Contessa Condiminiums [2007] QBCCMCmr 42 (25 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0826-2006A

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6203
Name of Scheme:	Contessa Condominiums
Address of Scheme:	1 - 7 Serisier Avenue MAIN BEACH QLD 4217

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

Cameron Hugh McCall, the Owner of lot 79

I hereby order that the owners of lot 83, Dale Maree Paton and Athol Bruce Paton, must provide access to lot 83 as follows:  at a time chosen by the owner of lot 79, Cameron Hugh McCall, to be communicated in writing to the owners of lot 83, or their legal representatives, with seven days notice;  for an appropriately qualified acoustic engineer chosen by the owner of lot 79 (and other persons deemed necessary by the engineer);  to undertake testing to provide an acoustic report measuring the sound levels generated in lot 79 from the tiled surfaces of the entrance and hallway of lot 83.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0826-2006A

"Contessa Condominiums" CTS 6203

Interim Order

"Contessa Condominiums" community titles scheme 6203 is a 124 lot scheme under the Body Corporate and Community Management Act and the Act’s Standard Module. Lot boundaries are designated under a building units plan (now known as a building format plan).

On 18 January 2007, I wrote to the applicant, the owner of lot 79, Cameron Hugh McCall and requested that he obtain a report which provides a measurement of the noise levels being generated within lot 79 from the tiled surfaces of the entrance and hallway within lot 83. Specifically, I wrote as follows (bolding my emphasis):

An outcome has been sought that the owners of lot 83 remove the tiles in the entrance and hallway of their lot and replace those areas with carpet and underlay. It is alleged that the tiles were laid directly on the concrete slab with no acoustic barrier. In my view no objective material has been provided to demonstrate that the noise levels from lot 83 are excessive or contrary to noise regulations which could support a claim that the noise constitutes a "nuisance" within s.167 of the Act.

In my view, the applicant has an obligation to demonstrate that the level of noise generated from lot 83 is at such a level to constitute unreasonable interference with the use or enjoyment of lot 79. I consider that a report measuring the noise levels in lot 79 coming from lot 83 is a reasonable way to assess whether the noise being generated is capable of disturbing the use or enjoyment of the lot. For the reason that I consider that this information will help resolve the issues raised in the application, I require the applicant to obtain a report which provides a measurement of the noise levels being generated within lot 79 lot from the tiled surfaces of the entrance and hallway within lot 83. The owners of lot 83 must provide access to an appropriately qualified acoustic engineer (chosen by the applicant) for the purposes of undertaking the testing. The testing should be undertaken at a time mutually convenient to both parties. The cost of the report should, in the first instance, be met by the applicant. Depending on the test results, I may order that the report cost be reimbursed to the applicant by the owners of lot 83.

While this information may not be the sole factor considered in the determination of the dispute, I consider that the information will assist a determination of the outcome sought.

I require the acoustic report before continuing with my investigation and/or adjudication of the application. The report should be provided to this Office by Thursday 8 February 2007.

The applicant has since advised that the owners of lot 83, through their legal representatives Eden Lawyers, are refusing to provide access to lot 83 for the purposes of the testing. Mike Eden of Eden Lawyers has confirmed this in an email to the applicant.

Section 279(1) of the Act provides that the adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.

I understand that lot 83 is currently vacant. I consider that the refusal to provide access to lot 83 by the owners of lot 83 is unreasonable and obstructive to the conduct of my investigation of this dispute. I consider that these circumstances warrant the making of an interim order.

I have therefore made an interim order that the owners of lot 83 provide access to their lot for the purpose of the sound testing being undertaken. The access must be provided upon seven days written notice from the applicant to the owners of lot 83 or their legal representatives. Because of the requirement to give seven days written notice of the testing to the owners of lot 83, I have allowed the applicant a further week to provide the acoustic report, now due by Thursday 15 February 2007.

The owners of lot 83 and their legal representatives should be aware of section 288(1) of the Act which provides that a person who contravenes an adjudicator’s order commits an offence, subject to a maximum penalty of $30,000.