York on the Park Apartments [2005] QBCCMCmr 188 (7 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0772-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30515
Name of Scheme:	York on the Park Apartments
Address of Scheme:	Cnr York and Dwyer Street, Nundah Qld 4012

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

David Coulston, the Owner(s) of Lot 5

I hereby order that the body corporate, within 6 months of the date of this order take steps to reduce the noise emitted from the garage security door and motor to 45 dBs or less as measured in the master bedroom of Lot 5 (the applicant’s master bedroom as used in the preparation of the report by TTM Consulting (SC) Pty Ltd). I further order that the expense of complying with the above order be borne by the body corporate. I further order that the body corporate has liberty to apply to extend the time to comply with these orders. I further order that the body corporate keep the applicant informed of the steps it is taking to comply with these orders including any application to extend time to comply with these orders.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0772-2004

"York on the Park Apartments" CTS 30515

The applicant has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"):

"Modification of garage security door to ensure noise level of the operation of the door and motor be reduced significantly."

Jurisdiction

This is a dispute between an owner (the applicant) and the body corporate (the respondent) concerning the alleged noise nuisance caused by the operation of a garage security door which allows access to the parking provided for the residents of the scheme. As the operation of the garage security door comes within the scope of the duties and responsibilities of the body corporate under the Act and applicable regulation module (the Standard Module) this is a matter that falls within the dispute resolution provisions of the Act (see sections 227, 228 and 276 of the Act) and therefore may be the subject of a determination made by an adjudicator.

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)).

Application

This application concerns an alleged noise nuisance caused by the operation of a garage security door which allows access to the car parking for the scheme. The applicant is the owner and occupier of lot 5 in the scheme which is a scheme comprising 20 units. Lot 5 is situtated immediately above the garage security door and its motorised opening mechanism. The applicant states that the noise emitted from the garage security door and motor is excessive and exceeds the permissible level of 45 dBs.

The alleged permissible level is a level above which sleep will normally be disturbed. The level is expressed in a report ("the report") prepared by TTM Consulting (SC) Pty Ltd. The report states that the permissible level is a generic criterion and allowances must be made for any tonal or impulsive characteristics of the noise being assessed. The report states that the noise emitted from the garage security door and motor exceeds the level that would disturb sleep by between 7 and 11dBs.

I note that no issue has been taken with the report by any of the parties who elected to provide submissions in reply to the application. Further, I note that neither the applicant nor the parties who elected to respond to the application have advised that the noise has abated or increased in level over time. I therefore believe that the report accurately reflects the current level of noise being emitted.

The applicant advises that an interim step was taken in 2003 to address the situation which was to leave the garage security door open however this decision was reversed by a later general meeting in October 2004 when the body corporate responded to security issues rasied and resolved to return the garage security door to operation.

The applicant states that as a result of the noise level his enjoyment of life has been reduced significantly and the value of the unit diminished. Although the applicant has not detailed how his enjoyment of the lot has been affected nor has he provided any evidence of how the value of his lot has been affected I will assume that the applicant’s main concern is that the noise affects his normal sleeping patterns.

In response to the application the body corporate manager (Eagle Real Estate) provided a reply on behalf of the body corporate committee. In their reply the committee confirmed the actions of the body corporate in 2003 and the secuirty concerns raised in October 2004 which led to return the garage security door to operation.

The body corporate manager also advised that at the 2003 annual general meeting the applicant, any other affected owners and the body corporate themselves resolved to lodge a dispute notice with the builder who installed the garage security door regarding the noise issue. The body corporate manager advised that this step was not taken as they did not receive a dispute notice from the applicant to commence the dispute process with the builder. It is also apparent that the body corporate did not take any steps to prepare or file a dispute notice with the builder despite the applicants failure to commence the process.

This non-action is of general concern given that the alleged nuisance is being emitted from an item of common property which ultimately the body corporate has the responsibility to manage and maintain.

This dispute was referred for mediation (pusuant to section 254 of the Act) available under the Dispute Resolution Centres Act 1990 on 17 February 2005. By letter dated 9 March 2005 the Commissioner for Body Corporate & Community Management was informed that no mediation was conducted in this matter. This is regretable as in my experiences matters of this nature are best resolved by way of mutually agreed solutions. After receipt of this advice the Commissioner for Body Corporate & Community Management referred this matter for departmental adjudication.

Determination

York on the Park (CTS 30515) is a community title scheme that is goverend by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Central to this issue is the report prepared by TTM Consulting (SC) Pty Ltd. In summary the report provides that the noise emitted from the garage security door and motor exceeds 45dBs the level that would disturb sleep by between 7 and 11 dBs. This figure is supported by the relevant Australian Standard (AS/NZS 2107:2000 : Acoustics - Recommended design sound levels and reverberation times for building interiors) which provides this figure as a generic sleeping criteria above which sleep will be disturbed. Understanding the standards applicable to acoustics is a difficult area for persons without skills in the area, but it is enough that the test results show consistently that the noise emitted from garage security door and motor exceed the acceptable level of noise. Based on this I find that the noise emitted is a source of nuisance to the applicant.

The Act and Standard Module impose responsibilities on the body corporate to manage and maintain items of common property which includes the garage security door and motor (see section 152 of the Act and section 109 of the Standard Module). Closely associated with this is the responsibility and the obligation on occupiers of a lot in a scheme to not use or permit the use of common property which causes a nuisance or interferes unresaonably with the use and enjoyment of another lot (see section 167 of the Act).

Each of the above points requires, in my view, the body corporate to manage and maintain the garage security door and motor, or takes steps to remedy its use by any occupier or owner of any of the lots, to reduce the noise nuisance the subject of this application. Steps the body corporate may consider using in meeting their obligations may include lodging a dispute notice with the builder so as to have the builder address the matter, installing sound proofing materials (double glazing) or modifying the fittings on the garage security door and motor.

Based on the above I will order that the body corporate, within 6 months of the date of this order take steps to reduce the noise emitted from the garage security door and motor to 45 dBs or less as measured in the master bedroom of Lot 5 (the applicant’s master bedroom as used in the preparation of the report by TTM Consulting (SC) Pty Ltd. I will also order that the expense of complying with the above order be borne by the body corporate.

I will however make the comment that if the applicant wishes to have a greater level of sound proofing through the use of a different technique or equipment than the body corporate’s preferred course to comply with these orders then there should be nothing to stop the applicant agreeing to contribute funds towards the expense of these different techniques or equipment.

I will also order that the body corporate has liberty to apply to extend the time to comply with these orders.

I will also order that the body corporate keep the applicant informed of the steps it is taking to comply with these orders including any application to extend time to comply with these orders.

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