Sanctuary Manors [2007] QBCCMCmr 773 (14 February 2007)

Last Updated: 11 July 2007

REFERENCE: 0532-2006A

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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

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

Christopher & Frances Swinbank, the Owners of lot 14

I hereby order that within three (3) months of the date of this order, the owner of lot 13 is to take such steps as are necessary to ensure that the noise caused by the operation of the air conditioning unit servicing lot 13 is within the Allowable Noise Levels specified in the Environmental Protection Regulation 1998 i.e. that noise generated by the air-conditioner, when measured at a neighbour’s property, must not exceed: • 50 decibels between 7:00am and 10:00pm; and 5 decibels above background noise, or 40 decibels (whichever is higher), between 10:00pm and 7:00am

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0532-2006A

"Sanctuary Manors" CTS 28773

The purpose of this Supplementary Order and Statement of Reasons for Decision is to correct a typographical error which appeared on the final page of the Statement of Reasons dated 8 February 2007. In the fourth paragraph on that page, the reference to "15" should be a reference to "13". Apart from this typographical error, the Order and Statement of Reasons remains the same in all respects.

The Scheme

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

The Application

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

Air conditioner to be changed to a quieter model.

To be relocated to face away from villa 14.

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

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

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

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

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

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

At meetings of the Body Corporate committee held on 5 April 2005 and 7 June 2005 the committee resolved to instruct the body corporate manager to investigate noise levels and report the findings to the committee. In July 2005 the committee advised members that Cosmic Air, the company that installed the air conditioners would install an accessory called a "boot" to reduce noise.

In October 2005 the Committee advised members that they had a quote for approximately $150 (plus GST) per unit to quieten the air conditioning units. This offer was accepted by numerous lot owners and according to the committee was noticeably successful.

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

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

Submissions

Submissions in response to the application were sought from all owners (excluding the Applicants) and the body corporate committee. Six submissions were received.
The body corporate committee made the following submissions which were essentially the same as the submissions made in response to another similar application:

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

The first individual lot owner made the following comments:

• in their opinion the air conditioning units in the complex are too loud;
• many of the air conditioning units are not suitable for the lots;
• The noise from the air conditioning units bounces of the walls between the buildings and this magnifies the sound.

Another lot owner made the following submissions:

• This is a dispute between particular neighbours and should not involve the body corporate or other owners;
• They do not presently have a problem with air conditioner noise. At one time a neighbour’s air conditioner was making excessive noise but this was promptly attended to when it was brought to the owner’s attention.

The owner of lot 15 made the following comments:

• He rents out his lot to tenants and was not aware of the noise issue until February 2006;
• The developer had the air conditioners tested in 2003 and found the noise generated was within accepted limits;
• In September 2005, units 11 and 13 arranged to have their air conditioners fitted with a "boot" to reduce noise. He was never informed of this or given the opportunity to take such action;
• He does not agree with the body corporate’s advice that problems with air conditioners should be taken up with individual owners;
• If there is a problem with his air conditioner it should be rectified by the developer;
• The developer has stated that the air conditioners were installed with council approval;
• There has not been an adequate basis for determining that any resident has breached the scheme by-laws through operation of the air conditioners.

The owners of unit 21 expressed the following opinions:

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

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

The owner of lot 13 advised that:

• She purchased her unit from the developer in good faith and assumed that the developer and builder had exercised their duty of care in the design ands construction of the property including selection of items that would meet the requirements of the Building Code of Australia and all applicable State and local government regulations;
• She previously paid for additional work done to reduce the perceived noise disturbance to the applicants but it appears that the reduction in noise was not sufficient to satisfy the applicants.
• The specifications produced by the manufacturer indicate that all of the Uni-Aire systems installed throughout the complex would not meet noise level restrictions as set down by the Environmental Protection Regulations and Gold Coast City Council requirements;
• The location and design of the applicants’ unit would have contributed to the perceived noise nuisance;
• The applicants also use the same type of air conditioner which would produce the same level of noise as the other air conditioners in the complex;
• The perceived noise nuisance is an issue for all lots in the scheme and it would therefore be appropriate for the body corporate to pursue the developer and builder regarding the installation of unsuitable air conditioners in the complex.

Jurisdiction

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

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

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

(c) a claimed or anticipated contractual matter about-

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

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

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

Determination

As in another application which I recently considered, the applicants allege that the noise caused by operation of the air conditioning unit is a nuisance involving a breach of the scheme by-laws. In particular, by-law 15 provides as follows:

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

There is also a possibility that section 167(b) of the Act may also have some relevance in this regard and provides as follows:

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

(a) causes a nuisance or hazard; or

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

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

As I mentioned in Order 530/2006, this set of circumstances have presented a number of difficulties to me as an adjudicator. I recognise that air conditioning tends to be a standard inclusion in developments of this nature and while purchasers should be entitled to have an expectation that the air conditioning unit is capable of operating in accordance with statutory requirements regarding noise output, the fact remains that the lot owners ultimately bear responsibility for ensuring that air conditioning units operation in accordance with scheme by-laws and statutory provisions.

As is usual in disputes involving noise complaints, I have considered that different people have differing levels of tolerance to background noise. While it is obvious that a certain amount of noise will be generated by air conditioning units within a complex such as Sanctuary Manors, I had some doubts as to whether noise emanating from the air-conditioning units was excessive and contrary to noise regulations or whether the applicants have a high sensitivity to noise. I therefore requested the applicants to provide some objective material to support a claim that the noise levels from one or more air-conditioning units was excessive or contrary to noise regulations, which would support the claim that the noise disturbs their use of Lot 14.
In response I received a report dated 31 January 2006 from Craig Hill Acoustics, Acoustic Consultants, which included the following information:

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

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

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

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

•

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

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

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

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

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

While an assessment of whether a lot owner or occupier has breached body corporate by-laws concerning noise or the nuisance provision in the Act does not strictly require reference to the Environmental Protection Regulation 1998, I consider that these regulations provide a sound and objective basis for deciding whether the noise from the air-conditioning units in question is capable of adversely impacting on other occupiers. The report from Craig Hill Acoustics indicates that the air conditioning unit for unit 13 produces a noise level which is outside the Allowable Noise Levels.

While I believe that lot owners should seek advice as to what form of recourse (if any) is available against the developer of the scheme regarding their contention that the air-conditioning units are not capable of operating within allowable noise levels, I am obliged to apply the provisions of the legislation relating to nuisance and enforcement of by-laws.

An acoustic report has been provided to me and a copy also forwarded to the owner of lot 13 who has raised concerns as to whether the tests were conducted in accordance with the EPA Noise Management Manual but has not disputed the readings taken by the acoustic engineer. That report refers to Allowable Noise Levels as specified in the Environmental Protection Regulation 1998 which provide that noise generated by an air-conditioner, when measured at a neighbour’s property, must not exceed:

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

The report from Craig Hill Acoustics indicates that the air conditioning unit for lot 13 produces a noise level well outside the Allowable Noise Levels, and accordingly I must order that the owner of lot 13 take steps to reduce the noise generated by the air conditioning unit so that it operates within the allowable noise levels. I am advised that there are various ways of reducing noise emitted by air conditioning including the following:

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

I will leave it for the owner of lot 13 to determine, in consultation with a suitably qualified air conditioning technician, how the noise can be reduced to an allowable noise level.

I am aware that this time of year is a busy period for many air conditioning and refrigeration technicians, particularly in the Gold Coast area, and therefore propose to order that the owner of lot 13 is to take such steps as are reasonably necessary to limit the noise caused by the operation of the air conditioning system within three (3) months of the date of this order.

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