Lawson Court [2005] QBCCMCmr 4 (6 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0607-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14672
Name of Scheme:	Lawson Court
Address of Scheme:	45 Lade Street ENOGGERA QLD 4051

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ranya Dvorak, the Occupier of Lot 4

I hereby order that the application for an order that the owner and occupiers of Lot 8 cease making noise in contravention of the noise by-law is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0607-2004

"Lawson Court" CTS 14672

APPLICATION

This application is by Ranya Dvorak, the occupier of Lot 4 (applicant) seeking an order against Halina Tomaszewski, the owner of Lot 8, and Anita and Iwona Tomaszewski, occupiers of Lot 8 (respondents). The applicant is seeking an order that the respondents and invitees of the respondents cease contravening the noise by-law.

The applicant states that the occupiers and invitees of Lot 8 make noise in ways such as:

• Dropping and dragging articles on the floor of the Lot.
• Walking on the tiled floor.
• Slamming doors and windows.

The applicant contends that the noise is affecting the peaceful enjoyment of the lot as it can occur at any time of the day or night. The applicant has included copies of correspondence to the body corporate and to the owner of Lot 8 which outline the problems being experienced.

JURISDICTION

"Lawson Court" Community Titles Scheme 13761 is a 8 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate secretary for distribution to the owner of each lot and the committee. The respondents were also invited to make a submission. A submission was received from the respondents, the body corporate chairperson/secretary and the owner/occupier of Lot 2.

The respondents main submissions were to the effect that:

• There have not been any similar accusations in the 14 years she has resided in Lot 8.
• The occupiers of Lot 8 are being harassed by the applicant’s husband.
• Lot 8 was unoccupied on a particular day when it is claimed that there was continuous noise being created.
• The occupiers of the lot and invitees do not make deliberate noise and deny that noise of the nature being claimed is not being created.

The respondents included a letter from a previous occupier of Lot 4 who stated that in the 12 months she resided in the lot, she did not have any problems with noise from Lot 8.

The submissions from Miss Barlow were to the effect that:

• She felt pressured by the applicant’s husband to sign the by-law contravention forms.
• She later discovered that the unit was unoccupied on the day the applicant’s husband claimed there was constant noise from the lot.
• There has never been a similar problem previously.

The submission from Lot 2 objected to the application on the basis that in the two to three years of residence there has never been any noise related problems associated with the owner, occupiers or invitees of Lot 8. It is submitted that the occupiers of Lot 8 are "polite, decent, respectful and courteous at all times".

FACTS AND DETERMINATION

"Lawson Court" was registered as a building units plan on 10 June 1974. The body corporate has not, since its establishment, made any changes to its by-laws. In addition, the body corporate has not decided to record a new community management statement (CMS) for the scheme since the commencement of the Act on 13 July 1997. Therefore, the by-laws applying to the scheme are mainly those specified in the Third Schedule of the Building Units and Group Titles Act 1980 (section 339 of the Act).

The by-laws form part of the CMS for the scheme, and under section 59 of the Act, the CMS is binding on each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws.

In this instance, there is evidence that the husband of the applicant (as a then occupier of Lot 4) gave the body corporate the notice, BCCM 1 "Notice to Body Corporate of Contravention of a Body Corporate By-Law" which was dated 6 September 2004. Subsequently, Olive Barlow (on behalf of the body corporate) signed the forms BCCM 10 "Notice of Continuing Contravention of a Body Corporate By-Law" and BCCM 11 "Notice Regarding Likely Future Contravention of a Body Corporate By-Law". These forms were addressed to Anita Tomaszewski, an occupier of Lot 8. Miss Barlow, who is the chairperson and secretary of the body corporate, has submitted that she felt pressured by the applicant’s husband to sign the by-law contravention forms. The forms, BCCM 10 and 11 are given by the body corporate under sections 182 and 183 of the Act in the circumstance where the body corporate reasonably believes that an owner or occupier of a lot either:

• Is contravening a by-law and it is likely that the contravention will continue (BCCM 10); or
• Has contravened a by-law and it is likely that the contravention will be repeated (BCCM 11).

While the correct forms may have been used, Miss Barlow should not have signed the forms without the authority of the body corporate. This authority could have been given by the committee or by the body corporate in general meeting. Therefore, Miss Barlow should have accepted the form BCCM 1 from the then occupier of Lot 4 and referred the matter to the committee for its consideration. The committee should have then investigated the matter within 14 days and decided whether to give a notice BCCM 10 or BCCM 11 to the owner and/or occupier of Lot 8. If the body corporate advises the complainant (the occupier of Lot 4) that it has determined not to proceed with the matter, the complainant then has a right to make an application under the dispute resolution provisions of the Act if he or she decides to pursue the matter. If the body corporate does give a by-law contravention notice, it should then be willing to proceed with enforcement of the by-law itself by taking an action in the Magistrates Court, or making an application under the dispute resolution provisions of the Act.

It seems that, even though the forms were signed on behalf of the body corporate, that the body corporate has not decided to pursue the matter. As a consequence, the wife of the original complainant has made this application claiming a breach of the noise by-law which states:

"Noise

A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property."

The applicant’s lot is directly below Lot 8, and the type of noise problems being alleged can be associated with the occupation of a lot, especially one with hard flooring. Where such flooring exists, it is important that the lot occupiers are aware that noise can be inadvertently transferred to a lower lot and can interfere with the peaceful enjoyment of that lot. It is also important that where such noise is created that the lot occupiers are able to reasonably discuss the matter with the object of reaching an amicable solution. Such discussions could be conducted with the assistance of the body corporate. I do not consider that this has occurred in this instance. While I accept that the applicant and other occupiers of Lot 4 may have suffered some noise related problems, I do not consider that there is sufficient evidence to warrant an order against the respondents. In deciding to dismiss the application, I have also taken into account that:

1. The occupiers have resided in the lot for a long period of time without complaint from other occupiers or the body corporate.
2. There is supporting evidence from a previous occupier of Lot 4 that noise was not a problem.
3. The occupiers of Lots 1 and 2 do not support the application, and in fact give unqualified support to the respondents.
4. There is evidence that disproves, or at the very least disputes the events claimed to have occurred on 25 September 2004.

In making this decision I am mindful of the fact that the support given to the respondents is from lot occupiers who are not directly below Lot 8, and that the applicant would be more adversely affected by the claimed noise than these persons. While the noise problem has not been proven to my satisfaction on this occasion, I would remind all owners and occupiers of their obligation in a community living environment to take into consideration the effect of their actions on the occupation of other lots in the scheme. This obligation is reinforced by section 167 of the Act which states:

"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."

While noise problems can be difficult to resolve, the types of noise being claimed can easily occur and I would suggest that all parties give due consideration to the processes I have outlined in this decision in an attempt to deal with such issues quickly and amicably.