Emerald Lakes - The Cove [2007] QBCCMCmr 133 (8 March 2007)

Last Updated: 12 March 2007

REFERENCE: 1084-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30595
Name of Scheme:	Emerald Lakes - The Cove
Address of Scheme:	1 The Cove Crescent CARRARA QUEENSLAND 4211

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

Body Corporate

I hereby order that from the date of this order the owner of Lot 1004 on SP15867 is to comply with by law 13 and in particular paragraph (c ) of the by-law. I further order that whenever the owner of lot 1004 wishes to wash down her balcony, she is to firstly advise the owner of lot 1002 that she wishes to do so, and is to wash down her balcony only at such times as are mutually agreed upon by the parties.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1084-2006

"Emerald Lakes - The Cove" CTS 30595

The Scheme

"Emerald Lakes" is a subdivision of 117 lots recorded under a building format plan of subdivision. The regulation module applying to the scheme is the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

The Application

This application has been brought by the Body Corporate seeking the following orders:

That the owner of lot 1004 on SP15867 complies with By-Law 13(c ) .... in relation to notification and amicable agreement of washing of the balcony.

Background

The applicant body corporate states that the order is sought on the following grounds:

• The owner of lot 1002, which is directly below lot 1004, wrote to the body corporate on 9/10/06 advising that the owner of lot 1004 continues to breach the by-law despite numerous requests to cease washing the balcony;
• A "Notice of Future Contravention of a Body Corporate By-Law" was sent to the owner of lot 1004 by letter dated 26/10/2006;
• On 8/11/06 the committee resolved to lodge a dispute resolution application with this Office;
• On 1/12/06 the owners of lot 1002 again wrote to the body corporate committee advising that the owner of lot 1004 was continuing to allow water to flow down to adjoining lots without prior agreement with affected owners or occupiers. Correspondence from the owner of lot 1002 contains dates and further details of past incidents. For example during November 2006 water flowed from lot 1004 to lot 1002 on the following dates : 13^th, 15^th, 18^th, 22^nd, 24^th, 27^th, 28^th (twice), and 30^th November.

By-law 13 states:

An Owner must not:

(a)

Deposit or throw upon common property or the exterior dwelling on a Lot, rubbish, dirt, dust or other material likely to interfere with the peaceful use and enjoyment of another owner or occupier or of any person lawfully using the common property; throw or allow to fall or permit to suffer to be thrown any paper, rubbish, refuse, cigarette butts or other substance whatsoever out of any window, or door of his/ her dwelling.

(b)	Any damage or costs for cleaning or repair caused by breach hereof will be borne by the owner or occupier concerned.

(c)	Where a dwelling has independent occupiers, the occupiers of the upper dwelling is required to give "notice of intention" that the balcony is to be washed with care and both parties should come to an amicable agreement to allow such cleaning every two (2) months.

Submissions

Submissions in response to the application were sought from all owners. Four submissions were received.

The owner of lot 1002 stated:

• On two occasions during December 2006 she saw water pouring from the balcony of unit 1004 in such quantities that on one occasion a sheet placed on chairs the maximum distance from the overhang of the balcony, had to be rewashed because of dirt and dust in the water pouring from above;
• No notice has ever been given to the owner of lot 1002 when the owner of lot 1004 intended to wash down her balcony;
• She is unable to use her courtyard or entertain guests in the courtyard as she never knows when she is likely to be drenched from the overflow of water from above.

An adjoining lot owner made the following submissions:

• On numerous occasions she has been sitting on her balcony only to see and hear water running down both sides of the lot 1004 balcony onto lot 1002 below;
• This has been occurring since November 2003;
• The owner of lot 1004 shows little regard for others and their property, body corporate property and the scheme by-laws.

Another adjoining lot owner made the following submissions:

• The owner of lot 1004 shows no regard for anyone else or for their property;
• She continues to wash down her balcony causing damage to property below;
• In addition, the owner of lot 1004 often makes banging, scraping and thumping noises from early morning until night.

Another adjoining lot owner made the following submissions:

• Despite numerous complaints from lot 1002, the owner of lot 1004 continues to wash down her balcony and over-water plants, causing water to flow down and cause damage to lot 1002;
• Despite numerous communications from the body corporate and the body corporate manager, the owner of lot 1004 has continued to wash down her balcony and over-water plants
• The owner of lot 1004 has continued this behaviour even after a contravention notice was served upon her, and consequently, it has been necessary to go one step further and seek an adjudicator’s order.

The owners of lot 1052, some distance away from lot 1004, suggested this was a minor dispute between neighbours and that bureaucratic interference was unnecessary.










Jurisdiction

This is a matter which falls within the dispute resolution provisions of the Act (see sections 227, 228, 276 and Schedule 5).

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)).


Determination

The Body Corporate and Community Management Act establishes rights, and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community
titles schemes".

While it should not be necessary for a body corporate to go to the trouble of seeking a formal adjudication in respect of what is essentially a "social dispute", it is an unfortunate fact of life that not every resident of a community title scheme will act reasonably, and accordingly, this application has been brought as a last resort. One would have thought that the owner of lot 1004 would have shown greater regard for her neighbors after being made aware of their concerns. Indeed, even after receiving a Notice of Likely Future Contravention, there is evidence that she has continued to wash down her balcony without first informing her neighbors.

The contents of the application and submissions received by this Office have not be disputed by the owner of lot 1004

I have perused the registered by-laws for this scheme and note that by-law 13 provides as follows:

An Owner must not:

(a)	Deposit or throw upon common property or the exterior dwelling on a Lot, rubbish, dirt, dust or other material likely to interfere with the peaceful use and enjoyment of another owner or occupier or of any person lawfully using the common property; throw or allow to fall or permit to suffer to be thrown any paper, rubbish, refuse, cigarette butts or other substance whatsoever out of any window, or door of his/ her dwelling.
(b)	Any damage or costs for cleaning or repair caused by breach hereof will be borne by the owner or occupier concerned.
(c)	Where a dwelling has independent occupiers, the occupiers of the upper dwelling is required to give "notice of intention" that the balcony is to be washed with care and both parties should come to an amicable agreement to allow such cleaning every two (2) months.

Conclusion

I therefore order that from the date of this order the owner of Lot 1004 on SP15867 is to comply with by law 13 and in particular paragraph (c ) of the by-law.

Whenever the owner of lot 1004 wishes to wash down her balcony she is to firstly advise the owner of lot 1002 that she wishes to do so and is to wash down her balcony only at such times as are mutually agreed upon by the parties.

The owner of lot 1004 should be aware that failure to comply with an order of an adjudicator can attract a substantial penalty of 400 Penalty Units which amounts to $30,000.