Alligator Creek Heritage Park [2008] QBCCMCmr 339 (22 September 2008)

Last Updated: 14 October 2008

REFERENCE: 0621-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18554
Name of Scheme:	Alligator Creek Heritage Park
Address of Scheme:	45B Alligator Creek Road MT ELLIOT QLD 4816

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Danielle Frances Van Zweeden and Stephan Van Zweeden, the owners of lot 9, against Brad Owen Payn and Valerie Frances Payn, the owners of lot 8

I hereby order that the owners of lot 8, Brad Owen Payn and Valerie Frances Payn, must remove all signage erected on lot 8 that is visible from either the common property or any other lot within the scheme, within seven days. I further order that the owners of lot 8, Brad Owen Payn and Valerie Frances Payn shall not erect or allow to be erected, any signage on the common property or lot 8 that is visible from any other lot within the scheme, or the common property, unless the express, written permission of the body corporate is first obtained. I further order that the owners of lot 8, Brad Owen Payn and Valerie Frances Payn must refrain from creating noise or engaging in any behaviour, (or permitting any occupiers or invitees of lot 8 to do so), that is likely to create a nuisance or interfere unreasonably with the use and enjoyment of the common property or any other lot within the Alligator Creek Heritage Park scheme. I further order that the owners of lot 8, Brad Own Payn and Valerie Frances Payn are prohibited from interfering in any way, or permitting interference in any way, with any signage erected on the common property or within lot 9.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0621-2008

“Alligator Creek Heritage Park” CTS 18554

Application

Alligator Creek Heritage Park Community Titles Scheme (Alligator Creek) is a 5 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by the owners of lot 9, Danielle Frances Van Zweeden and Stephan Van Zweeden, against the owners of lot 8, Brad Owen Payn and Valerie Frances Payn (respondents), seeking the following orders:

1. That Mr and Mrs Payn and family be prevented from causing a nuisance that interferes with the peace and enjoyment of our lot, specifically that the respondents refrain from verbally abusing and harassing potential buyers as they inspect the property and from creating disturbance and noise while potential buyers are viewing the property.
2. That the respondent remove all signage from his property that is visable from the common property or our lot which is affecting the sale of our property.
3. Respondent not remove any signs that are within our lot or on common property with body corporate approval.
   

The grounds to the application are to the following effect:

• Lot 9 is on the market for sale due to Mrs Van Zweeden having been diagnosed with a terminal illness and her being required to move to close proximity of the hospital for regular treatment.
• Since leaving their home on lot 9 in December 2007 the applicants have spent thousands of dollars in advertising for a sale.
• An auction was held on Saturday 10 May at 10am on site at lot 9.
• At approximately 9:15am, a member of the applicants’ real estate team alerted them to the fact that the owners and occupiers of lot 8 were erecting signs made from large sheets of ply wood approximately 1.2m x 2.4m in size. The signs are situated inside the boundary of lot 8 but facing towards the common road which is the only access to lot 9. The signs are placed in such a manner that it is impossible not to see them as you drive towards lot 9 and are painted with fluorescent pink wording that is both offensive and detrimental to the value of local properties, especially the applicants’.
• The respondents, along with their teenage children began to verbally harass prospective buyers as they drove along the common access road to lot 9.
• At 10am as the auction was due to commence the owners and/or occupiers of lot 8 proceeded to create a noise disturbance by using a large drop saw on the boundary of lot 8 and lot 9 and holding a length of steel against the saw blade for a continuous period of time for around 20 minutes. Someone else was using an implement to hit the iron fencing that is used by lot 8 as a boundary/shed wall. This was witnessed by a member of the applicants’ real estate team.
• Whilst the auction was being held the applicants were at their neighbour’s house (lot 10) and could clearly hear the noise disturbance.
• The applicants have been advised by their agent that their property is impossible to sell whilst these actions continue by the owners and/or occupiers of lot 8.
• To date, the respondents have ignored any attempts made by the body corporate to deliver a BCCM Form 10 (Notice of Continuing Contravention of a Body Corporate By-law).
• All correspondence that has ever been sent to the owners and/or occupiers of lot 8 has been returned to sender and any other attempts to contact them have been ignored.
• To date, the signs are still erected and the applicant’s agent has informed the applicants that he has received enquiries from potential buyers enquiring about what is going on once they had seen the signs.
• Mrs Van Zweeden’s life expectancy is not longer than six months and the applicants are already under enormous stress financially due her terminal condition. She would like to have their property sold and their financial affairs sorted before she becomes too ill to be able to do these things. Not only are the actions of the owners of lot 8 impacting on the applicants financially, but also emotionally.
• Not only can the applicants not sell their property, but they cannot rent it due to the actions of the respondents.
• The sign advertising lot 9 for sale/auction was placed on the front of the common property with permission from the body corporate six weeks prior to the action date of 10 May 2008. The sign was smashed down and removed from its position on or about Thursday 15 May 2008 without the applicant’s permission. The sign removed was made specifically for lot 9 at a cost to the applicants and has never been recovered.
  

A statement from Hugh F Urqhart, Real Estate and Auctioneers, is attached to the application, recording the events preceding and during the auction on 10 May 2008. Colour photographs of the signs in question are also supplied.

Jurisdiction

Alligator Creek is a five lot scheme in a semi rural environment. This is a dispute between the owners of two lots within the scheme concerning alleged contraventions of the Act and comes within the dispute resolution provisions of the Act.

In accordance with section 243 of the Act, a copy of the application was provided to the respondents and to the body corporate, with an invitation to all owners (excluding the applicants) to respond to the matters raised in the application. Submissions were received from the respondents and Craig Redvers Melville, the co-owner of lots 7 and 10 and chairperson of the body corporate.

The respondents’ submission was to the following effect:

• Claims that the applicants’ assertions that the body corporate has sent numerous contravention and general notices by registered mail is unsubstantiated and notes that a copy of one registered letter addressed is attached dated March 2007.
• Claims that they work full-time jobs in town, leaving before 7:30am and arriving home after 5pm. Their children attend school, leaving at 7:30am and arriving home at 4:40pm and work weekend jobs in town. They are not privy to information as to when potential buyers of lot 9 are going to be inspecting the property. They don’t have visibility of the road from their house. The applicants have no proof that they harass potential buyers. They have more positive things to attend to.
• In relation to the removal of the “for sale” sign, the respondents state that that would be a police matter and if the applicants had any knowledge or proof of the accusation then they’re sure the police would have been in touch with them.
• Claims that the applicants have no proof of the auction day events. Mr Payn has a huge workshop on lot 8, in which he was, during May, June and July, making a ute tray. Noise pollution is adhered to within local council requirements. The respondents attach copies of invoices from various businesses in town, some 35 minutes away from Alligator Creek, dated 10 May 2008.
• Claims that the schedule 2 by-law 7 “Leaving of Rubbish etc on the Common Property” and by-law 8 “ Appearance of Lot” may have application to apartment blocks, but not their rural acreage.
• Refutes Mr Urqhart’s claim that they flooded the grounds prior to the auction of 10 May 2008. They further allege that Mr Urqhart is not an unbiased bystander, having a considerable financial stake in the sale of the property.
• They make reference to a previous order and state that access to their property has not be re-instated after it was removed by the body corporate in April 2008.
• They conclude by stating that there are numerous accusations in the complaint trying to make a case against them, yet so little evidence to substantiate it. There are signs and these are to allow persons the prior knowledge of the problems that do exist. These are problems that the applicants would like to pass on to someone else.
  

On 1 September, Mrs Payn emailed further comments to the following effect:

• Mr Urqhart has not mentioned any of the so called “verbal harassment of potential buyers in his statement”. Had the applicants’ statement been true then surely he would have at least mentioned this.
• The words “we are the neighbours from hell” are in fact Mrs Van Zweenden’s own words.
• The document submitted by the applicants in preparing for mediation has not been sighted by the respondents before.
• Disagrees with the applicants’ statement that they cannot rent their property. Their property since May has had a tenant living in a caravan inside their shed until last week. As of Friday 26 August 2008, a family moved in and are now renting the property.
• Now that Mrs Van Zweeden has left, the respondents can be left at peace to resume a normal lifestyle.
  

The submission of Craig Melville was supportive of the applicants’ application and to the following effect:

• The information supplied by the Van Zweeden’s is definitely correct and supported by the Melvilles.
• Mr Melville has been a witness to the signs and the ongoing nuisance behaviour.
• The body corporate has tried to resolve these matters in verbal and written ways however, the respondents will not receive phone calls nor will they accept that they have received correspondence in their mailbox or mail that was sent registered mail as the letters keep being returned.
• Any of the mail that was delivered to the respondents’ letterbox was delivered by 2 members of the body corporate and documented in a diary. Within the last week, they have tried to deliver documentation to the respondents’ letterbox and it has now been removed.
• The outcome that they would hope to achieve is that the respondents are to remove the signage that is affecting the sale of lot 9 and that the respondents and family/acquaintances are to stop being a nuisance that interferes with the enjoyment of any lot, especially refraining from verbally abusing and harassing anybody, especially potential buyers as they inspect the property ot lot 9 and from creating disturbance and noise while potential buyers are viewing the property.
• They have continued to notice that the “For Sale” signs have been vandalised or removed.
• A copy of the latest “Notice of Continuing Contravention of a Body Corporate By-law” which was delivered to the respondents on 7 July 2008 is attached. All of the happenings recorded in this Form 10 took place on 10 May 2008, the date lot 9 was scheduled to be auctioned.
  

Decision

Applicable Law

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.

Findings

Erection of Signage by Respondents

Based on my reading of the application and submissions and viewing the photographs submitted, I am satisfied that the erection and display, by the respondents, of the signs referred to in the application (by the respondents’ own admission “to allow persons the prior knowledge of the problems that do exist”) and are visible from the common property road by which lot 9 is accessed, constitute a nuisance and interfere with the use and enjoyment of both the common property and lot 9. There is no doubt in my mind that the signage interferes with the useful enjoyment of both lot 9 and the common property by persons entitled to be there. I have no hesitation in making an order that those signs be removed and that no further signage be erected on the common property or lot 8 that is visible from any other lot within the scheme, or the common property, unless the express, written permission of the body corporate is first obtained.

Creation of a Nuisance on 10 May 2008 at Approximately 10am

Also based on my reading of the application and submissions, I consider it more likely than not, that the respondents did create a nuisance and interfere with the peaceful enjoyment of the common property and other lots within the scheme, but particularly, lot 9, on the day of the scheduled auction of lot 9, 10 May 2008, by creating a level of noise that interfered with the peaceful enjoyment of the common property and other lots within the scheme. In arriving at this conclusion, I prefer the account of the events as described by the applicants and supported by a statement from Mr Urqhart and a submission from Mr Melville. I do not regard the photocopies of receipts sent in by the respondents as proof of anything other than that purchases were made at those times at those places. The receipts offer no evidence as to who the purchaser was. I note, in particular, that two purchases were made within just over three minutes of each other, (one at 11:35:56 and the other at 11:39:06) at two different locations some 1.9 km apart, using two different VISA credit cards as the method of payment, tending to suggest to me that the purchases were more than likely made by two different people. In any event, the auction was scheduled to start at 10am, over an hour earlier then the earliest time indicated on the receipts of 11:07am, giving the respondents ample time to have committed the nuisance (stated by the applicants to have continued for approximately 20 minutes and by Mr Urqhart, to have continued for about 10 minutes, just before 10am) and then travelled some 30km in to town to make their purchases (a journey of approximately 25 minutes by car, accordingly to “Whereis”, not the 35 minutes alleged by the respondents). I further note that the respondents have admitted to Mr Payn making a ute tray in a huge workshop on lot 8 during May, June and July, stating that “noise pollution is adhered to within local council requirements”.

In the circumstances, I am satisfied that it is just and equitable to make an order that the respondents must refrain from creating noise or engaging in any behaviour (or permitting same) that is likely to create a nuisance or interfere unreasonably with the use and enjoyment of the common property or any other lot within Alligator Creek.

Damage to and Removal of Advertising Signage

In relation to the allegations made by the applicants concerning the respondents damaging and/or removing advertising signs placed within lot 9 and on the common property with body corporate approval to assist in the marketing and selling of lot 9, I do not consider that I have enough material before me to satisfy me that the respondents are responsible for removing the “For Sale/Auction” sign in question or damaging subsequent signs that have been erected. However, in the circumstances of this particular case, I consider it just and equitable to make an order to prohibit the respondents from interfering in any way with any signage erected on the common property or within lot 9. In making this order, I am conscious of the fact that if the respondents are innocent of the allegations made against them in this regard, they suffer no detriment. However, if they are guilty of the allegations, then not only will the applicants be able to pursue this matter with the police, but also, to initiate proceedings in the Magistrates Court for failure to comply with an order of an Adjudicator.

The respondents should note that a person who contravenes an order of an Adjudicator commits an offence and can be subject to a fine of up to $30,000.