Surfers Greens [2004] QBCCMCmr 29 (16 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0461-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2158
Name of Scheme:	Surfers Greens
Address of Scheme:	3 Bronberg Court, SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jorge Oscar Medel & Maria Medel, the owners of lot 15

I hereby order that Jorge Oscar Medel & Maria Medel the owners of lot 15 shall comply with the relevant by-law 9 and section 167 of the Body Corporate and Community Management Act 1997, and shall immediately desist from the feeding of wild birds on or from their lot on any part of the common property of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0461-2003

"Surfers Greens" CTS 2158

The applicant, Jorge Oscar Medel & Maria Medel, the owners of lot 15 have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

To ask the body corporate to allow us and other owners / occupiers to feed the wild birds until the body corporate is successful in creating a by-law that explicitly forbids residents from feeding them.

Section 276(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 contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme

The scheme is recorded as a building unit plan (now a building format plan) containing 48 lots. The applicants are the owners of lot 15, which is located on the upper level of a two story building.

The application, submissions and reply

The applicant’s grounds are detailed and in the circumstances, I do not propose to restate them in any length. In particular, the grounds refer to many matters and issues I do not need to make a determination on. The issue for me to determine is whether the applicants’ conduct (the feeding of wild birds from the lot) is or is not within the terms of the relevant by-law or by-laws or applicable legislation, such that that conduct is prohibited.

In essence, the applicants are seeking an order that their conduct in feeding wild birds on common property from their lot is not an action contrary to the current by-laws, and unless and until such time as the body corporate records a by-law to this effect, then that they are entitled to continue the feeding of the wild birds. The applicants are implicitly seeking to overturn a notice of continuing contravention of by-law issued to them by the body corporate, alleging a contravention of by-law 9 (as per the minutes of committee meeting where it was resolved to issue the notice). The contravention notice has not been provided to me as part of the applicants’ material. Given that it has not been provided, I am uncertain whether the contravention notice also makes reference to by-law 8, which the body corporate committee have sought to rely on in its material.

In support of their contention that the current by-law (or by-laws) do not apply, the applicants rely on certain verbal advice they state they received from an Information Officer (of this office) to the effect that they "are not breaching by-law 9 and that by-law 9 cannot be used against residents for feeding wild birds on common property".

As part of its investigation of this dispute, this office sought submissions from all owners and the body corporate committee regarding the application. The body corporate committee has responded to the notice inviting submissions, together with 9 of the 48 owners.

The committee submission responds that the body corporate has received complaints from other owners to "unsightly food scraps, and bird droppings on the common property as a consequence of the applicant feeding birds from its balcony" and that the applicants have "refused the respondent’s requests to desist from this practice". Consequently the body corporate did issue a contravention notice to the applicants on 11 July 2003. The conduct complained of is that the applicants "have been feeding wild birds by throwing food scraps and seed from their balcony to the grassed area below comprising common property". The body corporate allege breaches of both by-laws 8 and 9 of its recorded by-laws.

By-laws 8 and 9 provide

8. Owner not to litter

An owner shall not throw or allow to fall or permit or suffer to be thrown or to fall any paper, rubbish, refuse, cigarette butts or other substance whatsoever out of the windows or doors or down the staircase, passages or sky lights, from balconies, from the roof or in passage ways of the building or stairways. Any damage or costs for cleaning or repair caused by breach hereof shall be borne by the owner concerned.

9. Deposit rubbish etc on common property

An owner of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.

The body corporate submits that "given the application of the above by-laws to these circumstances, it is unnecessary for the body corporate to adopt a by-law that specifically prohibits the feeding of wild birds".

In the alternative, the body corporate relies on section 167 of the Act which provides –

167 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.

The body corporate alleges that "the feeding of wild birds creates a nuisance to other lot owners due to the noise, smell, appearance and potential health hazard as a result of the unnatural aggregation of wild birds on the common property".

The body corporate alleges "access across the common property is adversely affected" and that the feeding "especially interferes with the enjoyment of the common property by the occupiers of the lot directly below the applicant’s lot".

In addition, there have been 9 submissions received from individual owners. All of these submissions oppose the application and support the position of the body corporate. Most express examples of how they consider the applicants’ conduct adversely affects the, and their, enjoyment of the common property.

The applicants have replied to the several submissions. Most of the applicants’ lengthy reply is simply a denial of the several allegations made regarding the dispute by other owners and the body corporate committee.

Determination

As I previously intimated, I do not intend to examine the minutia of this dispute. Rather I intend to determine whether or not the applicants conduct contravenes the by-laws, or is for some other reason, not permitted, and following this determination, to make an order appropriate in my view to resolve the dispute.

Are by-laws 8 & 9 applicable to the conduct in question?

The outline of both parties contentions are set out above. By-law 8 prohibits an owner from throwing or allowing to fall any paper, rubbish, refuse, cigarette butts or other substance whatsoever out of the windows or doors or down the staircase, passages or sky lights, from balconies, from the roof or in passage ways of the building or stairways.

Are bread pieces and bird seed within this description. There is a rule of statutory interpretation called ejusdem generis which essentially provides that the interpretation to be given to general matters is constrained or defined by reference to the specific matters which precede them. In this case "or other substance whatsoever" should be interpreted to include only matters like or similar to the specific: paper, rubbish, refuse, cigarette butts. On the application of this rule, it is doubtful in my view that bread pieces and bird seed would be within the provisions of the by-law. However, it is very relevant to note that the by-laws are not part of any legislation. They are simply a set of rules for the operation of this particular body corporate. Given this, the ejusdem generis rule technically has no operation, and consequently a more flexible and potentially wider interpretation is appropriate. My view is that by-laws should be interpreted reasonably widely since to require by-laws to be specific on ever possible contravening event would be almost impossible, lead to very lengthy and technical by-laws, and could conceivably lead to absurdities.

In interpreting by-laws, I firstly seek to identify the most likely by-law which might be applicable, rather than the scatter gun approach of referring to several. All that is required for a contravention is for one by-law to apply; the operation of by-laws is not cumulative. In my view, I conclude that by-law 9 has potentially greater application to the conduct complained of. By-law 9 provides -

9. Deposit rubbish etc on common property

An owner of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.

I consider that bread and bird seed is not rubbish, dirt, dust. However, the general words used in the by-law have a wider application given the reference to likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.

I conclude that these words are akin to the wording in section 167 of the Act, the nuisance provision, quote –

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.

It is my view that the feeding of wild birds by the throwing of bread and seed from the balcony of a lot to the common property is capable of and does contravene the provisions of both by-law 9 and section 167 of the Act. It is clear from submissions, particularly of other owners, that there are a considerable number of consequences arising from the applicants conduct of feeding the wild birds on common property that interferes unreasonably with the use and enjoyment of the common property by other owners and occupiers. I do not intend to list these consequences individually; again the requirement is not cumulative. Rather I find that there is sufficient evidence to satisfy me that the applicants conduct has the potential to and actually does unreasonably interfere with the use and enjoyment of common property by others.

I conclude that the applicants have sought to adopt an overly restrictive interpretation of the by-law so as to conclude that it does not apply to them. I intend to order that the applicants shall immediately comply with the relevant by-law 9 and section 167 of the Act, and shall immediately desist from the feeding of wild birds on or from their lot on any part of the common property.