Mactaggarts Place [2007] QBCCMCmr 73 (12 February 2007)

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

I hereby order that the application for an order

“That the owner/occupier of Lot 25 immediately cease using the Common Property areas (outside of their allocated exclusive use area) in any manner, including wedding ceremonies and wedding receptions or for patrons wishing to smoke, or any other function, display or event, other than for the reasonable ingress or egress to and from their lot or the parking areas provided and in accordance with the by-laws; and

That the owner/occupier of Lot 25 immediately cease operating their business outside of the permissible hours, i.e. after 11.00pm; and

That the owner/occupier of Lot 25 immediately cease parking vehicles in areas of Common Property other than those designated for exclusive use car parking for Lot 25 and in the visitors’ car parking area other than in accordance with its intended casual use by visitors; and

That the owner/occupier of Lot 25 immediately cease littering on Common Property with cigarette butts, bottle etc; and

That the owner/occupier of Lot 25 immediately cease creating excessive noise outside or (sic) permissible hours and affecting other lot owners within the scheme.”

is dismissed

In lieu I order that the Occupier of Lot 25, as described herein as the operator of a restaurant “Eves on the River” may not use the common property for the operation of the restaurant business, nor permit use of the common property by patrons of the restaurant, other than for access between the restaurant and the designated parking areas, without the prior permission of the body corporate.

The above order was appealed to the Brisbane District Court. The appeal no is: BD667/07.

I further order that the Occupier of Lot 25, as herein described as the operator of a restaurant “Eves on the River” must not make or permit any noise upon Lot 25 or the common property likely to interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots in the scheme or any person lawfully using the common property.

I further order that the Occupier of Lot 25 as herein described as the operator of a restaurant “Eves on the River” at all times ensures that the patrons of the restaurant business do not cause a nuisance or disturbance to the proprietors or occupiers of other lots, or any person lawfully using the common property.

The above order was appealed to the District Court at Brisbane. The appeal ref no is BD667/07.

This is an application dated 20th December 2006 and amended on 5th January 2007 by the body corporate for Mactaggarts Place (the body corporate) against Tanja Caprioli and Desiree Caprioli, (the Respondents) co-owners of Lot 25 in the scheme, for orders that the owner/occupier of Lot 25 immediately cease from all of the following –

“Mactaggarts Place” Community Titles Scheme 16563 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) 1997 (Accommodation Module). There are 160 lots in the scheme created under a Building Unit Plan of subdivision.

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

(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)).

The body corporate says that on 17th May 2006, the body corporate issued a Notice of Continuing Contravention of a Body Corporate By-law to Stephen Holmes (Mr Holmes) as lessee of Lot 25, for placing tables and chairs for the restaurant “Eves on the River” on common property on a continual basis, so that patrons could smoke and for guests attending weddings.
The notice quoted the by-laws breached as By-law 2 (Private Roads and Other Common Property) and By-law 5 (Obstruction.) Mr Holmes was required to cease the contravention within 7 days.

On 29th May 2006, Mr Holmes wrote to the body corporate advising that he had removed the tables and chairs. However on numerous occasions since then, the occupier of Lot 25 has been using common property to hold wedding ceremonies and wedding receptions without permission of the body corporate. The body corporate attaches 12 photographs which are not very clear, but which show gatherings of people, some white-clothed tables, and a car in the driveway.

The body corporate says it received numerous complaints from lot owners, and so on 5th October 2006, it issued Notices Regarding Likely Future Contravention of a Body Corporate By-law (the notices) to both Mr Holmes and to the Respondents as owners. The notices detailed breach of by-laws 1(Vehicles); 2 (Private Roads and Other Common Property); 3(Visitors’ Car Park); 5 (Obstruction); 8 (Depositing Rubbish); 15 (Noise); 25(Behaviour of Invitees) and 47(Restaurant/Business Use).

The notices said that the complaints concerned regular parking of vehicles in areas of common property other than those designated for exclusive car parking use; business use and obstruction of common property other than the exclusive use area allocated to Lot 25; littering of common property with cigarette butts, beverage containers etc; excessive, avoidable, disruptive noise (amplified and other) outside permissible hours and operation of the business outside permitted hours ( ie. after 11.00pm.) The notices requested that the Respondents and Mr Holmes not repeat the contraventions. However, the breaches have continued. Following a committee meeting on 13th November 206, the committee resolved to lodge this dispute application.

In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

Submissions were received from Yvonne Dalle, owner of Lot 76 saying that she has lost several tenants because of the noise of the restaurant and that the noise had been going on since she purchased in 1999.

Graham Best, (Mr Best) owner of Lot 75, points out that he had found it necessary on several occasions to write to the chairperson about the constant disruption from the restaurant by wedding parties, noise, smoking, language, overcrowding of parkland, and blocking of entrances and walkways. He has been unable to read a book on common property as the tables and chairs take up all the space. His letters to the chairperson reports a base sound thumping up through his apartment, and being disturbed every Friday, Saturday and Sunday night with smoke and noise. The lawn area is becoming dust and the walkways becoming dirty and ugly. He has had to ring the restaurant on several occasions and ask them to turn the noise down. The Liquor Licensing Division was contacted and compliance officers attended the restaurant on 20th October 2006. Mr Best has been advised that the sound system was working correctly although the microphone was not connected to the automatic cut-out device and that this would be rectified. Mr Best finds it all unacceptable.

Bruce and Rosemary Fraser, owners of Lot 7 say that they are disturbed two or three times a week, and that it is like living in a night club. Mrs Fraser says she has been ashamed to live there because the entrance to her home is covered in cigarette butts, dirt and smoking people.

Barbara Stone (Ms Stone), owner of Lot 145 says she expected an element of extra noise and traffic volume when she purchased a unit with an operating restaurant, but she never envisaged the use of common property by the restaurant without body corporate approval or a rental agreement. She no longer lives there but parking used to be difficult for visitors and deliveries. The use by the restaurant shows a lack of respect for owners.

Ivo and Rodney Charles of Lot 149 say they support the body corporate as do Robert and Katie Walls, owners of Lot 56. Benjamin Webb, owner Lot 24 also strongly supports the body corporate having experienced 10 years of sharing a common wall with the restaurant.
The original purpose of the restaurant was the provision and service of meals but it has shifted to a function centre and that is unacceptable. He says it breaches town planning uses recommended by the local authority. He also has had numerous tenants break their leases because of the noise. Over the past 12 months there have been many functions on Thursday, Fridays, Saturdays and Sundays. His tenants have moved their bed into the living area.

Katherine and George Clegg, owners of Lot 14, also say that there is a vast difference between a restaurant and a function centre, and they object to the operator applying to lease the land for further functions.

Audrey Frowd, owner of Lot 100, says she has no objection to the restaurant operating a “ basic function centre” on weekends on the grounds that the body corporate grants the application for a lease for which they already have applied.

Lisa Carroli, owner of Lot 129, says the behaviour of the incumbents of Lot 25 is likely to have a direct impact on the quality and longevity of her tenants. Since Macaggarts is primarily a residential building, the small number of commercial spaces must contain businesses which are compatible for the needs of the residents. The restaurant is behaving in an unacceptable way. They monopolise common property and the visitors’ car parks and the late night noise is “completely untenable.”

Jacqueline Bayard (Ms Bayard), owner Lot 28, has complained to the Liquor Licensing Compliance Officer about noise from the restaurant in May, July and September 2005. The noise has consisted mainly of “yahooing from drunks”, a microphone, screaming women, whistling and yelling, especially at weddings. On 11th September 2006 she reported hearing “yelling and screaming” at 10pm when she was in bed. On this weekend there were three functions in a row and the bins were overflowing. There were five cars parked in the tradepeoples park . On 1st October 2006, a Sunday, she was again woken at 10.15 pm “with almighty singing and screaming.” There was a wedding function at the restaurant and Ms Bayard,who is also chairperson of the scheme and had received a complaint from the owner of Lot 81, got up and went down to the restaurant. At the entrance to the scheme she saw “ over a dozen people drunk, smoking and very noisy.” She went into the restaurant and asked them to remove the people from the entrance to the scheme. She made a formal complaint to the body corporate manager and says Sunday nights are now becoming “extremely stressful.”

Clifford Stephens (Mr Stephens) resident of Lot 51, says the restaurant used to be a small and pleasant restaurant but now it’s a pain. The noise levels have increased alarmingly and the noise disrupts not only him but also the peace of the entire complex. There are large crowds round doorways, making it look like a nightclub, and which are difficult to get round to get in. The restaurant end is strewn with cigarette ends and rubbish.

Anne Steer, owner of Lot 143, says she is very concerned at the changes that have taken place in the operation of the restaurant. She says the site is not suitable for functions where everyone arrives and departs at the same time, there are speeches and clapping, scraping of chairs, people going outside to smoke en masse, multiple cabs arriving at the end of an evening, and there is associated noise and congestion. It is difficult for the restaurant to control large numbers of people who are using the common property, and there are “parking problems.” The restaurant was there when she moved in and she would expect a bit of noise, but “the differences with this business now compared to 1998 are substantial and affect the overall amenity.” The building is less attractive to tenants and resident owners.

Erica Frost, owner lot 67 says the restaurant is a perfect location for small weddings and sees no disadvantage to the occupants of MacTaggarts “with the operators of the restaurant utilising the facilities that the restaurant and immediate surrounding area offer.” She says that the BBQ area and pool can be more noisy. She believes very few would be affected by the restaurant. She would like them to continue to allow for weddings and functions before 11pm, provided they keep the surrounding area free of cigarette butts and bottles.

Chris Edwards owner of Lot 86 simply says that he does want the restaurant to be extended to a function centre.

Chris Taylor, owner of Lot 101says his unit is at the far end and personally he is not affected by noise, but he has often seen large crowds from weddings and at times there is a lot of noise when he is walking past a wedding, and he thinks he is “lucky to be at the other end.” He has heard cheering and seen bins overflowing, but he does not know if that is anything to do with the restaurant. Conceptually, he likes the idea of a restaurant as it’s handy and adds atmosphere, but not a function room, and not if it disturbs people.

Paul and Lynn Shemer, owners Lot 81, say they have received numerous complaints from their tenants about the noise and associated disturbance by the patrons of the restaurant. Smokers congregate at the entrance to MacTaggarts and drink there until they go back into the restaurant. There are tables placed for their use at the entrance. They say that these gatherings become raucous and continue late into the night.

Peter Brown (Mr Brown), owner Lot 131, says his lot is nearly opposite the entrance to the restaurant, and he has been disturbed on several occasions by unacceptable noise. The Liquor Licensing Division were involved in September 2005 but the noise still goes, particularly on the on grassed area under his window. The smoke is also a concern now, as well as increasing noise levels and littering outside the entrance. He is sick of having to walk through groups of smokers when walking between the car park and Mactaggarts Place.

Rodney Facey, Ms Bayard and Heath Marks also put in a submission as the body corporate committee, duplicating complaints from owners, to the committee, but adding the name of Philip Ross, tenant of Lot 21, who complained to the committee in September 2005 and reported the restaurant to the Liquor Licensing Division. He proposed to move out of the scheme because of “noise levels from functions.”

Annie Ilett, owner of Lot 128, says that in April 2005, the restaurant was granted an extension to its liquor licence, and the restaurant placed external speakers. Residents “now face a full blown function centre” which has resulted in inappropriate parking, noise, and littering which is destroying the enjoyment of their homes for lot owners, the riverside ambience, and cultural heritage values. She also has a rapid turnover of tenants. She believes that service of alcohol in the external areas has ceased, but the restaurant is still breaching noise by-laws and operating outside the limitations of their lot as at 28th January 2007.

A submission was made on behalf of the Respondents and the operator of the restaurant, who is the occupier of Lot 25 (the Occupier) by Nicholsons solicitors. They say that the Occupier has run the restaurant since 1st March 2002 and they submit firstly, that the application is of no effect because it names the Respondents as owners but seeks to get the Occupier to do something.

They further argue that the first contravention notice dated 17th May 2006 was invalid because it was not authorised by body corporate. The notices were also invalid because they were not authorised by the body corporate until 13th November 2006, after they were dated on 5th October 2006. Further, the elements of the dispute have not been properly established because the body corporate has refused to talk to the Occupier or to reply to correspondence from Mr Holmes. Letters dated 18th September 2006, 11th October 2006, 30th October 2006, 20th December 2006 and 8th January 2007 from Mr Holmes to Ernst Body Corporate (the body corporate manager) and from James Macqueen, General Manager, Eves on the River, to the secretary of the committee, are attached to the submission. Mr Holmes has been denied the opportunity to speak to the committee and attend a committee meeting as evidenced in the minutes of the committee meeting held on 13th November 2006, which refused Mr Holmes on the grounds that he was not a lot owner and “therefore not entitled to attend meetings.”

With regard to the outcomes sought, the Respondents and the Occupier take each of the five outcomes in turn. They say that outcome one seeks to prohibit the Occupier from holding wedding ceremonies, receptions or other events on common property and to prohibit patrons from smoking on common property. The grounds given are too brief and do not specifically address the authority on which they rely. Further, part of the first outcome sought seems to be taken from By-law 2 which appears to be intended to regulate the use of vehicles on the common property, and that as such it is not relevant.

The Occupier admits that it has held a number of functions on the common property in the last 5 years. Weddings are now popular and a significant part of the business. The restaurant has many weddings booked for the coming year and plans to continue to use the common property in this manner. Weddings are mainly between 4.30pm – 6.30pm, and the Occupier does not place cordons or fence off the common property or obstruct or prevent access to other persons on these occasions.

The Occupier “is licensed to serve alcohol and other beverages to its patrons on the common property” as envisaged by By-law 47.2.2 and its “off the premises” liquor licence. The body corporate has not asked the Occupier to seek permission to hold functions, nor has it provided any evidence that such permission is required.

It says a lot of the land in the photos provided by the body corporate is not common property but Brisbane City Council (the Council) land. The Council is aware that this land is used for weddings and there has been no complaint from the Council. Further, there is no scheme by-law which prevents a person from smoking on common property. The Occupier complies with Tobacco and Other Smoking Products Act 1998. After the “anti-smoking laws” were introduced in July 2005 patrons in commercial lots were required to smoke outside. In response to complaints about people milling around the entrance to the scheme and making a noise, the Occupier established a smoking area on the river side of the building. It has sought to meet the committee about a more suitable venue, but the committee will not meet with the Occupier to discuss this.

The stools and bars in the photos are located on common property on the river side for the convenience of smokers. This area has previously been used for outside dining for breakfast, but after receiving the first contravention notice, the Occupier removed the tables and chairs.

With regard to the second outcome sought, the Occupier says that the body corporate has provided no evidence at all that the business is being operated out of “permissible hours.” It denies trading after 11pm, and the Liquor Licensing Division has not found that there is trading after 11pm.

With regard to the third outcome sought, it says that the photos show only one single car located in an area for parking by service vehicles. That is a loading bay and used for unloading supplies. The body corporate does not effectively police its by-laws concerning visitors parking, so it is often difficult to park. The Occupier denies that he has parked contrary to the by-laws.

With regard to the fourth outcome sought, the body corporate offers no grounds and has provided no evidence about the littering. The Occupier goes to great lengths to clean up and pays staff to clean the grounds, garden, pathways, and toilets.

With regard to the fifth outcome sought, the Occupier says that the body corporate has provided no grounds that the Occupier has created “excessive noise.” By-law 47.2.1 “precludes the application of the by-laws relating to noise, use of lots and behaviour of invitees in respect of Lot 25”, so these things are regulated by another statute. The Occupier has complied with the Liquor Act 1992 about noise, and it has been inspected and found compliant by the Liquor Licensing Division. It has installed a noise limiter which limits all music to 85 decibels, and outside broadcasting to 75 decibels, above which it automatically cuts out. It has put in three ceilings with soundproofed insulation and engaged an acoustic engineer to test the sound emissions in the residential lots above the business.
It has also installed a false insulation wall between Lot 25 lot and the adjoining lot. It has enclosed its exclusive use area with glass and soundproofed the ceiling, and it employs staff to patrol the common property after trading ceases in order to encourage patrons to leave, and keep noise to a minimum. Further, it pays for “maxi-taxis” to arrive by 11pm on function nights to get the quests away quickly. The Occupier has encouraged smokers to move away from the entrance to the building by locating smoking tables to the rear “where the noise is better contained.” The Occupier says it is acutely aware of noise and “has attempted to address the complaints made by residents by implementing policies that go beyond the requirements of Liquor Licensing.”

The committee sent a letter to all lot owners on 12th January 2007 inviting them to make submissions to this application and that letter contained many factual inaccuracies. The Occupier says that there was no authority for the committee to send the letter. The Occupier says that the committee’s statement that the Occupier is “expressly limited” from allowing patrons to use the outside area is incorrect It says that “ anyone can use common property and the outside area.” The Council has erected signs to encourage the public to use the common property as a thoroughfare to the river.

Further statements by the committee in the letter of 12th January are challenged . The Occupier says that the statement : “Eves restaurant is controlled under licensing laws and these preclude the restaurant from operating and serving alcohol outside the licensed area” is not correct. “The business has a licence to sell alcohol offsite - which is also permitted in the by-laws.”

It denies that there has been intervention by the Council or the Liquor Licensing Division, and in fact the Council encourages weddings on its public parklands.

The statement in the letter that the Occupier “continues to ignore breach notices that are operating outside the limitation of their lot” is not correct. The Occupier has been trying to communicate with the body corporate about the breach notices but has not had the opportunity to respond to unsubstantiated accusations. Nor is the statement that “residents are disadvantaged because of change in operation” true. The Occupier says that the business not changed since the inception of the scheme. The daughter of chairperson had her wedding at the restaurant over a year ago.

On 18th January 2006, the Occupier prepared a letter in response to the committee’s circular letter, but it was not distributed “as the body corporate refused the respondent’s request to obtain the body corporate roll”“ and they were not able to search the body corporate records which are situated at the Gold Coast in time.

In summary, the Occupier says that the body corporate does not have jurisdiction to seek the outcomes sought and the application should be dismissed since it has failed to provide any grounds and the Occupier is abiding by by-laws and the Liquor Act and going beyond his obligations, for example, by taking measures to reduce noise beyond the legal requirements, and providing adequate facilities on the common property for smokers.

In this matter, the body corporate seeks an order against the occupier of Lot 25 for five specific outcomes. The lessee of Lot 25 is shown in the Land Title Registry to be a company named Stephen Holmes Enterprises Pty Ltd. (Holmes Pty Ltd). There is some concern about the application to the extent that the solicitors for the Respondents and for the unnamed Occupier say that the application is ineffective against the Occupier as it is not named as a respondent.

Further, the application follows contravention notices sent to the Respondents and Mr Holmes, and the body corporate pursues the application as for breach of by-laws of the scheme. However, the outcomes sought do not mirror the by-laws alleged by the notices dated 5th October 2006 to have been breached.

In addition, the Occupier challenges the validity of the notices and one sent previously to the Respondents and dated 17th May 2006, for being “unauthorised” by the body corporate. The Occupier does not explain in what way the first contravention notice was unauthorised, but says the notices sent on 5th October 2006 were not authorised until a committee meeting of 13th November 2006, when the sending of them appears as an item on the agenda.

I find that although the body corporate has not named Holmes Pty Ltd, in fact both Holmes Pty Ltd and Mr Holmes received both of the contravention notices, (responding to the first one dated 17th May 2006) and also a copy of the body corporate’s application. They have since been able to instruct solicitors to make a submission to the application in a timely manner, and I find from copies of the correspondence provided, that Mr Holmes is a person who is able to conduct the business of Holmes Pty Ltd. I do not find that a contravention notice authorised by the committee after its dating was “unauthorised.” The application has been fully defended and there is no detriment to the Occupier that it was not named.

The Respondents play almost no role in the application, being co-owners of Lot 25, although the submission from Nicholson Solicitors is made “on behalf of the owner/occupier of Lot 25” and the solicitors advise that the owners are not involved in the business and have no “physical presence at the scheme.”

I concur with the Respondents and the Occupier that the application was inelegantly drawn, but I do not agree that it should be dismissed for want of demonstrating that there is a dispute. The Occupier says that the body corporate has no jurisdiction. I do not subscribe to this statement. The body corporate has jurisdiction to bring a dispute application against the occupier of a lot in the scheme. Whether it brings its application in order to enforce its by-laws, or to prevent a contravention, or anticipated contravention of the legislation, it is entitled to do so. To be successful it needs to provide sufficient evidence of its claims. I now examine the by-laws alleged to have been breached and the outcomes sought.

The by-laws alleged to have been breached
The notices dated 5th October 2006 detailed the by-laws alleged to have been breached by the Occupier as 1( Vehicles); 2 (Private Roads and Other Common Property); 3(Visitors’ Car Park); 5 (Obstruction); 8 (Depositing Rubbish); 15 (Noise); 25(Behaviour of Invitees) and 47(Restaurant/Business Use). It is not clear whether the text of these by-laws were sent to the recipients of the notices.

By-law 1 states - “Save where by-law 43 applies, a proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon the common property except with the consent in writing of the body corporate committee.” (By-law 43 concerns exclusive use car parking spaces.)

There is no evidence that the Occupier has parked or will park a vehicle on common property, unless it is alleged that the vehicle parked in the bottom left photo on sheet 3 of the photographs supplied by the body corporate, is the Occupier’s vehicle. By-law 25 extends the duties imposed on owners and occupiers by the by-laws to invitees of owners and occupiers, (By-law 25.4) although it is not clear how that might be enforced. By-law 25 requires that occupiers take all reasonable steps to ensure that invitees do not “behave” in a manner likely to interfere with the peaceful enjoyment of another lot owner or occupier, in this case, in respect of parking. There is no evidence of the Occupier’s failure to take such reasonable steps, or what steps those should have been.

The Occupier argues that in any event By-law 25 does not apply to it because of the wording of By-law 47.2.1. I shall discuss the operation of By-law 47.2.1 below.

By-law 2 concerns obstructing common property. This (roadways, paths and drives and other common property) shall not be obstructed by any proprietor, their tenants, guests, servants, employees, agents, children, invitees, or licensees or used by them for any purpose other than ingress and egress etc, and no proprietor or occupier shall permit any invitees’ vehicles to be parked on the roadway forming part of the common property ( By-law 2.1.2).

There is some evidence of this. Mr Best refers to the service car park having a “permanent private chauffeur-driven vehicle parked there every weekend” ; and “blocking of entrance walkways” but he does not say that the blocking is with vehicles. Ms Bayard reports wedding cars parked “ for hours” in the space reserved for “tradespeople and movers.” On a Friday in September, she saw five cars parked in the “tradepeoples’ park” and that this was observed on the following Saturday night by another committee member, Heath Marks, she says.

I am not satisfied that parking of the wedding cars, even for hours, has caused any obstruction to lot owners or occupiers. Certainly they should not be parked on roadways and in a place reserved for tradespeople but there is no detriment observed by Ms Bayard other than perhaps an aesthetic one. There is also no allegation that tradespeople have been inconvenienced. However, this practice is not to be encouraged, and I find it likely that should this breach continue, residents and those wanting to use the service area, could be caused inconvenience or the parked vehicles could create a hazard.

By-law 3 concerns the visitors’ car park : “A proprietor or occupier shall not park or stand any motor vehicle .. upon areas set aside for visitor car parking” and “a proprietor or occupier shall ensure that their invitees use the visitor car parking area only for its intended purpose of casual parking.”

By-laws 2 and 3 are relevant to the third outcome sought, that is, requiring the occupier not to park vehicles in areas of common property (outside Lot 25’s exclusive use areas) and in the visitors’ car parking area, “other than its intended casual use by visitors.”

There is no evidence of the Occupier’s invitees using the visitors car park, other than for a visit to the restaurant, which it is not argued is not a legitimate use of the visitors’ car park. Ms Stone says that parking was always difficult and that the use by the restaurant of the “casual” car park displays a lack of respect for the residents of the complex. Lisa Carolli says the restaurant “monopolises” the visitors’ car park. There is no evidence provided by the body corporate about where patrons of the restaurant are meant to park, or habitually have parked, in the days before the functions increased. I note a warning sign that there is “ authorised parking only” within the complex. I am not advised if patrons of the restaurant are authorised as bona fide visitors. I note that unauthorised vehicles may be towed away, but am not advised if any patrons of the restaurant have had their vehicles towed away, or if the body corporate could do this. There is no evidence about how many car parking spaces the restaurant is required to provide.

I am satisfied that the holding of functions at the restaurant increases the use made of the common property car parking spaces but I am not satisfied that by-law 3 has been breached, or will be breached by continued parking by patrons in the visitors’ car park.

By-law 5 concerns obstruction and states simply that “ A proprietor or occupier shall not obstruct lawful use of the common property by any person.” Evidence is provided by Mr Best that he has been obstructed by people, if not vehicles, from gaining access to his home. Mr Stephens refers to “large crowds” gathering round the entrance doorway and finding it inconvenient to have to “navigate around these crowds.” Mr Brown says he is “ sick of having to walk through groups of smokers” to get to the car park.

It is open to argument how much the Occupier is doing the obstructing in this case, and perhaps too far removed from the intention of the by-law to say that the by-law is breached by invitees of the Occupier gathering in sufficient numbers to make “navigation” of the common property difficult. I find it an extension of the intention of By-law 5 to say that numbers of people can cause “an obstruction” simply by milling about, or that they being guests of an occupier (if By-law 25 is applicable), the Occupier is responsible for them doing so. In any event, “ceasing obstruction” is not an outcome sought, unless it is applicable to the first outcome.

By-law 25 concerns the behaviour of invitees. A proprietor or occupier has a duty to control his invitees by taking “reasonable steps” to ensure they do not “ behave in a manner likely interfere with the peaceful enjoyment of the proprietor or occupier of another lot or any person lawfully using the common property.” It also states that the duties imposed by the by-laws generally shall be observed by invitees and licensees. By-law 25 however, is expressed by By-law 47.2.1 not to apply in respect of a business which operates under “any statute... to the extent that such statute regulates noise and behaviour of invitees and licensees” although the occupier retains a duty to “ take all necessary steps and do all necessary things to minimise ... noise to other...lots..” The implication is, presumably, (and as has been promoted by solicitors acting for the Respondents and the Occupier), that the regulating statute will apply instead of the by-law.

I find By-law 47.2.1 poorly drafted and as I shall explain, probably unlawful. Section 180(5) Act states that a by-law must not discriminate between types of occupiers. For the business lots 25, 26, 27, 28 and 29, to be exempted from the scheme by-laws in any degree that lessens the effect of those by-laws on the occupiers of those lots, is unlawful. If the Occupier argues that because of the authorities held by him to operate a café/restaurant, he may behave in a less restricted way than other residents of the scheme, (business or otherwise) and if that is the effect of that by-law, then it is unlawful and unenforceable. I have not been provided with copies of other authorities held by the Occupier, but that is what I understand him to be saying, and why he says the body corporate has no jurisdiction. In short, he says he may operate, by virtue of By-law 47.2.1, outside certain by-laws in respect of noise and behaviour.

However, whatever the status of By-Law 47.2.1, the exemptions and provisos contained in it do not extend to allowing businesses to conduct their business on the common property, or on land where they have no exclusive uses. The Occupier argues that “anyone can use the common property,” but this is no so. The common property belongs to the owners of the lots in the scheme as tenants in common in shares proportionate to the interest schedule lot entitlements of their respective lots. (Section 35(1) Act). “Anyone” may use the common property with the consent or acquiescence of the body corporate, but that consent cannot be given by any other authority and may be withdrawn by the body corporate if the uses made of the common property either conflict with the scheme by-laws of contravene the Act, or both.

The Occupier further argues that he puts up no barriers on the common property when he holds functions. The inference is that any lot owner could lie and read a book on the grass in the middle of a wedding ceremony or reception, if he or she wished to do so. I find this scenario unlikely, and that the lot owners and submitters have been too polite to assert their rights or more likely, deterred from using the common property at the same time as a function is on.

By-law 8 concerns depositing rubbish on common property. A proprietor or occupier must not throw rubbish, dirt, dust or material likely to interfere with the peaceful enjoyment of other lot owners or occupiers. Cigarette butts and bottles would be included in such material. By-law 25 extends the duty not to deposit rubbish on the common property to the invitees and licenses of an occupier, but again By-law 47.2.1 says that By-law 25 will not apply in respect of “noise and behaviour” if regulated by another act. Such discrimination between types of occupiers is not lawful. (Section 180(5) Act). The Occupier does not argue that such behaviour is authorised under another act. He says there is no evidence produced by the body corporate that his invitees and licensees litter the common property and says that if they do, his staff take great care to clean the grounds. This by-law corresponds directly to the fourth outcome sought.

Submitters refer to cigarette butts littering the common property after functions have taken place, especially “ at the restaurant end.” It is not disputed that the guests smoke outside on the common property, and whilst ash-trays are provided by the Occupier, cigarette butts are reasonably likely to be tossed on the ground. The extent of such littering is in question. How many cigarette butts are “likely to interfere with the peaceful enjoyment” of another proprietor or occupier? Whilst littering is contrary to the by-law, there is not sufficient evidence provided by the body corporate of the distressing state of the grounds from tossed cigarette butts or that the cleaning provisions of the Occupier are inadequate.

By-law 15 concerns noise, and requires that an occupier, their guests, servants or agents shall not make such noise that is “likely to interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots....” The only hours mentioned are in respect of guests leaving after 11pm ( 15.3) , and sound equipment not to be operated between the hours of 9pm to 8am (15.5). Musical instruments may only be played quietly between 8am and 9pm ( 15.7).

By-law 47 is the last by-law quoted by the body corporate in the contravention notices. By-law 47.2.1 also modifies By-law 15 in respect of the business lots. Where a business lot operates for “restaurant/café purposes” then such lots may remain open until 11pm each day and if the business is subject to “control or regulation under any statute then to the extent that such statute regulates noise and behaviour of invitees and licensees the provisions of by-laws 15,16 and 25 shall not apply to the business lots” with the proviso that “the proprietors and occupiers of business lots shall take all necessary steps and do all necessary things to minimise noise to other proprietors or occupiers of lots....”

By-law 47.2.8 also requires that occupiers of the business lots ensure that their patrons do not cause “a nuisance or disturbance” to the proprietors or occupiers of lots in the scheme.

The Occupier argues that he complies with regulations and another statute, implicitly the Liquor Act 1992 and the terms of his liquor licence. As indicated, I am of the view that By-Law 47.2.1 is unlawful if it discriminates between types of occupiers. Further, By-law 47.2.8 would appear to provide an objective test in that the nuisance or disturbance must be caused before the by-law is breached. The outcome sought is that the Occupier ceases creating excessive noise “outside permissible hours and affecting other lot owners...” The Occupier argues that there is no evidence that he is creating excessive noise outside permissible hours. I believe his argument to me that the noise is not excessive nor made after 11pm. The “permissible hours” are to finish trading by 11pm. It is not argued that the “permissible hours” in respect of the playing of sound equipment is authorised by the liquor licence to be 11pm, ( in lieu of 9pm as set out in By-law 15) but it seems to be taken by all submitters that the “cut off” for noise is 11pm.

I find however that there is ample evidence from 17 submitters, particularly those that live on site and at the “restaurant end” of the scheme, as well as the body corporate committee, that functions at the restaurant cause unacceptable levels of noise to many residents. It is also clear that the level of noise has steadily increased over the years, and that from about September 2005, the noise from functions has been “untenable.”

I have stated that any lessening of the application of the by-laws leading to discrimination between types of occupiers ( eg residents and business owners) is unlawful, and such a by-law cannot be enforced. In any event, the proviso to By-law 47.2.1 makes it clear that the occupiers of the business lots must take all necessary steps, and do all necessary things to minimise noise to other proprietors or occupiers, or to those lawfully on the common property. The body corporate does not set out what steps the Occupier should have taken to lessen noise and the Occupier asserts that he has soundproofed the Lot and automated the sound system to cut out above 80 decibels, that is, he has taken all necessary steps.

I find that there is no need for the body corporate to set out what steps should have been taken and that the fact that noise is consistently disturbing numbers of residents demonstrates that such noise should not be made at such level and/or frequency as is currently occurring.

The Occupier may not shelter behind the exemption set out in By-law 47.2.1. Even if that By-law is enforceable, the intention of the by-law is not to allow business lots to make such noise as is “likely to interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots....” (By-law 15). This is clear from the repeated words in By-law 47.2.8, that occupiers of businesses shall ensure patrons do not cause a nuisance or disturbance. The intent of By-law 47.2.1, is to make sure that the occupier of a business lot has only one set of standards to adhere to, not to relax the standards set by the scheme by-laws. As I have said, if the result of the authorities held by the Occupier (or any business owner or occupier) is to maintain a standard in respect of noise and behaviour of invitees which is less strict than the scheme by-laws, that by-law is invalid, as discriminatory against the occupiers of the residential lots.

The outcomes sought
The outcomes sought are rather loosely attached to allegations of by-laws breached as stated in the notices sent to the Occupier. The body corporate has attempted to address the problem of the restaurant’s increase in functions and the knock-on effects of that, through its individual by-laws. The Occupier has submitted that what he is doing does not breach by-laws, and he has been right to a certain extent.

However, I am satisfied that the outcomes sought by the body corporate come under the umbrella of section 167 Act. That Act states as follows –

Nuisances
Section 167
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.

Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property, both reasonably and for the benefit of owners.

I am also satisfied that the Occupier has permitted patrons of the restaurant to use the common property in a way that causes a nuisance to lot owners; and that the functions have interfered unreasonably with the use and enjoyment of the common property by lot owners and occupiers. Further he has made use of the common property to the exclusion of other residents in the scheme by placing tables, and stools and establishing a smoking area for his patrons.

The Occupier does not deny his use of the common property and he addressed each of the outcomes sought. He says that he is entitled to use the common property in this way for the operation of his business, and furthermore that he will continue to do so because he has heavy bookings for weddings this year.

He also says that since he holds a liquor licence to sell alcohol for consumption off the premises, he can serve alcohol on the common property. In this view, he is mistaken. Whilst his licence may allow sales off the premises, the Liquor Licensing Division has no authority to allow consumption or sale of alcohol on someone else’s land without their consent. To this, he argues that the body corporate has not asked him to seek permission, nor provided any evidence that any such permission is required. There is no need for the body corporate to plead law. It is well established that in order to use property belonging to another, you need consent. Whilst the Occupier may have limited rights to use the common property holding from the Respondents, the Respondents would also have to seek body corporate permission to hold an event on, or monopolise the common property.

The general approach to this issue was considered by Adjudicator CG Young in the matter of the Mandalay Port Douglas CTS ref. 0824-2003 where he stated, as follows:-

”Each owner’s right to use the common property is governed by the legislation (the Act and the relevant regulations,......) and the body corporate by-laws. The basic rule governing an owner’s use of common property is contained in section 167 which prohibits an owner from using, or permitting another from using, their lot or the common property in such a way that it interferes unreasonably with another’s use or enjoyment of their lot or the
Common property.

On the authority of a special resolution under section (113 Accommodation Module) an owner can effect an improvement on common property for the benefit of the owner’s lot, however there are limits to the use of common property under such authority. Where for example an owner wishes to install an air-conditioner by positioning it in a window where it overhangs common property, this is a valid use of the “improvement” provision as the encroachment onto common property is incidental, not of significant size, and is unlikely to interfere with another’s use of the common property.

Alternatively, where for example an owner wishes to use part of the common property by extending their lot building by constructing a carport or an additional room over common property, then this action is beyond a mere improvement and is in effect an alienation (my underlining) of the relevant area of common property for personal use, not being incidental, not insignificant and may or may not interfere with another’s use of the common property.

This difference was addressed in the matter of Platt v Ciriello (1997) QCA 33 (14 March 1997), where the Court of Appeal found that the primary test for determining an owner’s use of common property is that of “unreasonable interference” (see earlier reference to section 167 of the Act). That is, an owner may exercise his general proprietary right to use common property so long as it does not interfere unreasonably with another’s use of their lot or the common property. This interference may not just be physical, it may, for example, include a consideration of the effect the use has on the appearance and aesthetics of the scheme generally.”“

The body corporate seeks as its first outcome that the Occupier cease from using the common property apart from its exclusive use area in “any manner”, save for access and parking in accordance with the by-laws. This includes wedding ceremonies and receptions, functions, displays, events, and as a public smoking area for the restaurant.

I order that the Occupier of Lot 25 may not use the common property for the use of patrons of the restaurant other than for access to and from their cars parked in the requisite parking areas, without the prior permission of the body corporate. Such permission may be given subject to such reasonable conditions as the body corporate wishes. Such conditions may be in respect to hours of use, or area of land, as the body corporate thinks fit. Such permission may be requested from, and given by the committee of the body corporate, if the body corporate so decides at a general meeting, and owners should be given reasonable notice whenever a function is to be held.

I encourage the committee to discuss the Occupier’s business with him, as he has sought to do. Any person may be invited by the committee to attend a meeting, without having “ the right “ to do so. I understand there is no legal requirement to provide an outside smoking area, but that the Occupier feels that this is a “responsibility to his guests.” Such an area would be used presumably during ordinary dining days, eg at breakfast, lunch and dinner, and not only at a function. The establishment of a smoking area is something that only the body corporate at a general meeting may decide. (see sections 24 and 113 Accommodation Module.)

The Occupier also says that he has been refused access to the body corporate roll. Any interested person (such as the Occupier ) must have body corporate records made available to him or her within 7 days of the records being sought in writing. A fee of 50c per page is chargeable and such fee may be notified to the requesting party and paid with the request. (section 205 Act, section 150 Accommodation Module.)

I note that the Occupier says that some wedding ceremonies are held on Council property, and that the Council encourages use of the scheme land to gain access to the river. Whether the body corporate allows passage over the common property by guests attending ceremonies on Council land is a matter for the body corporate. The common property is not open to the general public. No-one may use the common property without the consent of a lot owner and then only in accordance with the by-laws, and the provisions of the Act.

I further note that By-Law 47.2.7 contains provisions about the use by the general public of the business lots. The general public may have access to them at all times when they are open but the body corporate committee may make “rules and regulations in relation to access” which may include limiting that part of the common property open to the general public providing that access is available to the business lots; setting minimum dress standards; and any other rules or regulations which the body corporate deems appropriate. I would advise that any such “ rules and regulations” would be unenforceable unless they were registered as by-laws for the scheme (section 179 Act).

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

ON APPEAL from the District Court of Queensland , Brisbane Registry .BD 667/07
APPEAL ALLOWED on 17th January 2008
REFERRED back to the Office of the Commissioner for Body Corporate and Community Management for referral back to the adjudicator by Skoien SJDC under s.294(1)(c) Body Corporate and Community Management Act 1997 (the Act).

Section 294(1) Act states as follows –
294 Powers of appeal body on appeal
(1) In deciding an appeal, the appeal body may—

(c) through the commissioner, refer the order back to the adjudicator with appropriate direction having regard to the question of law the subject of the appeal.

(2) The appeal body may amend or substitute an order only if the adjudicator would have had jurisdiction to make the amended or substituted order or decision.

“MacTaggarts Place” Community Titles Scheme 16563 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) 2008 (Accommodation Module). There are 160 lots in the scheme, being 155 residential lots and 5 business lots, created under a Building Unit Plan of subdivision.

(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

(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.

THE APPLICATION was made on 20th December 2006 and amended on 5th January 2007 by the body corporate for MacTaggarts Place (the body corporate) against Tanja Caprioli and Desiree Caprioli (the Respondents) the owners of Lot 25 in the scheme, for orders that the owner/occupier of Lot 25 immediately cease from the following actions –

As the adjudicator in this matter, I made a final order on 12th February 2007 in the following terms:

In lieu I order that the Occupier of Lot 25, as described herein as the operator of a restaurant “Eves on the River” may not use the common property for the operation of the restaurant business, nor permit use of the common property by patrons of the restaurant, other than for access between the restaurant and the designated parking areas, without the prior permission of the body corporate. (Now stayed in part)

I further order that the Occupier of Lot 25, as herein described as the operator of a restaurant “Eves on the River” must not make or permit any noise upon Lot 25 or the common property likely to interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots in the scheme or any person lawfully using the common property. (Now stayed)

I further order that the Occupier of Lot 25 as herein described as the operator of a restaurant “Eves on the River” at all times ensures that the patrons of the restaurant business do not cause a nuisance or disturbance to the proprietors or occupiers of other lots, or any person lawfully using the common property. (Now stayed)

The above order was appealed to the District Court at Brisbane on 14th March 2007.

On 23rd March 2007, on application to have the Order stayed pending the appeal, His Honour Judge Forno made these orders:

“Until further order that part of the order of the adjudicator made on 12/2/07 under the Body Corporate and Community Management Act commencing ‘In lieu I order’ and concluding ‘without the prior permission of the body corporate’ be stayed only to the extent that it may be interpreted to prevent or obstruct or hinder relevant use by the applicant before me or its restaurant patrons of Council land, access to toilets, restaurant ‘exclusive use’ area, and arrival and departure of restaurant patrons other than from and to ‘designated parking areas.’

On 17 January 2008, on hearing the appeal, His Honour Judge Skoien ordered as follows:

2. The matter referred back to the Adjudicator under s.294(1)(c) to proceed to hear and
determine the dispute according to the law.

3. The order of Forno DCJ of 23 March 2007 is enlarged until Adjudicator’s order is
made, or further order of this Court.

The appeal was lodged by Stephen Holmes Enterprises Pty Ltd who is the registered lessee of Lot 25. Stephen Holmes Enterprises Pty Ltd did not pursue the ground of appeal that it was not a party to the original application by the body corporate.
His Honour found that it was “common ground” that Stephen Holmes Enterprises Pty Ltd was the proper entity to prosecute the appeal and that any conduct which the Respondent owners of Lot 25 could lawfully carry out could be carried out by Stephen Holmes Enterprises Pty Ltd (henceforward called “the Occupier”.)

The matter was referred back to the Commissioner’s office under cover of a letter dated 18th February 2008 from the Registry of the Supreme and District Courts.

“Thus whether the use Eves makes of the common property in the context of the complaints laid before the adjudicator is proper or improper are questions of fact to be assessed first against the requirements of the Liquor Act which apply to Eves. Activities which do not fall within those requirements must be assessed as questions of fact against the duty imposed by section 167 of the Act. In applying section 167(a) (it being likely that no hazard, that is danger, is alleged), the enquiry must be made whether a legal nuisance, that is, a private nuisance, is being committed. In applying section 167(b) and(c), the enquiry must consider the reasonableness or otherwise of any interference. That of course, must be done in the context of Eves being entitled under the Community Management Statement to operate a restaurant within the specified hours, which necessarily involves some disturbance with the lives of occupants.”[1]

On 12th April 2008 Stephen Holmes (Mr Holmes), a representative of the Occupier, at my request provided this Office with a copy of the Liquor Licence pertaining to “Eves on the River” (Eve’s).

On 9th May 2008, Mr Holmes also provided an uninvited affidavit to this Office, sworn by him on 8th May 2007, about “future proposals for MacTaggarts.” Mr Holmes referred to his affidavit sworn in the appeal proceedings. He stated as follows –

For reasons of natural justice, on 12th June 2008 I sought submissions from lot owners and the body corporate on the affidavit supplied by Mr Holmes.
The body corporate’s solicitors (Piper Alderman) sought and were granted an extension until 31st July 2008 and further until 14th August 2008 to make submissions. Solicitors for the Appellant Occupier (Nicholsons) were permitted to reply to the submissions. An extension was sought by and granted to the Appellant Occupier to make a reply by 10th October 2008. The Appellant Occupier made “further submissions” on 10th October 2008.

The appeal was on points of law and there is no process legislated for submissions to be received after an appeal and on referral back to the adjudicator who made the order.

There were 13 submissions from lot owners, and one from the body corporate. Of the lot owner submitters, a summary of new submissions or submissions made in respect of relevant events occurring after the order was made on 12th February 2007 is as follows –

Jackie Bayard (Ms Bayard), owner of Lot 28 provided colour photographs dated by hand on the front and back “17th February 2007” showing -

a) a daylight wedding ceremony in progress on the common property lawns and paved areas;

b) a party of assembled guests standing and drinking on the common property and on adjoining council land by the river;

c) a trestle table bearing wine bottles and glasses, and a large ice tub, and “Four X” chest- type esky on the grass with a waiter setting up the table; (It is not stated whether the table is on the common property or the council land);

d) waiting staff serving drinks and champagne from a table-clothed table to guests (it is not stated whether the table is on the common property or council land);
- Photographs dated by hand 16th March 2007 showing people and tables and chairs on the strip of council land by the river which adjoins the common property; and
- a page of smaller photographs bearing a typed date 1st April 2007 showing a wedding group of about 20 people on the council land with a red carpet and chairs laid out.

Ms Bayard is concerned about the serving of alcohol on council land and on the common property and of the view that both actions are in breach of the Occupier’s Liquor Licence. The Occupier has previously stated that he has a right to serve alcohol on the common property because of the “off-sales” part of his licence.

There was also a submission from the chairperson Deane Giles, that complaints had been made to the body corporate about the Occupier organising auctions in the restaurant and allowing real estate agent vehicle to park in the service car parks on 11th and 15th April 2008. These car parks are for service and emergency vehicles.

The body corporate in its submissions states that it now seeks restricted relief against the Occupier in relation to the application filed on 20th December 2008. The body corporate seeks orders only that will preclude the Occupier from holding functions on the scheme’s common property. It resists the Occupier’s assertion that it has a right to use the common property in this way, and seeks “in effect ... to maintain the partial stay” of the order made on 12th February 2007.

It examines by-law 47.2.1 (Restaurant/Business Use) and notes that the clause refers only to permitted uses of “the business lots” and not the common property. It submits that the sentence in that clause –

“Where the permitted uses of the business lots are subject to control or regulation under any statute then to the extent that such statute regulates noise and behaviour of invitees and licensees the provision of by-laws 15,16 and 25 shall not apply to the business lots.....”

operates to exclude the operation of by-laws 15,16, and 25 only to the extent of the “business lot”. It says -

“To the extent the application as previously pressed, concerned function noise and behaviour emanating from lot 25, it may well be that those activities are sufficiently regulated by the Liquor Act to exclude the by-laws (if the same can be established by S[tephen] H[olmes] E[nterprises Pty Ltd]. By-law 47.2, however, does not purport to deal with the use of common property.”

Further, it says that the Occupier does not maintain that the provisions of the Liquor Act allow it to hold functions on the common property, but that the common property is held as tenants in common by all 160 lot-owners. It submits that the issue should be determined by reference to section 167 Act. That section is not displaced by the Liquor Act, nor by the by-laws. It submits that the sole issue is whether the Occupier’s conduct in the use of the common property causes a nuisance, or interferes unreasonably with the use or enjoyment of the common property or other lots, by owners and occupiers, the tests for each being in practice “a little different.”

In respect of a successful action for nuisance at common law, in Platt –v- Ciriello[2], referring to Pettey –v- Parsons[3], Ambrose J. held that the plaintiffs would need to show –

“impediment or interference [that] constituted a real and substantial interference with their use and enjoyment of the common property in common with other persons entitled to reciprocal use and enjoyment with them.”

Because the Occupier has been prohibited since the date of the order on 12th February 2007 from holding functions on the common property, the body corporate says that such impediment or interference must be tested by looking at the use which the Occupier previously made of the common property, especially since the Occupier does not propose any materially different use of the common property in future. The body corporate relies on the submissions made in the application prior to the appeal.

In respect of “unreasonable interference”, by reference to Platt –v –Ciriello, it says that what constitutes that is simply a question of fact.[4] Considerable weight should be given to the fact that 155 lots out of 160 are residential lots, and the use that residential lots would make of the common property. Submissions in the original application and since the appeal show that the conduct of functions for profit interferes unreasonably with the use of the common property by the other lot owners and occupiers.

The body corporate says this causes “generic issues” such as disturbance by large groups of people arriving, departing and acting en masse; that people attending functions can be demanding because they have a sense of entitlement to the common property since they have paid for a service; and that lot owners can “be expected to feel precluded physically” from using the common property, if not by their own sensitivities. It says that “in the circumstances... it might be expected that the owners of Lot 25 would seek a licence over the common area to conduct their particular activity...”. It says that the Occupier has cited no authority for the proposition that it might conduct part of its business on the common property.

In respect of the Occupier’s past behaviour, it says that it has a “blatant disregard for the interests of other lot owners and that it has interfered significantly with the enjoyment by other lot owners and occupiers of the common property”; it has set up tables and chairs on the common property; held large numbers of functions on the common property without obtaining a licence from the body corporate; permitted patrons to be rowdy in a primarily residential development; and has effectively obstructed or excluded other residents from using the common property. Further, “it has not proposed to limit that use to particular time or days.” The submissions made after the appeal, particularly that of Ms Bayard, show that it still disregards the interests of wider community, eg. by holding a function days after the adjudicator prohibited it to do so.

The body corporate accepts that the restaurant will necessarily involve some disturbance with the lives of the occupants, but the submissions made on the application and after the appeal, and the Occupier’s own evidence “indicates the conduct goes beyond incidental reasonable use of the common property flowing from the operation of the restaurant within lot 25 and its exclusive use areas, but a planned, intensive use of the common property that has and will ... constitute a nuisance within the meaning of section 167(a) and to interfere unreasonably with the use and enjoyment of other lot owners...” for the reasons given.

The Occupier made ‘further submissions’ in reply to all submissions. It points out that by-law 47.2.5 of the community management statement grants Lot 25 the exclusive use and enjoyment of 134 square metres of the common property, for use as Eve’s restaurant, and that clause 48.1 of the by-laws grants lot 25 exclusive use and enjoyment of part of the common property for storage.

The Occupier submitted in the original application that it was entitled to use common property; and it had not contravened any by-laws. Further that it had complied with its Liquor Licence with regard to noise, and had taken steps additional to those required under by-law 47.

It is the Occupier’s contention that it has the exclusive right to use the area of common property shown on the plan for the use of the restaurant; and that any licensee or invitee holding from the proprietor of Lot 25 has a legal right pari passu with every other proprietor to use the common property.

It says that the order made was absurd and unreasonable in that it inter alia prevented guests of the restaurant from walking across the common property to the adjoining river walkway which is public land; and from using the toilets on the common property. It was also impossible for the occupier to control guests who might approach the restaurant on foot across the common property, from the river walkway.

It submits that the dispute application should “be heard ‘de novo’ (to the extent the body corporate now only seeks certain restricted relief against the respondent) and therefore any additional material submitted is unable to be taken into account or relied upon by the adjudicator” and says that if the applicants have further complaints in the future against the Occupier, then the body corporate will be at liberty to file a further dispute resolution application.

In the event that the further submissions are to be considered in this matter, the Occupier says that since the relief sought by the applicant is now limited to the continuation of the prohibition on the use of the common property to hold functions, it repeats submissions made in the appeal as follows –

Further the Occupier submits that the main allegations of lot-owners in the new submissions, are not relevant to the issues to be decided or the orders sought by the body corporate. It summarises the ‘new’ allegations as follows –

It responds that it had permission from the body corporate to hold an auction; it did not authorise the real estate agents to park vehicles; that it has complied with Forno J.’s order made on 23rd March 2008 and that the allegations that complaints were made pre-date the order of Forno J; that it has stopped the cleaners from vacuuming late at night; that it was not aware of complaints when Mr Holmes swore the affidavit on 8th May 2008; and that weddings on council land are not his business. It denies providing alcohol to parties holding weddings on council land, but points out that weddings may be held on Council land and then the reception can take place at Eve’s; that on 24th May 2008 the Occupier’s staff acted in a way that responded to and “eliminated any concerns owners or occupiers may have had,” and that this event post-dated Mr Holmes’ affidavit.

It disagrees with the body corporate submission that by-law 47.2.1 deals with permitted uses of business lots only, and not the common property, and excludes the operation of by-laws 15,16 and 25 only to that extent. Following the referral direction of the appeal judge, it says that there are three relevant enquiries to be made -

The Occupier says that it has complied ‘over and above’ Liquor Act requirements as set out in the original submissions in this matter and the affidavit to the District Court, and that the body corporate has not made any submissions with respect to, or provided any evidence that it has failed to comply with the Liquor Act. As such, an adjudicator must find that it has complied with the Liquor Act.

If it is determined that there are activities sought to be carried out by the Occupier on common property that fall outside the requirements of the Liquor Act, then the Occupier submits that the right to use the common property is subject to certain qualifications contained in by-laws 15 (Noise), 16 (Use of Lots) and 25 (Behaviour of Invitees) and that he has not breached those by-laws. The use by it of the common property does not unreasonably (since he is allowed to operate a restaurant which naturally involves some disturbance as Skoien J. acknowledged) permit “any noise likely to interfere with the enjoyment (sic) of common property by other owners or occupiers” (by-law 15); nor “causes a nuisance or hazard to any other owner or occupier” (by-law 16); and he has taken, and will continue to take, “all reasonable steps to ensure that invitees do not behave in a manner likely to interfere with the peaceful enjoyment of other owners and occupiers using common property” (by-law 25).

The Occupier agrees with the body corporate that the body corporate would need to show “impediment or interference that constituted a real and substantial interference” in order to demonstrate that the Occupier had caused a nuisance under section 167(a) Act (and in so doing had breached by-law 16.). This it denies having done. It also denies that there has been any “unreasonable interference” with the enjoyment of common property for owners or occupiers.

The Occupier says that since he has not used the common property since 12th February 2007, other than incidentally, then this matter should be considered looking at its conduct as a whole and that “ little weight should be given to the material previously submitted by lot owners on the first hearing as that material was submitted nearly two years ago.” It says that Platt –v- Ciriello is not authority for the proposition that whatever use comprises the majority of lots will determine the context within which it is to be determined whether a use interferes unreasonably with other owners.

In conclusion it says there is no evidence to support the allegation that patrons of functions behave differently from other patrons; that owners or occupiers feel precluded; or, that patrons of functions will be more demanding or how that affects the body corporate in any way. The Occupier says that there is no reason for him to seek a licence over the common property as it is entitled to use it jointly with other tenants in common and that it has a right to conduct part of its business on the common property at common law and by virtue of section 167(c) Act. The prohibition on the use of the common property to hold functions should be removed as it does not interfere “substantially and unreasonably” with the rights of other lot owners to enjoy that common property and their own lots.

In this matter, His Honour Judge Skoien has directed that the complaints laid before me (in the original application) should be considered in the light of the permit held by the Occupier under the Liquor Act.

The Liquor Act 1992 and the second proviso to By-law 47.2.1
The Liquor Act becomes relevant because By-law 47 for the scheme headed “ Restaurant /Business Use” states as follows –

47.2 In the event that the business lots are used for any one or more of the permitted uses, then in addition to the abovementioned by-laws the following by-laws shall also apply –

47.2.1 The proprietors and occupiers of the business lots may carry on their respective permitted uses for all trading hours authorised by-law (sic) PROVIDED ALWAYS THAT the business lots are closed for business by 9.00pm each day with the exception that where the permitted use of a lot/s is/are for restaurant/café purposes then that/those lot/s may remain open to 11.00pm each day. Where the permitted uses of the business lots are subject to control or regulation under any statute then to the extent that such statute regulates noise and behaviour of invitees and licencees, the provisions of by-laws 15, 16 and 25 shall not apply to the business lots PROVIDED ALWAYS that the proprietors and occupiers of the business lots shall take all necessary steps and do all necessary things to minimise the noise to other proprietors or occupiers of lots in the Building Units Plan.

Such by-laws have the slightly odd effect of making the body corporate the decision–making body for the interpretation of the Liquor Act 1992 (or any other relevant statute). By-law 47.2.1 can thus be read as if, in respect only of the regulation of noise and the behaviour of licensees, the relevant sections of the Liquor Act 1992 and the Occupier’s Liquor Licence were incorporated into the by-law. The second Proviso in the by-law concerns “noise” only, and the requirement that the occupier takes “all necessary steps” and does “ all necessary things” to minimise noise to other owners and occupiers. This second Proviso appears to me to require the occupiers of the business lots to take “all necessary steps” and do “all necessary things” outside the requirements of the controlling statute, in order to minimise noise (but not “behaviour”) whether from invitees or from the general operation of the business.

25.1 A proprietor or occupier of a lot shall take all reasonable steps to ensure that his invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or any person lawfully using Common Property.”

His Honour has directed that a finding of fact should have been made in respect of the noise made by the Occupier and the behaviour of the Occupier’s invitees and licensees, as assessed against the Liquor Act and the Occupier’s Liquor Licence. However, the body corporate now seeks only to preclude the Occupier from holding functions on the scheme’s common property, and says that “function noise and behaviour” emanating from the restaurant, and in the coming and going from the restaurant “may well be sufficiently regulated” by the Liquor Act.

The argument about the Liquor Act is therefore now de trop. The body corporate also no longer pleads a contravention of any by-law, so I will make no findings in respect of allegations of breaches of By-laws 47, 15, 16 or 25.

However, because I was directed to do so, I have considered the Occupier’s licence and the provisions of the Liquor Act.

The Liquor Licence provided by the Occupier is dated 24th Oct 2007. It is a Licence for “On Premises (Meals)”, the primary purpose being the provision of meals prepared and served to be eaten on the premises. The “premises” address is given as Unit 25 Mactaggarts Place, and the nominee of the Occupier is, or was then, Keith James Cameron. The licensed premises are Unit 25 and an adjoining defined outdoor terrace dining area. Trading hours are 8am – 10pm Sunday to Tuesday and 8am – 11pm Wednesday to Saturday. By clause numbered 97, noise is restricted to 85dB(c) inside the premises (when measured at a distance of 3 metres from the source) and (by clause numbered 101) 75dB(c) in “any outdoor/verandah/patio area” (when measured approximately 3 metres from the source.) At clauses numbered 24384 – 24386, the licence contains the specific conditions that all amplified entertainment, music or related activities in the “internal area” of the premises, must be conducted through a lockable sound limiting device at all times to ensure that noise levels do not exceed the levels prescribed. By clause numbered 125, liquor may be sold for consumption off the “main licensed premises” when the licensee is catering for a function, to those who are attending the function.

The Liquor Act 1992 was extensively amended on 1st January 2009. However, as far as I can tell, the changes to the Liquor Act have not amended in a way relevant to this application, the way in which a holder of an “On Premises (Meals) Licence” (now called a “subsidiary on-premises licence”) is required to act.

The Liquor Act concerns the use of the premises in respect of which the permit/licence is held and the grounds on which the chief executive might cancel, suspend or vary a licence, or discipline the licensee. The chief executive might take such action if, after investigation, he is satisfied that the use of the premises, or the behaviour of persons entering or leaving the premises at the times authorised by the permit is causing “undue annoyance or disturbance” to persons living, working or doing business in the neighbourhood of the premises; or is causing “disorderly conduct” in, or in the neighbourhood of, the premises.[5]

Certainly the Liquor Act is concerned with noise emanating from licensed premises, and the behaviour of the persons using the licensed premises. The objects of the Act include “the regulation of the liquor industry in a way compatible with minimising harm caused by alcohol abuse and misuse ... eg. violent or antisocial behaviour.”[6]

I have re-read all submissions made in the original application and referred to in some detail in my reasons for decision of 12th February 2007.

There is no evidence provided by the body corporate that the noise complained of from within the restaurant or from the outdoor/verandah/patio area has breached the levels prescribed in the Licence. This would require sound recordings, possibly from an expert.

There is no mention in the clauses of the Liquor Licence of the requirement of the licensee to control the behaviour of its invitees or licensees. The Licence, by its nature, contains no prohibitions or performance standards about behaviour, only that in respect of liquor sold for consumption off the premises (clause 125 of the Licence) that liquor must not be sold to a person who is “unduly intoxicated” (as defined in the Liquor Act.)

The Liquor Act contains no criteria by which a licensee must perform his/her various tasks. The Liquor Act regulates noise, and behaviour of invitees only to the extent that the chief executive may commence an investigation of the licensee or the operation of the licence. Section 134(1) Liquor Act is concerned only with the triggers upon which the chief executive might take steps for example, to cancel or suspend a licence.

The Occupier says that it has complied “in all respects with recent Liquor Licensing inspections that were made at the instigation of the applicant” [7], and that it has installed a noise limiter in accordance with the terms of his licence; installed three ceilings with soundproofed insulation and engaged an acoustic engineer to test the sound emissions in the residential lots above the business. It has also installed a false wall between Lot 25 and the adjoining lot. Further, it has enclosed the exclusive use area with glass and sound-proofed the ceiling. Its staff encourage patrons to leave after trading has finished and to keep noise levels to a minimum. It also pays for Maxi-taxis to arrive by 11pm so that on nights when there is a private function, patrons move away quickly from the complex. It encourages smokers to move away from the building by locating a smoking area on the common property. Its policies “go beyond the requirements of Liquor Licensing.”[8]

I do not doubt that the Occupier has taken steps as described to minimise noise arising from its operation of the restaurant. Since there is no technical report provided on the sound levels achieved by the soundproofing steps taken, I do not know if the steps taken were in order to achieve clauses 97 and 101 of the licence or are “beyond the requirements” required by the Liquor Licensing Division. The second Proviso to By-law 47.2.1 requires that “all necessary steps” are taken and “all necessary things” are done to minimise noise, which may set a standard outside the requirements of the controlling statute.

Clearly, the steps taken were not sufficient to eradicate complaint by lot owners, particularly those who are at the “restaurant end” of the complex. Many of the complaints of noise made in the original submissions were in respect of noises made by people, and not by the amplified entertainment which is controlled by the sophisticated limiting devices. The complaints in respect of noise only (excluding complaints of “behaviour” where the “behaviour” complained of was not in itself noisy) were as follows –

It appears to me from this first set of submissions that the noise made by patrons entering and leaving the restaurant, and on the common property when they wandered out to gather, smoke and/or drink during a function, was not at the time sufficiently controlled.

On 24th May 2008, there were further complaints about a noisy wedding. The Occupier admits by email dated 26th May 2008 from James MacQueen, general manager of Eve’s, to Erica Frost, chairperson, that a number of the guests, including the bridegroom, “were difficult to control and continued to be boisterous” until “ferried into taxis by 11.35pm” despite the efforts of two restaurant staff, one positioned at the door of the restaurant, and one in the street “to assist in crowd control and removal.” Mr MacQueen arrived at the restaurant at about 10.15pm and noted wedding guests “singing enthusiastically” on the terrace. He felt unable to stop the song mid-flow but let it continue to the end, and then asked the master of ceremonies to ensure that there was no more singing. Mr MacQueen says that a new restaurant manager was in charge that night and that he was inexperienced. The Occupier says that he has since 24th May 2008, implemented further in-house policies, prohibiting singing and musical activity on the terrace, and packing away the PA system after the speeches to prevent guests from using the equipment inappropriately.

The Occupier says of this occasion that Eve’s response “has eliminated any concerns owners or occupiers may have had.” I am of the view that this statement, even it is within the knowledge of the Occupier, is over-optimistic, since owners and occupiers have taken the trouble to make further submissions in this matter, none mentioning that they are satisfied that the “noise issue” is now under control, albeit that some said that noise levels had improved since the “holding order” has taken effect.

His Honour Judge Skoien has said that in looking at what steps to minimise noise might be “necessary”, the concept of reasonableness of the steps must be considered.[9] It may not be reasonable to expect guests who are waiting for taxis to move away from the scheme; it may not be possible for the Occupier on occasion to ensure that taxis arrive on time. However, where the use made of the restaurant is akin to a function centre, then sufficient crowd control staff would be a reasonable requirement. If the Occupier’s Liquor Licence includes the ability to hold functions three nights a week (or more) as the Occupier contends it does, then it is reasonable to expect that the Occupier can exercise control over those attending such functions.

Such disturbance is contemplated by the Liquor Act[10], and “undue annoyance or disturbance” to residents of the neighbourhood by persons entering or leaving at times authorised by the permit is something which can be taken up with the Liquor Licensing Division, without finding that the licensee has breached his permit or the Liquor Act. It may simply be the case that the use being made of the licensed premises is unsuitable in the circumstances; or that the neighbourhood has a particular sensitivity which needs to be embraced, perhaps as a special condition of the Licence.

The Occupier says that if I can find no breach of the Liquor Act, then I must find that the Occupier has complied with the Liquor Act. I am unable to make that finding since I do not have power to investigate the operation of a liquor licence, and such a finding would be meaningless. However, there is no evidence that the complaints made by the body corporate about noise and the behaviour of guests of the restaurant, relate to the terms of the licence or demonstrate a breach of the Liquor Act.

A person complying with the terms of a licence is not necessarily protected from causing a nuisance.

In Fletcher –v- May [2001] QDC 081 the defendant held an environmental licence to operate a cattle feed-lot. McGill J. found that the authorisation by the Environmental Protection Agency licence was not a defence to a charge of causing environmental nuisance by odour. The appellant argued that the emission of odour was inherent in the operation of a feed-lot for which he held a licence. This was not accepted. The nuisance was the emission of the odour and not the operation of the feed-lot, and whilst odour may be inherent, it was not automatic that the odour would be result in an environmental nuisance.[11] As with public nuisance at common law, the key word was whether the odour was “ unreasonable” which depended on the facts of the particular case.

The Occupier claims in part that the “community management statement” (including the by-laws) allows him to use the common property for business use. The body corporate says that By-law 47.2.1 relates only to the use of Lot 25 and the exclusive use areas enjoyed by Lot 25.

I do not find that by-law 47 gives room to the idea that the Occupier may conduct its business on any part of the common property over which it is not given exclusive use for that purpose. Patrons may gain access to the business lots (by-law 47.2.7) and to the exclusive use areas (by-law 47.2.5) and to the toilets (48.2) across common property. Patrons are not to use the swimming pool “ or any other facilities” ( by-law 47.2.4) which, following the euisdem generis ‘rule’ I take to mean tennis courts, or similar recreational facilities or body corporate assets provided by the body corporate, and not merely the common property lawns or gardens. The body corporate may make rules to limit that part of the common property open to the general public providing that access is available to the business lots (By-law 47.2.7(i)).
The tenor of By-laws 47 and 48 is that patrons may come and go from the business lots over the common property, as an adjunct to the operation of the business lots (and their respective exclusive use areas.) It does not allow the Occupier to use any part of the common property for the operation of the restaurant business eg the cooking of meals, service of food and drink, taking of orders, or allowing clients to sit and read newspapers. Equally, the service of drinks and canapés to guests standing on common property as part of, or prior to, attending a function at the restaurant, is not a use authorised by By-law 47.

I am of the view that the contention of the body corporate that by-law 47 regulates only the uses made on the “business lots” is correct. The wording of the by-law is specific in its prohibition and granting provisions and does not imply any use of other property not mentioned. The Occupier cannot rely on the scheme by-laws for its assumption of rights on common property.

Matters falling outside the Liquor Act
Neither the Liquor Act nor the Occupier’s Liquor Licence is concerned with the use made of adjacent non-licensed premises (save for the entering and leaving the licensed premises.) The body corporate now seeks restricted relief that no functions are held on the common property.

The Occupier admits that he uses the common property for the holding of weddings and functions, and says he will continue to do so. Letters attached to his affidavit dated 16th March 2007 and lodged in the District Court for the appeal proceedings show that “pre-dinner canapés on the lawn” are a popular choice. It claims that it has a common law right to use the common property in common with others, for the operation of his business providing that he does not interfere “substantially and unreasonably” with the rights of other lot owners also to enjoy the common property, that is provided he does not commit an actionable nuisance.

As directed by His Honour Judge Skoien, the Occupier’s activities which do not fall within the requirements of the Liquor Act and the Licence, must be assessed as questions of fact against the duty imposed by section 167 Act. Activities not within the requirements of the Liquor Act or the Licence include eg. conducting a wedding on common property; inviting persons to mill around on common property as at a garden party; and the serving of drinks/canapés on common property;

Nuisances
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.

At common law, a private nuisance consists of a wrongful disturbance or interference with a person’s use of land. In order to be actionable -

“there must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant and dainty habits of living but according to plain and sober notions among our people. ”[12]

The interference must be both unreasonable and substantial as a matter of fact to be determined in reference to all the circumstances of each particular case and it is also a matter of degree. What standards are reasonable must be determined by common sense, taking into account relevant factors including the ideas of reasonable people, the nature of the location of the land, the character, duration and time of the interference and the effect of the interference.[13]

These were described as “the ordinary principles” by Jordan CJ in Don Brass Foundry Pty Ltd –v- Stead.

“To the extent that the appellants’ rights to use any part of the common property are substantially impeded or interfered with by the use with other co-owners of the common property make of lot, it is my view that the appellants’ would be given a right to take action in nuisance the success of which would depend on whether, to use the words of Cozens-Hardy MR in Pettey –v- Parsons, they show such impediment or interference constituted a real and substantial interference with their use and enjoyment of the common property in common with the other persons entitled to a reciprocal use and enjoyment of it with them.”

The body corporate submission is that the test for nuisance in applying section 167(a) Act is “real and substantial interference”, but that the test for applying section 167(b) and 167(c) Act is whether the interference was “unreasonable”. It concludes that the actions of the Occupier constitute both a nuisance within the meaning of section 167(a); and interfere unreasonably with the use or enjoyment of other lot owners within the meaning of section 167(b), even against a background where it is acknowledged that the operation of a restaurant necessarily involves some disturbance with the lives of occupants.[15] The Occupier’s continued use of the common property for functions “interferes substantially and unreasonably” with the rights of others.

Section 167(c) was found by His Honour Judge Skoien to be “materially the same” as section 51(c) Building Units and Group Title Act 1980 (BUGTA)

Section 51(c) BUGTA stated-
Duties of proprietors and other occupiers of lots

(1) A proprietor, mortgagee in possession (whether by himself, herself or any other person), lessee or occupier of a lot shall not—

(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is a proprietor or not) or by any other person entitled to the use and enjoyment of the common property.
(2).............)

This was the legislative section considered in Platt –v- Ciriello. The majority view in Platt –v-Ciriello was that section 51(1)(c) BUGTA, implied a right to use the common property in a manner or for a purpose, so long as it does not unreasonably interfere with the exercise of similar rights by others. Macpherson J. found that the word “entitled” referred to the “entitlement” of using and enjoying the common property in the manner described in section 51(1)(c).

The arguments in Platt-v- Ciriello are relevant to the uses which co-owners may make of common property for their respective purposes “without regards to the inevitable constraint which it may place on a use at the same time being made by other co-owners.” [16]

The case concerned the erection of signs on a common property roof and a common property car park, and the placement of tables and chairs.

The majority were of the view that any use by a person ‘entitled’ was fine unless it caused a nuisance or unreasonably interfered with the exercise of similar rights by others. Pincus J., expressing the minority viewpoint, considered that any action which ‘excluded’ or even ‘partially excluded’ others with similar rights, was sufficient to trigger relief, without the necessity of causing ‘a nuisance’ or ‘interfering unreasonably’ with like rights. He “took it to be the general law..[that] a tenant in common has no right to exclude co-tenants from possession,” [17] save where an exclusive use had been granted by a body corporate taking the required steps, that being at the time by a resolution without dissent.

This view was supported by the Supreme Court of New South Wales in Lin & Anor –v- The Owners – Strata Plan No.50276 [2004] NSWSC 88 ( 12th March 2004), which found that “there was no reason to imply a right to the use and enjoyment of common property” under section 117(1)(b) Strata Schemes Management Act 1996 (NSW), a section equivalent to section 51(c) BUGTA.[18] The function of the section was “to prevent uses that caused unreasonable interference to others.”

The BCCM Act, which superseded BUGTA, contains sections which enable lot owners to have exclusive use of common property eg by lease or licence, which BUGTA did not have. At the time that Platt-v- Ciriello was considered[19], the body corporate could grant exclusive uses of common property to the owner of a lot,[20] and, subject to the approval of the local government, execute a lease of or rent part of the common property,[21] both only by a resolution without dissent. If some of the proprietors dissented, the body corporate could not grant such a use, as Pincus. J observed.[22]

The majority of the court in Platt-v- Ciriello was influenced by the fact that excepting an exclusive use by-law, a lot owner could only press rights in common by being ‘enabled’ by an interpretation of section 51(c) BUGTA to use common land as he wished provided that what he did, did not cause a nuisance, as defined by the test in Pettey-v- Parsons. The use made of the common property in Platt –v- Ciriello did not amount to an “exclusive use” in the view of Ambrose J. However, he specifically indicated that his determination may have been different if the "exclusive use" of the common property in that case was the sort of exclusive use which a proprietor has with respect to his own lot.[23]

Section 159(2)(b) Accommodation Module now allows the body corporate to grant a lease or licence over part of the common property for up to 10 years and the grant requires only a special resolution. The body corporate must not lease or licence common property if it would interfere with access to a lot or an exclusive use area;[24] and must not grant a lease or licence over utility infrastructure.[25]

In Sailfish Point[26] an adjudicator considered the legality of timber decks constructed on common property many years ago, and prior to the commencement of the Act, and what permits might be required if the decks had been lawfully constructed. He found that the decks were “an improvement” to common property for the benefit of respective owner’s lots. Under BUGTA, an improvement to common property by an owner could also only be authorised by a resolution without dissent. He said –

“Under the present Act there are much more flexible options for persons to gain authorisation to make improvements to the common property for the benefit of their lot.

Each of these options allows the owner to take "exclusive use" of an area of the common property at least for some period of time. The critical difference for the various options is in the comparative ease with which the authorisation can be obtained and, equally, the comparative ease with which any authorisation given can be revoked.”

It seems to me that section 167(c) Act, is not an empowering section but a section restraining conduct of owners and occupiers which could interfere with others enjoying the scheme land. The interference must not be “unreasonable.” I am of the view that a lesser test than for nuisance (section 167(a)) will suffice to find a contravention of section 167(b) and 167(c). The interference does not have to be “real and substantial”. It merely has to be “unreasonable.” The interference envisaged in section 167 may therefore be either, “real and substantial”; or “unreasonable.” It need not be “substantial and unreasonable” although of course, that could be the case in fact.

In respect only of the allegations of the use made of common property (without particularising allegations of noise alone) and its effect on other lots and the common property, the original submissions state as follows –

A submission was made by Erica Frost that it is her view that “very few lots would be affected by the coming and goings of patrons of Eves Restaurant,”; and from Chris Taylor (Lot 101), that the functions do not much affect occupiers who live at the other end of the complex.

It is not argued by the Occupier that the number of lot owners or occupiers disturbed are not sufficient for them to demonstrate nuisance. The number of persons who at common law can bring an action for nuisance is unclear.[27] Lord Denning refused to enumerate in Attorney General –v- PYA Quarries Ltd.[28] It is my view that a nuisance may be made if it substantially interferes with even one person’s enjoyment; and that section 167(b) and section 167(c), might be breached if one person’s use or enjoyment was interfered with unreasonably.

Applying the “ordinary principles”, I find as a fact that such behaviour, as set out in the submissions above, has materially and substantially interfered with the convenience and comfort of those lot owners and occupiers in the scheme, and that its effect upon them was not due to any “particular delicacy” on their part. The behaviour, as described, also causes an impediment to the physical enjoyment of the area, such that it satisfies the test for nuisance in Pettey-v- Parsons. It constitutes a nuisance in contravention of section 167(a) Act.

The continuation, and perhaps increased use of the common property for functions, as proposed by the Occupier in his affidavit dated 8th May 2008, points to a continuation at least, or even exacerbation, of the issues set out above. The repetitive nature of the functions, detailed as occurring, and to occur, three or four times a week, provides a level of nuisance which causes inconvenience and distress to others, and materially interferes with their physical comfort. The body corporate refers to a “planned, intensive use of the common property” and I find that such use is made. What is proposed is not an occasional use, which might interfere with others’ enjoyment unavoidably in the use made of the common property by the Occupier operating its restaurant, but a repeated upset and annoyance, particularly at weekends, to those residents who have made submissions in this matter.

The use made of the common property by the Occupier goes beyond what could be described as a reasonable use of common property and essentially allows the Occupier to use an area of common property on a semi-permanent basis in the same way it can use Lot 25.

In addition, I find as a fact that the Occupier’s use of the common property as detailed above ion the quoted submissions, is unreasonable despite the fact that he is authorised to operate a restaurant from an adjoining Lot and has exclusive use of adjoining common property. The demonstrated use made of the common property grounds causes a disturbance beyond that which is reasonably expected to be endured in the operation of a restaurant business within the scheme. I find that such disturbance interferes unreasonably with the use and enjoyment of other lots in contravention of section 167(b) Act; and that it interferes unreasonably with the use or enjoyment of the common property by persons lawfully on the common property, in contravention of section 167(c) Act.

Further, I find as a fact that the use of the common property at such functions physically excludes others with rights to be on the common property, even though no barriers are erected by the Occupier. The Occupier says that he is not physically excluding others but I am of the view that if any lot owner or occupier, or person lawfully on the common property was to attend the function uninvited, that he or she would be asked to leave the party. Equally, if a lot owner stretched out on the red carpet laid on the grass for a wedding, I very much expect he or she would be asked to move.

The functions are the result of a private contract between the hosts and the Occupier, for which the Occupier charges fees for using the common property. In my view it would be reasonable for the body corporate to ask the Occupier to licence his use of common property on certain conditions, perhaps including payment. It appears that the use of the common property area enables the Occupier to charge $500 - $1000 per function[29] and it would be equitable that payment for use of this commonly-owned venue is shared with the body corporate.

A question which arises is this. Does the body corporate have to show on each occasion when there is a function, that the Occupier’s use or proposed use of common property will cause a nuisance and/or unreasonably interfere with the enjoyment of others as described? I think not. The use prior to the order of 12th February 2007 followed certain established patterns as set out in the Occupier’s affidavit to the District Court – either of a wedding on council land followed by pre-dinner drinks on common property, or a wedding and/or reception on common property, which uses I have found by their nature caused nuisance to lot owners, and interfered unreasonable with their use and enjoyment of common property. It is the nature of nuisance that when the behaviour complained of is stopped, that no immediate nuisance can be demonstrated. But if the behaviour recommences or is repeated, then there is “nuisance.” In order to be actionable, the nuisance need not be continuous, but reasonably likely to occur on the next occasion that the behaviour complained of occurs.

I therefore order that the Occupier is precluded from holding functions on, or enabling functions to be held on, common property over which it holds no exclusive uses or special privileges, which exclusive uses and special privileges are set out in the community management statement. The word “function” is the word chosen by the body corporate for the relief sought, and would in my view include weddings and other ceremonies, receptions, displays and events. The Shorter Oxford Dictionary defines “functions” as “social meetings of a formal or important kind.”

The prohibition on holding a function on common property does not prohibit patrons of the restaurant from coming to or going from restaurant across the common property. The effect is to continue the “partially stayed” order, the terms of which are understood by the parties to this application.

I note, as did His Honour Judge Skoien that the body corporate may, by virtue of by-law 47.2.7 make ‘rules and regulations’ in relation to access to the business lots by the general public, which might limit part of the property open to the general public. There is some evidence that the committee believes that it has made certain regulations, or specified certain restrictions, perhaps under this by-law. If the committee was to make any such rules and regulations, they could not be enforced, evidencing merely an intention, or acting like guidelines. Only by-laws are enforceable, and any new by-laws must be made by the body corporate, and not at committee level, in accordance with the legislation.

There is also some mention that the Occupier and the body corporate have previously discussed a lease of an area of common property, but that to date negotiations, if any, have not been completed. As in my previous order, I end by encouraging any discussion along these lines and for the committee to meet the Occupier to discuss the issues in this matter.

I have not considered the allegations about sales/service of alcohol on common property being a breach of the Occupier’s Liquor Licence. The Liquor Licence allows the sale of alcohol for consumption off the main licensed premises in the course of the licensee providing catering services for a (private) function to persons genuinely attending the function for consumption at the function. The point of sale, and the places where consumption may occur are matters which might be taken up with the Liquor Licensing Division.

Finally, I point out that the use of the word “restaurant” in the first paragraph of the order made on 12th February 2007 was intended to cover all of that area over which the operation of the restaurant is conducted, and is described as “premises” in the Liquor Licence, that is Lot 25 and the exclusive use area which together form the restaurant. It was not my intention to prevent the use of the “premises” of Eve’s by the restaurateur. It was also not intended to deny patrons of the restaurant access to toilets on common property.

[1] Appeal judgment para. 36
[2] (1998) 2 QdR 417
[3] [1914] Ch 653
[4] Judgment of McPherson J in Platt –v- Ciriello as quoted at para 24 submission of the body corporate.
[5] Section 134(1)(b)(i) Liquor Act
[6] Section 3(a) Liquor Act
[7] Submissions made on behalf of the Occupier - (29th January 2007) para.3.5.4
[8] Submissions made on behalf of the Occupier – (29th January 2007) para. 3.5
[9] Appeal judgment para. 31
[10] Section 134(1) Liquor Act 1992
[11] s.15 Environmental Protection Act 1994

“Environmental nuisance is unreasonable interference or likely interference with an environmental value caused by –

(b) an unhealthy, offensive or unsightly condition because of contamination; or

[27] Six people brought action for public nuisance in Baulkham Shire Council –v- Domachuk (1992) 77 LGRA 395
[28] Attorney General –v- PYA Quarries Ltd (1957) 2 QB 169
[29] Affidavit of Mr Holmes to the District Court para. 25

Number of Scheme:	16563
Name of Scheme:	Mactaggarts Place
Address of Scheme:	53 Vernon Terrace NEWSTEAD QLD 4006

Number of Scheme:	16563
Name of Scheme:	Mactaggarts Place
Address of Scheme:	53 Vernon Terrace NEWSTEAD QLD 4006

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Mactaggarts Place [2007] QBCCMCmr 73 (12 February 2007)