Burleigh Beach Tower [2005] QBCCMCmr 30 (19 January 2005)

Number of Scheme:	11093
Name of Scheme:	Burleigh Beach Tower
Address of Scheme:	52 Goodwin Terrace Burleigh Heads, Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
George Melville, the Occupier of Lot 8:

I hereby dismiss the application for an order "that the Body Corporate for Burleigh Beach Towers enforce by-law 3 relating to noise emanating from neighbouring units to unit 1C, in particular unit 1D Burleigh Beach Tower".

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0489-2004

"Burleigh Beach Tower" CTS 11093

The Occupier of Lot 8, Mr George Melville (the Applicant) has made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act). I understand that Lot 8 is also known as Unit 1C.

The Applicant states that he is seeking an order that "the Body Corporate for Burleigh Beach Towers enforce by-law 3 relating to noise emanating from neighbouring units to unit 1C, in particular unit 1D Burleigh Beach Tower".

Department of Natural Resources, Mines and Energy records show that the "Burleigh Beach Tower" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 7 April 1981. The scheme land consists of 101 lots and common property, and is primarily used for residential purposes.

A new community management statement was recorded for "Burleigh Beach Tower" on 21 August 1998. The community management statement shows that the Act’s Body Corporate and Community Management (Accommodation Module) Regulation 1997 applies to the scheme.

The Applicant lodged the original form of this application with the Commissioner (via his solicitors, McDonald Brown) on 28 July 2004. On 18 August 2004, a staff member of this Office wrote to the Applicant and identified a number of defects in the application. On 6 October 2004, the Applicant filed a fresh version of the application.

On 14 October 2004, the Commissioner issued the Body Corporate and the Caretaking Service Contractors for the scheme (the Resident Managers) with formal notice of the application (section 243(1) of the Act). The Commissioner also invited the Body Corporate Committee, the Resident Managers, and all owners of a lot included in the scheme to make written submissions about the application (section 243(2) and (4) of the Act).

I have before me a written submission from Mr Peter Crymble on behalf of the Resident Managers, as well as a written submission from the Committee (prepared by Ms Anne Farrell of Body Corporate Services Pty Ltd, the Body Corporate Manager for the scheme). Both submissions oppose the application.

In accordance with section 246 of the Act, the Commissioner provided the Applicant with copies of the submissions. The Applicant has provided a written reply to Mr Crymble’s submissions.

On 3 December 2004, the Commissioner made a dispute resolution recommendation (section 248 of the Act) that the application should be the subject of mediation conducted by a Dispute Resolution Centre of the Department of Justice and Attorney-General. The Commissioner subsequently referred the application to a Dispute Resolution Centre.

Unfortunately, on 6 January 2005 the Dispute Resolution Centre advised the Commissioner that the Applicant had declined to participate in mediation. As a result, the Commissioner made a supplementary dispute resolution recommendation that the application should be the subject of departmental adjudication. The Commissioner has referred the application to me for consideration.

Section 227(1) of the Act limits the disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of parties involved in community titles schemes. On its face, this application purports to describe a dispute between the occupier of a lot included in a community titles scheme and the body corporate for that scheme. As a result, the matter falls into the category of dispute described in section 227(1)(b) and may be resolved under the Act’s dispute resolution provisions.

However, it is perfectly apparent from the material submitted by the Applicant that he is primarily dissatisfied with the performance and conduct of the Resident Managers. At this point, I simply wish to note that an occupier of a lot included in a community titles scheme does not have standing to bring an application under the dispute resolution provisions against a caretaking service contractor for the scheme (in other words, a resident manager). Such an application may only be brought by the body corporate for the relevant scheme (section 227(1)(d) of the Act). For this reason, if the Applicant is successful in this application, any orders arising from the application can only be made against the Body Corporate and not against the Resident Managers.

Section 276(1) of the Act allows an adjudicator to make just and equitable orders to resolve disputes in community titles schemes about a range of matters, including contraventions of the Act and a scheme’s community management statement. In this case, the Applicant appears to be arguing that the Body Corporate has failed in its statutory duty to enforce the by-laws for the scheme (which form part of the scheme’s community management statement). As a result, the matter is one that may be resolved by an adjudicator.

This dispute resolution application concerns the Body Corporate’s by-laws concerning noise.

The registered building units plan for "Burleigh Beach Tower" shows that Lot 8 is located on Level C of the building, along with 5 other lots and an area of common property. Lot 8 is located between Lots 7 and 9.

In the supporting grounds to the application, the Applicant explains that from time to time, occupiers of Lot 7 (known as Unit 1D) cause excessive noise by closing a door noisily. I understand that for the most part, the Owners of Lot 7 (Mr Bruce Jack and Mrs Muriel Jack) do not occupy their lot. Rather, I understand that Lot 7 is available, for at least part of the year, for short-term, holiday accommodation.

The Applicant claims that the noise caused by occupiers of Lot 7 closing doors carelessly contravenes the by-laws for "Burleigh Beach Tower" and unreasonably interferes with his occupation of Lot 8. The Applicant also claims that the Resident Managers have failed to discharge an obligation to enforce the by-laws on behalf of the Body Corporate in that they have not promptly and effectively responded to his complaints about noise from Lot 7. The Applicant believes that the Resident Managers are discriminating against him because Lot 8 is not part of their letting pool.

However, the Applicant also indicates that he has approached Mr Jack (a co-owner of Lot 7) about the problem. The Applicant acknowledges that Mr Jack has taken steps to resolve the situation, including by installing tape around the relevant door to minimise the noise of the door closing, and by placing a sign on the inside of the door requesting occupants to close the door quietly.

In their submissions, the Body Corporate and the Resident Managers reject the Applicant’s claim that they have not addressed his concerns about noise caused by the door. The Resident Managers also reject the Applicant’s claim that they are discriminating against him.

From these submissions, I understand that the door in question is a fire door. I understand that the door closes automatically due to a hydraulic closer which is attached to the door. The Body Corporate claims that the door closes "gently but firmly" and that there is no aberrant noise factor as opposed to any other door. The Body Corporate also acknowledges that the Owners of Lot 7 have installed felt around the door which has resulted in the door closing more quietly than others in the building.

Mr Crymble of the Resident Managers states that he has inspected the door on a number of occasions and has found nothing wrong with the operation of the door. He also engaged a locksmith to inspect the door who, while finding nothing wrong with the door, did make some adjustments to the hydraulic closer in an attempt to soften the impact of the closing door. Mr Crymble also acknowledges that Mr Jack has made various endeavours to minimise the noise generated by the door.

In his reply to submissions, the Applicant does not dispute that the above actions have been taken to resolve his concerns about noise caused by the door. Rather, the Applicant states that noise is still caused if people operate the door carelessly, and that upon complain by him the Resident Managers have an obligation to promptly approach the occupiers and require them to close the door quietly.

Noise is a matter that is ordinarily addressed as part of the by-laws for a community titles scheme.

By-laws form part of the community management statement for a community titles scheme. Pursuant to section 94(1)(b) of the Act, a body corporate has an obligation to enforce its community management statement, including any by laws. However in carrying out this function, bodies corporate must act reasonably (section 94(2)).

The current community management statement for "Burleigh Beach Tower" includes the following by-law relating to noise:

The Act itself also includes a provision prohibiting occupiers of lots in community titles schemes from using their lots or the common property in a way that causes a nuisance or a hazard (section 167).

Section 167 of the Act and various by-laws adopted by individual community titles schemes make it clear that the occupiers of lots included in community titles schemes must refrain from creating excessive noise which would unreasonably interfere with the ability of other occupiers to peacefully enjoy their lot or the common property.

However, it is also clear that many occupiers of lots in community titles schemes live in close proximity with their neighbours. As such, in many schemes it is almost inevitable that from time to time lot occupiers will hear noises incidental to the normal occupation of other lots included in the scheme (for instance, noise caused by running water or a flushing toilet). In my view, it is not reasonable or realistic to expect to be able to occupy a lot in a community titles scheme without hearing any incidental noise from the occupiers of other lots included in the scheme.

After considering all of the material submitted in relation to this application, I have come to the view that the application is without merit and should be dismissed. I have a number of reasons for this view, which I will outline below.

Firstly, I note that there is not one particular person (or group of persons) occupying Lot 7 that the Applicant considers are routinely contravening the noise by-law by closing the door loudly. Rather, the Applicant alleges that from time to time short-term tenants are careless in closing the door. While I have no doubt that some people close doors more loudly than others, given that the Applicant’s complaints are ongoing and not limited to particular occupants, it seems likely to me that the Applicant is disturbed by relatively normal use of the door.

Secondly, I am satisfied that the Resident Managers, Body Corporate and particularly Mr Jack have taken all reasonable steps to address the Applicant’s complaints about noise. It is clear that the Resident Managers and Mr Jack have checked the door to ensure that it is in proper working order, and have gone as far as making adjustments to the door to minimise any disturbance to the Applicant caused by the closure of the door. It seems likely to me that generally, noise caused by the closure of such a door would be a normal noise incidental to living in a community titles scheme. This is supported by the fact that no other owner has made a submission suggesting that the fire doors at "Burleigh Beach Tower" cause any unusual or disproportionate noise. I also note that Mr Jack has installed a sign requesting occupants to close the door quietly. It is difficult to see what further reasonable and practical steps could be taken regarding this issue.

Thirdly, while the Applicant has named the Body Corporate as the respondent to this application for jurisdictional reasons, it is perfectly apparent that he considers that it is the Resident Managers that have failed in their duties regarding the noise issue. While I agree that Resident Managers generally play an important role in the enforcement of by-laws on behalf of a body corporate, it is important to note that the primary responsibility for enforcing by-laws lies with the Body Corporate under section 94(1)(b) of the Act.

In any event, I do not agree that the Resident Managers are necessarily obliged to approach tenants and require them to close doors quietly simply on the basis that the Applicant makes a complaint. It is apparent that in this case, the Resident Managers have investigated the Applicant’s complaints and taken action to remedy those complaints by inspecting and adjusting the door in question. Upon further complaint, the Resident Managers have come to their own view that no further action was warranted, and have referred the matter to the Committee. I consider that this is an entirely reasonable course of action. Similarly, given the action that has taken place regarding this issue to date by the Resident Managers and Mr Jack, I am not satisfied that the Committee or Body Corporate has acted unreasonably in concluding that no further action is warranted regarding the Applicant’s complaints about closure of the door to Lot 7

For all of the above reasons, I am not satisfied that the Applicant has demonstrated any failure of the Body Corporate to carry out its statutory functions. To the contrary, it seems to me that the Body Corporate, the Resident Managers and Mr Jack have acted responsively and reasonably to the Applicant’s complaints regarding this issue. In these circumstances, the application is dismissed. As a final point, I do wish to suggest to parties that they check that any adjustments that have been made to any fire doors are permitted by relevant fire safety regulations.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Burleigh Beach Tower [2005] QBCCMCmr 30 (19 January 2005)