANLYREFERENCE: 0600-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	315
Name of Scheme:	Kansas Court
Address of Scheme:	1 Kansas Close WHITEROCK QLD 4868

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

Susan Justine Bryant, the owner of lot 2



I hereby order that the occupiers lot 3, Triest Morellini and Shane Maguire, shall take all reasonable steps to ensure that noise emanating from their lot does not interfere with the peaceful enjoyment of other persons lawfully on the other lots within the scheme or the common property.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0600-2002

"Kansas Court" CTS 315

The applicant, Susan Justine Bryant, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking that the tenants in lot 3 obey and comply with the body corporate by-laws set down in by-laws 1 and 8 of section 30, Third Schedule by-laws.

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 this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, 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)).

In the supporting grounds, the applicant states that since she has returned to her lot after having been overseas for a year, she has had to endure continual loud noise emanating from lot 3. The applicant further states that during her absence overseas her tenant also had problems with noise, but complaints to the letting agent did not resolve the issue.

Submissions were sought from the owners and the occupiers of lots 1 and 3. Submissions were received from the occupiers of lots 1 and 3, and from the owner of lot 3. The applicant exercised her right of reply.

The material before me contains many allegations and counter-allegations, the detail of which I do not intend to set out in this "Statement of Reasons for Decision". Suffice to say, it is apparent that there has been some simmering tension between the applicant, the owner of one lot and the occupiers of the other two lots in the scheme. A dispute such as this is impossible to resolve with the mere making of an order. Parties who live in close proximity to each other should be considerate in relation to noise. Equally, such parties must concede that there is a certain level of reasonable noise, which is inevitable in such a situation, and of which they must be tolerant. The difficulty of course is in establishing what is reasonable noise.

I note that Ms Morellini, one of the occupiers of lot 3 has made the following comments in her undated submission received in the Commissioner’s office on 1 November 2002:

I know that myself and my family can be noisy but I feel that we are no different to other families. We play, we argue and we scream but it is not constant. There are quite a few families in the area and they all do the same. My children are in bed between 7.00pm and 8.30pm. It depends on how hot it is. I have a gorgeous 8 year old boy and beautiful 6 year old twin girls. They have a lot of fights between themselves as all children do.




Later in the submission, Ms Morellini stated:

And as for the table and chairs. I’ve never had a table outside only two outdoor chairs and pot plants. They are on the unit’s property and not the body corporate land. They are between my bedroom glass door and my roller door. I have been told there is nothing wrong with it.

The owner of lot 3, Leanne Dyson, confirmed that the furniture is behind the roller door and on the lot, not on common property.

The by-laws for this scheme, which is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997, are contained in the community management statement recorded in the Department of Freehold Land Titles on 14 November 1997.

By-law 1 relates to noise, and states:

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.

By-law 8 relates to the appearance of the lot, and states:

8 Appearance of lot

(1) The occupier of a lot must not, without the body corporate’s written

approval, make a change to the external appearance of the lot unless the

change is minor and does not detract from the amenity of the lot and its

surrounds.

(2) The occupier of a lot must not, without the body corporate’s written

approval--

(a) hang washing, bedding, or another cloth article if the article is

visible from another lot or the common property, or from outside

the scheme land; or

(b) display a sign, advertisement, placard, banner, pamphlet or

similar article if the article is visible from another lot or the

common property, or from outside the scheme land.

(3) This section does not apply to a lot created under a standard format

plan of subdivision.

The by-laws are the same as the by-laws contained in Schedule 2 of the Act, with the addition of by-law 12 relating to areas of exclusive use for each of the lots.

I am not satisfied that there has been any breach of by-law 8. The occupiers have not changed the external appearance of the lot, and even if the chairs of which the applicant complains can be viewed from outside the lot, I have not been provided with any evidence to satisfy me that this would detract from the amenity of the lot.

As far as the noise complaint is concerned, Ms Morellini admitted that she and her family can be noisy, but she defends their position by stating that, in her view, they are no different to other families. She states that they "argue" and "scream", but not constantly. It may well be that the applicant also has a low threshold of tolerance to noise. In any event, Ms Morellini and Mr Maguire are bound to abide by the by-laws, and I therefore propose to order that they take all reasonable steps to ensure that noise emanating from their lot does not interfere with the peaceful enjoyment of other persons lawfully on the other lots within the scheme or the common property.

I also point out to the applicant that living in a community titles scheme involves the acceptance of certain levels of noise, especially during the day and early evening, which is why the noise thresholds adopted by local councils cover two different time periods.
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