Tingalpa Gardens [2007] QBCCMCmr 41 (25 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0453-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19624
Name of Scheme:	Tingalpa Gardens
Address of Scheme:	QUEENSLAND

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

the body corporate

I hereby order that, for a period of one year, Arthur McGougan, owner of lot 7 (respondent) must not make or permit any noise likely to interfere in any way with the peaceful enjoyment of other owners or occupiers of lots and, in the event of any unavoidable noise in his lot, must take all practical means to minimise annoyance to other owners or occupiers of lots including closing all doors, windows and curtains.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0453-2006

"Tingalpa Gardens" CTS 19624

Application

Tingalpa Gardens Community Titles Scheme (Tingalpa Gardens) is a 27 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by the body corporate for Tingalpa Gardens (applicant) seeking orders against Arthur McGougan, owner of lot 7 (respondent). The body corporate says that the owner and residents of unit 7 have continually breached the body corporate by-laws by creating numerous noise disturbances.

Submissions

The body corporate’s main submissions were to the effect that the applicant is continuing to contravene the by-laws by creation of excessive noise.

The respondent has not made a submission. However, another owner has provided a submission to the effect that from January to February 2005 there were frequent disturbances in the form of screaming, shouting, swearing, banging, and loud crying at all hours of the day and night. It is submitted that after the police attended it was quiet for approximately two months but disturbances started again in April 2005 and especially from December 2005 to February 2006 resulting in the police needing to be called on several occasions. This owner makes submissions to the effect that she was considering selling her unit but could not afford to re-locate and could not sell her unit to someone else with good conscience in the circumstances.

Decision

Applicable law

The legislation includes provisions to the effect that:

• The body corporate must enforce the community management statement, including any by-laws for the scheme (Act, 94(1)(b)); and
• An occupier of a lot must not use, or permit the use of, the lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other lots or common property (Act, 167).

The by-laws for Tingalpa Gardens include a number of provisions relating to noise, including:

1.1 An owner or occupier of a lot shall not make or permit any noise likely to interfere in any way with peaceful enjoyment of other owners or occupiers of lots or of any person lawfully using the common property. In particular, no owner of a lot shall hold or permit to be held any social gathering in his or her lot which would cause any noise which could unlawfully interfere with the peace and quiet of any other owner of a lot, at any time of day or night and in particular, shall comply in all respects with the Noise Abatement Act 1978, as amended.
1.2 An owner or occupier of a lot shall ensure that the volume of radio or television receivers and gramophones shall be kept as low as possible at all times and that they shall not be operated between the hours of 10.00pm and 8.00am in such a manner as to be audible at all to an owner or occupier of another lot.
1.3 An owner or occupier of a lot shall not permit any piano or other musical instrument to be practised or played upon or any avoidable noise to be made upon a lot between the hours of 10.00pm and 8.00am. Quiet playing of musical instruments is permissible to a reasonable extent at any time during the hours of 8.00am to 10.00pm. Practising during the same hours is permissible but not for longer than one hour at a time for a total of more than three hours in any day.
1.4 An owner or occupier of a lot shall not permit any child to cry unattended in a lot or on common property in such a manner as to affect the quiet enjoyment of another owner or occupier.
1.5 In the event of any unavoidable noise in a lot at any time the owners or occupier thereof shall take all practical means to minimise annoyance to other owners or occupiers of lots by closing all doors, windows and curtains of his or her lot and also such further steps as may be within his or her power for the same purpose.
1.6 An owner or occupier shall ensure that guests leaving after 11.00pm leave quietly. Quietness also shall be observed when an owner or occupier of a lot returns to the lot late at night or in early morning hours.

Breach of by-laws

I am satisfied from the submissions that the respondent has breached by-law 1.1 by making noise likely to interfere with peaceful enjoyment of other owners or occupiers of lots. I have some concerns regarding whether the body corporate has complied exactly with the preliminary procedures for by-law disputes (Act, 184). For future reference the body corporate should ensure it has a full copy of the by-laws recorded on 1 August 2000 as part of its Community Management Statement 19624. Further, a pro forma "Notice Regarding Likely Future Contravention of a By-law" is available from this office.

Having said this, the body corporate has substantially complied with the requirement to give the respondent notice of the alleged contravention of the noise by-law by ongoing disturbances and notice the body corporate may start proceedings if a future contravention occurred. The body corporate has also provided a copy of a letter from the respondent that indicates the respondent was aware of the noise concerns.

I note from this letter that the respondent has apologised for the disturbances and may now have taken steps to avoid creating further disturbances. However, there is evidence that contraventions of the noise by-law continued to occur for some time after the respondent was sent the contravention notice. It therefore seems appropriate to make an order to attempt to avoid similar contraventions in future.

The provisions of the by-laws that are most relevant to the present complaint relate to the making or permitting of noise likely to interfere with peaceful enjoyment of other owners or occupiers. The by-law requiring the taking of all practical means to minimise annoyance to other owners or occupiers in the event of unavoidable noise may also be relevant. I consider it appropriate to grant an order requiring the respondent to comply with the relevant parts of these by-laws and I consider it just and equitable that this order remains binding for a period of one year. If the respondents fail to comply with this order then the body corporate is entitled to take action in the Magistrates’ Court seeking the imposition of a financial penalty of up to $30,000 and the recovery of costs (Act, 288).

Order

For these reasons, I make the order above.