Canterbury & Westminster [2008] QBCCMCmr 234 (7 July 2008)

Last Updated: 3 September 2008

REFERENCE: 0385-2008

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Parcel:	Canterbury & Westminster
Number of Plan:	BUP 106911
Address of Parcel:	41 Gotha Street, Fortitude Valley

TAKE NOTICE that pursuant to an application for an order made under section 77(1) of the Building Units and Group Titles Act 1980 by the Body Corporate for Canterbury and Westminster

I hereby order that the Owner of Lot 54, Jordan Blake, must not make any noise or behave in any manner on Lot 54 or common property that is likely to unreasonably interfere with the peaceful enjoyment of any person lawfully using other lots or common property.

I further order that the Owner of Lot 54, Jordan Blake, must take all reasonable steps to ensure that his invitees do not make any noise or behave in any manner on Lot 54 or common property that is likely to unreasonably interfere with the peaceful enjoyment of any person lawfully using other lots or common property.

STATEMENT OF REFEREE’S REASONS FOR DECISION - REF 0385-2008

“Canterbury & Westminster” BUP 106911

APPLICATION

Canterbury & Westminster is a mixed use development approved under the Mixed Use Development Act 1993 (MUD Act). Department of Natural Resources and Water records show the scheme is registered as Building Units Plan (BUP) 102993 and comprises 98 lots and common property.

This application was made by the Body Corporate for Canterbury & Westminster (applicant) on 8 May 2008, pursuant to a resolution passed by the Body Corporate Committee outside a Committee meeting on 14 April 2008.

The applicant sought an order against Jordan Blake, the Owner of Lot 54 (known as E54), (respondent) in the following terms:

Owner ceases to contravene the Body Corporate By-laws and behaves in a responsible manner in their unit and on common property.

JURISDICTION

The MUD Act is one of a number of pieces of legislation defined as a ‘specified Act’ under section 326 of the Body Corporate and Community Management Act 1997 (BCCM Act). Section 325(2)(a) of the BCCM Act provides that the previous Building Units and Group Titles Act 1980 (BUGT Act) continues to apply to building unit plans registered under the BUGT Act for a specified Act.

Section 214A of the MUD Act makes provision for the application of the BUGT Act, stating that:

“Unless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5.”

The transitional provisions in section 5A of the BUGT Act provide that the BUGT Act applies for the operation of the MUD Act. Part 5 of the BUGT Act concerns disputes, and sections 75 to 94B provide for orders by a referee.

Section 77(1) of the BUGT Act provides a general power that a referee may on application of (amongst others) a body corporate “...make an order on any person entitled to make an application under this subsection ... for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.”

The Body Corporate is entitled to make an application under section 77 against a proprietor. I accept that the application falls within the scope of section 77 of the Act in that it is a dispute concerning the exercise of a power of the body corporate, namely the enforcement of its by-laws, and the performance of an owner of their duties under the by-laws. Accordingly I am satisfied that I have jurisdiction with respect to the orders being sought.

PROCEDURAL MATTERS

In accordance with section 73(1)(c) and (d) of the BUGT Act, submissions were invited from the respondent and all lot owners. The Body Corporate Manager (BCM) for the scheme confirmed that the notice of the application and invitation to make submissions were distributed to all owners.

Submissions were made by the respondent and four other owners. Copies of the submissions were provided to the applicant however the Body Corporate did not avail itself of the opportunity to respond to the submissions.

MATTERS IN DISPUTE

The application relates to allegations that the respondent has breached By-laws 6, 7 and 28 through noise and other bad behaviour. The facts of the dispute can be summarised as follows.

The application details allegations against the respondent commencing in January 2008 and continuing on a regular basis until and after the lodgement of the application. The nature of the alleged incidents include:

• The occupants of Lot 54 playing very loud music.
• Loud noise from occupants on the Lot 54 balcony.
• Persons in the pool area shouting to others on the Lot 54 balcony.
• Occupants being verbally abusive to security officers raising concerns about noise.
• Fruit, vegetables and other items from the Lot 54 balcony.
• An occupant speeding into and through the car park.
• Occupants often taking little or no action to address complaint from security officers.
• The police being called on several occasions.
  

The BCM wrote to the respondent on 2 March 2008 providing details of alleged incidences on 28 January, 8-9 February, 24-25 February and 1-2 March 2008. The letter said that the incidents were breaches of the Body Corporate by-laws, specifically By-law 6 - Noise, and asked the respondent to cease the breaches immediately.

On 11 March and 6 May 2008 by-law contravention notices were issued to the respondent. These referred to alleged breaches of By-law 6 – Noise, By-law 7 – Behaviour of Invitees, Tenants etc, and By-law - 28 Observance of By-laws. The notices also alleged breaches of section 51(1) of the BUGT Act. The first notice referred to the same incidents as the 2 March letter but also included incidents on 27 January and 8 March. The second notice referred to incidents on 30 March, 5 April, 6 April, 21 April, 25 April and 4 May.

The application says that security guards have attempted to have the by-law breaches cease, and the building manager has attempted to advise the owner that the behaviour is unacceptable.

The submission from the respondent says that he has occupied Lot 54 since his purchase at the end of November 2007 and since shortly after that time a second occupant has resided with him. In regard to the alleged incidents the respondent says:

• He has no specific recollection or knowledge of some of the alleged incidents, including allegations of occupants being abusive to security officers.
• By the time of the February, incidents he had adopted the practice of keeping his balcony doors closed, and staying off the balcony if there were to be any ‘activity of note’.
• After the Body Corporate wrote to him on 2 March there was no activity creating noise from the balcony.
• Music would have been playing on some of the occasions but he believes the volume would have been low or is surprised at descriptions of it as ‘extremely loud’.
• He has or would have on request lowered the volume of music playing, notwithstanding that he does not consider that the music was ever at an unacceptable level.
• On one occasion the alleged noise complaints were before 11pm.
• He denies that he or any person in the unit intimated that they did not care about complaints.
• One occasion security officers attended the unit three times in 35 minutes when there was no activity other than talking and so the occupants were ‘somewhat fed up’ with the repeated enquiries within a brief period of time.
• In regard to the complaint of persons in the pool area shouting towards his lot, he did not know those persons and did not respond to them.
• In regard to the incident of items being thrown from the balcony, someone in another block offended a person in Lot 54 and that person, unknown to the respondent, threw a piece of fruit. He says it was regrettable but he could not have foreseen it and he asked the person responsible to leave the unit immediately.
• He acknowledges one visit from the Police but he was in bed at the time of their visit and they did not require any change to activity as things were quiet at the time.
• In regard to the alleged speeding in the parking bay, it would be unreasonable for any occupant or entrant to travel at 5 kmph. However he denies he has driven at high speed.
• On two occasions security officers incorrectly identified noise coming from Lot 54 when in fact it came from a nearby unit, suggesting a level of unfair attention directed to him.
• There is a backpackers and bar across the road, and while this is not determinative of the noise levels that should or should not emanate from his lot, it is a practical consideration as to the actual level of noise in the street and scheme.
• On coming home he now is “..met by, if not followed by, security to his doorway.” which he says is confronting and bordering on harassment.
• He does not take the allegations lightly and has taken steps to address the concerns by reducing music volumes, closing doors, removing activity from the balcony, requiring unacceptable guests to leave, talking to security, and not reacting to ‘shadowing’ by security.
• He is confident that there is a marked decrease in the level of alleged noise breaches and the Body Corporate concerns ought to now be less of a concern.
• He notes that there are no complaints or statement from residents.
  

The submissions from four owners support the Body Corporate’s application:

• The Chairperson says this issue adversely affects everyone living quietly in the scheme, and argues that quick action is needed as the respondent shows little concern for other residents. He submits a copy of Security Logbook pages which he says confirms each incident. He says he witnessed the incident on 1-2 March 2008 when he was woken by loud voices and went to his verandah, from where he can see the Lot 54 verandah. He says he saw young men yelling and throwing objects across the pool area in the direction of security officers.
• The Chairperson includes a letter from the building manager who says that the respondent purchased Lot 54 in November 2007 and that there have been ongoing problems since then with noise complaints and groups gathering in the unit and pool/spa area most weekends. She says that they are not sure if the owner is present when all of these incidents have occurred, but that they usually occur between 11pm and 6am. She says their have been 29 incidents involving Lot 54 logged since 13 January 2008.
• Another says the occupants have repeatedly behaved in an “appalling and disgraceful way”, don’t have respect or moral standards, and don’t deserve to occupy property in the scheme.
• Two others appear to agree that there is noise.
  

DETERMINATION

The issue in this dispute is whether the respondent has breached the Body Corporate by-laws.

Applicable laws

On 18 January 1999 by-laws for the scheme were recorded, pursuant to section 30 of the BUGT Act, replacing the by-laws previously in place in respect of the scheme. The terms of the three by-laws referred to in the application are as follows:

6. NOISE

(a) A proprietor of a lot, their guests, servants or agents shall not make or permit any noise likely to interfere in any way with the peaceful enjoyment of other proprietors of lots or of any person lawfully using the common property. In particular no proprietor of a lot shall hold or permit to be held any social gathering in his lot which would cause any noise which unlawfully interferes with the peace and quietness of any other proprietor of a lot, at any time of day or night and in particular shall comply in all respects with the Noise Abatement Act 1979, as amended.
(b) In the event of any unavoidable noise in a lot at any time the proprietor thereof shall take all practical means to minimise annoyance to other proprietors of lots by closing all doors, windows and curtains of his lot and also such further steps as may be within his power for the same purpose and shall cease the activity creating a noise or nuisance upon the request of the Body Corporate through its representative.
(c) Guests leaving after 11.00 pm shall be requested by their hosts to leave quietly. Quietness shall also be observed when the proprietor of a lot returns to the dwelling later at night or early morning hours.

7. BEHAVIOUR OF INVITEES, TENANTS ETC

A proprietor 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 of another lot or of any person lawfully using common property.

The proprietor of a lot shall be liable to compensate the body Corporate in respect of all damage to the common property or personal property vested in it caused by such proprietor or their invitees.

A proprietor of al lot which is the subject of a lease or licence agreement shall take all reasonable steps, including any action available to him under any such lease or license agreement, to ensure that any lessee or licence or other occupier of the lot or their invitees comply with the provisions of the by-laws.

28. OBSERVANCE OF BY-LAWS

The duties and obligations imposed by the By-laws on a proprietor of a unit shall be observed not only by the proprietor but by the proprietor’s tenants, guests, servants, employees, agents, children, invitees and licensees.

Sections 202 to 213 of the MUD Act provide for the community body corporate and the precinct body corporate to make development control by-laws, activities by-laws and property by-laws. Pursuant to section 204(3)(b) and 210(3) development control by-laws and activity by-laws prevail to the extent of any inconsistency with any by-law made by a body corporate under the BUGT Act. I am not aware of any development control or activity by-laws created in respect of Canterbury & Westminster. By-laws, including restricted community property by-laws, have been established in respect of Cathedral Place, being the principal body corporate in the complex. However the Cathedral Place By-laws include by-laws in identical terms to the three by-laws mentioned above and so there is no issue of any inconsistency.

In addition, the Body Corporate refers to section 51(1) of the BUGT Act. The relevant subsections are as follows:

51 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—

(a) ...; or

(b) use or enjoy that lot, or permit that lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is a proprietor or not); or

(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.

Noise issues

I will start by noting that the Body Corporate has not provided unequivocal evidence that the respondent has breached By-laws 6 and 7. While numerous incidents have been recorded by security officers, the Body Corporate has provided little evidence that any alleged noise did or was likely to interfere with other users of the scheme.

I am conscious that only four of the 98 owners in the scheme made submissions in response to this application. No submissions have been made from any lot immediately adjacent to Lot 54, only one from the same floor, only one from the floor below, and none from the floor above. Moreover, there is no indication from the application of complaints being made by other occupants in the scheme, rather than just the building manager and the security officers. Of all the incidents in the Security Logbook, only two (29 February and 4 May) refer to complaints.[1] This does not mean that problems have not been experienced more broadly (including by tenants in this scheme and occupants in adjacent schemes who were not invited to make submissions). It may be that other complaints were simply not recorded in the Security Logbook. However the onus is on the Body Corporate to demonstrate the extent of the alleged problem.

There is also limited evidence to indicate the level of noise reported, to enable an objective assessment of whether the noise was unreasonable or likely to cause and interference. Some security reports describe “extremely loud” music, talking and music that was “way too loud”, a “stereo at full blast and shouting” and music so loud that the lyrics were clear from some distance away. On another day the level of music was described as “annoying not super loud like normal”.

I am somewhat concerned that some of the security reports refer to ‘talking’ on the balcony. While certainly ‘shouting’ on balconies would seem likely to interfere with other users of the scheme, it is not apparent to me why merely talking on the balcony of a lot would be offending behaviour that security officers should be following up on.

The respondent says he is confident that there has been a marked decrease in the level of disturbance. Although the respondent’s submission does not specifically acknowledge that any excessive noise or inappropriate conduct has occurred, this comment appears to imply some acceptance that some excessive noise may have occurred previously. The suggestion of a reduction of the severity of incidents is supported to some extent by the contents of the Security Logbook pages supplied on 24 June. These indicate three incidents in the previous month (two in June and one in late May) and each say the occupants complied with requests to reduce noise.

I note that the respondent’s only comments regarding two complaints about noise on 4 May 2008 is that they occurred before 11pm. In this regard I alert the respondent to the fact that there is nothing in the by-law that restricts noise to specific hours. While By-law 6(c) requires hosts to ask guests to be quiet when departing after 11pm, the complaints here relate to music and voices rather than departing guests. By-law 6(a) refers to interfering noise at any time of the day or night.

Notwithstanding my reservations as to substantiation of some of the complaints, from the material provided by all parties I am satisfied that it is more probable than not that at times noise has emanated from Lot 54 which did, or was likely to, unreasonably interfere with the lawful use of common property and lots by others. I am not convinced that every alleged incident amounted to a conduct contrary to the BUGT Act or by-laws, but I consider it likely that some have. Moreover, there is some indication that such breaches may be continuing, at least to some degree.

It would be unreasonable for the Body Corporate to expect no noise to emanate from Lot 54, particularly on weekend evenings. Occupants in a community titles scheme, and particularly one in an area such as this scheme[2], must reasonably expect greater noise levels than would be likely in a house – such is the nature of community living. However, similarly the respondent must show consideration for others in the scheme and accept that the proximity of lots means his neighbours are more likely to hear noise from his lot than if they were further away in a house.

It is not clear whether the noise coming from Lot 54 was caused by the respondent himself, or by his tenant or other invitees to the lot. The former represents a breach of By-law 6 on at least some occasions. If the latter, I am satisfied that it is probable that the respondent has not taken sufficient steps on at least some occasions to curtail the activities of his guests. That reflects a breach of By-law 7. Either way the noise would also represent a breach of section 51(1) of the BUGT Act.

I note that the respondent has indicated several actions taken to address noise concerns. To the extent that some problems have continued, at least until late June, the respondent may need to take further action to curtail activities in his lot.

Behavioural issues

In regard to the other alleged inappropriate behaviour (aside from the speeding incident which I will address below) the facts are unclear. There is no evidence to substantiate claims of continuing problems with the respondent and his guests in the pool/spa area. In the only specific incident mentioned (30 March) there is no proof that the persons shouting were guests of the respondent. The respondent claims he is not aware of the apparent abuse of security officers by persons in Lot 54 on1-2 March, but it may be the alleged activity occurred. With the information provided I cannot conclusively determine whether numerous items were thrown at or near security officers on 1-2 March, as the Body Corporate claims, or, as the respondent claims, a single item of fruit was thrown elsewhere by a person who was asked to leave as a result. However these appear to be single incidents rather than the pattern of behaviour of the nature of the noise complaints.

Speeding issue

The Body Corporate asserts that on 5 April the respondent drove into and through the parking area at “high speed”. No further information is provided to substantiate this claim. The respondent appears to accept that he does not consider the 5 kmph speed limit as reasonable, but denies driving at high speed at the alleged time and date.

There are no by-laws or legislative provisions which specific govern driving on common property. While I do not consider it necessary to investigate in the circumstances, I am of the view that any specific ‘speed limit’ which the Body Corporate may set would be advisory only and not able to be strictly enforced. However, if the speed or any other aspect of the manner of a person’s driving on common property was dangerous or otherwise could be shown to cause an unreasonable interference to the lawful use of the common property, that activity would amount to a breach of section 51(1) of the BUGT Act.

The Body Corporate has provided insufficient quantification of the alleged ‘high speed’ or any information on any interference that the speed of driving may have caused to any other user of the common property. Moreover it appears that there has only been a single complaint to date. Accordingly no order is warranted in regard to this issue.

However, the respondent, along with any other owners and occupiers should bear in mind that they should not drive cars on common property in such a way that interferes unreasonably with others’ use or enjoyment of common property or represents a nuisance or hazard.

By-law 28

The Body Corporate has not explained how they consider that the respondent has breached By-law 28, in addition to their claims regarding By-law 6 and 7. By-law 28 provides coverage for the duties and obligations imposed by the by-laws to the tenants, guests and so on. However this by-law does not make the proprietor responsible for the enforcement of the by-laws or for the failure of their tenants and guests to comply with the by-laws. By-law 28 merely gives the Body Corporate the potential scope to take action directly against tenants, guests and so on if they consider that those persons have breached the by-law requirements.

Conduct of Body Corporate agents

The respondent claims that security officers have incorrectly attributed noise to his lot on at least two occasions, and are targeting his lot. As I am satisfied that at least some breaches have occurred, I do not consider that it is necessary for me to specifically investigate the veracity of this claim. However I do note that the Security Logbook records appear to suggest that security officers developed a negative perception of the occupants in Lot 54 within a very short time. On the fourth date that the Security Logbook records issues regarding noise in Lot 54, the security officer comments: “Resident clowns up to old tricks again....complied for now by it won’t be long before start up again (you can bet the bank on that!).” and the following day “Right on cue residents once again told to get off balcony talking/music way too loud.”

The Body Corporate and its security officers should bear in mind that the surrounding area is clearly one where music and other noise levels could be expected to be higher than in a more suburban environment, particularly late at night. Moreover, the Security Logbook indicates daily examples of alleged loud music and voices in numerous lots, and so Lot 54 is clearly not the only lot where issues have arisen. In that context the Body Corporate should take care to ensure that noise and conduct allegations about Lot 54 are not made unless the Body Corporate is confident that the alleged conduct is emanating from the occupants of Lot 54. Furthermore, the Body Corporate should ensure that security officers only pursue issues that are or are likely to be interfering with other occupants, and not just noise or behaviour that is considered to be objectionable by the security officers themselves.

The respondent suggests that security officers have been following or ‘shadowing’ him. Again, it is not necessary or appropriate for me to investigate the veracity of this claim. If such activity was occurring I suggest the Body Corporate should talk to its security officers and discourage the practice. Conduct of that nature would seem to be overzealous at best and risks antagonising occupants and escalating conflict.

Conclusion

From the evidence and argument presented by the parties I have insufficient evidence to conclude that any problems with Lot 54 have been as great as the Body Corporate seems to allege. However, on balance I do accept on the evidence that some excessive noise amounting to a breach of By-law 6 and/or By-law 7 and section 51(1) of the BUGT Act is likely to have occurred on some occasions. Although possible reduced, it may also be that noise issues are continuing. It is less clear that any other inappropriate behaviour has occurred, however in the event that it did such conduct will be covered by the orders I propose.

I consider that it is appropriate in the circumstances to order that the respondent not make any noise or behave in any manner likely to unreasonably interfere with any other user of the scheme. Similarly he must take all reasonable steps to ensure that his invitees, including his tenant and guests, do not make noise or act in a way which causes an unreasonable interference.

If the respondent does not consider that the noise from his lot or the behaviour of its occupants and his guests has been inappropriate then he should have no difficulty in complying with these orders. If the Body Corporate considers that the respondent has not complied with the orders, it is open to the Body Corporate to take action in the Magistrates Court, pursuant to section 113 of the BUGT Act, alleging a contravention of the orders and presenting evidence of the alleged contravention.

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[1] A third incident record on 17 May 2008 refers to a call being received about noise but there being no noise when the security officer went to investigate.

[2] The scheme is adjacent to the Fortitude Valley ‘Special Entertainment Precinct’. The Valley Music Harmony Plan state that: “...residents and businesses in and around the Valley special entertainment area will experience a higher ambient noise environment than expected in suburban residential or semi-rural living.” http://www.brisbane.qld.gov.au/BCC:BASE:836891056:pc=PC_2273