Buchlyvie [2009] QBCCMCmr 375 (2 October 2009)

Number of Scheme:	17493
Name of Scheme:	Buchlyvie
Address of Scheme:	40 Kadumba Street YERONGA QLD 4104

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

I hereby order that Joseph Motteram, occupier of unit 5, Buchlyvie, 40 Kadumba Street Yeronga (respondent) must not, for a period of one year, use or permit the use of his lot or the common property in a way that interferes unreasonably with the use or enjoyment of the common property or another lot included in the scheme.

Buchlyvie Community Titles Scheme (Buchlyvie) is a 6 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by the body corporate for Buchlyvie (applicant) seeking orders against Joseph Motteram, occupier of unit 5 (respondent). The body corporate seeks an order requiring the respondent to comply with section 167 of the Act. This section provides an occupier must not use or permit the use of the lot or the common property in a way that causes a nuisance or hazard, 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.

The main grounds in support of the application, provided on behalf of the body corporate, were to the effect that the respondent has subjected residents and neighbours to an unreasonable level of disturbance in the nature of shouting, swearing, banging of doors and loud music.

All owners were given an opportunity to provide written submissions. Two owners made submissions complaining of unacceptably loud music. One owner also complains of violent outbursts of swearing, shouting and banging on walls.

The owner of unit 5 has also lodged a submission indicating that the respondent is her son, that there is a problem that needs to be addressed, but that the medical condition of her son should be taken into account in judging whether he has taken reasonable steps to comply. It is submitted that retaliatory action in the past from an occupier of lot 3 precipitated a psychotic episode and hospitalisation and that some concessions should be made to facilitate the right of the mentally ill to live in the community provided this does not impose unjustifiable hardship on the people around them. It is submitted that steps have been taken to mitigate the noise problem by installing a split system air conditioner, installing sound insulation and an additional wall between units 5 and 6, and installing heavy duty sound insulation in the ceiling of unit 5.

A submission from the respondent is to the effect that he suffers from schizophrenia and experiences auditory hallucinations. He submits that when he hears voices he tries to deal with them by playing music to block out the voices and sometimes shouting to try to deal with the voices. Also, as a result of his medication, his sleep patterns can be disturbed. The respondent submits that he has enrolled in a music course to get him out of his unit and pursue this interest and that he believes changes to his medication have resulted in his mood improving. He also says that his telephone account was suspended for a period which may have prevented Val Morris from contacting him but that there have also been occasions when unit 3 has played loud music which may have been mistaken for him. The respondent submits that the installation of sound insulation, use of a decibel meter to measure the noise level of his music, and moving the music equipment to the room furthest away from the other units should minimise any disruption to other residents.

The legislation provides that 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 causes a nuisance or hazard, interferes unreasonably with the use or enjoyment of another lot included in the scheme, or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property (Act, 167).

Having reviewed the material provided by the body corporate and the various submissions I am satisfied that the respondent has created excessive noise in his unit on numerous occasions. In particular, various police reports satisfy me that loud music has been played by the respondent at numerous times. I am satisfied that this noise is sufficiently excessive that it amounts to a noise nuisance. I am also satisfied it amounts to unreasonable interference with the use or enjoyment of other lots in the scheme, which I consider to be a lower standard.

Having reviewed the respondent’s submissions, I accept that his illness is a significant causative factor to the incidences where he has contravened the legislation by playing excessively loud music or by shouting. More importantly, it appears from the submissions that the respondent is beginning to take responsibility for his behaviour by seeking to improve his medication and seeking to improve the sound insulation of his unit. Possibly he could even use headphones at night or use an appropriate method to muffle shouting. Hopefully, by taking these steps, the respondent will be able to ensure that he does comply with the laws that apply to living within a community titles scheme.

I can understand submissions from the respondent’s mother that his illness needs to be taken into account. Hopefully if the respondent maintains good relationships with other occupiers then further incidents might be quickly resolved by other occupiers reminding the respondent of his responsibilities. However, as a matter of law, if the respondent chooses to live within a community titles scheme then he needs to ensure he can comply with the applicable legislation.

An adjudicator may make an order that is just and equitable to resolve a dispute in the context of a community titles scheme (Act, 276). I am satisfied that the respondent has contravened section 167 of the Act on numerous occasions and it is appropriate upon the present application that I make an order requiring that he comply with the substantive obligations imposed by this section. This order and reasons for decision confirm that the respondent has contravened section 167 of the Act on numerous occasions in the past and the order will have the effect of putting the respondent on notice that any further contraventions during the period the order is effective may result in the body corporate seeking a monetary penalty against the respondent. This penalty may be sought in the Magistrates Court for an amount of up to $40,000 (Act, 288).

In all the circumstances, I consider it appropriate that the order I make be effective for a period of one year. If the respondent is able to comply with this order for a year but subsequently creates a nuisance or unreasonable interference with other occupiers then the body corporate will need to return to this office to try to resolve the dispute before seeking any monetary penalty for contravention of section 167 of the Act.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Buchlyvie [2009] QBCCMCmr 375 (2 October 2009)