Macquarie Mews [2003] QBCCMCmr 429 (21 March 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0684-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21958
Name of Scheme:	Macquarie Mews
Address of Scheme:	123 Macquarie Street, ST LUCIA QLD 4067

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

C G YOUNGI hereby order that the owner of Lot 3, James Patrick WHEELER, must not create any noise in his lot or on the common property that is a nuisance to the occupiers of other lots in the scheme, in particular the nuisance caused by operating a music player at an unreasonable level of loudness. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0684-2002

"Macquarie Mews" CTS 21958

This is the final order to an application by the body corporate which has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act)" -

That the owner of lot 3 be compelled to comply with by-law number 1 so as not to cause noise disturbance to other lot occupiers and adjoining properties.

The applicant also applied for an interim order and on 10 December 2002, the following Interim Order 365-2002 was issued –

I hereby order that the application by the body corporate for Macquarie Mews that the owner of lot 3 be instructed to comply forthwith with by-law 1, is dismissed.

JURISDICTION:

This is a dispute between the body corporate (the applicant) and an owner (James Patrick Wheeler of Lot 3) 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 182A, 183, and 223 of the Act).

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 Wheeler of Lot 3, and all other owners, with an invitation to respond to the matters raised in the application. The respondent made a written submission, as did the owners of Lots 4 and 6. The applicant body corporate (committee), after inspecting the respondent’s submission, made a reply to that submission.

Briefly, the facts of the matter are as follows. The application is supported by an attached copy of the minutes of a committee meeting held on 11 October 2002. The minutes show that the committee was solely concerned with complaints against the respondent over his noise, with complaints said to be from 6 different sources including neighbouring properties. The minutes includes a diary of noise incidents involving the respondent occurring between 21 September and 10 October 2003, the particular noise nuisance complained of being amplified music at various times of the day and night.


The committee states that the Police advised it that the body corporate should make an application for a Peace and Good Behaviour Order against the respondent Wheeler.

Apart from the committee, two owners have made submissions supporting the application against the respondent. Their complaints concern mostly noise, but also abuse and threatening behaviour arising out of their complaints to the respondent of unreasonable noise.

In his submission, the respondent admits that he does play music but denies that the music is played excessively loud. He states that in response to complaints about his music, he has taken a number of measures to reduce the amount of noise heard outside his lot. He believes those complaining have a low noise tolerance level. The respondent included with his submission a note from the tenants of Lot 1 saying that they had no complaint about noise from the respondent’s lot

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

The most appropriate manner 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 to the court. However, the respondent should not take any comfort in these words as, should he fail to comply with the order, the penalties for non-compliance are severe (a fine of up to $30,000) and the applicants, with care and persistence, can indeed prosecute the matter successfully as others have done. The only safe course is, I suggest, is for the respondent to comply with the order and refrain from making unreasonable and excessive noise.

Although this office did refer the dispute to the Dispute Resolution Centre of the Department of Justice and Attorney-General for mediation, unfortunately 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 all of the incidents raised by the applicant body corporate, complemented by those raised by the two owners in their submissions, except to say that both owners have diarised incidents of noise nuisance and those occasions when police were called. They have systematically diarised the incidents with reference to the following: the noise source; the date and timing of each incident; and any associated actions, such as asking the respondents to reduce the noise, abuse by the respondent, calling the police etc.


Such entries do not in themselves prove the matters complained of actually happened, or happened but not with the level of noise complained about, but they can provide evidence tending to support the allegations made. That is the case here as, of significance, the allegations from both parties corroborate each other in regard to a number of the incidents and the level of nuisance. Additionally, the Police have attended complaints of noise, and while the parties have different versions of what the Police told them privately, the respondent has not addressed all of the instances that have been disclosed. In his submission, he states that one occasion he complied with a Police request to turn it down a touch but later merely relates that the Police visited him twice on Thursday 10 October 2002 without commenting on what transpired during the visit. A dual visit such as this suggests non-compliance with a Police request, and really required the respondent to provide his side of the story.

Apart from the noise, both owners have complained of shouted abuse and threatening behaviour by the respondent. The respondent also operated the pool pump outside of the hours specified by the committee, in particular running it on a Sunday when the noise disturbed the occupier of Lot 6 (Livek). Wheeler also allegedly stated that he intended controlling pool maintenance and he was not going to comply with directions to pass the pool cleaning equipment on to another owner as determined. This matter is not part of the order sought, however I point out to the respondent that body corporate assets are under control of the body corporate, administered through its committee, and no owner has the right to deal unilaterally with body corporate assets or the common property as they wish, and certainly not against the committee’s express determination.

Units in a community titles scheme are, by definition, sited close to each other – in the case of "Macquarie Mews" the six lots are linked my common walls. Unlike a normal suburban house, owners need to compromise in their lifestyle in a number of ways, including: the parking of cars; the keeping of animals; storage of flammable or noxious liquids; and, often a problem area, the amount and level of noise. The very closeness of lots in a community title schemes is the very reason why body corporate by-laws and legislation, specifically regulate matters such as noise. Apart from by-laws, 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 or interferes unreasonably with the use and enjoyment of another lot included in the scheme.

While the respondent believes that his noise is neither excessive nor unreasonable, the balance of the evidence before me suggests otherwise and I have made an order against the respondent Wheeler not to create noise that causes a nuisance to other occupiers in the scheme.

Having said that, I would also make the following comment concerning an offensive statement made by the respondent in his submission to this office, despite the caution given in this office’s Notice Inviting Submissions dated 14 November 2002 to the respondent that a submission may be viewed by other parties to the dispute under section 196 of the Act. There are certain protections in law allowing owners to make frank submissions without the fear of having an action taken against them by another party, however that protection does not extend to comments that are personally offensive of a person and are not evidence relevant to the dispute. I am referring to the comments, which undoubtedly the committee (including Livek as Secretary) would have found in its inspection of a copy of the submission, referring to Livek of Lot 6 being a Succibus totally Negative & actually Evil and vindictive (presumably meaning a succubus). Despite the nature of the comments, this office was obliged under section 196 of the Act to allow the applicant to inspect the submission.