Edgewater [2007] QBCCMCmr 371 (19 June 2007)

Last Updated: 6 July 2007

REFERENCE: 0310-2007

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 QLD 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 order by David Spearritt, the occupier of Lot 13 against Hamish Doley of Lot 28 seeking to enforce By-Law 1.1 to cease building construction noise from the use of noisy machinery, impact tools, and jack hammers and to require builders or owner to remove a waste disposal bin from visitor car parking space/s, 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 to enforce By-Law 1.1 to cease building construction noise from the use of noisy machinery, impact tools, and jack hammers and to require builders / owner to remove waste disposal bin from visitor car parking space/s.

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

Interim order
The applicant had 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)". On 24 April 2007, I dismissed the application for an interim order.

Procedural matters
On 26 April 2007, a copy of the application was provided to the respondent, and to the body corporate manager for distribution to the owner of each lot and the committee, with an invitation to respond to the matters raised in the application (section 243, Act). Submissions were made by the committee and a number of lot owners. The applicant inspected the submissions received but did not make a written reply. A dispute resolution recommendation was made referring the dispute to departmental adjudication (section 248, Act).

Submissions
The applicant has stated that at the time the application was made (April 2007) construction works in Unit 28 were in week 2 of an expected 6 to 8 weeks, and that the works are creating excessive noise. He says that construction includes use of jack hammers, impact drills and other noisy equipment and that the owner has indicated that the work will occur from 8am to 4pm each day. The applicant states that the excessive noise is unbearable at times and causes headaches/migraines and the necessity to leave the premises. He says that the builders are occupying at least one visitor parking space for building waste and other purposes. 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; and 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.

Submissions from Mr Scott on behalf of the body corporate committee repeated the submissions made for the interim order application which 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.

The application was opposed by a number of lot owners for reasons such as:

• Not being troubled by the noise.
• An owner should be able to renovate his/her unit.
• It is reasonable to expect that the units in a building over 25 years old will be modernised.
• Other owners have provided notification when noise was likely to occur during renovations.
• Builders should be able to use scheme land to place industrial bins during renovations and there is space to place a bin.
• The respondent has complied with committee requirements.

While not supporting or opposing the application, one owner expressed concern that given the age of the building, some noises from the renovation of a unit transfers to all parts of the building and stated that there should be time limits when this work is carried out. Another owner stated that the occupiers of their lot have repeatedly complained about the excessive noise from renovations and that renovations should not be allowed where noisy equipment is used. A late submission from another lot owner supported the application expressing concerns about the noise originating from Unit 28; about cement and sand grit being blown onto his balcony causing him to have to close doors and windows; and stating that the dust grit caused a building evacuation on 1 May 2007.

Determination
The applicant relies on By-Law 1.1 of the scheme By-Laws 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".

In the statement of reasons for making the interim order I stated:

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).

The references to the provisions of the Act dealing with by-law contraventions are significant. These provisions provide an extensive framework for dealing with complaints about contraventions and unless it can be shown that special circumstances exist, an owner or occupier of a lot cannot make a dispute resolution application without initially seeking to have the issue resolved within the body corporate.

It is not apparent that the applicant asked the body corporate to give the respondent a by-law contravention notice before making the application. In making the application for an interim order, the applicant stated that the construction noise "is a serious nuisance and (is) causing risk to health (migraines etc)". Section 186(4) states that special circumstances include risk to health and serious nuisance. I stated in the reasons for making the interim order that:

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.

The applicant has not provided any material subsequent to the interim order to demonstrate that special circumstances exist. As a consequence, it is questionable whether the applicant was able to make the dispute resolution application without initially informing the body corporate of his concerns about the contravention of By-Law 1.1.

I also stated in the making of the interim order that:

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.

I consider that these reasons are relevant to this determination. The body corporate committee and a number of owners are of the view that it is expected that some owners will want to renovate their lots given the age of the building. The committee, it would seem, have been proactive in seeking to manage the work and the effect it may have on other owners and occupiers. However, there needs to be an appropriate balance struck taking into consideration the proposal to alter the lot and the effect that work will have on an occupier’s enjoyment of their lot, particularly those occupiers who live in a lot which is in close proximity.

While one owner has provided specific instances of problems, there is no indication that there have recurring or significant problems associated with the renovations of the respondent’s lot. In addition, the applicant has not responded to the submissions arguing that the noise is still unreasonable or excessive and that it is likely that the noise will continue for an indefinite and unacceptable period of time. In fact, given the initial timeframe stated by the applicant, it would seem that the work should be close to being finished (if it has not already been completed).

The applicant also disputes the placement of a waste disposal bin on common property. The applicant has not relied on a specific by-law, nor has he shown that he has sought body corporate intervention. In my view, the applicant should have approached the body corporate before making the application seeking the removal of this bin. It is evident that the committee approve of the bin being on common property and that owners do not oppose this decision.

In my view, there is not basis for making an order in the terms being sought. The application is dismissed.