Sanctuary Manors [2007] QBCCMCmr 67 (8 February 2007)

Last Updated: 20 February 2007

REFERENCE: 0530-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28773
Name of Scheme:	Sanctuary Manors
Address of Scheme:	38 Caseys Road HOPE ISLAND QLD 4212

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

Christopher & Frances Swinbank, the Owners of lot 14

I hereby order that within three (3) months of the date of this order, the owner of lot 15 is to take such steps as are necessary to ensure that the noise caused by the operation of the air conditioning unit servicing lot 15 is within the Allowable Noise Levels specified in the Environmental Protection Regulation 1998 i.e. that noise generated by the air-conditioner, when measured at a neighbour’s property, must not exceed: • 50 decibels between 7:00am and 10:00pm; and • 5 decibels above background noise, or 40 decibels (whichever is higher), between 10:00pm and 7:00am.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0530-2006

"Sanctuary Manors" CTS 28773

The Scheme

"Sanctuary Manors" CTS 28773 is a subdivision of 70 lots recorded under a building format plan of subdivision. The regulation module applying to the scheme is the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

The Application

This application has been brought by the Owners of Lot 14, Christopher & Frances Swinbank (the Applicants), seeking the following orders:

Air conditioner to be changed to a quieter model.

To be relocated to face away from villa 14.

The applicants state that they have experienced a noise nuisance for over 3 years. Lot 14 differs from most other lots in that it is detached from the other buildings and is located between an apartment block and a highset duplex. The applicants state that therefore a number of air conditioning units face toward lot 14 and most of the noise emanates from an air conditioning unit servicing lot 15 which is only approximately 2.5 metres from lot 14. They state that noise also comes from the air conditioners servicing units 11 and 13 and the total amount of noise is so loud that they are unable to use parts of their lot when the air conditioner is running.

Originally, the applicants’ concerns were raised with the body corporate manager who referred the matter to the developer. The developer wrote to the applicants on 14 November 2003 advising as follows:

• The developer and their architect visited the site on 12 November and heard the applicants’ air conditioner in operation. The noise from that air conditioner was well within Council guidelines and with doors and windows shut was barely audible;
• The manufacturer’s representative tested the air conditioners attached to other lots and had found them to be within the current guidelines;
• As they believe all standards have been met there is nothing more they can do;
• The developer’s architect suggested that the applicants co-operate with their neighbour and ask them to place some sound absorbing material on the dividing fence;

At a meeting of the Body Corporate committee held on 25 November 2003 the developer advised the committee that the air conditioning units had been tested and found to comply with EPA requirements. Therefore the developer did not intend to take any further action.

At the AGM held on 6 February 2004 the developer advised that the air conditioning noise was not above acceptable levels.

At an EGM held on 17 March 2004, the applicants raised the issue of noise nuisance caused by the air conditioning units. In response the committee advised that the committee would follow up the matter but if the noise level was within GCCC standards, the committee may not be able to address the matter.

At meetings of the Body Corporate committee held on 5 April 2005 and 7 June 2005 the committee resolved to instruct the body corporate manager to investigate noise levels and report the findings to the committee. In July 2005 the committee advised members that Cosmic Air, the company that installed the air conditioners would install an accessory called a "boot" to reduce noise. In October 2005 the Committee advised members that they had a quote for approximately $150 (plus GST) per unit to quieten the air conditioning units. This offer was accepted by numerous lot owners and according to the committee was noticeably successful.

The committee chairman reported to the 2006 AGM that the committee had done what it could to resolve the excessive noise issue and any further complaints should be taken up with individual neighbours.

In correspondence with the body corporate, the applicants have stated that they possess a decibel counter and at times the neighbouring air conditioning units can be as loud as 76 decibels.

At a committee meeting held on 14 March 2006, the Chairman confirmed that noise levels from various air conditioners had been tested and found to exceed the decibel rating currently recommended by the Gold Coast City Council although the developer has stated that the air conditioning units met the Council’s noise rating standard that was applicable at the time of construction. It was also noted that in December 2006 the owners of lot 14 had served on the body corporate a notice stating that they considered the owners of units 11,13 and 15 were contravening the scheme by-laws by allowing the air conditioners to cause a noise disturbance. The body corporate was not satisfied it could establish that any air conditioning units breached the by-laws regarding creation of unreasonable noise disturbance. The owners of lot 14 were invited to pursue their complaint directly with the Office of the Commissioner for Body Corporate and Community Management.

Submissions

Submissions in response to the application were sought from all owners (excluding the Applicants) and the body corporate committee. Five submissions were received.
The body corporate committee made the following submissions:

• The applicants purchased their lot from the original developer on or about 10 March 2003;
• There are several styles of unit construction within the complex comprising bungalows, townhouses and apartments. There are also 6 "Florentine" unit building blocks in the complex i.e. with 2 units at ground level and 2 units above in a single building block. One of the "Florentine" blocks consisting of lots 10 to 13 is next to the applicants’ unit. Lots 11 and 13 are the ground level and upper level units nearest to the applicants’ lot;
• The applicants’ lot is somewhat unique in this complex as it is a free standing unit that is particularly close to the neighbouring lots;
• The applicants have made several complaints about air conditioners installed in neighbouring lots. However while each complaint has been investigated it has not been found that those air conditioners are any more or less noisy than air conditioners in other lots. The committee has therefore decided there are not sufficient reasonable grounds to establish that any of the adjoining owners named as affected parties are in breach of the scheme by-laws in this regard; and
• There have not been any design changes or improvements made by any of the affected parties since the applicants acquired their lot and prior to acquisition of the lot the applicants would have been aware of the proximity of the air conditioners and the unique design features of their lot;
• All lots in the complex were built with their own separate and independent air conditioner. The air conditioners each service one lot only and therefore are not utility infrastructure as defined by the Act and maintenance of each unit’s air conditioner is the responsibility of the individual owners and not the body corporate.

A lot owner made the following submissions:

• This is a dispute between neighbours and should not involve others or the body corporate;
• They do not have problems with neighbours air conditioning units. At one time a neighbours’ air conditioning unit was making excessive noise and the matter was resolved by politely requesting the neighbour to take remedial action;
• This dispute should be settled between the applicant and the affected parties in the same manner.

The owner of lot 10 made the following comments:

• She believes that many of the air conditioning units are not suitable for the lots and were not properly installed;
• The noise from the air conditioning units bounces of the walls between the buildings and this magnifies the sound.

The owner of lot 13 advised that:

• The owners of lot 11 were her neighbours and seldom used their air conditioner;
• Both the owner of lot 13 and the owners of lot 11 had additional work done to reduce the noise disturbance to the applicants but it appears that the reduction in noise was not sufficient to satisfy the applicants.

The owners of unit 21 expressed the following opinions:

•	The air conditioners that the developer allowed to be installed were not appropriate for the units in the complex;

• The fault lies with the developer and they should be responsible for replacement or repositioning the problem air conditioners.

The owner of lot 15 made the following comments:

• He rents out his lot to tenants and was not aware of the noise issue until February 2006;
• The developer had the air conditioners tested in 2003 and found the noise generated was within accepted limits;
• In September 2005, units 11 and 13 arranged to have their air conditioners fitted with a "boot" to reduce noise. He was never informed of this or given the opportunity to take such action;
• He does not agree with the body corporate’s advice that problems with air conditioners should be taken up with individual owners;
• If there is a problem with his air conditioner it should be rectified by the developer;

In a subsequent supplementary submission, the owner of lot 15 provided the following information following a meeting of the committee on 19 September 2006:

• An attempt by the Commissioner’s Office to conciliate this matter was unsuccessful;
• The body corporate does not take any responsibility for individual air conditioners;
• The developer has stated that the air conditioners were installed with council approval;
• There has not been an adequate basis for determining that any resident has breached the scheme by-laws through operation of the air conditioners.

Jurisdiction

This is a matter which falls within the dispute resolution provisions of the Act (see sections 227, 228, 276 and Schedule 5).

Section 276(1) of the Act provides that 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) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Determination

The Applicants allege that the noise caused by operation of the air conditioning unit is a nuisance involving a breach of the scheme by-laws. In this regard by-law 15 provides as follows:

Nuisance
No noxious or offensive trade or activity may be carried on upon the Scheme Land or in any lot nor may anything be done thereon which may be or may become an annoyance or nuisance to the neighbourhood or which may be likely to interfere with the peaceful enjoyment of the owners and occupiers of other lots or any other person lawfully using the common property.....

Section 167(b) of the Act may also have some relevance in this regard and provides as follows:

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--

(a) causes a nuisance or hazard; or

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

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

This application presented a number of difficulties to me as an adjudicator. Firstly, I recognise that air conditioning tends to be a standard inclusion in developments of this nature and different people have differing levels of tolerance to background noise. While it is obvious that a certain amount of noise will be generated by air conditioning units within a complex such as Sanctuary Manors, there was considerable uncertainty as to whether the noise levels from the air-conditioning units were excessive and contrary to noise regulations or whether the applicants have a high sensitivity to noise. I therefore requested the applicants to provide some objective material to support a claim that the noise levels from one or more air-conditioning units was excessive or contrary to noise regulations, which would support the claim that the noise disturbs their use of Lot 14.

In response I received a report dated 31 January 2006 from Craig Hill Acoustics, Acoustic Consultants, which included the following information:

• The purpose of the report was to examine noise levels of on site air conditioning units at units 11, 13, 14, and 15 at 38-56 Caseys Rd. Hope Island;
• The criteria used for the purposes of the report are the following noise limits for air conditioners set out in the Environmental Protection Regulations 1998:

Allowable Noise Levels
From 7:00AM to 10:00 PM - Noise no louder than 50 dB(A)
From 10:00 PM to 7:00AM - Noise no more than 5 dB(A) above background noise or 40 dB(A) (whichever is higher).

• The equipment used to measure the sound included a Rion Sound level Calibrator (compliant with AS 1259-1990) and a Svantec Sound and Vibration Analyser (compliant with AS 1259-1990);

• Test were conducted between 6:00 PM and 6:30 PM on Monday 30 January 2006 and the results were as follows:

Test	SPL (dBA fast response)	Comments - Location
1	66.0	1metre from AC of unit 15
2	53.0	Around corner from unit 15
3	65.9	1metre from AC of unit 13
4	53.7	Outside unit 11 with unit 14 AC operating
5	65.4	1metre from AC of unit 11
6	54.3	Outside unit 14 with unit 11 AC operating
7	58.5	Outside unit 14 with unit 15 AC operating
8	58.0	Outside unit 14 with unit 13 AC operating
9	64.0	1metre from AC of unit 14
Ambient Level 45 LA90 (15 minutes)

• The above test results show that noise levels from all units exceed the daytime criteria of not greater than 50dB(A) at a noise sensitive place for day time;
• While no night levels were established at the site, early morning monitoring in the area showed ambient levels of 35 LA90. therefore the night criteria of 40 dB(A) or 5 dB(A) above background noise would therefore also be exceeded.
• It was recommended that the following measures be considered:

Filling in open fence panels;
Investigation of quietening methods for compressors;
Installation of absorbent quietening shields/ attenuators to each unit;
Replacement with quieter units.

The Allowable Noise Levels referred to in the report from Craig Hill Acoustics reflect the relevant provisions of the Environmental Protection Regulation 1998 which provide that noise generated by an air-conditioner, when measured at a neighbour’s property, must not exceed:

• 50 decibels between 7:00am and 10:00pm; and
• 5 decibels above background noise, or 40 decibels (whichever is higher), between 10:00pm and 7:00am^[1].

The Environmental Protection Regulation 1998 is enforced by Local Authorities which adopt differing enforcement strategies ranging from on-the-spot fines to conciliation.

While an assessment of whether a lot owner or occupier has breached body corporate by-laws concerning noise or the nuisance provision in the Act does not strictly require reference to the Environmental Protection Regulation 1998, I consider that these regulations provide a sound and objective basis for deciding whether the noise from the air-conditioning units in question is capable of adversely impacting on other occupiers. The report from Craig Hill Acoustics indicates that the air conditioning unit for unit 15 produces a noise level of between 53 and 66 which is well outside the Allowable Noise Levels.

I have noted the submissions by the owner of lot 15 and in particular I note his concerns that he purchased the unit with the air conditioning unit installed and that if there is a problem with the noise generated by his air conditioner it should be rectified by the developer. Unfortunately, my jurisdiction does not extend that far. Irrespective of whether or not the owner of lot 15 may have some form of recourse against the developer, I am obliged to apply the provisions of the legislation relating to nuisance and enforcement of by-laws.

In cases such as this, it is normal practice for an adjudicator to request the applicant to present expert acoustic evidence. An acoustic report has been provided to me and a copy also forwarded to the owner of lot 15 who has not specifically disputed the readings taken by the acoustic engineer. That report refers to Allowable Noise Levels as specified in the Environmental Protection Regulation 1998 which provide that noise generated by an air-conditioner, when measured at a neighbour’s property, must not exceed:

• 50 decibels between 7:00am and 10:00pm; and
• 5 decibels above background noise, or 40 decibels (whichever is higher), between 10:00pm and 7:00am^[2].

The report from Craig Hill Acoustics indicates that the air conditioning unit for unit 15 produces a noise level of between 53 and 66 which is well outside the Allowable Noise Levels, and accordingly I must order that the owner of lot 15 take steps to reduce the noise generated by the air conditioning unit so that it operates within the allowable noise levels. I am advised that there are various ways of reducing noise emitted by air conditioning including the following:

•	use of an acoustic enclosure;
•	use of a fence or barrier;
•	modification of the compressor unit;
•	repositioning of the compressor unit; or
•	replacement of the compressor unit with a quieter unit.

I will leave it for the owner of lot 15 to determine, in consultation with a suitably qualified air conditioning technician, how the noise can be reduced to an allowable noise level.

I am aware that this time of year is a busy period for many air conditioning and refrigeration technicians, particularly in the Gold Coast area, and therefore propose to order that the owner of lot 15 is to take such steps as are reasonably necessary to limit the noise caused by the operation of the air conditioning system within three (3) months of the date of this order.

---

^[1] Section 6Z Environmental Protection Regulation 1998
^[2] Section 6Z Environmental Protection Regulation 1998