Currumbin Sands [2009] QBCCMCmr 362 (22 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0313-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2113
Name of Scheme:	Currumbin Sands
Address of Scheme:	36/ 955 Gold Coast Highway PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Kerry Wharton, the owner of Lot 48

I hereby order that the application for an order by Kerry Wharton, the owner of Lot 48 against the body corporate for Currumbin Sands community titles scheme 2113 seeking the following outcomes: That By-Law 31 not be amended. That a barrier in the form of a dense bush, palm or similar be placed in front of the barbecue entrance to provide a barrier between people using the barbecue and Lot 48 as resolved by the committee on 21 June 2006. That Motion 8 at the Annual General Meeting dated 28 February 2008 be revoked. That large groups not be allowed to take over the barbecue area for long periods of time. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0313-2009

“Currumbin Sands” CTS 2113

The scheme
“Currumbin Sands” community titles scheme 2113 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Application
This application made on 2 April 2009 is by Kerry Wharton, the owner of Lot 48 (Applicant) against the Body Corporate seeking the following outcomes:

1. That By-Law 31 not be amended.
2. That a barrier in the form of a dense bush, palm or similar be placed in front of the barbecue entrance to provide a barrier between people using the barbecue and Lot 48 as resolved by the committee on 21 June 2006.
3. That Motion 8 at the Annual General Meeting dated 28 February 2008 (2008 AGM) be revoked.
4. That large groups not be allowed to take over the barbecue area for long periods of time.
   

The Applicant has provided information indicating that the barbecue area she refers to is to the east of Lot 48; a Lot within ‘Building B’ on copy of the site plan provided by the Applicant. In documentation provided by the Applicant it would seem the barbecue area is referred to as the ‘Estuary BBQ Area’. The Applicant states the Estuary BBQ Area is directly in front of Lot 48. She says it is one of four barbecue areas. The site plan provided by the Applicant indicates that a second barbecue area is situated in the middle of ‘Building B’, a third barbecue area is located to the west of ‘Building A’, and a fourth barbecue area is situated to the south of ‘Building C’.

The Applicant submits the original design of the Estuary BBQ Area allowed for barbequing only; all unit holders could use the area and it respected the units in close proximity. The Applicant submits she is now constantly subjected to noise and invasion of privacy and the committee have ignored her concerns about disturbances. She says that when seating was introduced, bushes were planted as a barrier for noise and privacy. She states that a second seating area has generated further noise, lack of privacy with large groups partying into the evening. The Applicant submits the committee refuses to construct a sound and noise barrier even it has agreed to do so.

The Applicant submits By-Law 31 should not be amended so that occupiers are not allowed to party on the grassed area and that tables not be joined as they encourage large groups and subsequent noise. She states a reasonable person would recognise that people partying on the lawn area will disturb the unit beside the grassed area and that large groups partying in the area will disturb residents in nearby units. She prefers a barrier in front of the barbecue entrance saying a bush near my balcony closes me in, blocks my view and is not acceptable. The Applicant argues the resolution passed on Motion 8 at the 2008 AGM has generated noise and partying that disturbs the peaceful enjoyment of property of residents in the nearby units. She states the area should be returned to its original design and the trees that were originally in this area replaced. The Applicant opposes large groups taking over the area for long periods of time saying all unit holders should be able to utilise the area as the area was originally designed and previously enjoyed.

The Applicant provided a copy of an unsigned letter dated 20 April 2007 from the owners of Units 47, 48, 63, 76, 77, 91 and 101 objecting to a proposed extension of the Estuary BBQ Area claiming (amongst other things) that it will detract from the value of their properties and will encourage larger groups to gather in the area adding to the noise problems. She also provided a copy of a letter dated 5 November 2008 she wrote to the chairperson saying she would like a barrier to be a height whereby people at the Estuary BBQ Area cannot look directly into Lot 48 and so that she can look out at the estuary without imposing on the people in the Estuary BBQ Area.

The Applicant has provided photographs of the Estuary BBQ Area and Lot 48.

Submissions to the Commissioner
On 15 April 2009, the Commissioner provided a copy of the application to Ernst Body Corporate Management Pty Ltd (Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

The owners of Lots 5, 6, 27, 28, 31, 41, 47, 53, 54, 55, 71, 76, 78, 80 and 107 opposed the application variously stating: they are happy with what has been done at the Estuary BBQ Area; it is fair that people use this area to cook and eat without excessive noise; there is noise from other sources; the scheme is ‘resort style’ with pools, barbecue areas, and grassed and gardens areas for all to use; and the Estuary BBQ Area is no different to the other two barbecue areas.

The owner of Lot 63 stated there is an increase in noise and lose of privacy as a consequence of the Body Corporate decisions. The owner of Lot 82 opposed the application and the proposal to build a screen which would obscure their view. The owner of Lot 91 supported the application submitting the additional seating has caused larger groups to use the area increasing noise; there is no privacy and the outlook from units has been compromised; the area should be fenced off; and the pool area has always been the area for use by larger groups. The owner of Lot 101 stated that as an original owner, their understanding was that the Estuary BBQ Area was for cooking food as it was located close to units. They outlined incidents they have witnessed in the Estuary BBQ Area saying that at times small group’s seat at the tables to drink which can be uncomfortable for people using the barbecue. They say the pool area is the place for larger gatherings.

The committee submit with respect to the:

• First outcome – The Motion was validly resolved; the By-Law does not conflict with any other by-law or the legislation; and there is no authority to declare the Motion not amended.
• Second outcome – The committee has been willing to extend the height of plants in gardens in front of Lot 48. The installation of a barrier as suggested by the Applicant would not resolve the matter and would restrict the use of the area by other owners and occupiers. The improvement provisions stated in section 161 of the Accommodation Module limit the power of an adjudicator to make orders. The committee provided a copy of committee correspondence to the Applicant:
  • − Dated 2 September 2008 which discussed other sources of noise saying that the committee cannot set too many exclusions about people meeting in a barbecue, pool or lawn area provided it does not get out of control, and stating it takes the concerns of residents seriously.
  • − Dated 19 January 2009 stating: a clear directive is needed about the proper use of the barbecue area so that everyone knows what is acceptable and there is a clearly defined remedy process; it would not erect a structure on the lawn area but that it would allow increasing the height and density of shrubs and bushes in front of the balcony of Lot 48.
  • − Dated 14 April 2009 stating it is not inclined to take up lawn space with gardens or structures.
• Third outcome – Motion 8 related to improvements and was validly approved by ordinary resolution. As the three month time limit stated in section 242 of the Act has passed, there is no authority to revoke the Motion.
• Fourth outcome – A sign in the Estuary BBQ Area states: “For the peaceful enjoyment of all occupants. This BBQ area must be vacated before 9.30p.m. Please keep noise to a minimum at all times. Parents please supervise children.” The Estuary BBQ Area is monitored by the Building Manager, committee members and a Body Corporate engaged security company to ensure the by-laws and rules are complied with. Since the improvements were approved at the 2008 AGM, there has not been a written complaint received from any other owner or occupier who has been affected by the improvements made to and the use of the Estuary BBQ Area.
  

The Applicant made a written reply to submissions. She states denying an owner the right to peace and enjoyment so that other owners and guests can use the Estuary BBQ Area on an unrestricted basis does not allow the affected owner the protection of By-Laws 1 and 31(a). The Applicant questions the need for By-Law 31(a) when the opinions of owners not directly affected by the location of the Estuary BBQ Area outweigh those of owners who are legitimately affected by the issue. She says the Area has become a regular meeting place for a group of men who get noisier as time passes. The Applicant requests a barrier in front of the Area similar to the two pool area barbecues. She submits the barbecue at the back of the estuary apartments has one seating area and is located below the level of the first floor of the apartment block. The Applicant states many owners opposing the application have units that are not near the Estuary BBQ Area, they are not affected by persons using the Area and they do not have direct knowledge of the issues involved. In response to the submissions by the owner of Lot 82, the Applicant states they have been misinformed as to the location of the buffer; it is proposed to be close to the Estuary BBQ Area not in the middle of the lawn area.

In response to the committee’s submissions about the:

• First outcome - The Applicant states By-Law 1 is the first by-law because of its importance; it should have precedence over other by-laws and by-laws cannot be changed that would interfere with this. She submits a reasonable person would believe a group partying on the Estuary BBQ Area or the lawn area would breach a unit occupier’s peaceful enjoyment.
• Second outcome - The Applicant referred to the following correspondence. On the 15 August 2008, she wrote to the chairperson about problems experienced when groups of people use the Area. In a letter to the Body Corporate dated 13 January 2009, the Applicant detailed two incidents that occurred in the Area. In a letter dated 30 March 2009 to the chairperson, the Applicant requested the installation of a sound and privacy buffer suggesting that a dense shrub/palm tree in front of the entrance to the Area is acceptable.
• Third outcome – She acted on the advice of the chairperson to see how it goes; it hasn’t worked and affected owners have been ignored.
• Fourth outcome – The sign is often ignored. The Manager and committee members rarely monitor the area. Noisy groups are only spoken to after complaints from residents.
  

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act).

Decision
By-Law 31
The minutes of the Annual General Meeting dated 19 February 2009 (2009 AGM) indicate that Motion 12 was resolved by special resolution to record a new By-Law 31(a).

When the application was made, community management statement recorded by the registrar of titles on 6 June 2006 (No. 709602474) applied. By-Law 31(a) in schedule C of this statement provided: “In relation to the use of the barbecue areas an owner or occupier of a lot shall ensure that he and his invitees do not unreasonably disturb the peaceful enjoyment of any other owner or occupier of another lot or of any person lawfully using the common property”. The By-Law contained three other provisions not in dispute in this application.

It is not disputed that the Body Corporate resolved at the 2009 AGM to delete the abovementioned By-Law 31(a) and insert a new provision. As the Applicant has not contested the administrative processes involved in passing Motion 12, for the purposes of determining this application I am satisfied the resolution was passed in accordance with the Act.

On 20 April 2009, the registrar of titles recorded a new community management statement (No. 712349609) containing a new By-Law 31(a) providing:

“In relation to the use of the barbecue areas an owner or occupier of a lot shall ensure:

(a)(i) The barbecue area may be used during the designated times for the purpose of cooking food and preparing and serving and eating food in and around the designated seating areas and barbecue enclosure. Use of this area shall also include the adjacent lawn area. Those using the area shall at all times be considerate of neighbouring units and shall not engage in ball games, use offensive language, yell or scream or unreasonably disturb the peaceful enjoyment of any other owner or occupier of another Lot or of any person lawfully using the Common Area. Noise levels should be kept to a level consistent with a beach side open air dining environment. It is permitted to join tables as desired.

(ii) In respect to the proper use of the area, the committee shall vest in the Manager or its assignee, the responsibility to assess what is reasonable use of the area, and further the adjudication of “unreasonably disturb the peaceful enjoyment”, pursuant to By-Law 31(a)(i). Where the manager is not available, any one of the other committee members, as an agent of the manager, shall make the determination regarding the proper use of the barbecue area. Unit owners should therefore submit to the determination of the manager in this respect and where a problem occurs, ask the manager to evaluate the situation and deal with the situation, and not themselves engage in direct assessment, direction and conflict with those using the area.”

There is no suggestion the statement affected the three other provisions of the By-Law. As the application was made before the new statement was recorded, there is also no controversy that the new By-Law 31(a) is inconsistent with the resolution passed on Motion 12 at the 2009 AGM (s 64, Act) or that it is invalid for another procedural or administrative reason. It could be argued the application seeking an outcome of the nature of the first outcome is premature as the amended By-Law did not effect when the application was made. “A by-law comes into force on the day the registrar records the community management statement containing the by-law or a later date stated in the by-law” (s 179, Act). However, given the amended By-Law now applies, I have proceeded on the basis that there is a dispute about the amended provisions.

The Applicant argues against the amendment. The committee has made submissions about the power of an adjudicator to make a decision in the terms sought. An adjudicator may make an order of a nature stated in schedule 5 of the Act (s 276(3), Act). Section 20 of schedule 5 provides: “If satisfied a by-law is, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable—an order requiring the body corporate to lodge a new community management statement—(a) to remove the by-law; and (b) if it is appropriate to restore an earlier by-law, to restore the earlier by-law.”

Reasonableness is a question of fact. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’: [Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621. See also McKinnon v Treasury [2006] HCA 45 per Hayne J at paragraph 61]. The question is not whether the decision to amend the By-Law was the "correct" one but whether it is objectively reasonable [Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at pages 34, 38].

The Applicant’s argument, as expressed at the 2009 AGM, is that the amended By-Law 31(a) will: exacerbate an existing problem; change the tone and purpose of the Estuary BBQ Area; be to the detriment of surrounding owners; and limit the use of the Area.

Significantly, the amendment does not remove a right or obligation that existed previously; it provides new rules about reasonable behaviour and establishes guidelines for dealing with issues internally. The By-Law continues to require that an owner or occupier using a barbecue area not unreasonably disturb the peaceful enjoyment of any other owner or occupier of another lot or of any person lawfully using the common property. The By-Law continues to apply equally to all barbecue areas. It does not distinguish the Estuary BBQ Area from the other barbecue areas. I note the argument about the original design of the Estuary BBQ Area; however it is difficult to understand how provisions of the nature stated in By-Law 31(a) are the cause of the claimed issues which are the basis for this application.

The Applicant is clearly concerned about the effect of the amendment on another person’s use of their lot and use of the Estuary BBQ Area. I do not necessarily agree that the alleged behaviour of persons using the Area can be attributed to the amendment. There is nothing in the previous By-Law 31(a) that prevented a person from eating or socialising at a barbecue area. The Area and the land in its immediate vicinity is common property. The general rule is that a person’s use and enjoyment of the common property is subject to the section 167 nuisance provisions of the Act or a by-law regulating use and enjoyment of common property. It may be have been a policy, house rule or some other accepted practice that the Area was used for cooking only, but nothing has been presented (and I could not find anything in the by-laws) which indicates the basis for this view. I note that By-Law 30 provides the committee may make rules about common property. No material has been presented demonstrating that the committee had made particular rules which were enforceable and which have now been changed.

The Applicant has provided correspondence indicating concerns she had with the use of the Estuary BBQ Area at various times while the previous By-Law 31(a) applied. I do not agree there is a justifiable reason to suggest the current By-Law 31(a) will aggravate these claimed problems. In fact, it could be argued the current By-Law provides clarity and direction. This is suggested in the committee letter dated 19 January 2009. In my view, the Body Corporate has acted appropriately and in a way consistent with its legislative obligations to control common property barbecue areas by making the changes. I do not agree the amendment encourages people to use the Estuary BBQ Area; it regulates the use and enjoyment of all barbecue areas. In my view, there is no objective basis to assert that the change to By-Law 31(a) is the cause of, or contributes in a significant way, to the problems listed by the Applicant.

The Applicant has made a number of statements about By-Law 1. I do not agree that the number of this By-Law has any relevance to its significance. I am not aware of any hierarchy or ranking of by-laws simply because of the place the by-law is stated in schedule C of the community management statement. By-Law 1.1 regulates noise generally on common property and lots. By-Law 31(a) makes specific provision for behaviour when using a barbecue area. As I stated above, section 167 of the Act relates to nuisance and provides that an occupier must not use or permit the use of common property in a way that causes a nuisance or hazard, or interferes unreasonably with the use or enjoyment of another lot, or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

In my view, there is not an objective basis to find the provisions of By-Law 31(a) to be oppressive or unreasonable. For these reasons, I have dismissed the first outcome sought.

A barrier
The Applicant argues that a barrier in the form of a dense bush, palm or similar be placed in front of the entrance to the Estuary BBQ Area to provide a barrier between people using the Area and Lot 48. The Applicant has relied on the following decision of the committee at its meeting dated 21 June 2006 (at Item 3.11 of the minutes): “that the Body Corporate Manager...advises the Owner of Lot 48 that the Body Corporate has instructed the Building Manager to investigate the installation or erection of a sound and privacy buffer as requested.”

I do not consider this decision obligated the Body Corporate to install a buffer. It required the Building Manager to investigate the matter. While the outcome of this investigation is uncertain, the Applicant has not provided any material demonstrating that a barrier was suggested or recommended as a consequence of the investigation, that the recommendation would remedy a discernible problem, and that the Body Corporate unreasonably decided not to install the recommended barrier.

The committee has made submissions about the effect a barrier may have on the use and enjoyment of common property. The Body Corporate is entitled to have regard to this issue. While I agree with the Applicant that all factors should be considered, on balance I do not consider it has been demonstrated that there is a justifiable basis in the circumstances to warrant making an order in the terms sought. The Body Corporate has provided an option that is not acceptable to the Applicant. While I appreciate the Applicant’s concerns about the impact the increased height of a bush may have on the use and enjoyment of Lot 48, I do not consider the Body Corporate now has to do work on a common property facility that has existed since the inception of the scheme for the reason that the facility may be used more regularly than previously.

In my view, the Body Corporate has not been shown to have acted unreasonably with respect to its consideration of this issue. For these reasons, I have dismissed the outcome sought.

Motion 8 at the 2008 AGM
The minutes of the Annual General Meeting dated 28 February 2008 (2008 AGM) indicate that Motion 8 was passed to install “additional paving to the Estuary BBQ Area, the purchase and supply of an additional table chair setting for four people and unobtrusive lighting to the barbeque area...”

The Applicant questions the resolution passed on the Motion on the basis of its claimed effect on the peaceful enjoyment of nearby lots. The Applicant has not argued that the resolution is invalid. As stated by the committee, if the Applicant had done so, there is an issue relating to the time taken to dispute the resolution. Section 242 of the Act provides that an application relating to the validity of a resolution passed in general meeting must be made within three months of the resolution being passed. An adjudicator may, for good reason, waive non-compliance with this requirement (s 242(4), Act). The Applicant has not provided any reasons for the delay other than that the chairperson has suggested that they wait to see what happens. In the circumstances of this dispute, I do not consider the Applicant is arguing that the resolution passed is invalid. Even if she had, it would seem the decision relates to the administration, management and control of common property (s 94 and 152, Act). As submitted by the committee, the resolution was made in accordance with the common property improvement provisions (s 161, Accommodation Module). The table and chair setting may be an asset (s 11, Act). A body corporate may acquire an asset (s 164, Accommodation Module).

The Applicant suggests that the resolution should be revoked; something that can be decided by the Body Corporate (s 93, Accommodation Module). As there is no evidence that the Applicant has asked the Body Corporate in general meeting to revoke the resolution, there is a question about whether a dispute exists between the Applicant and the Body Corporate about this matter. Despite this issue, I have decided to determine the outcome sought about Motion 8 given its relevance to the concerns being expressed about the use and enjoyment of the Estuary BBQ Area.

In this regard, it would seem the only question is whether the resolution has, as a consequence of being implemented, caused an issue or problem that can only be rectified by removing the paving, the table and chairs, and the lighting. The Applicant seeks the outcome on the basis of the claimed effect of the resolution. I do not consider there is an objective basis to contest the resolution for the reason that some persons who may use the relevant common property area and the furniture act in a way that is claimed to contravene a provision of a by-law and/or the Act. There is nothing to suggest the lighting approved by the resolution is an issue.

I do not think it has been demonstrated that the implementation of the resolution has contributed to the alleged problems. The Body Corporate has provided facilities or amenities on common property. There are similar barbecuing facilities on other parts of scheme land, and while it may have been generally accepted that other parts of scheme land would be available for particular purposes, I do not consider it is demonstrated that the Body Corporate acted contrary to the Act by providing amenities on common property for the use and enjoyment of persons lawfully on common property; amenities which are generally complementary with the existing facility. The fact that amenities of the nature determined by the resolution were not previously on or around the Estuary BBQ Area does not prevent the Body Corporate from subsequently deciding to do something to enhance or enable the use and enjoyment of common property.

I do not agree that it is clear that the Body Corporate has acted unreasonably in the circumstances to warrant revoking the resolution passed on Motion 8. For these reasons, I have dismissed the third outcome sought.

Large groups
The Applicant expresses concern about the frequency with which large groups now take over the Estuary BBQ Area denying others use of the Area. This is a difficult matter to regulate. As with any generally accessible facility, problems may arise about use of the facility especially at times when demand is high. A consequence may be that persons wanting to use the facility may have to wait or may feel uncomfortable if other persons are nearby. I do think there can be any difference in this regard between the use and enjoyment of a common property barbecue area and the use and enjoyment of another part of common property such as for example, a pool, spa, tennis court or lawn area.

I do not think the Body Corporate can do what is suggested in the outcome sought. The Body Corporate is entitled to make decisions about common property, and as I have stated, I do not think that the circumstances stated in this matter suggest that a decision to place two tables and accompanying chairs on the common property in the vicinity of the Estuary BBQ Area is unreasonable. Certainly, nothing has been presented to suggest that a large group (whatever that may entail) should only gather on a common property pool area. I do not agree that it can be objectively concluded that any ‘large group’ will cause noise.

The Body Corporate is obliged however to ensure that an owner or occupier does not unreasonably disturb another person’s lawful use of common property, including a barbecue area. If necessary, the Body Corporate may need to enforce a by-law such as By-Law 1 or 31.

For these reasons, the outcome sought is dismissed.