Ellington-Water Apartments [2005] QBCCMCmr 697 (12 December 2005)

Last Updated: 16 January 2006

REFERENCE: 0594-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30678
Name of Scheme:	Ellington-Water Apartments
Address of Scheme:	71 Beeston Street TENERIFFE QLD 4005

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

Body Corporate for Ellington-Water Apartments CTS 30678

I hereby order that the owner of lot 117, Dean Mathew Tahana, shall take all reasonable steps to ensure that the occupiers of lot 117 abide by the scheme’s by-laws, and in particular by-law 4.1 in relation to unreasonable levels of noise.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0594-2005

"Ellington-Water Apartments" CTS 30678

ORDER SOUGHT

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

That an order be issued prohibiting the owner from continuing to breach by-law 3.1 of the community management statement. [Note – this should refer to by-law 4.1]

JURISDICTION

This application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).

SCHEME DETAILS

The principal community titles scheme of Ellington on Teneriffe is in a layered arrangement. There are three subsidiary schemes comprising a total of 189 lots. The subsidiary scheme with which this application is concerned comprises 70 lots. The subsidiary scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

BACKGROUND

The applicant provided details of noise complaints made against the occupiers of lot 117 over a number of months from March 2005 to November 2005. Included in the material were reports from the security company with specific instances of excess noise to which the security personnel were called.

The applicant also provided a copy of the Contravention Notice which was given to the owner of lot 117 (the respondent) on 27 May 2005 (section 183(3) of the Accommodation Module).

The respondent was invited to lodge a submission in response to the application. In his submission, dated 29 October 2005, the respondent acknowledged that there had been noise complaints, to which he had responded quickly. He also stated that from January 2005 to August 2005 he had had a tenant in his lot.
The respondent stated that the tenant had had "social gatherings and parties without my consent." The respondent advised that he had evicted his tenant. The respondent concluded his submission with an apology to all owners for any inconvenience and assured them that there would be no further noise disturbances.

The applicant replied to the submission, stating that there had been a further noise disturbance on 5 November 2005 and 6 November 2005. The applicant requested that an order be made to ensure the respondent’s compliance with the by-laws.

DETERMINATION

By-law 4.1 provides:

"You must not make or allow any noise in your apartment or on the Water Apartments common property that would unreasonably interfere with the enjoyment by others of an apartment or the Water Apartments common property. If noise is unavoidable then it must be minimised."

The respondent has acknowledged that there were occasions on which excessive noise occurred. The security report for 5 and 6 November 2005 confirm that excessive noise occurred again after the date on which the previous tenant had been evicted. The report also confirmed that the respondent was not present when the security guard called at the lot.

I am satisfied that excessive noise had occurred on some occasions over the period detailed by the applicant. I am further satisfied that although the respondent had terminated the tenancy of the offender, that a further complaint has been made in relation to the new tenant.

Owners are entitled to enjoy their lots without undue disturbance. Whilst a certain tolerance is required in relation to noise in an environment where many owners live in close proximity to one another, the instances of noise from lot 117 appear to have been greater than that which is reasonable. I have therefore made an order requiring the respondent to take all reasonable steps to ensure that the occupiers of lot 117 abide by the scheme’s by-laws, and in particular by-law 4.1.

The respondent should be aware of the provisions of section 288 of the Act:

288 Failure to comply with adjudicator’s order

(1) A person who contravenes an order under this chapter (other

than an order for the payment of an amount) commits an

offence.

Maximum penalty--400 penalty units. [I penalty point = $75.00]

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken

by--

(a) the applicant for the application for the original order; or

(b) a person in whose favour the order mentioned in

subsection (1) is made; or

(c) the body corporate; or

(d) an administrator appointed under this chapter who is

authorised to perform obligations of the body corporate

or its committee.

(3) Costs awarded against a defendant in a proceeding under this

section may include the amount of the fee paid to the

commissioner on making the application for the original

order.

(4) In subsection (3)--

application for the original order means the application for