Heritage Park [2005] QBCCMCmr 410 (29 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0252-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20153
Name of Scheme:	Heritage Park
Address of Scheme:	Tristen Court BENOWA

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Heritage Park community titles scheme 20153

I hereby order that Trent Taylor, an occupier of Lot 8 must immediately comply with By-Law 1 "Noise" and not create any noise likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0252-2005

"Heritage Park" CTS 20153

APPLICATION

This application is by the body corporate (applicant) against Elsee Taylor, the owner of Lot 8 (respondent) and Trent Taylor, an occupier of Lot 8 (affected person). The applicant is seeking an outcome that the occupiers of Lot 8 comply with the body corporate by-laws, particularly By-Laws 1 and 6.

JURISDICTION

"Heritage Park" Community Titles Scheme 20153 is a 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 respondent, the affected person, and to the body corporate secretary for distribution to the owner of each lot (excluding the respondent). A submission was received from the respondent.

DETERMINATION

By-Laws 1 and 6 of the scheme By-Laws state, quote:

1 Noise

An Owner 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. In particular, no resident shall hold, nor permit to be held, any social gathering in his lot which would cause any noise which unlawfully interferes with the peace and quietness of any other occupant at any time of the day or night and in particular, shall comply with all respects with the Noise Abatement Act 1979.

6 Behaviour of invitees

An Owner or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of any lot or of any person lawfully using common property.

The body corporate claims that the occupier of Lot 8 has consistently created noise, abused other owners and caused a disturbance, on occasions to such an extent to warrant police intervention. The body corporate has provided copies of correspondence and body corporate documents relating to the actions of Trent Taylor, an occupier of Lot 8.

In a letter dated 21 February 2005, the occupier of Lot 7 complains about the noise emanating from Lot 8 and abuse which resulted in the occupier of Lot 7 going to a hospital due to stress. By letter dated 22 February 2005, the solicitor for the occupier of Lot 7 wrote to the respondent relating to the actions of Trent Taylor. The body corporate gave the respondent a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law" on 22 February 2005 citing By-Laws 1 and 6 and referring to the actions of the respondent’s son relating to loud music and abuse. This Notice was given as a consequence of a resolution of the committee dated 21 February 2005. The committee at a meeting dated 15 March 2005 noted reports about the behaviour of an occupier of Lot 8, and as a consequence it was resolved to make an application under the dispute resolution provisions of the Act. By letters dated 30 March 2005 and 6 April 2005, the occupier of Lot 7 makes further complaints about the behaviour of Trent Taylor.

The respondent submitted that she has received various versions of the problems and questions events which were claimed to have taken place on Easter Sunday morning. The respondent expresses her regret about these incidents.

"Heritage Park" is a community titles complex and the legislation ensures that each occupier’s right to the peaceful enjoyment of their lot and the common property is protected.

Section 169 of the Act provides that the body corporate may make by-laws regulating the use and enjoyment of lots and the common property. The body corporate has made by-laws relating specifically to noise and the behaviour of invitees (By-Laws 1 and 6).

The by-laws to which the applicant has referred form part of the CMS for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, 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. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers. The body corporate is entitled under section 183 of the Act to seek enforcement of a by-law which is not being continually contravened, but which in the circumstances, the contravention is likely to be repeated. Section 183(5) provides that the maximum period that such a notice can apply is 3 months.

The body corporate has shown that it has given the respondent a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law" dated 22 February 2005 concerning the events on 19 and 20 February 2005. The body corporate has shown that subsequent incidents resulted in the committee resolving to make this application. Therefore, the body corporate is entitled to seek enforcement of the by-laws through this dispute resolution process. The body corporate also had the option of starting proceedings in the Magistrates Court for failure to comply with the notice.

While the body corporate has named the owner of Lot 8 in the "Notice Regarding Likely Future Contravention of a Body Corporate By-Law" dated 22 February 2005, and as the respondent in this application, it is principally concerned with the actions of Trent Taylor, an occupier of Lot 8. The body corporate should have given the Notice to Trent Taylor as an occupier of Lot 8, and should have named him as the respondent to this application. The scheme by-laws apply to an occupier of a lot, and the body corporate has the power to institute proceedings against an occupier for a contravention of a by-law. I do not consider that there are any grounds to make an order against

Elsee Taylor, the owner of Lot 8. The body corporate has not, in any way shown that she has breached a provision of By-Law 1 and 6. Ms Taylor does not contravene either By-Law 1 or By-Law 6 simply because it is suspected that an occupier of the lot she owns has done so. The occupier of a lot is bound by the by-laws to the same extent as a lot owner, and the owner of a lot does not contravene a by-law simply because the by-law may have been contravened by a person occupying the lot.

While there may be irregularities with the naming of the parties, I do not consider the defect is sufficient to prevent an order being made. Trent Taylor was named as an affected person to the application and was named on the "Notice of Application and Invitation to Make a Submission" given by the Commissioner dated 20 April 2005. There is also a record that Trent Taylor has spoken to a member of this Office regarding this matter. In my opinion, he is fully aware of the matters in dispute.

Given that the body corporate has demonstrated that similar incidents have been occurring for some time, I consider that it is reasonable for the body corporate to take this action under the dispute resolution provisions of the Act. The body corporate has notified the respondent of its concerns, yet similar circumstances arise which has had an affect on a person’s lawful right to peaceful enjoyment. In my view, the incidents detailed in the application demonstrate that the actions of Trent Taylor have contravened the provisions of By-Law 1, and that it is likely that the circumstances of the contravention will be repeated. Therefore, I have an order in the terms sought by the body corporate against Trent Taylor. The body corporate should not have to continually give section 183 notices to the occupier of Lot 8 where the contravention occurs on irregular occasions. If this order is contravened, the body corporate can choose to seek enforcement of the order under the enforcement provisions of the Act.

The body corporate has also sought compliance with By-Law 6. Given the statements made to support the application, I do not consider there are reasons for an order to be made with respect to this By-Law. The actions of Trent Taylor who has been referred to as the occupier of Lot 8 does not constitute non-compliance with By-Law 6.

While not referred to in the application, the parties to this dispute should note the provisions of section 167 of the Act as this section provides the basic rule governing an occupier’s use of their lot and the common property and provides, quote:

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.