One Forty Seven [2006] QBCCMCmr 569 (8 November 2006)

Last Updated: 19 December 2006

REFERENCE: 0643-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11856
Name of Scheme:	One Forty Seven
Address of Scheme:	147 High Street, SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for One Forty Seven community titles scheme 11856

I hereby order that Geoffrey Brogden, the occupier of Lot 1 must immediately comply with: 1. Section 167 of the Body Corporate and Community Management Act 1997 and not use or permit the use of Lot 1 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. 2. By-Law 1 "Noise" of the scheme By-Laws 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 0643-2006

"One Forty Seven" CTS 11856

APPLICATION

This application is by the body corporate (applicant) against Geoffrey Brogden, the occupier of Lot 1 (respondent). The applicant is seeking outcomes that the respondent comply with the body corporate by-laws and cease all unacceptable behaviour including but not limited to drunkenness, violence, noise, abusiveness, swearing and aggression towards other owners, occupiers, contractors and invitees.

In support of the application, the applicant provided a copy of:

• A letter dated 19 August 2005 from the body corporate to the respondent (and the owner of the Lot) stating the problems being caused by the respondent abusing other occupiers and their visitors, creating excessive noise, kicking doors, damaging common property and behaving in an anti-social manner. A copy of the by-laws was also given to the occupier with an outline as to how the by-laws may be enforced.
• An undated note claimed to be from the respondent complaining about the work performed by a contractor.
• An undated note of a telephone conversation between Conrad Beal (the body corporate manager) and the occupier of Lot 2 regarding the behaviour of the respondent including abuse, stealing of light globes and kicking doors.
• A letter dated 21 February 2006 from the body corporate to the respondent stating that it is understood that the gardener engaged by the body corporate had been abused by him. The letter states that the gardener was requested by the committee to trim a plant outside Lot 1 as it was blocking access and was a potential danger to people walking past it.
• A telephone message to the body corporate manager dated 6 April 2006 of a call from the chairperson stating that she had been abused by the respondent.
• The notice of continuing contravention of a by-law addressed to the respondent and dated 6 April 2006 claiming that the body corporate reasonably believes that the respondent is contravening By-Law 1 by "Continually verbally harassed, threatened and abused the Committee representative and contractor engaged by the Body Corporate causing calling the police". The Notice also quoted section 167 of the Body Corporate and Community Management Act 1997 relating to nuisance.
• A letter dated 15 September 2006 stating that the chairperson noted that on 13 September 2006, the respondent played loud music from approximately 7.00 am to 4.50 pm (further material).

JURISDICTION

"One Forty Seven" Community Titles Scheme 11856 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (section 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2), Act).

SUBMISSIONS

In accordance with the Act, written submissions were called and a copy of the application was provided to the respondent. As the applicant provided further material (letter dated 15 September 2006) relating to the application, the respondent was supplied with this material and the time for making submissions was extended. A submission has not been received from the respondent.

FURTHER SUBMISSIONS

In accordance with the investigative powers of an adjudicator pursuant to section 271(1)(c) of the Act, by letter dated 13 October 2006 I distributed a copy of the application to the owner of each lot included in the scheme and invited each person to make written submissions on the application.

The owner of Lot 1 (and father of the respondent) made submissions to the effect that:

• The respondent has resided in Lot 1 for some time.
• There has been some angst between the respondent and the chairperson. Mr Brogden provided examples of two earlier incidents reported by the chairperson, the first of which related to doors from Lot 1 kept on common property awaiting garbage collection and the second concerning clothes drying on the balcony of Lot 1.
• He is aware of the claims that his son has stolen light globes and mentions a verbal battle between his son and the occupier of an adjoining lot over the noise from Lot 1.
• The respondent’s behaviour is sometimes affected by his health or mental condition.
• His son brought the poor condition of the lawns and surrounds to his attention, and on one visit to the units he did notice the lack of maintenance. He is aware that a person had been contracted by the body corporate to maintain the lawns and surrounds, and feels that his son’s garden was pruned because of complaints made about the state of the garden rather than because it was dangerous as claimed by the body corporate.

DETERMINATION

The body corporate’s general functions include administering the common property and body corporate assets for the benefit of lot owners and enforcing the community management statement (including any by-laws for the scheme) (section 94(1), Act). The body corporate must act reasonably in anything it does under section 94(1) (section 94(2), Act). The body corporate has all the powers necessary for carrying out its functions (section 95, Act). The body corporate may make by-laws providing for the administration and management of common property, and the regulation of the use and enjoyment of lots included in the scheme (section 169, Act). The by-laws are 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. 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 has demonstrated that it gave the respondent a continuing contravention notice before making this application as required by section 184 of the Act. In my view, there are two issues concerning this notice. Firstly, the By-Law cited by the body corporate is By-Law 1 of the Schedule 4 By-laws of the Act relating to noise. It should be noted that the Schedule 4 By-laws do not currently apply to the body corporate. These By-laws will only apply if the body corporate consents to, and has recorded by the registrar of titles, a new community management which includes these by-laws. Until this occurs, the by-laws which applied to the body corporate before the commencement of the Act (13 July 1997) will continue to apply. Given that the body corporate was created on the registration of the relevant plan (BUP 3301) on 21 May 1979, the applicable noise by-law is that stated in Schedule 3 of the Building Units and Group Titles Act 1980. This By-Law states that "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". Secondly, the notice does not necessarily provide sufficient details to demonstrate a continuing contravention of a noise by-law. The details which were provided in this notice could be viewed as relating more to the nuisance provision of the Act quoted in the notice. A claimed breach of section 167 of the Act does not, by itself warrant the giving of a by-law contravention notice. The body corporate should ensure that if it gives such a contravention notice, it provides details sufficient to identify the contravention (section 182(4)(c), Act).

Despite the flaws in the notice, I have proceeded to making an order in relation to the relevant Noise By-Law for the following reasons:

• The body corporate has provided some instances of noise complaints, for example, the complaint relating to loud music emanating from Lot 1 on 13 September 2006 and the issue between the respondent and the occupier of an adjoining lot caused by noise coming from Lot 1 mentioned by the father of the respondent.
• While there have not been any submissions from owners supporting the application, the application has not been disputed by the respondent even though it would seem that he is aware of the concerns of the body corporate and on two occasions, the commissioner’s office invited submissions from him. In this circumstance, it could be argued that the respondent does not dispute the claims made by the body corporate.
• The terms of the applicable noise By-Law are similar to the terms of the noise By-Law stated in the current Act and quoted to the respondent by the body corporate. It is a function of the body corporate to enforce the by-laws, and I am satisfied that the body corporate has acted reasonably in relation to the enforcement of the noise By-Law, and that the occupier has (on occasions) acted in a way in contravention of the By-Law.
• The respondent is bound by the noise By-Law and must ensure that he does 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.

The body corporate also relies on the nuisance provisions stated in section 167 of the Act. Section 167 of the Act 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.

While the application has not been disputed by the respondent, his father has made submissions giving reasons for some of the issues which have arisen. However, it is apparent that there are concerns about the respondent threatening and abusing other occupiers and at least one person lawfully on common property (the garden contractor). Additionally, it is not disputed that the respondent has removed light globes which may cause a hazard. In these circumstances, I am satisfied that the respondent has (on occasions) acted in a way warranting an order to be made requiring compliance with section 167 of the Act.

The respondent cannot remove lights from common property without the authority of the body corporate. If he has concerns about the operation of the lights, he should properly notify the body corporate in writing. Additionally, the body corporate has an obligation to maintain the common property in good condition and the person contracted by the body corporate should be able to carry out authorised work without interference. If there are concerns about the scheme’s management, the owner of a Lot included in the scheme (including the respondent’s father) may consider submitting appropriate motions to a general meeting of the body corporate for the consideration of all lot owners.

Even though the respondent is bound by the scheme by-laws, I have not made an order about all by-laws as the body corporate has not (other than for By-Law 1) undertaken any preliminary procedure as required by section 184 of the Act. The body corporate must give such notice to the occupier before making a dispute resolution application.