Oakgrove [2006] QBCCMCmr 614 (23 November 2006)

Number of Scheme:	2274
Name of Scheme:	Oakgrove
Address of Scheme:	34 Mary Street NAMBOUR QLD 4558

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

I hereby order that the owner of Lot 4, Brett Greenwood, must immediately cease contravening By-law 1 regarding noise and, further, must cease creating a nuisance to other lot owners and occupiers in their use and enjoyment of their lots and common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0206-2006

"Oakgrove" CTS 2274

Oakgrove community titles scheme (Oakgrove) consists of 10 lots and common property. The community management statement for Oakgrove indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources Mines and Water records show the scheme is registered as Building Units Plan 13394.

APPLICATION

This application was made by the Body Corporate for Oakgrove (applicant) on 21 March 2006 under the Body Corporate and Community Management Act 1997 (Act) pursuant to a resolution at an extraordinary general meeting on 2 March 2006. The applicant sought orders against Brett Greenwood, owner of Lot 4 (respondent) in the following terms:

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent and all owners with an invitation to respond to the matters raised in the application. A submission was made by two owners.

In the absence of a submission from the respondent, and given his particular circumstances, significant time was spent by staff of the Commissioner’s Office to seek input on the application from the respondent’s representatives. Ultimately a submission was received from the respondent’s father. The Body Corporate obtained a copy of the submissions received but did not make a reply (see sections 246 and 244 of the Act respectively).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

The Public Trustee had requested that the file be put on hold while they sought an order from the Guardianship and Administration Tribunal for the appointment of an adult guardian for the respondent. However after a delay of more than three months and verbal advice that a decision may take several further months, and in the absence of any written request from The Public Trustee to continue to hold the application, I have determined that it was not appropriate to continue to delay the determination of the application.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 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

(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)).

MATTERS IN DISPUTE

The application relates to the alleged breach of By-law 1 by the owner and occupier of Lot 4. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.

The application alleges that the respondent frequently plays loud music and uses foul language "at all hours of the day and night". Numerous complaints have been received. The application asserts that neighbours in surrounding properties are affected and that the police have been called. The two owner submissions confirm the persistent nature of the noise and personal abuse.

From the material provided with the application it appears that issues have existed since at least December 2004. The correspondence provided suggests that the Body Corporate has gone to great lengths to address this situation – including communicating with the Public Trustee of Queensland who represents the respondent and writing to the respondent’s father – to no avail. By-law contravention notices were sent to the respondent on 17 October and 4 November 2005.

The respondent’s father has made a submission on behalf of his son who he says "...is not sufficiently capable of putting in writing his reply to the dispute...". The submission says the respondent has a physical and mental disability as a result of an accident many years ago. The submission says the respondent was under the influence of marijuana when the disturbances occurred, which he was taken for pain relief. He also refers to alcohol use, combined with the drug use, affecting his mental state and conduct. The submission claims the respondent was provoked to some extent by noisy neighbours and a barking dog which particularly affected the respondent who suffers from severe headaches, along with alleged interference with his hot water and power supply. The submission acknowledges and does not seek to condone the behaviour, but seeks to provide some explanation for it.

The respondent’s father is of the belief that it has been some time since any complaint has been made. He also says the respondent is remorseful and that he is giving up marijuana. However verbal advice from the Body Corporate confirms that noise issues are continuing.

DETERMINATION

The issue in the application is whether the respondent has breached the by-laws or other provisions of the body corporate legislation, without reasonable excuse.

Applicable law

Oakgrove was registered in January 1994 under the Building and Group Title Act 1980 (BUGTA), which applied prior to the commencement of the current Act. The community management statement (CMS) for Oakgrove was registered on 15 July 2000 and states that the by-laws for the scheme are those in effect as at 13 July 2000. Therefore, the by-laws are those contained in Schedule 3 of BUGTA^[1] along with additional by-laws registered for the scheme in May 1994.

Accordingly, the applicable By-law 1 in Schedule 3 of BUGTA states:

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 the common property.
Section 94(1)(b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws. Accordingly, the Body Corporate is obliged to enforce By-law 1 against offenders who breach its provisions.

Sections 182 to 188 of the Act provide the process for pursuing an alleged by-law breach. Where a body corporate wishes to pursue a by-law issue^[2], the first step is to issue a contravention notice. The contravention notice, which must state certain things including the nature of the breach, must be given to the person who the body corporate believes is breaching the by-law. If the contravention notice does not rectify the matter, the body corporate can commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office.

In addition to By-law 1, section 167 of the Act provides as follows:

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--

Conclusion

On the basis of the material provided I am satisfied the respondent has repeatedly breached By-law 1 and contravened section 167 of the Act. Moreover, it seems likely these breaches are continuing. Notwithstanding the difficult circumstances that the respondent may be in, I do not consider that there is any reasonable excuse for this conduct.

Accordingly, I have made an order that the respondent cease the offending conduct. I hope that this order will encourage the respondent to consider the impact of his behaviour on others and the need for all those within a community titles scheme to consider and respect their neighbours.

However, I am not convinced this order will resolve the dispute. The respondent has ignored numerous previous warnings and notices, which suggests he may not appreciate the seriousness of this issue. The potential exists that he may ignore this order. I caution him against this and would encourage his representatives to assist him in understanding the gravity of this order.

I also encourage the respondent’s representatives to provide any assistance they can in addressing the factors which may have contributed to the respondent’s conduct. This may include facilitating assistance in managing any continuing drug and alcohol use issues and in responding more appropriately to any concerns regarding noise from neighbouring lots and any interference with power and hot water.

Enforcement of an order

If the respondent does not comply with the order, then it can be enforced against him in the Magistrates Court (Act, sections 286 and 287). Enforcement proceedings in the Magistrates Court do not provide the opportunity to review the order or re-hear the merits of the original application. While the breach of a by-law contravention notice can result in a penalty of up to 20 penalty points (currently $1,500), under section 288 of the Act the breach of an order is an offence attracting a fine of up to 400 penalty points (currently $30,000). I draw the parties attention to a fact sheet published by the Commissioner’s Office (available at www.bccm.qld.gov.au) entitled ‘Enforcement of adjudicators' orders and penalties’ for more information on this issue.

^[2] Section 185 of the Act outlines the preliminary procedure for an owner or occupier who wishes to pursue an alleged by-law breach.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Oakgrove [2006] QBCCMCmr 614 (23 November 2006)