Paddington Place [2008] QBCCMCmr 248 (22 July 2008)

Last Updated: 3 September 2008

REFERENCE: 0239-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21584
Name of Scheme:	Paddington Place
Address of Scheme:	2 Lyon Street Dicky Beach QLD 4551

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

John Geoffrey McErvale, the co-owner of lot 15

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0239-2008

“Paddington Place” CTS 21584

Paddington Place community titles scheme (Paddington Place) comprises 53 residential lots and common property. The scheme was established upon registration of Group Title Plan 984 on 13 September 1982 and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Mr John McErvale, co-owner of Lot 15 (applicant) on 18 March 2008. The applicant sought an order against the owners of Lot 16, Graham Cumes and Marie Cumes (respondents) that Mr Cumes not to invite his newsagent on to the common property, to deliver his news paper before 5am, which is clearly in breach of the body corporate by-laws.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to all owners (excluding the applicant) to respond to the matters raised in the application. Submissions were received from the respondents and the owners of seven other lots as follows:

• Beatrice Payne, owner of Lot 27;
• Rodger Thomson, owner of Lot 41;
• Alan Cooper, owner of Lot 23;
• Joycelyn Otto, owner of Lot 53;
• Pat Nair, owner of Lot 13;
• Vivienne Stephens, owner of Lot 50;
• Daphane Bonning, owner of Lot 10.
  

The applicant did not exercise his right to inspect and respond to the submissions made.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

This application relates to the sleep disturbance caused to the applicant by the passage of the newspaper delivery vehicle on the common property driveway “C” between Lots 15 and 16 for the purpose of delivering news papers to Lot 16 before 5.00am up to six days per week. The facts relevant to the dispute can be summarised as follows:

The respondents have owned and occupied Lot 16 for almost 10 years during which time they have received home-delivery of newspapers six days per week. The method of delivery has consistently involved the passage in the early morning hours, including before 5.00am, of a contractor vehicle on driveway “C” between Lots 15 and 16 which are located almost opposite each other, proceeding to the end of the driveway, turning around and exiting by the same route.

The applicant has owned and occupied Lot 15 since November 2006 and claims to have had his sleep consistently disturbed by the noise of the delivery vehicle as it passes by his master bedroom window. Accompanying the application is a sketch diagram prepared by the applicant depicting the master bedroom in Lot 15 located immediately adjacent to driveway “C” and depicting the master bedroom in Lot 16 located further away from the driveway, that is, one or more rooms in Lot 16 are located between the driveway and the master bedroom. The applicant claims that in order to avoid sleep disturbance, he can no longer sleep in the master bedroom, where he prefers to sleep, and is forced to sleep in the spare bedroom.

Also accompanying the application is a record purportedly maintained by the applicant during the period May – September 2007 of 25 newspaper delivery times, of which:

• four were after 5.00am;
• the remaining 21 were before 5.00am, specifically:
  • eight were between 2.30am – 3.00am;
  • nine were between 3.00am – 4.00am; and
  • four were between 4.00am – 5.00am.
    

The applicant claims that such delivery of newspapers constitutes a breach of By-laws 2(1), 3(4) and/or 4(2).

The applicant has attempted to resolve his concerns to no avail by speaking with the respondents, the newsagent responsible for delivery of the newspapers and the Body Corporate.

Correspondence accompanying the application from the Body Corporate indicates that it has contacted the newsagent seeking a solution to the matter. Acting on the advice of the newsagent, the Body Corporate wrote to the respondents requesting that they make alternative arrangements for delivery of the newspaper.

In their submission, so far as is relevant to the application, the respondents state:

• the Office of Fair Trading has confirmed their (the respondents’) entitlement to the present method of newspaper delivery to their residence;
• two different vehicles are involved in newspaper deliveries: one that delivers two mornings each week at 5.00am or later and is “very quiet and most unlikely to disturb anyone; it does not traverse the street as claimed” ;
• the sketch diagram accompanying the application is inaccurate in its depiction of the location of the respondents’ bedroom which the respondents conversely claim is “closer by far to the (newspaper) drop zone than any other resident”.
• none of the other residents located along driveway “C”, including previous residents in Lot 15, have ever complained about the newspaper delivery noise;
• newspapers are delivered by the same method to residents located in other sections of Paddington Place;
• the respondents are both aged over their mid-80’s and the availability of a daily newspaper assists Mrs Cumes who suffers from Alzheimer’s Disease.
  

Of the submissions received from the owners of seven other lots, only two are from lot owners also located along driveway “C”. Pat Nair, owner of Lot 13 located immediately next door to Lot 15, although not personally disturbed by the noise of the newspaper delivery vehicle because his bedroom is located at the rear of the lot away from driveway “C”, is sympathetic towards the applicant. Mr Nair submitted that the reason residents purchased the retirement units comprising Paddington Place is peace and quiet and therefore all newspapers should be dropped on the public street footpath area from where residents can collect them.

The other lot owner located on driveway “C”, Daphane Bonning, owner of Lot 10, from whom a submission was received does not perceive any problem with the present method and timing of newspaper deliveries common throughout Paddington Place for the 12 years of her residence. Moreover, she is not aware of any prior complaints from any other residents located along driveway “C”. According to Ms Bonning, Paddington Place comprises primarily aged and retired residents with approximately 95% falling into that category. She, like the respondents, is 80 years of age and claims not to suffer any disturbance to her sleep even though she believes that the noise of the delivery vehicle should be greater adjacent to her lot which is located at the entry to the driveway from Lyon Street. Ms Bonning considered that the alternative of the newspaper being dropped on the Lyon Street footpath area in front of her lot, which would require the respondents walking from their lot down the driveway to collect it, was “not the best way to treat an aged person” like Mr Cumes who suffers chronic leg problems.

Submissions received from four other residents, Beatrice Payne (Lot 27), Rodger Thomson (Lot 41), Joycelyn Otto (Lot 53) and Vivienne Stephens (Lot 50), all of which are located elsewhere along other driveways throughout Paddington Place, like Ms Bonning, do not perceive any problem with the method and timing of newspaper deliveries even though the delivery vehicle has for many years passed by their lots shortly before or after delivering the newspaper to Lot 16.

The remaining submission received from Alan Cooper (Lot 23) is supportive of the application in principle based solely upon acceptance of the applicant’s assertion that By-law 2 Noise is being contravened and that the by-laws serve no purpose unless they are consistently upheld. In other words, Mr Cooper’s support is not based upon shared experience of sleep disturbance caused by the newspaper delivery vehicle passing by his lot shortly before or after delivering the newspaper to Lot 16.

On 14 July 2008 I telephoned Mr Shorty Palmer, proprietor of ‘Moffat Beach Newsagency’ responsible for delivery of the newspapers to residents of Paddington Place. By way of clarification, Mr Palmer stated that:

• no newspaper deliveries are made to any residents along driveway “C” other than to the respondents at Lot 16;
• the method of newspaper delivery to Lot 16 via access along driveway “C” is identical to that for deliveries to other residents located along other access driveways throughout Paddington Place;
• other than occasionally performing deliveries himself in his own vehicle, which would correspond with recorded delivery times after 5.00am to Lot 16, deliveries are mainly carried out by a contract driver in a different vehicle which would correspond with the other recorded delivery times prior to 5.00am to Lot 16;
• it is simply not feasible to arrange a consistent time for delivery after 5.00am to Lot 16, or any other residents in Paddington Place, because delivery times are dictated by a range of factors beyond the control of Mr Palmer and the contract driver;
• from a practical perspective, taking into account a range of factors including wet weather, time constraints and workplace health and safety considerations, there is no practical alternative to the present delivery method other than not accessing driveway “C” at all and simply throwing the newspaper from the vehicle onto the footpath area adjacent to the entry to driveway.
  

JURISDICTION

This is a dispute between the owners of two lots and therefore comes within the dispute resolution provisions of the Act.[1]

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)).

ISSUES

The issue for consideration in this matter is whether the passage of the newspaper delivery vehicle on the common property driveway “C” between Lots 15 and 16 for the purpose of delivering newspapers to Lot 16 before 5.00am up to six days per week constitutes a breach of the By-laws or the Act?

DETERMINATION

Applicable law

The community management statement for Paddington Place includes By-laws regulating the behaviour of lot owners and others specifically with respect to noise, vehicle usage and/or nuisance as follows:

2. NOISE

(1) The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.

3. VEHICLES
   

(1) ....
(2) ....
(3) ....
(4) Occupiers must not and to the greatest practical extent must ensure that their invitees do not, exceed the maximum speed limit of 5 kph on common property roadways.

4. OBSTRUCTION/NUISANCE
   

(1) ....
(2) The occupier of a lot must not cause a nuisance or act in such a way as to interfere with the peaceful enjoyment of a person lawfully on another lot or using the common property.

7. BEHAVIOUR OF INVITEES
   

(1) The occupiers shall at all times observe and comply with the body corporate by-laws and further shall take all reasonable steps to ensure that their invitees comply with the said by-laws and do not behave in a manner likely to interfere with the peaceful enjoyment of a person lawfully on another lot or using the common property.

Pursuant to By-law 1.1, “invitee” is defined as “any person on the Scheme Land with the permission of an Occupier” and “occupier” is defined as “an Owner of a Lot, a tenant of a Lot, a licensee of a Lot, or any person resident in a lot”.

In addition, section 167 of the Act provides as follows:

167 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.

Section 94 of the Act provides that the body corporate administers, manages and controls the common property for the benefit of lot owners and must do so reasonably. Section 94(1) (b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws.

Evidence of breach

The applicant’s position, as I understand it, is founded upon a belief that the delivery of newspapers to Lot 16 via the common property, like the delivery of any other service by a contractor or service provider to an occupier at the lot, is with the permission of the respondents. As such, the person delivering the newspapers falls within the definition of “invitee” pursuant to By-law 1.1 whose behaviour whilst on the common property an occupier shall take all reasonable steps to ensure complies with the By-laws and is not likely to interfere with the peaceful enjoyment of a person lawfully on another lot or using the common property.[2]

On that basis, having had his sleep consistently disturbed prior to 5.00am by the noise of the passage of the newspaper delivery vehicle on the common property driveway “C” between Lots 15 and 16 for the purpose of delivering newspapers to Lot 16, the applicant asserts that the respondents, being the occupiers of Lot 16, are in breach of By-laws 2(1), 3(4) and/or 4(2). Strictly speaking, however, if the noise created by the respondent’s invitee is capable of breaching any of By-laws 2(1), 3(4) and/or 4(2), then the respondents are not in breach of such by-laws but may be in breach of By-law 7(1) if they failed to take reasonable steps to ensure that the noise does not breach the by-laws and is not likely to interfere with the peaceful enjoyment of a person lawfully on another lot or using the common property.

For the same reasons, the respondents may be in breach of section 167 of the Act on the basis that they permitted the use of the common property in a way that interferes unreasonably with the use or enjoyment of another lot included in the scheme.

I note at the outset that there is no evidence before me that the maximum speed limit of 5kph on the common property roadway between Lots 15 and 16 has been exceeded by the newspaper delivery vehicle belonging to the respondents’ invitee. Accordingly, for purposes of By-law 7(1), I confine myself to consideration of whether or not the respondents failed to take reasonable steps to ensure that the noise associated with the delivery of newspapers by their invitee:

• does not breach By-laws 2(1) and/or 4(2); and
• is not likely to interfere with the peaceful enjoyment of a person lawfully on another lot or using the common property.
  

It necessarily follows that if the evidence is such that it does not support a finding that the noise in question is likely to interfere with the peaceful enjoyment of a person lawfully on another lot or using the common property, then the respondents cannot be in breach of By-law 7(1).

Similarly, for purposes of section 167 of the Act, I confine myself to consideration of whether or not the noise associated with the delivery of newspapers by the respondents’ invitee interferes unreasonably with the use or enjoyment of another lot included in the scheme.

In either case, that is, for purposes of By-laws 2(1), 4(2) and 7(1) or section 167 of the Act, gauging the level of noise sufficient to constitute a contravention is inherently difficult in the absence of reliable objective evidence. On the one hand, I have before me the applicant’s evidence comprising:

• a random record of 21 newspaper delivery times between 2.30am and 5.00am over a period of five months in 2007; and
  
• his subjective opinion that the noise associated with the delivery of newspapers prior to 5.00am consistently causes him sleep disturbance such that he is denied peaceful enjoyment of sleep in his preferred master bedroom.
  

On the other hand, I have before me the evidence of six other lot owners/occupiers, all of whom have share in the experience of the same delivery vehicle passing by their lots shortly before or after delivering the newspaper to Lot 16 and yet the associated noise is either not such as to disturb their sleep or, if it does, it is not perceived as a problem in the sense of interfering with the peaceful enjoyment or interfering unreasonably with the use or enjoyment of their lot. One of these lot owners/occupiers, the applicant’s immediate neighbour, Pat Nair owner of Lot 13, concedes that this is due to the fact that the bedroom in which he sleeps, unlike the applicant’s master bedroom, is not located immediately adjacent to driveway “C”. Rodger Thomson (Lot 41), is arguably in a worse situation to that of the applicant in that not only is his bedroom, like that of the applicant, located a similar distance from access driveway “G” but immediately outside his bedroom window there is also a traffic calming “bump”. Notwithstanding, Mr Thomson does not regard the return passage of the newspaper delivery vehicle past his lot as an unreasonable interference with the peaceful enjoyment of his lot.

In the case of the other four lot owners/ occupiers, the location of the bedrooms in which they respectively sleep relative to the access driveway used by the newspaper delivery vehicle, is unclear. Even so, for the following reasons I consider that their evidence remains relevant to the issue of what reasonable steps the respondents could take to ensure that the noise associated with the newspaper delivery is not likely to interfere or does not unreasonably interfere with the peaceful enjoyment of another lot:

1. demonstrating that susceptibility or sensitivity to noise sleep disturbance varies from person to person depending on a range of personal and environmental factors;
   
2. giving rise to an inference that the applicant’s experience is unique and isolated amongst the residents of 53 lots; and
   
3. giving rise to an inference that in the specific context of what might be best described as an aged retirement village, any interference with the peaceful enjoyment of persons lawfully on the vast majority of lots resulting from the noise associated with the present method and timing of newspaper deliveries is far outweighed by the perceived benefit to those residents who receive newspaper deliveries on the days of their choosing.
   

I accept the submission of the owner of Lot 23, Alan Cooper, that the by-laws serve no purpose unless they are consistently upheld by all lot owners/occupiers. But that still begs the question of whether the noise in question amounts to a breach of By-laws 2(1) and/or 4(2) and the respondents have breached By-Law 7(1) or section 167 of the Act.

I also accept that the applicant’s sleep is consistently disturbed by the noise associated with the delivery of newspapers prior to 5.00am and because of this he is denied peaceful enjoyment of sleep in his preferred master bedroom.

However, the issue of what reasonable steps the respondents could take to ensure that the noise associated with the newspaper delivery is not likely to interfere or does not unreasonably interfere with the peaceful enjoyment of another lot is not absolute and requires a comparative assessment in specific circumstances and context of Paddington Place.

According to Shorty Palmer, proprietor of ‘Moffat Beach Newsagency’ responsible for delivery of the newspapers to residents of Paddington Place, there is no practical alternative to the present timing and method of delivery to Lot 16 other than ceasing to access driveway “C” altogether and instead simply throwing the newspaper from the vehicle onto the footpath area adjacent to the entry to driveway which would require the respondents to make their way from Lot 16 by walking or other means down the uncovered driveway “C” past Lots 14, 12 and 10 to collect the newspaper in all weather conditions. The latter, I am satisfied, is not a practical option from the perspective of the respondents given their relative age and ill-health, in the case of Mrs Cumes suffering from Alzheimer’s Disease and Mr Cumes suffering from chronic leg problems. This would effectively mean that the respondents would be denied a newspaper on the days of their choosing placing them in a unique position vis a vis other lots within Paddington Place who receive doorstep delivery of newspapers. It would also have a peculiarly detrimental impact upon Mrs Cumes whose condition, according to Mr Cumes, is materially improved by the availability of a daily newspaper.

On the basis of the available evidence, I am satisfied that:

• the applicant has a particular susceptibility or sensitivity to noise sleep disturbance;
  
• any interference with the peaceful enjoyment of persons lawfully on the vast majority of lots resulting from the noise associated with the present method and timing of newspaper deliveries is far outweighed by the perceived benefit to those residents who receive newspaper deliveries on the days of their choosing;
  
• given the specific context of what is essentially an aged retirement village comprising 53 lots of which, in addition to Lot 16, numerous receive daily or otherwise regular doorstep deliveries of newspapers, in the absence of any evidence of similar noise sleep disturbance to any residents other than the applicant resulting from the present method and timing of newspaper delivery, it would be unreasonable to make an order the effect of which would be to single out the respondents by denying them a newspaper on the days of their choosing; and
  
• there is nothing that the respondents could reasonably do, short of forgoing newspapers altogether, to ensure that the noise associated with delivery to the doorstep of Lot 16 is not likely to interfere with the applicant’s peaceful enjoyment of his lot.
  

It follows, in my view, that the respondents are not in breach of By-law 7(1) or section 167 of the Act.

Conclusion

Having regard to the above findings, I am of the view that it would not be just and equitable in the circumstances to make an order of the nature sought. Accordingly, I propose to dismiss this application

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[1] See ss. 226, 227 & 228 of the Act
[2] See By-law 7(1)