Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS; NUISANCE; COSTS - The applicant accuses the respondent of:

• breaching the by-laws by making excessive noise, leaving various personal items on the common property, and damaging a tap and some fence palings, and
• causing a nuisance by increasing all owners' water bills with his excessive watering of the lawn and pot plants.

The applicant wants the noise and excessive water consumption stopped, the respondent's personal items removed from the common property, the common property repaired, and reimbursement paid to other owners for their excessive water bills and to the body corporate for costs incurred in relation to the dispute.

Act, ss 62(3)(a), 167(1), 168(2), 195, 196, 280; Standard Module, ss 135, 160(2), 162(5); Building Units Titles Act 1965, s 13_; Building Units and Group Titles Act 1980,_ s 5(10); Land Title Act 1994, s 49C(4).

1. The respondent must not play his music at a volume likely to interfere with the peaceful enjoyment of other lots or the common property. Occupiers of other lots should not need to raise their voices, turn up their own devices, or close windows and doors to keep his music to a low, background level.
2. The respondent must ensure his personal items on the common property do not kill or otherwise damage parts of the lawn.
3. The respondent must not deposit food waste on the common property lawn.
4. The application is otherwise dismissed.

• [1] The body corporate says Mr Schlacher of lot 2 is breaching the by-laws and section 167(1) of the Act. It seeks orders in the following terms:
  1. Noise: That Thomas and the residents and visitors of unit 2 keep their noise level to a minimum and that loud noise and gatherings that can be heard from neighbouring lots cease by 9pm. Should Thomas sing or play music, to do so quietly and not disturb the peaceful enjoyment of another lot or on common property. That Thomas does not play any music or radio when he is not home.
  2. Use of washing lines: That Thomas utilizes the designated washing lines in a respectful manner by ensuring that his laundry is taken in when it has dried and not left on there for extended periods of time with a maximum period of 36 hours. That Thomas does not use any tree or rope as an additional washing line for laundry or hanging of clothing off coat hangers. That Thomas removes the rope from the two trees that are on common property that he has been using as a washing line. That Thomas hangs an article of clothing over one line of the communal washing lines and not multiple lines per article and that he keeps his washing confined to one area of the washing line and not spread out across the whole thing.
  3. Use of common property: That Thomas to remove all personal items...from the common property immediately and that no items or belongings are to be stored, placed or located on the common property without body corporate approval in the future...
  4. Damage and vandalism to common property: That Thomas fixes and repair the two currently damaged fence palings and fix or reinstall the tap handle. Any future damage to common property that may be caused by Thomas or the residents or guests of unit 2 to be repaired immediately by Thomas or for Thomas organize a qualified tradesperson to do so and at Thomas' expense.
  5. Water usage: That Thomas use all hoses and taps reasonably and respectfully for no more than a maximum of 5 minutes a day and that a hose may not be left unattended if in use. That no hoses be used as a sprinkler, nor any sprinklers be able to be used. That Thomas' personal hoses be removed from the common property tap and stored within his lot or garage immediately when not in use.
  6. Reimbursement of expenses: That Thomas reimburses the owners of units 1, 3 and 4 the sum of: $345.82 each for the increased and excessive use of water. That any increases incurred in the quarter dating 06/11/2024 - 31/1/2025 and if necessary future quarters, also be paid to each lot owner. That Thomas reimburses the following costs incurred to the body corporate: $300 for VOC meetings, $110.30 for conciliation lodgement fees, $110.30 for adjudication lodgement fees and any other reasonable costs that the body corporate may incur in the future relating to this matter including but not limited to legal cost, court fees or administrator costs.
• [2] Mr Schlacher said in his submission in March 2025 that all contraventions had been brought to an end and no further action was necessary. The body corporate acknowledged in reply that there had been a recent improvement with respect to noise and Mr Schlacher's laundry, but it said:
  1. the problems might return in the absence of orders
  2. while many of Mr Schlacher's personal items have been removed from the common property, others remain
  3. the fence palings and tap have not been repaired
  4. Mr Schlacher is continuing to use water excessively, and
  5. no reimbursement has been paid.
• [3] I sought an update in June and was told that Mr Schlacher has resumed playing music at an excessive volume and leaving a speaker outside while he is away from the property for hours at a time, and at times he leaves his laundry on the line for "extended periods". Otherwise, the situation was said to be much as described in the body corporate's reply to submissions.

• [4] While the body corporate claims breaches of the by-laws at schedule 4 of the Act, they are not Four Seasons' by-laws. The schedule 4 by-laws only apply "if the community management statement does not include provisions that are, or that purport to be, the by-laws for the scheme".[1] Four Seasons' community management statement says the by-laws are "taken to be those in effect as at 13 July 2000". The by-laws in effect on that date were:
  1. any of the by-laws at schedules 1 and 2 of the former Building Units Titles Act 1965 that were not inconsistent with the Building Units and Group Titles Act 1980 (BUGT Act) (aside from schedule 3 of that Act) when it came into effect[2]
  2. the exclusive use by-law that was registered in March 1980, and
  3. any of the by-laws at schedule 3 of the BUGT Act that were not inconsistent with the by-laws in effect when that Act commenced.[3]
• [5] That is not necessarily fatal to the application though, as there is significant overlap between Four Seasons' by-laws and those at schedule 4 of the Act.

• [6] By-law 1 in schedule 4 of the Act and schedule 3 of the BUGT Act are very similar. Both prohibit noise likely to interfere with the peaceful enjoyment of a person on another lot or the common property. By-law 1(b) of the second schedule of the former Building Units Titles Act 1965 also prohibited "undue noise".
• [7] It seems the only ongoing issue with noise is the volume of Mr Schlacher's music. The body corporate submitted recordings of his music taken from the lot above. One was included with the original application, and another was recorded more recently and submitted when I sought an update in June.
• [8] The music is loud enough that it sounds as though it is being played within the lot above. No background sounds can be heard over it.
• [9] I accept that music played at that volume, so clearly audible within another lot, is likely to interfere with the peaceful enjoyment of other lots and is a contravention of Four Seasons' noise by-law. I will order Mr Schlacher to keep his music to a volume that is unlikely to interfere with the ordinary use of other lots. His neighbours should not be required to raise their voices, turn up their own devices, or close windows and doors to keep his music to a low, background level.
• [10] The by-law does not specifically require Mr Schlacher not to play music or the radio when he is not home provided the volume is kept to a reasonable level. If the body corporate wishes to be more prescriptive about the noise that may be made at Four Seasons, including whether music must not be played while the responsible resident is not home or between certain hours, it can pass a special resolution to amend the by-laws accordingly.[4]

• [11] The dispute about Mr Schlacher's laundry has substantially abated. He is no longer hanging his washing on trees on the common property, and he has removed the line he had strung between them.
• [12] However, he is still said to be leaving his laundry on the common property washing line for extended periods, limiting its use by other residents. The body corporate claims this contravenes by-law 8(2) of schedule 4 of the Act.
• [13] That is not a Four Seasons by-law. The closest match is by-law 8 of schedule 3 of the BUGT Act, but it only prohibits hanging laundry on any part of the lot without body corporate permission. It does not mention the common property.
• [14] I am not satisfied that Mr Schlacher's use of the washing line breaches the by-laws.

• [15] The body corporate says the following items remain on the common property:
  1. a bird bath
  2. epiphytes that have been attached to a frangipani tree
  3. pots and plants
  4. bags of potting mix
  5. a barbeque
  6. a boat
  7. food scraps
  8. a shade awning
  9. pictures on the door and a window of lot 2, and
  10. a hose.
• [16] These items are said to breach by-laws 4(1), 7, 8(1), 8(2)(b) and 9 of schedule 4 of the Act. Those by-laws regulate, respectively:
  1. damaging lawns or plants or using part of the common property as a garden
  2. leaving "rubbish or other materials" on the common property
  3. changing the external appearance of a lot, and
  4. storing a flammable substance on the common property.
• [17] By-law 4 of schedule 3 of the BUGT Act is similar to by-law 4(1) of schedule 4 of the present Act. The body corporate's photographs show that some items, such as pot plants and an umbrella (now removed), have damaged the lawn where they rested in one place for too long. That is a breach of by-law 4, though it does not necessitate removing the offending items from the common property altogether as sought by the body corporate. They need only be moved from time to time to prevent the damage from occurring.
• [18] By-law 7 of schedule 3 of the BUGT Act prohibits depositing on the common property "any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using the common property". Aside from the food scraps, none of the items listed above are rubbish or similar. While "other material" may seem broad enough to apply to these items, the ejusdem generis rule of statutory interpretation means that where a general term ("other material likely to interfere...") follows a list of specific items ("rubbish, dirt, dust") it is limited to items of the same general type. Hence, by-law 7 is referring to the disposal of unwanted waste upon the common property.
• [19] The application included photographs of food waste left on the lawn. Mr Schlacher did not deny that he left it (or any of the other items in the body corporate's photographs) there, saying only that he had rectified all matters and there is now full compliance. Despite this claim, the body corporate says Mr Schlacher continues to deposit food scraps on the lawn. It submitted no further evidence of it, but I am inclined to accept the claim given Mr Schlacher's prior conduct and the fact that the body corporate did not hesitate to acknowledge those issues that have been resolved since the application was lodged.
• [20] In any event, by ordering Mr Schlacher to stop depositing food scraps on the common property, I am only echoing what the by-laws require of him anyway (while introducing the possibility of a financial penalty should he fail to comply).[5]
• [21] By-law 8 of schedule 3 of the BUGT Act prohibits hanging laundry and signs on the lot in a way that is visible from outside the building without body corporate consent. But none of the listed items appear to be within the lot. Even the two pictures are apparently attached to the external surfaces of the front door and a window of lot 2.
• [22] The boundary between a lot created under a building format plan of subdivision and adjoining common property lies at the centre of the structural feature that separates them.[6] That means the external faces of walls, doors and windows (assuming the doors and windows are installed in the centre of the thickness of the wall) are common property.
• [23] By-law 9 of schedule 3 of the BUGT Act prohibits storing flammable liquids on the common property without body corporate consent, but this issue has apparently been resolved. Mr Schlacher previously had fuel containers standing on the common property but has now removed them.

• [24] Mr Schlacher is said to have damaged two fence palings and a garden tap by removing its handle. This was described as a breach of by-law 5(1) of schedule 4 of the present Act, which does not apply. However, by-law 5(1) of schedule 3 of the BUGT Act is in very similar terms. Both prohibit damaging or defacing any structure that forms part of the common property without body corporate consent.
• [25] Photographs of the tap and a single damaged fence paling were provided. But it is not obvious what caused the visible damage. The timber paling looks quite old and weathered and might easily have been broken by any number of things. The tap handle might have been removed by Mr Schlacher or someone else, or perhaps it came loose over time through normal use.
• [26] One owner claims to have witnessed Mr Schlacher damaging other fence palings by backing his vehicle into them, so she assumes he also damaged the paling shown in the application. She also points out that Mr Schlacher was using the tap on the day the handle was removed, his hose is permanently connected to it, and she suspects he removed the handle to prevent her from turning the tap off when he leaves it running for extended periods. Mr Schlacher denies damaging either item.
• [27] There is insufficient evidence to support an order to compel Mr Schlacher to repair these items.

• [28] The body corporate says Mr Schlacher excessively waters the lawn and his pot plants, sometimes leaving his hose running unattended for hours. As Four Seasons has a single water meter for the entire property and the cost of water is divided equally between the four lots,[7] this has a significant financial impact on other owners. The body corporate claims this is a breach of section 167(1) of the Act:

(1) 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 -

(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.

• [29] Nuisance in this context is a substantial and unreasonable interference with the use and enjoyment of land.[8] That overlaps with the second limb of section 167, which concerns interference that is unreasonable but might not be substantial.[9] The unreasonableness of the interference is to be assessed with reference to reasonable standards for the enjoyment of the premises, such that an ordinary use of a premises will not be considered a nuisance even though it might cause some interference with or inconvenience to other occupiers.[10]
• [30] I have several reservations about characterising Mr Schlacher's use of water as a breach of section 167:
  1. while it may have a financial impact upon other owners, it does not materially limit or affect the way they may use their properties, so it seems a stretch to say it interferes with "the use and enjoyment" of their lots or the common property
  2. the use of a garden tap to water the lawn and plants is an ordinary use of that facility, though I accept that leaving it running unattended for hours may exceed ordinary standards, and
  3. as there is only a single water bill for all four lots, there is no clear evidence of how much water is being used by Mr Schlacher in this way.
• [31] Consequently, I will not order Mr Schlacher to curb his water use.
• [32] The body corporate may wish to investigate having individual meters installed for each lot. The Act allows each lot to be billed according to its individual use in those circumstances.[11]

Reimbursement of owner and body corporate costs

• [33] I have found nothing unlawful about Mr Schlacher's use of water. Even if I had, my power to order reimbursement of economic losses is limited. I can order reimbursement for repairs to property damaged by a contravention of the Act or by-laws,[12] but that is plainly not what is proposed here.
• [34] By default, where there is no practicable way available to a utility service provider to measure how much water is consumed by each lot (e.g. there are no individual water meters), each owner is liable for a share of the total bill in proportion to the contribution schedule lot entitlement for their lot.[13] The contribution schedule lot entitlements for each lot in the community management statement for Four Seasons are the same, so the total water bill must be divided equally amongst the lots. That is evidently what is occurring.

• [35] The body corporate wishes to recoup fees paid to its body corporate manager to facilitate votes outside committee meetings (VOCs) in relation to its dispute with Mr Schlacher. But there is no legal basis for passing such costs on to an individual owner simply because the body corporate's decision related to them.
• [36] Body corporate managers are engaged by the body corporate, not by any owner in their individual capacity.[14] They have a contract with the body corporate that makes the body corporate liable for their fees. Owners meet those costs by paying contributions to the administrative fund according to their contribution schedule lot entitlements.[15]

Conciliation and adjudication application fees

• [37] I can only order reimbursement of conciliation and adjudication application fees where a respondent failed to participate in conciliation without reasonable excuse.[16] Mr Schlacher participated in conciliation and an agreement was reached.

• [38] My role is to resolve existing disputes, not to speculate about liability for future costs that may arise.[17]

• [39] I am satisfied that Mr Schlacher has continued to breach the by-laws by playing his music too loud, allowing his personal items on the common property to damage patches of the lawn, and depositing food scraps on the lawn. I will order him to correct those contraventions. The application is otherwise dismissed.

[2] Building Units Titles Act 1965, s 13; Building Units and Group Titles Act 1980, s 5(10).

[3] Building Units and Group Titles Act 1980, s 5(10).

[6] Land Title Act 1994, s 49C(4).

[8] Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25 at [5]; Norbury v Hogan [2010] QCATA 27 at [13].

[9] Miles & Anor v Gough & Ors [2017] QCA 190 at [13].

[10] Norbury v Hogan [2010] QCATA 27 at [15]- [17].

[11] Act, ss 195(2) & 196(4), (5)(b) & (6)(a).

[15] Standard Module, ss 160(2) & 162(5).

[17] Daish v Body Corporate for Birchgrove CTS 100 [2013] QCATA 13 at [13]- [15].