De Ville [2007] QBCCMCmr 596 (18 October 2007)

Number of Scheme:	10951
Name of Scheme:	De Ville
Address of Scheme:	3645 Main Beach Parade MAIN BEACH QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Elizabeth Reynolds, the owner of Lot 84

I hereby order that the application for an interim order by Elizabeth Reynolds, the owner of Lot 84 against Clifford Cook, Susanna Cook and Brian Keene, the owner of Lot 103 seeking the immediate and urgent cessation of all renovation works, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0777-2007

"De Ville" CTS 10951

Application
This application is by Elizabeth Reynolds, the owner of Lot 84 (applicant) against Clifford Cook, Susanna Cook and Brian Keene, the owner of Lot 103 (respondents) seeking the following outcomes.

The final outcome sought is:

Immediate and urgent cessation of all works to enable mediation and/or conciliation to take place. As we are in a holiday letting period it is imperative that all works cease immediately as not to do so will interfere with owners rights to use and enjoyment as historically building works have had the effect of occupiers leaving the building demanding rental refunds. I wish to have my own use and enjoyment and privacy reinstated and the immediate cessation will enable mediation and / or conciliation.

Jurisdiction
"De Ville" 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 even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application.

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

Procedural matters
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 2 October 2007 I invited submissions and a copy of the application was provided to the respondents and to Body Corporate Services Pty Limited (the body corporate manager) for distribution to the committee with an invitation for the respondents and the committee to make submissions regarding the interim order application. The respondents and the committee made written submissions. Martin Corkery also made written submissions (uninvited).

On 10 October 2007, the applicant provided further material about the interim order application. By notice dated 11 October 2007, I invited the respondents, the committee and Mr Corkery to make submissions on the matters raised in the further material. The committee responded to the further material.

Background
At the Extraordinary General Meeting dated 21 March 2007, the body corporate resolved to carry out a number of repairs or refurbishment works throughout the scheme including: repairs to the ducting and exhaust system (Motion 2); waterproofing works on the 27^th level (Motion 3); rooftop repairs (Motion 4); refurbishment of the ground floor entry (Motion 5); refurbishment of the lift lobbies (Motion 6); repairs to the building façade (Motion 8); and repairs to the lift car interiors (motion 10). The body corporate also consented by special resolution to: the respondents erecting a lift/hoist on common property; and to entering into a Licence Agreement with the respondents about the erection and use of a hoist on common property for a period of 8 months from 21 March 2007 (Motion 9). Motion 9 referred to attached drawings and to attached terms and conditions. The work proposed in Motions 2, 3, 4 and 8 were approved in accordance with scope of works prepared by the Buildcheck (engineers).

On 29 May 2007, a Licence Agreement between the body corporate and the respondents was executed. On the same date, a Renovation Agreement between the body corporate and the respondents was executed stating the agreed terms and conditions for the proposed renovations of Lot 103. Both Agreements restricted the hours jack hammering was allowed. The Licence Agreement also restricted the times transmission of vibration or noise could be caused, including drilling and jack hammering.

Work on the penthouse level commenced in June 2007 with the construction of the hoist.

In letters dated 13 and 19 September 2007, the applicant wrote to Body Corporate Services Pty Limited (BCS) expressing concern about the work being performed and the use of the hoist.

Bruce Adam of BCS responded to these letters by facsimile dated 20 September 2007, advising that all jack hammering on the building roof will cease on 21 September 2007, and that the body corporate has been liaising with the owner’s representative and building contractor of the owner of Lot 103 about completion of the works.

By letter dated 21 September 2007, the applicant wrote to BCS stating that she is advised that drilling will continue causing worse noise pollution throughout the building than jack hammering. The applicant sought an assurance all drilling will cease until after Indy. She also expressed concern about the hoist.

By facsimile dated 21 September 2007, Bruce Adam stated all jack hammering in Lot 103 will cease on 21 September 2007, all drilling relating to the rectification of the waterproof membranes on the building’s roof will also cease on 21 September 2007, and there will be a reasonable level of intermittent noise due to the renovations in Lot 103.

By letter to BCS dated 26 September 2007, the applicant stated that she was resident on 24 and 25 September 2007 and "observed that sounds of drilling and grinding continued unabated from the penthouse renovations".

On 26 September 2007, the applicant gave a Notice to Body Corporate of a Contravention of a Body corporate By-Law citing section 167 of the Act.

On 1 October 2007, the application for an interim order was made.

Submissions
The applicant submits that work on the penthouse level has been performed at all hours and has involved jack hammering, drilling and the constant use of the hoist. She states that the use of the equipment reverberates throughout the building; the constant noise of the jack hammering, drilling and grinding is unbearable; and that privacy is invaded with the constant use of the hoist outside the bedroom window of Lot 84. The applicant is concerned that there have not been any consultations with owners around the work hours or the development of an appropriate works schedule to reduce the interference with the use and enjoyment of other lots. She adds that there have been numerous complaints made to the body corporate manager, the building manager and committee members (the applicant provided letters signed by 23 persons indicating, for various reasons, their concerns about the building works. Many of the letters have been signed in late September 2007). The applicant contends that holiday makers have complained and demanded to be moved to other levels, while some have walked out demanding refunds of rent. The applicant submits that requests relating to reducing the noise and the use of the hoist have been ignored.

The respondents submitted that it was agreed with the body corporate that all work would be completed by 12 December 2007. They say most noise occurred during the demolition stage completed in early August 2007 and since then the noise generated has not involved any jack hammering or drilling. The respondents state that some jack hammering was undertaken from 17 to 20 September 2007 in relation to the waterproofing membrane and that this has been completed. They submit all efforts have been made to be respectful to owners and occupiers, including informal weekly meetings were offered to be held with the resident manager, meetings and other communications conducted with body corporate representatives, and on 10 September 2007 a notice was delivered into every mailbox apologising for the disturbances of the construction works. The respondents claim that any restrictions will extend the contract completion date and extend the removal date of the goods lift.

The body corporate submitted the only previous official complaint to the body corporate had been made by the owner of lot 4 and this complaint was addressed by the committee at its meeting dated 20 August 2007. The body corporate states that of the 24 owners (including the applicant) who signed the letters of concern, 13 voted on Motion 9 at the EGM and of these, 3 voted against the Motion. It says the supervising engineer (Buildcheck) has advised that all jack hammering and drilling associated with work to replace/repair the roof membrane has ceased, however there will still be some noise generated in Lot 103. The body corporate states the respondents are obligated to remove the external lift by 10 December 2007 and any delays would impact on this obligation. It is stated that a major source of noise from works on the roof emanated from the replacement of the roof membrane by the body corporate. The body corporate contends that the applicant has not demonstrated the noise from work in Lot 103 and the operation of the external lift is beyond a reasonable level and above general background noise and supported by an acoustics engineers test report. It states that when the proposal from the respondents was first considered, it was deemed desirable for the work not to run into the 2007 Christmas/New Year period.

In further material, the applicant stated she has been advised by the building manager and other occupants that work and the noise has continued at the same or greater level than prior to the letter dated 21 September 2007 causing walkouts and financial refunds having to be made. She states that there have been times when committee members have not been in occupation and could not monitor the work. The applicant states that "last night" there was severe flooding in 9 lots (including Lot 84) during heavy rains "apparently caused by some tradesmen blocking pipes with debris from the Penthouse renovations". The applicant referred to sections 100(5), 101A and 167 of the Act.

In responding to the further material, the body corporate states the applicant’s claims about continued noise can only be hearsay and have not been supported by statutory declarations. The body corporate provided a copy of an emails dated 12 and 13 October 2007 from Vince Rehbein (committee member and resident) stating that the noise is not greater than before; is not worse than experienced from other renovations; as at 11 October 2007, he and his wife have been in residence except for 3 days early in October; and neither the applicant nor the building manager has tried to contact him regarding this matter even though his Lot adjoins the applicant’s. The body corporate states that the water ingress was dealt with promptly.

Determination
Given section 279(1) of the Act, 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.

In March 2007, the body corporate approved entering into a Licence Agreement with the respondents. The executed Agreement contains terms and conditions about the position and use of a hoist related to the renovation work to be done on Lot 103, and about the work specifically restricting the times for drilling and jack hammering. Work relating to the renovations commenced in June 2007. While the applicant makes general comments about earlier complaints, it has been shown that in September 2007 the applicant and other owners had complaints about the noise and interference with the use and enjoyment of lots caused by the renovations. Even though it is evident that the body corporate had made a decision about the work, a person such as an owner or occupier is able to complain relying on an alleged contravention of a provision of the legislation or the scheme by-laws.

In seeking an interim order under the dispute resolution provisions of the Act, the applicant does need to demonstrate that such an order is warranted given the nature or urgency of the circumstances or given that it raises a serious legal question that will need to be ultimately determined.

The applicant has principally relied on section 167 of the Act which states:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

The applicant has also mentioned section 100(5) of the Act stating The committee must act reasonably in making a decision and section 101A which provides protection of committee members from liability. Given the terms of the outcome sought, the references to sections 100 and 101A of the Act are not of any consequence in the determination of the interim order application. The applicant has given the body corporate notice about a suspected by-law contravention pursuant to section 185 of the Act. However, she has not referred to a particular by-law and from my reading of the by-laws stated in the community management statement for the scheme, there does not appear to be a by-law relevant to the dispute.

In the circumstances, section 167 may be applicable. There is a question about this provision given the respondents would seem to reside in New Zealand and the term ‘occupier’ (in part) is defined to mean a resident owner or resident lessee (Schedule 6 Dictionary, Act). For the purposes of making an interim order, I have considered the nuisance provision given that the work is being done on the respondents’ lot. The parties may choose to make submissions about this matter should they be invited to at some point in the resolution of this dispute.

It is relatively clear from the submissions that the work on Lot 103 has caused noise and has interfered with the use and enjoyment of lots included in the scheme. The respondents in a letter to all occupiers have stated "the noise levels resulting from the recent demolition work were more strident than might have been anticipated". While section 167 regulates nuisance, this provision cannot be read to prevent renovation work and should not impose an unfair burden on the person proposing to have the work carried out. It would be unreasonable to expect that repair or refurbishment work within a lot could be done without there being likelihood that on occasions the work would breach a general nuisance provision such as section 167. In my view, the relevant question is whether in the circumstances the disturbance is unreasonable, unwarranted or excessive.

The applicant proposes an order effectively stopping work which has been in progress since June until such time as the dispute is resolved. This is a significant issue with a potential to expose the body corporate, owners and/or the respondents to liability. Other than any contractual difficulties which may arise should the work be delayed, it would be expected that the delay will also extend the completion date into the Christmas holiday period.

In these circumstances, the applicant does have to clearly demonstrate the nuisance or that unreasonable interference is evident. The claimed instances of nuisance do indicate that a number of owners are concerned about the work being carried out in the building. However, I am not satisfied that the applicant and the complaining owners have shown that the work and the use of the hoist (including its position) has been contrary to what was contemplated by the body corporate or what would be reasonably expected given the work being done in Lot 103. For example, it has not been shown that the hoist has been used or that the jack hammering and drilling has occurred at times outside the Licence Agreement or that these times are contrary to a particular law, rule or regulation or industry standard. The terms and length of the Agreements point to the significant work being proposed to Lot 103. Nothing has been presented suggesting that owners queried the extent of the work before the March EGM or that the resolution of the body corporate was questioned or disputed.

It would now seem that the bulk of the demolition and construction work has been completed. I am not satisfied from the material presented that the applicant has substantiated any claim that jack hammering and drilling or other major work will be ongoing, that this work was not forecast, and that it will cause unreasonable interference with the use and enjoyment of another lot or common property.

In addition, it is evident that, at the EGM, the body corporate approved what would seem to be extensive work throughout the building. The applicant has not clearly shown that the disruptions mentioned in the material presented were entirely due to work being carried out on Lot 103 and were not caused by work organised by the body corporate.

In my view, the applicant has not raised a serious legal question nor has she demonstrated that the nature or urgency of the circumstances warrants the making of the interim order. In balancing the interests of the parties I am also satisfied that the interests of the respondents prevail. 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.

3.	Obstruction to common property caused by the external hoist be removed and access to common property areas be reinstated.
4.	That a schedule of hours be agreed upon which clearly defines and limits the dates and hours at which any noise inducing work in the penthouse renovations are permitted to take place.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

De Ville [2007] QBCCMCmr 596 (18 October 2007)