Archway Court [2003] QBCCMCmr 394 (20 February 2003)

Last Updated: 7 September 2007

C G YOUNGREFERENCE: 0560-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14203
Name of Scheme:	Archway Court
Address of Scheme:	58 Clarendon Street EAST BRISBANE QLD 4169

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

Joanne DOWTHWAITE and Wade WIMBUS, as owner and occupier of Lot 2 respectively; and Nannette Marion MACDONALD (COOK) as the owner of Lot 4,



C G YOUNGI hereby order that the occupiers of Lot 1, Phillip Gary BIRKETT and Paul Anthony ZUGLIAN, must not create, or permit others to create, any noise in the lot or on the common property that is a nuisance to the occupiers of other lots in the scheme, whether the nuisance is caused by the operation of a stereo or television, vocally, or in any other manner. 2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0560-2002

"Archway Court" CTS 14203

The applicants, Joanne Dowthwaite and Wade Wimbis of Lot 2, and Nanette MacDonald of Lot 4, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") that –

"We would like all unnecessary, excessive noise from Unit 1 to cease. This would include noise from stereo units, televisions, the slamming of doors and loud vocal noises made from both, inside the unit, and the externnal balcony. As a measure of what is deemed "excessive noise" we would like to see the Body Corporate by-laws used as a reference i.e. "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 ."

JURISDICTION:

This is a dispute between owners and occupiers (the applicants Dowthwaite and Wimbis of Lot 2, and Macdonald of Lot 4) and tenant occupiers (the respondents Phillip Gary BIRKETT and Paul Anthony ZUGLIAN of Lot 1) concerning regular noise nuisance being created in breach of the body corporate by-laws. This is therefore a matter that falls within the dispute resolution provisions of the legislation (see sections 182, 183, and 223(1)(a) of the Act).

There is a jurisdictional matter that I need to consider. Both parties have acknowledged that a complaint of assault has been made by one of the respondent tenants (Zuglian) against one of the applicants (Wimbis), and I understand that the court has deferred consideration of the matter until after the parties have first sought to settle the matter through mediation.

I do not consider that this matter in progress precludes me from determining this dispute. The cause of the alleged assault may be related directly or indirectly to matters of complaint raised in this application, however there are other parties involved in the dispute other than Zuglian and Wimbus, and some of the complaints relate to periods prior to the date of the assault on 18 August 2002.

I also notice that this application was lodged on 10 September 2002, some weeks after the alleged assault. However, an order against the respondents at this time should not, in my view, have any effect on either the impending mediation or any subsequent determination of the matter by the court.

Accordingly, I do not consider there is any jurisdictional barrier to my continuing to adjudicate the dispute.

General powers of an Adjudicator in making an order:

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

APPLICATION AND SUBMISSIONS:

In accordance with the requirements of section 194 of the Act, a copy of the application was provided to the respondent occupiers of Lot 1, the owners of Lot 1 as affected parties (Betty Edna Ellis and Kim Ellis), the body corporate committee and all other owners, with an invitation to respond to the matters raised in the application. The owners and occupier tenants of Lot 1 made a joint submission, and the chairperson Alan Lane-Richardson made a submission on behalf of the committee. The applicants submitted a reply to those submissions.

The applicants are the occupiers of Lot 2 (Dowthwaite and Wimbis) and the owner-occupier of Lot 4 (MacDonald), and their complaint is against the tenant occupiers of Lot 1 (Birkett and Zuglian) over excessive noise created by them regularly since late July 2002, and earlier in the case of Birkett and a previous co-tenant.

Briefly, the facts of the matter are as follows. The noise complained of includes: loud stereo music; television on high volume; the slamming of doors; loud voices and general party noise. It mostly emanates from inside Lot 1 ("the unit") or from the unit balcony, and occurs during daylight hours and at night, including in the early hours of the morning.

The respondents deny that they create excessive noise. They agree that they play their stereo, television, have visitors and parties, though the noise created is neither unreasonable nor excessive. They are both shift workers who often arrive home after midnight and some noise at this time is unavoidable.

The dispute is therefore one of claim and denial or counter-claim.

The most appropriate way of resolving matters of a social nature, such as noise nuisance, is for the matter to be mediated between the parties. Orders imposed under the adjudication process on a party in a dispute of this nature, are a rather blunt instrument and enforcement of the order in the event of non-compliance can be onerous. While I can determine this dispute by assessing the evidence on the balance of probabilities, the enforcement of the order involves monetary penalties and therefore the court sits in its criminal jurisdiction where the standard of proof is "beyond a reasonable doubt". That is, if the parties named do not comply with the order then the applicants will need to produce compelling evidence. However, the respondents should not take any comfort in these words as the penalties for non-compliance are severe (a fine of up to $30,000) and the applicants can indeed obtain compelling evidence with persistence. The only safe course is to comply with the order.

Although this office did refer the dispute to the Dispute Resolution Centre of the Department of Justice for mediation, no meeting of the parties took place. As the process is a confidential one, no reason was provided for the mediation not proceeding. It is unfortunate that mediation did not take place, however I shall nevertheless proceed to adjudicate the matter.

DETERMINATION:

I have read all of the supporting grounds to the application, and the applicant’s response to the submissions. I do not intend to traverse the incidents raised by the applicants, except to say that the applicants have systematically diarised a number of them with reference to the noise source, to the date and approximate time, and to any associated actions such as asking the respondents to reduce the noise, or calling the police.

Such entries do not in themselves prove the matters complained of actually happened, or happened but not with the level of noise complained about. However, there are three applicants who all corroborate each other in regard to many of the incidents and the level of nuisance.

What is also of significance is that there are independent witnesses to the noise level from Lot 1 being excessive on various occasions.

Meredith Lane-Richardson, body corporate secretary, in a letter of 1 September 2002 states that on 28 July 2002 she heard loud music and "yahooing" from her residence sited some 100 metres from the scheme, and ascertained that the noise was coming from Lot 1. She complained to the owners (Ellis) who informed her the next day of having spoken to the tenants about the complaint. The respondents state that friends had been present to watch an early afternoon football game on television, no music was played all had left by 5pm.

Occupiers of a nearby residence in Clarendon Street, Lawrenson and Coleman, have signed a statement referring to the general observation that "the frequent high levels of noise has also had an adverse affect on them."

The scheme comprises 8 lots; two owned by the applicants, one being rented by the tenants, two by the Lane-Richardsons, and the remaining three by individual owners. None of the latter three owners made a submission or been otherwise involved in the noise complaints; this would be of relevance if any of these persons occupied units that are closer, or as close, to Lot 1 as the applicants’ units.

However that is not the case. The configuration of the units is that Lot 1 is an end unit and the unit immediately adjacent to it is Lot 2, and that immediately above it is Lot 4. Accordingly, the two units most likely to be affected by noise from the respondent’s lot are Lots 2 and 4, and these are the very lots of the applicants. The absence of complaints from other owners is therefore of no relevance, despite the contrary statement in the respondents joint submission. The submission by the chairperson adds nothing to resolve the dispute.

The nightshift work by both respondent tenants raises the problem of noise when they arrive home, generally after midnight. It is a fact of life that most working and non-working people, sleep during the hours of around 10 pm to 6 am; certainly most are asleep by midnight. Accordingly, while it must be accepted that the respondents be able to shower, change clothes, and relax before going to bed, in recognition of the usual habits of others, they need to keep noise to a minimum – the removal of shoes, television and stereo on low volume or using headphones, closed doors, and the like, can assist in that. Late homecoming is a difficult situation which needs acceptance and compromise, but, as I have said, the respondents must recognize that their times are at odds with most others and therefore they need to modify their behaviour to reduce what might otherwise be normal "living" noise.

However, most of the complaints concern music and television in afternoons and at night, rather than homecoming noise, and therefore is unrelated to their occupation. While the respondents believe their noise is not excessive or unreasonable, the balance of the evidence before me suggests otherwise. Units in a community titles scheme are, by definition, sited close to each other – in the case of "Archway Court" they all form the one building and are therefore adjacent to two or more lots. Unlike a normal suburban house, owners need to compromise in their lifestyle in a number of ways, including the parking of cars, keeping of animals, storage of flammable or noxious liquids, and, always a problem area, the amount and level of noise. The very closeness of neighbours is why schemes have by-laws which regulate matters such as noise – additionally, the legislation itself at section 129 requires that an occupier must not use, or permit the use of, the lot or common property in a way that causes a nuisance or hazard. This provision includes that it is contravened by both an occupier creating the noise, and by any other occupier who permits noise to be made in the lot. That is, occupiers have a duty both in respect of themselves and others, not to cause a noise nuisance to other occupiers.

For all of the above reasons, I have made orders against both of the respondent occupants of Lot 1.