Edgewater [2007] QBCCMCmr 228 (24 April 2007)

Last Updated: 21 May 2007

REFERENCE: 0310-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11512
Name of Scheme:	Edgewater
Address of Scheme:	36 Glen Road, TOOWONG Q 4066

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Spearritt, the occupier of Lot 13

I hereby order that the application for an interim order by David Spearritt, the occupier of Lot 13 that building works in Lot 28 cease until measures are put in place to ensure the works do not create noise likely to interfere with the peaceful enjoyment of Lot 13, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0310-2007

"Edgewater" CTS 11512

Application
This application is by David Spearritt, the occupier of Lot 13 (applicant) against Hamish Doley of Lot 28 (respondent) seeking the following outcomes.

The final outcome sought is:

1.	Enforce by-law 1.1 to cease building construction noise from the use of noisy machinery, impact tools, and jack hammers.
2.	Require builders / owner to remove waste disposal bin from visitor car parking space/s.

The applicant has also sought an interim order that "Building works cease until measures are put in place to ensure the works do not create noise likely to interfere with the peaceful enjoyment of our home (enforce by-law 1.1)".

The applicant claims, among other things:

• That the matter is urgent because 6-8 weeks of excessive building construction noise is a serious nuisance and causing risk to health (migraines etc).
• Construction includes use of jack hammers, impact drills and other noisy equipment.
• The excessive noise is unbearable at times.

The applicant provided a copy of:

• An undated ‘Request for Pre-Notification’ notice from the committee requesting that all unit holders be notified in advance of times work planned to be carried out in a unit.
• A notice from the respondent to ‘Residents of Edgewater’ dated April 2007 advising "that there will be building works which will cause some noise" from 10 April to 13 April.

Jurisdiction
"Edgewater" community titles scheme 11512 is scheme under the Body Corporate and Community Management Act 1997 (Act).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3), Act).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances 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.

Submissions
In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the committee.

The respondent’s submissions were to the effect that:

• The renovations commenced after notification to and approval from the committee, and after satisfying the committee’s requirements regarding notice periods for noise disruptions.
• The project is expected to take 6-8 weeks.
•
• The noise generated from the renovations will vary depending on the work being carried out. Demolition works occurred from 26 March 2007 to 4 April 2007 and notices about this were posted in the building lifts. He has informed residents by weekly notice of when the noise may occur and its intensity.
• The builders have used jackhammers, impact drills and other tools to undertake the demolition. The committee were informed of this.
• The noise being generated will vary and will not be continuously disruptive throughout the completion of the renovation project.

Submissions from Mr Scott on behalf of the body corporate committee can be generally summarised as:

• The ‘Edgewater’ building is just over 25 years in age.
• A significant amount of renovation work has been and will be done in the building.
• The committee is developing a code of conduct for renovations including setting rules for the timing of work likely to create noise and requiring advance notice of this sort of work being provided to residents.
• The respondent met the committee in relation to his planned renovations.
• Renovations cannot be undertaken without making noise.
• The committee directs contractors to comply with Local Government Codes and By-Laws.
• The respondent has informed residents on which days significant works was likely to be generated.
• He has invited residents to contact him with any concerns regarding the renovations. Two residents have complained about dust affecting their units. There have not been any complaints about headaches or migraines.

Determination
Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

The applicant claims that the noise from the work being carried out in Lot 28 constitutes a serious nuisance and is causing a risk to his health. The applicant seeks enforcement of By-Law 1.1 which states that "The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property".

Section 94(1) of the Act provides that the body corporate’s general functions include enforcing the community management statement (including any by-laws for the scheme). Section 94(2) provides that the body corporate must act reasonably in anything it does under section 94(1). The by-laws form part of the community management statement (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. 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. Sections 184 and 185 state the preliminary procedures to be taken by a body corporate and a lot owner or occupier for by-law contraventions. For example, section 185 provides that a lot owner or occupier may only make a dispute resolution application about the contravention of a by-law if the body corporate has not, after notice from that person, given a contravention notice to the accused person (subject to special circumstances stated in section 186 applying).

Given the applicant’s claim that the noise is a serious nuisance and is causing a risk to his health (special circumstances), he may make the application without notice to the body corporate (it would seem that the applicant did not approach the body corporate before making the application). However, the applicant does have to demonstrate that the noise created from the renovations is a serious nuisance or is causing a risk to his health. I am not satisfied from the material presented by the applicant that the noise created is a serious nuisance or is causing a risk to the applicant’s health. The applicant has not for example, demonstrated the serious nuisance or provided information indicating the health risk. Neither has the applicant shown that the noise is being created for example, at levels and times contrary to applicable laws or standards or is otherwise unreasonable or unnecessary.

In my view, it is reasonable to expect that a person will have construction work performed in a community titles scheme lot. It is also reasonable to expect that such work will create noise and that on occasions this work will interfere with the peaceful enjoyment of another lot. In this case, it would seem that the body corporate has established guidelines (not a by-law) in relation having construction work carried out in a lot. It would also appear that the respondent has complied with these guidelines.

I do not consider that the terms of a noise by-law should necessarily prevent work of this nature from being carried out, nor should it impose an unfair burden on the person proposing to have the work carried out. While section 94(1) requires the body corporate to enforce scheme by-laws, section 94(2) provides that the body corporate must act reasonably. The committee would seem to have given reasonable consideration to building work being proposed to be carried out recognising the building’s age and seem to have developed or are developing relevant guidelines. The committee are aware of the work being carried out in Lot 28 and required the respondent to keep occupiers informed. The respondent has submitted that he has kept occupiers regularly informed. As stated by the respondent, it is expected that the noise being generated by the work will vary from time to time until completion.

For these reasons, the application for an interim order is dismissed. This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.