Pine Ridge Close [2008] QBCCMCmr 49 (12 February 2008)

Last Updated: 17 April 2008

REFERENCE: 0768-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19807
Name of Scheme:	Pine Ridge Close
Address of Scheme:	482 Pine Ridge Road COOMBABAH QLD 4216

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

Body Corporate

I hereby order that the application for an order that “the noise and nuisance factors emanating from Unit 16 to cease” is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0768-2007

“Pine Ridge Close” CTS 19807

APPLICATION

This is an application dated 5th October 2007 and amended on 11th October 2007 and 16th October 2007 by the Body Corporate for Pine Ridge Close CTS 19807 (the body corporate) against Dale Collins (the Respondent) the occupier of Unit 16 Pine Ridge Close for an order that “the noise and nuisance factors emanating from Unit 16...” ceases.

JURISDICTION

“Pine Ridge Close” Community Title Scheme 19807 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 22 lots in the scheme created under a Group Title 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

(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)).

The application mentions the fact that there has been prior conciliation in this matter. Any reference to conciliation must be disregarded since whatever is said or done at a conciliation session is confidential and cannot be used either for or against either of the parties. This application is completely new and will be assessed on its merits and the material put forward by the parties in this matter, save as to any material relating to the conciliation.

SUBMISSIONS

The body corporate says that on 25th September 2007, Erol Quinn (Mr Quinn) who is a neighbour of the scheme, called the police at 1.30am as a result of loud noise and foul language emanating from Unit 16 on scheme land. Mr Quinn’s residence is situated about 6 metres from the back of Unit 16. The police were called, disturbing lot-owner Rudy van Strieland (Mr van Strieland) in Unit 5 to gain entry to the scheme at about 2.20am. Despite the police visit, lot-owner Gary Robertson (Mr Robertson) was woken at 3.45am and Mr van Strieland was again awoken, both reporting loud laughing, talking and foul language as visitors left Unit 16.

The scheme has mainly elderly residents on pensions, with the exception of Unit 16. The body corporate believes that the owner of Lot 16 sublets rooms within the unit and it says that her occupiers have no regard for other residents’ quality of life, comfort and health. The noise and nuisance from Unit 16 has been frequent since 2006 when the owner Melina Feenstra (Ms Feenstra) purchased the unit, and other lot owners have been subjected to a “barrage of loud noise” after 10pm and “innumerable breaches of the complex by-laws.”

Following the incident on 25th September 2007, the body corporate issued a Notice Regarding Likely Future Contravention of a Body Corporate By-Law (BCCM Form 11) to “ the Occupants” of Unit 16 on 5th October 2007 and sent a copy to the owner on 23rd October 2007.

The notice stated the text of a by-law headed “Noise” and that the occupier of a lot must not create a noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property. It referred to the police being called at 2.20am to quell the loud noise and foul language, the disturbance of opening the electronic gate, and the continued noise after the police had left.

The body corporate also provided in the application, copies of several other undated contravention notices sent previously to “the occupants, Unit 16” variously quoting “by-law 1”, relating to noise likely to interfere with the peaceful enjoyment of others, and “by-law 6”, relating to the behaviour of invitees breaching the peaceful enjoyment of others, and stating that these by-laws had been contravened; another to the occupants about breaching by-law 2 (parking on common property); to Ms Feenstra about breaching by-law 5 (damage to common property by allowing oil to drip from a car); to the occupants about breaching by-law 1 (noisy parties) and by-law 2 ( parking on common property); and to Ms Feenstra on 13th July 2007 (no by-laws quoted) about the noise of revelling, gun-shot sounds, speeding, parking, and garbage bins.

The body corporate also provided copies of letters written to Ms Feenstra on 5th April 2005 complaining of 3 cars parked in front of her garage and threatening to have them towed away, and reminding her about the prohibition of riding push-bikes on scheme land; on 9th August 2005 about using visitor car parks and threatening removal of the vehicle; on 29th Sept 2006 about parking on common property; on 15th December 2006, about a car leaking oil, asking her to remove the car and clean up the stains; on 12th July 2007 about noise and drinking, the scheme speed limit, and placing and removing garbage bins after collection. This letter also mentioned early morning gunshots.

Ms Feenstra and Tania Campbell of Australian Unit Administration, (the body corporate manager) exchanged several emails on 1st August 2007, following a complaint from treasurer Mr Roberston to the body corporate manager about two cars, and 5 or 6 people speeding into the complex at 4am on 1st August 2007, partying until 5.50am and using “extremely foul language.” Ms Feenstra advised that she would be going overseas until October 2007 and would not be contactable. She said that she can get more rent if she offers Unit 16 as “share accommodation” and that she would not be dealing with the tenants until after she gets back as she needed the money for her travels.

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

Submissions were received only from Timothy and Jennifer Preuss who are owners but do not live in the scheme. They are concerned at the police having to be called and worried about their own tenants.

Neighbour Erol Quinn also made a submission. Although he is not an owner or occupier within the scheme, his submission is relevant to the body corporate’s case and can be considered in the same way as if I had sought further information from Mr Quinn. Mr Quinn has kept a record of the dates on which he has been disturbed by noise, and the noises which have disturbed him and his wife. He commenced his record on 7th August 2007 and ended on 25th September 2007, the night on which he called the police. He records 9 incidents in that time mostly relating to loud noise, foul language, abusing neighbours, and raucous behaviour, late in the evening until the early hours, three incidents ending close on 4am. He also heard loud explosive sounds on five occasions around the evening meal-time and witnessed blue smoke rising from the backyard of Unit 16. He reports that two ladies in his complex are very distressed by the gunshots and fear for their safety. He says that he and his wife now wish to sell their home because of the attitude of the tenants of Unit 16.

On 19th December 2007 I sought further information from the body corporate and also wrote to the Respondent giving him a further opportunity to make a submission since I could make an order against him which could be enforced in the Magistrates Court with a maximum fine of $30,000.

The Respondent made a submission which was received on 10th January 2008. He says that on the night of 25th/26th September 2007, he was away on holiday but that his two flat-mates had a poker game with a “reasonably large group of mates” which game went on into the early hours “thus creating an unreasonable amount of noise.” He believes that it was about 4am when the police asked the flatmates to quieten down. He says that he personally has respect for elderly people, and that some of the complaints against him and his flatmates such as leaving rubbish bins for collection before and after the collection time and day, and riding a push-bike in the complex seem trivial.

He says he has made “every effort” since the date of the incident to abide by the body corporate by-laws and he believes there have been no complaints for “some time now.” He also does not know why he alone is the Respondent to the application since there are three occupiers of the unit and he thinks some matters complained of were prior to his habitation.

The body corporate manager confirmed on 7th January 2008 the date of the last contravention notice sent to the Occupiers of Unit 16, and provided a copy of the scheme by-laws and a set of House Rules for the scheme. The by-laws provided are those listed in Schedule 4 to the 1997 Act.

On 1st February 2008 I invited Ms Feenstra to make a submission in this matter since I had determined that she might have responsibility for allowing her tenants to disturb others in the complex despite frequent warnings over a long period of time. She replied on 6th February 2008 that she was overseas between 7th September 2007 and 20th October 2007, and that she had left the Respondent as the liaison person between the body corporate committee and her tenants. She says that it was therefore the Respondent’s responsibility to see that his house-mates behaved themselves. She believes the incident occurred because the Respondent was on holiday on 24th/25th September 2007 and neither he nor she have a clear understanding of what happened. She says that has been the only incident since she went away leaving the Respondent in charge.

She has now replaced one of the tenants. She accepts that the former tenants caused “noise and a few other issues” and says that it is “hard to have control over the tenants” since she does not live there or even nearby. She apologises for any noise and nuisance they may have caused to others in the complex and to adjoining neighbours in the retirement village. She says –

“I know this behaviour is unreasonable for everyone and hope that it does not occur again.”

DETERMINATION

In this matter, the event leading to this application does not seem to be in dispute. Whilst the Respondent was not at home on the night of the poker party, he thinks it likely that “an unreasonable” amount of noise was made by his flatmates and their friends, although he thinks the police called on Unit 16 at 4am and not 2.20am. Either way, “unreasonable noise” until about 4am is admitted.

There has been a history of disturbance from Unit 16, letters being written to the owner Ms Feenstra, since April 2005, earlier than the body corporate committee says it its application, when they date the starting point to some time in 2006. However, it cannot all be laid at the door of the Respondent. It seems that he is currently one of three tenants of Ms Feenstra. The body corporate complains about Ms Feenstra and her choice of tenants, saying in effect that the occupation of the unit by three individual young people is not suitable in a scheme made up of mainly of elderly residents who are pensioners, and looking for a quiet life.

The outcome sought is that the noise and nuisance emanating from Unit 16 ceases. Whilst I have no doubt that the applicants and Mr Quinn have suffered in the way described, I have some difficulty with the way in which the application has been made. The Respondent has been named only as Mr Collins, who is one of the three current occupiers of Unit 16. He has said that he was not in at home on the night of 24th/25th September 2007, and the body corporate has not provided any evidence that he was at the poker party. Ms Feenstra was also not involved in the event which culminated in this application.

Mr Collins has little to say about the other incidents, other than complaints about the timing of the bins being put in and out and his flatmate riding a push-bike seem trivial. It appears that it was not Mr Collins riding the bicycle and there is scant evidence about this incident. Each of Ms Feenstra’s tenants are not responsible for the individual behaviour of the others.

It appears to me that it is the continuing noise at night which is the chief complaint, but who can an order to cease the noise and/or nuisance be made against? Against whom can it be enforced in the Magistrates Court? Only Mr Collins who is the Respondent. And there is no evidence against Mr Collins personally. It is admitted there was a noisy all-night gathering but the persons causing that noise are unnamed or unknown. There is nothing in the letters from the body corporate to Ms Feenstra that links any of the complaints to Mr Collins as an individual.

The several contravention notices have been sent to “the occupants,” at Unit 16, and to the owner Ms Feenstra. Section 182 Act which details the information which must appear on a contravention notice does not state that the “person” to whom the notice is given, who must be the owner or occupier, must be named on the notice. “Occupier” means a resident owner or resident lessee or “someone else who lives in the lot” (Schedule 6 Act Dictionary) and it is sufficient for service of the notice that the notice is sent to “ the occupants.” It appears to be possible for courts to pass judgments against “unknown occupiers” if they are an “ascertainable group of people” such as the occupiers of a unit or the tenants of one person, but the body corporate has not framed its application in that way. In any event, I doubt the effectiveness of such an order against “ the occupiers of Unit 16” who may change. The application is only against Mr Collins.

Mr Collins might be responsible for the behaviour of his flatmates if he was the sole tenant, and the others were his sub-tenants or his guests. The body corporate has not demonstrated, perhaps because it does not know, what Mr Collins’ status is. Ms Feenstra explains that she had introduced Mr Collins to Mr Robertson so that the body corporate had a name to contact “if an event came up” whilst she was overseas, but that does not make Mr Collins liable for the behaviour of others.

My second concern is that if the application rests on various breaches of by-laws, then the legislation requires that those by-laws are first stated to the person accused of breaching the by-law before application is made to this Office or to a Magistrates Court. (Sections 182 and 183 Act) The by-laws stated in the contravention notices, and the by-laws provided by the body corporate manager are not the by-laws for this scheme.

A search in the Land Title Registry reveals that the scheme has by-laws registered as dealings L304023G, L810509V and L846716L. These by-laws were recorded respectively on 10th February 1993, 11th February 1994 and 4th July 1994, and there are 46 in all, some amended. In 2000 when the Registrar established standard community management statements for all schemes which had not registered a new community management statement since the coming into force of the Act in 1997, in accordance with the transitional arrangements, the Registrar simply stated that the by-laws are whatever they were as at June 2000. As at June 2000, the by-laws referred to were existing and they have remained static since that day.

The scheme has relevant by-laws about noise which I quote -

26 . A proprietor or occupier of a lot, their children, guests, servants or agents shall not make or permit any objectionable noises in the building or upon the parcel or interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots or those having business with them or of any persona lawfully using the common property and all musical instruments, radios, radiograms, television sets and the like shall be controlled so that the sound arising there from shall be reasonable and not cause annoyance to other proprietors or occupiers or (sic) lots. In particular no proprietor or occupier of a lot shall hold or permit to be held any social gathering in his lot or on the common property in which there shall occur any noise which interferes with the peace and quietness of any other proprietor or occupier of a lot, at any time of day or night. The volume of radio or television receivers and gramophones shall be kept as low as possible at all times and they shall not be operated between the hours (sic) of 10.00pm and 8.00am. Quiet playing of musical instruments is permissible to a reasonable extent at any time during the hours of 8.00am to 10.00pm. Practising during the same hours is permissible but for no longer than one hour at a time, or for a total of more than three hours in any day.

27. Guests leaving after 11.00pm shall be requested by their hosts to leave quietly. Quietness also shall be observed when a proprietor or occupier of a lot returns to the building late at night or in the early morning hours.

28. No child, servant or guest of a proprietor or occupier of a lot shall be permitted to cause any annoyance to any other proprietor of a lot.

However, the number and text of these by-laws have not been put to the offending Occupants of Unit 16 (nor to Ms Feenstra), so that the requirements of section 182 and 183 Act have not been met. The result is that the several by-law contravention notices sent to the Occupants and Ms Feenstra are invalid. They have some evidential weight as complaints against the Occupants and Ms Feenstra, but they cannot trigger an application to this Office or to the Magistrates Court .

Further, “House Rules” are not enforceable. Only by-laws have the force of law from the date on which they are recorded in the Land Titles Registry. (Section 179 Act). I note that the matter of bike riding, parking on common property, and garbage bins are house rules and as such merely rely on the co-operation of residents. There is no penalty if such house rules are broken.

The body corporate has a by-law about parking on common property ( which is By-Law 10) and also a by-law about towing vehicles away (which is By-law 46) but I recommend that the body corporate seeks legal advice before taking any such action. This by-law might not be lawful. I can see nothing in the by-laws about bikes or speeding. [By-law 33 is that a copy of the by-laws is to be exhibited in a prominent place where a lot is let out.]

The by-laws for the scheme have the force of law, and anyone contravening those by-laws may be fined in the Magistrates Court directly, provided that a contravention notice has been served. Alternatively, following a contravention notice, the body corporate can make an application to this Office to resolve the dispute. Non-compliance with an adjudicator’s order carries a hefty fine in the Magistrates Court. Section 288 Act provides that a Magistrate may fine up to 400 penalty points ($30,000) for a breach of an adjudicator’s order.

However, since a breach of the scheme by-laws has not been proved, I now turn to the question of “nuisance” under the Act.

The outcome sought is for “noise and nuisance” to cease. The second head might be brought under the nuisance provisions which is set out at section 167 Act 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.

This allegation does not rely on a breach of scheme by-laws.

The Respondent and Ms Feenstra have admitted that the occupiers of Unit 16 made noise. Noise is a factor which can be taken into account when determining if a nuisance has been caused under section 167 Act. Noise is something which requires objective assessment, and it is for that
reason that local authorities and the Environmental Protection Agency have established guidelines as to what constitutes a reasonable level of noise. There is a certain level of noise to be expected when one lives in close quarters with others. However, repeated loud noise in the early hours such that people in neighbouring complexes feel obliged to call the police, who in turn have to wake lot-owners in the scheme to effect entry, can be categorised as noise which causes nuisance.

There is also evidence of Mr Quinn hearing gunshots. Although Mr Quinn is not “enjoying another lot in the scheme or common property”, the fact that he could hear gunshots from neighbouring land would likely make them audible on scheme land. There is no direct evidence of a lot-owner complaining about the gunshots, though Mr Quinn says that Mr van Strieland heard them. The evidence provided shows that complaints about gunshots have not been put to the Occupants, or Mr Collins, only to Ms Feenstra, by letter dated 12th July 2007.

The body corporate has also had cause to complain to Ms Feenstra on 5th April 2005, 9th August 2005, 29th September 2006, 15th December 2006 and 12th July 2007 about car parking and vehicle use.

However, it is not demonstrated that Mr Collins has taken any part in using or permitting the use of Unit 16 to cause a nuisance or to interfere unreasonably with the use and enjoyment of another lot or common property.

The fact that many complaints have been made to Ms Feenstra directly and over time, and that there is evidence from lot-owners and others of continuous noise, parties and car noise late at night and early in the morning, seems to me to be sufficient evidence that Ms Feenstra may have permitted the use of Unit 16 in a way which interferes unreasonably with the use and enjoyment of another lot or common property. However, Ms Feenstra is not an ”occupier” of Unit 16 as defined above, which is a prerequisite of that section of the Act.

I therefore must dismiss this application. In doing so, I note that had the application been framed using the correct by-laws of the scheme with the prior formality of contravention notices quoting correct by-laws being sent to the tenants and Ms Feenstra, then the body corporate would have been successful. The veracity of the submissions made by the body corporate is not in doubt, and as such, the noise being admitted, the tenants (and Ms Feenstra) are skating on thin ice.

In her submission of 6th February 2008, Ms Feenstra says that it is hard to control tenants, but she as the landlord, is the one person who has direct control over her tenants. She has apologised for the past noise, and expresses the wish that incidents such as occurred in September 2007 will not occur again.

Ms Feenstra has a duty to the body corporate in certain circumstances to provide details of her tenants for the body corporate records. Section 140 Standard Module provides that a lot owner must give the body corporate the names of any tenants with whom she or he has a lease or sublease of a duration of 6 months or more, or a lease or sublease which has a duration of 6 months or more is transferred or terminated. (Section 140(3)(b)(ii) Standard Module.) This information must be provided within 2 months of the lease being granted and there is a fine of 20 penalty points in the Magistrates Court (up to $1500) if this information is not given to the body corporate (Section 140(2) Standard Module.)

A “lease or sublease” is not defined but in my view this would include any letting agreement or arrangement by which a tenant pays rent to a landlord.

The body corporate should seek this information from Ms Feenstra for the body corporate roll.

Ms Feenstra must also give an address for service within Australia (Section 140(3)(a)(iii) and Section 141 Standard Module) so that action taken against her by the body corporate will be properly served if served on the address given. If no address for service is given, the address is taken to be the residential address or business address, whether inside or outside Australia as last notified to the body corporate for the lot owner. (Section 141 Standard Module). In short, action might be taken against Ms Feenstra by the body corporate in her absence if she wishes to be “incontactable.”

The body corporate should also forthwith obtain copies of its by-laws from the Land Title Registry, and make them available to lot-owners and occupiers. I find that by-laws 26 – 28 could be used as a remedy by the body corporate should further unacceptable noise occur.

The by-laws are in part out of date and some may now also be contrary to legislation. The body corporate might like to consider amending and updating its bylaws, perhaps to include some of the house rules, and then registering a new community management statement in the Land Title Registry. This is of course entirely a matter for the body corporate.

Mr Quinn as a neighbour has all the remedies of civil law at his disposal. Noise, foul language and intimidation are matters which are breaches of civil and possibly criminal law, and he does not have to show that he has first tried to deal with the matter “in house” as the residents of the scheme must do. If the conduct breaches criminal law, such as firing of weapons in residential areas, the police should be alerted, by either Mr Quinn or the body corporate. This Office has no power to deal with criminal activity, and no time should be wasted on written complaints to the owner or the occupants if this occurs again.