LA Provence [2010] QBCCMCmr 56 (10 February 2010)

Last Updated: 23 March 2010

REFERENCE: 0551-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5123
Name of Scheme:	La Provence
Address of Scheme:	12 Canal Avenue RUNAWAY BAY QLD 4216

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

Thomas O’Keeffe & Judith Burrows, the Owner(s) of lot 12

I hereby order that, within two months, the body corporate must replace all door closers on entrance doors to units and on common property doors except for any door closers that have been recently replaced. I further order that the body corporate must then adjust all those door closers so as to ensure they are functioning correctly and do not result in excessive noise from the banging of doors. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0551-2009

“La Provence” CTS 5123

Application

La Provence Community Titles Scheme (La Provence) is a 13 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 and lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Thomas O’Keeffe and Judith Burrows, owners of lot 12 (applicants) seeking orders against the body corporate for La Provence (respondent).

The applicants are seeking an order to require the body corporate to replace all door closers on entrance doors to units and on common property doors.

The applicants are also seeking an order to require the body corporate to take action to require the owner of lot 8 to relocate an allegedly noisy air conditioner.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicants, were to the effect that:

• The main problem is excessive noise from unit 8;
• There is noise from slamming of doors at all hours of the day and night; and
• There is noise from a compressor which has been installed without approval on the front balcony of unit 8 that operates all day and night.
  

The body corporate was given an opportunity to provide written submissions. The main submissions by the committee on behalf of the body corporate were to the effect that:

• The committee has asked occupiers to check their door closers and has had a tradesperson check the common property door closers; and
• Approval for the unit 8 air conditioner was granted in January 2005.
  

A copy of a request for approval for the installation of a Minstral 1.5hp air conditioner dated 16 January 2005 and purporting to be approved by the committee was provided.

All owners were given an opportunity to provide written submissions. The main submissions by owners were to the effect that:

• As owner and occupier of unit 1, I have never heard the air conditioner at any time and it was installed as agreed by the then committee at the time. The matter of the door closers is being dealt with;
• As owner of unit 8, I think Thomas O’Keeffe unreasonably harasses occupiers until they leave. The tenants of unit 8 have now vacated and there is no need for dispute resolution;
• Our tenants of unit 11 have never complained about noise from unit 8. The body corporate has taken action to rectify the maintenance of door closers; and
• Our tenant of unit 3 has assured us that there are no noise issues.
  

The applicant exercised the right to inspect the submissions and then replied to those submissions to the effect that:

• The door closers have deteriorated to the extent that expert professional advice he obtained was that they needed replacement and any further attempts at adjustment would be only a stop gap measure;
• One door that was adjusted now does not open to its full extent yet slams more loudly than previously; and
• The validity of the approval for the lot 8 air conditioner is doubted in light of the long standing policy that approval would not be granted for compressors to be mounted on front balconies. We were advised of this policy when we purchased our unit.

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)).

In the circumstances of the present application I informed the applicants and the body corporate of a provisional view that the body corporate is responsible for the doors and fittings and should be required to replace the door closers. I also informed the parties of a provisional view that there was insufficient evidence to allow a determination of whether the noise from the air conditioner was excessive and invited the applicants to provide a report from an independent acoustical engineer regarding the level of noise within the applicants’ apartment. The applicants subsequently indicated that they would not be providing a report from an independent acoustical engineer.

Determination

Findings

I am satisfied from the submissions that the door closers were not working effectively. I am further satisfied from the applicants’ submissions that the door closers have deteriorated to the extent that they need replacement and any further attempts at adjustment would only provide very temporary improvements. In this regard, I am satisfied that it is more likely than not that the door closers have reached the end of their useful life and are not currently being maintained in good condition.

There is nothing in the submissions that satisfies me that it is more likely than not that the noise being created by the unit 8 air conditioner is excessive or otherwise contrary to the legislation or by-laws. In light of the submissions as a whole it is more likely than not that the air conditioner was properly approved and that it does not create unreasonable levels of noise. The copy of the letter of 16 January 2005 satisfies me that the owner of unit 8 sought approval from the body corporate for installation of the air conditioner and this approval was granted. Further, this approval was not challenged within the three month time limit (Act, 242). Submissions from a number of owners indicate that there are no noise issues at the scheme and there is no evidence that would lead me to conclude that the air conditioner in question is unusually noisy as a result of being faulty, unusually powerful, or especially old.

Requirement to replace door closers

Where a community titles scheme is created under a building format plan, the body corporate is responsible for maintaining common property in good condition as well as doors, windows and associated fittings in boundary walls that separate a lot from common property (Standard Module 159(1), 159(2)(a)(ii)).

I am satisfied that any door closers that have not been recently replaced are no longer in good condition and should be replaced by the body corporate. I am further satisfied that the body corporate should adjust all door closers so as to ensure they are functioning correctly and do not result in excessive noise from the banging of doors.

No requirement to take action in relation to air conditioner

I am not satisfied that the air conditioner for unit 8 is unusually noisy or otherwise contravenes the legislation.

The applicants have failed to provide any legal basis for their claim that the body corporate should take any action in respect of this air conditioner.

Order

For these reasons, I make the order above.

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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.