Beachwalk [2010] QBCCMCmr 21 (15 January 2010)

Last Updated: 19 March 2010

REFERENCE: 0535-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	700
Name of Scheme:	Beachwalk
Address of Scheme:	16-20 Rutherford Street YORKEYS KNOB QLD 4878

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

the body corporate

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0535-2009

“Beachwalk” CTS 700

Application

Beachwalk Community Titles Scheme (Beachwalk) is a 20 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 Beachwalk (body corporate) seeking orders against Heidi Wheeler, owner of lot 12 (lot 12 owner). The body corporate is seeking an order that the lot 12 owner not make excessive noise or otherwise unreasonably interfere with the peaceful enjoyment of the scheme and take reasonable steps to ensure that her invitees not make excessive noise or otherwise unreasonably interfere with the peaceful enjoyment of the scheme.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the body corporate, were to the effect that the lot 12 owner and her invitees had caused a number of noise disturbances at the scheme. Copies of letters to the lot 12 owner indicted that police had attended on some occasions and that Senior Constable Antony Kirkman had been involved.

Submissions from the lot 12 owner were to the effect that the information supplied was not correct, that some owners have no concerns, some occupiers other than her are ignored, and that the police had been contacted on numerous occasions but no formal noise abatement direction or fines had been issued.

All owners were given an opportunity to provide written submissions. All submissions are available for inspection by interested persons and it is unnecessary to summarise the submissions here.

Investigations following receipt of submissions

The above submissions were received through the legislated processes for inviting written submissions from the body corporate and any persons affected by a community titles scheme dispute (Act, 243). Even where the body corporate makes a submission, it is not unusual for a large proportion of owners to also make their own individual submission. Each person who makes a written submission is effectively joined to the proceedings and given a right of appeal (Act, 289). This overcomes any concern that the particular position advanced in the name of the body corporate only reflects the views of a couple of committee members.

The legislation does not provide for a formal hearing at which the various persons affected by the dispute can further argue their case. In some circumstances it is appropriate for an adjudicator to make a determination based solely on whatever written submissions have been provided.[1] However, an adjudicator will need to undertake appropriate investigations if there is insufficient material for the adjudicator to make an express finding on relevant matters.[2] In carrying out these investigations, the adjudicator must act as quickly and informally "as is consistent with a fair and proper consideration of the application" (Act, 269(3)(b)). Despite this need to act quickly and informally, a teleconference or a further round of written submissions may be necessary to allow relevant persons to respond to any significant information obtained in these investigations (Act, 269(3)(a)).

I contacted Senior Constable Antony Kirkman who was unable to give me any details to satisfy me that it was appropriate to make the orders sought. The by-law for Beachwalk are of a general nature and there was no satisfactory evidence of the lot 12 owner breaching a contravention notice. Also, the claim that noise created by other occupiers was being ignored raised questions regarding the general levels of noise within the scheme and the amount of noise necessary to interfere with the peaceful enjoyment of other occupiers. In particular, it would not appear contrary to the by-laws for persons to hold a party involving some noise audible from other lots or for persons to talk quietly on a balcony even late at night. I therefore invited relevant persons to provide detailed information regarding noise disturbances created by any occupier including details of steps taken to alleviate the noise disturbance by persons who were disturbed by the noise as well as steps taken by persons alleged to be creating a noise disturbance. Despite allowing from 30 November 2009 until 11 January 2009 to provide this information, no response containing such further information has been received.

Not just and equitable to grant order sought

The body corporate has failed to provide information necessary to establish that it is just and equitable to make an order against the lot 12 owner. In particular, the by-laws are of a general nature and do not set any specific requirements such as avoiding any noise at night that is clearly audible from inside another lot or requiring an occupier to close doors and windows after a certain time to limit any unavoidable noise.

In particular, there is some evidence of isolated incidents of noise that involved the lot 12 owner. However, these incidents were mostly prior to the body corporate issuing a contravention notice and cannot be relied upon as the basis for an order relating to a failure to comply with a contravention notice. Subsequent complaints primarily related to noise created by invitees of the lot 12 owner rather than the lot 12 owner herself and I cannot be satisfied of any particular failure of the lot 12 owner to take reasonable steps to avert this noise. I also cannot be satisfied of the reasonableness of the order sought against the lot 12 owner in the absence of any evidence of the general noise levels tolerated at Beachwalk and the comparative levels of noise created by other occupiers.

Hopefully the lack of provision of further information regarding noise disturbances indicates a lack of any significant recent disturbances. However, if this is not the case, owners and occupiers may wish to discuss the levels of noise that are acceptable within the scheme and the preferred steps to be taken for minimising noise within the scheme. If owners chose to adopt new by-laws based on such discussions then it may be easier to deal effectively with any future incidents of noise disturbance.

Order

For these reasons, the application is dismissed.

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[1] Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JA, Keane JA, Cullinane J, 9 September 2005, per Keane JA at paragraph 31.
[2] Johnston v The Body Corporate for Waterside Runaway Bay CTS 34678 [2009] CCT KA008-08, KD Dorney QC, 6 February 2009 at paragraph 25.