QLD: Q&A Body Corporate Neighbours Causing Nuisance

In relation to non-specific provisions, the body corporate is required to maintain common property and also may need to ensure a hazard is not created. It may be that the lighting is required to mitigate against a hazard (e.g., someone tripping over in the dark or as a crime-prevention measure). I also don’t know if there are safety concerns in the scheme that the lighting might be addressing.

On the other hand, there are provisions for ‘nuisance’ under body corporate legislation, and a nuisance can be a visual nuisance. Is this situation a ‘nuisance’? I couldn’t say – it is very much a case by case situation. Obviously, it is causing you some challenges, although that does not automatically mean it is a ‘nuisance’ for the purposes of legislation. The body corporate is also required to enforce its by-laws and there may be a by-law relevant to your situation. You would need to check your by-laws about that.

My suggestion is that you raise your concerns with the committee and clarify if there is a specific reason why the lights are the way they are. Remember, it may be entirely reasonable that the lights are on as much as they are. If not, it may be a case of trying to negotiate some changes to how long the lights are on or some mitigation measures for you and your lot. If an agreement can’t be reached, you would then need to consider seeking conciliation through the Commissioner’s Office.

This is general information and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the February 2024 edition of The QLD Strata Magazine.

Question: I raised security concerns with the committee. They were dismissed so I created and distributed a factsheet to residents. I’ve now received a breach of by-law notice under nuisance. Am I a nuisance?

I raised a security issue to our committee and provided suggestions to address this at a meeting. The committee voted against the suggestions as they felt they weren’t ‘convenient’.

The meeting minutes did not detail the legitimate concerns, so I developed a factsheet to advise owners. I either handed the factsheets out in person around the building or put them in apartment door jambs.

This resulted in enough owner support to request an EGM for owners to vote. However, the committee served me with a notice, quoting a by-law under nuisance for ‘entering other floors for letter drops to occupiers’. Does this action constitute ‘a nuisance’?

Answer: Simply because you’ve been accused of ‘nuisance’, it does not then automatically mean you have created a nuisance.

‘Nuisance’ under Queensland strata legislation is contextualised in relation to use of a lot or common property. As you note, there may also be a specific by-law applying to your scheme about ‘nuisance’.

Based on your brief description, It’s impossible to say whether ‘nuisance’ applies here. There are several factors to consider. The standard for nuisance in Queensland has been established through the Courts, for example. And I should stress that simply because you’ve been accused of ‘nuisance’ does not automatically mean you have created a nuisance. That is for an adjudicator, or the Magistrates Court, to determine.

Ordinarily, I’d suggest you now engage with the committee to try to bring about some resolution to this matter. Given what has transpired, that may be challenging, although I think you do at least need to attempt it. If you have been served a by-law contravention notice or an application has been made to the Commissioner’s Office about the alleged ‘nuisance’, you may need to consider seeking legal advice.

There are seemingly some bigger, broader issues at play at your scheme, based on what you’ve said. You might need to give thought to how you address those rather than a specific matter.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: Does the legislation deal with residents feeding wild birds on their balconies? This activity is causing bird poo on other balconies.

Residents in our building have been feeding birds on their balconies. This has been disruptive and created a mess with bird seed husks and bird poo on surrounding balconies.

Are there any parts of the legislation or bylaws that could be used in this situation?

Answer: Check your registered by-laws. You could also potentially argue this situation is a nuisance or hazard.

There may be a by-law for your scheme which applies. You would need to check your registered by-laws. You could also potentially argue this situation is a nuisance or hazard, although I’d recommend seeking legal advice in that regard. There is no specific provision for bird feeding under strata legislation.

There is at least one case I am aware of in relation to feeding wild birds, in which a referee has made an order about that situation. You can read that here and determine for yourself if it might apply to your situation. I stress, this is an order made under the so-called ‘BUGTA’ legislation, and not an order of an adjudicator under the Body Corporate and Community Management Act 1997.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the June 2023 edition of The QLD Strata Magazine.

Question: The tenant upstairs waters her plants and the run off fills my balcony, damaging my items. The landlord has been contacted but the behaviour has not changes. What should the body corporate do about this?

I have a tenant above me who keeps watering her plants on her balcony until the water flows down to my balcony. The water can be filthy and contains fertilisers. It affects my belongings on my balcony and I’m concerned about water entering my light fitting.

What can the body corporate do about this? The landlord has been contacted repeatedly to ask his tenant not to do this and to cease the behaviour, but nothing changes. I have sent videos of the water coming down as well.

Answer: It is not up to the landlord to regulate this activity, its is up to the body corporate.

It is not up to the landlord to regulate this activity, its is up to the body corporate. A body corporate has a direct relationship with a tenant (known as an ‘occupier’ under body corporate legislation) and part of that relationship means enforcing by-laws directly against the tenant. While it would be good for the landlord to be engaged in this, it’s not compulsory and if it is causing a problem as you say it is, then it is up to the body corporate to take action. You can request they do so or you can take the action directly against the tenant (the former is the usual approach).

This may well be a by-law enforcement issue but it might also come under the terms of s167 of the Body Corporate and Community Management Act 1997, namely, a nuisance or hazard. Again, you can pursue this yourself or you can request the body corporate do so (and again, with or without the involvement of the landlord).

One thing you don’t say in your query is whether the tenant has been directly approach about the issue. If that hasn’t happened, I would suggest doing so (if it is safe and appropriate to do so of course).

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: We are constantly listening to a leaf blower two floors below us. This noise ruins our Saturday afternoons. Is this a nuisance?

We live in a complex consisting of both residents and holiday accommodation.

We are constantly listening to a Leaf blower two floors below us. This noise ruins our Saturday afternoons because we have to shut doors and windows to shut out the constant on and off leaf blower noise.

Why is this allowed in a unit complex? Surely it is a nuisance.

Answer: What you perceive as ‘not permissible’ and ‘surely’ a nuisance may be entirely reasonable to someone else.

I’m going to flip this around…

We live in a complex consisting of both residents and holiday accommodation.

We are constantly having someone complaining about our leaf blower from two floors above us. Their complaints ruin our Saturday afternoon because we have to listen to them go on and on about us doing leaf blowing.

Why is this allowed in a unit complex? Surely it is a nuisance.

You can see the issue. What you perceive as ‘not permissible’ and ‘surely’ a nuisance may be entirely reasonable to someone else. In strata, there is give and take. Yes, you have rights as an owner – then again, other owners have other rights too and their interests may not be the same as yours. It is ultimately a balancing act.

In this particular case, yes a leaf blower may be a nuisance. That said, if it is only happening a few hours on a Saturday afternoon, you may be hard pressed arguing that it is. A different story if it started at, say, 0500 on a Sunday or 2300 on a weekday and lasted for six or seven hours thereafter. ‘Nuisance’ is not defined under strata legislation, although it has been established through caselaw. This case sets that benchmark. If you read it, you will see it is a hard threshold to reach.

If you haven’t already, you should have a chat to the other owners. They may not be aware of the issues you are experiencing. Perhaps you can negotiate some more suitable times this activity can occur. Failing that, you may wish to bring this issue to the attention of the committee, who also have a responsibility in situations like this.

If you consider a by-law is being breached, you may also wish to pursue the formal by-law enforcement process. Again, though, I’d be urging you to consider what I’ve said above and see what you can do to reach some informal, mutually agreeable outcomes here.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the June 2022 edition of The QLD Strata Magazine.

Question: All residents on the podium level of our building have experienced items falling or being thrown from units above into their courtyards. The BCM has repeatedly sent letters to all residents, but the problem persists. What’s the next step?

I live in a 17 floor apartment regulated under the Standard Module. The unit I own is on a podium level which has an extended courtyard area, as do all units on this floor. Over the months, all podium residents have had things fall or be thrown onto our courtyard, including cigarettes, glass, dirt, oil, food, animal faeces, bottles of beer/wine, a floor lamp and a paint can.

We continually express our concerns to the BCM as we are scared these falling items will cause more property damage, or death or injury to a person. Each time we express our concerns, the BCM sends a letter to the residents reminding them of the by-laws to not cause items to fall or be thrown off balconies. However, such conduct keeps occurring and the BCM will not take any further action.

We know our lots are our own responsibility and it is difficult to pinpoint the perpetrator/s, but what can we do to stop this? We are scared to use our courtyards. Is there any course of action against the Body Corporate?

Answer: Read on for a ‘standard’ answer and a ‘fun’ answer to your question.

It never rains but it pours… litter. Ancient Romans had the same problem in their ‘insulae’, but as the most expensive apartments were on the ground floor (no elevators!) the solution was fixed screens to minimise the litter thrown down.

While you don’t have the right to erect screens, you have at least two ways of taking action. Each however relies on evidence of high quality. For example, an eye witness statement, video or photograph/s of litter leaving a persons hand and then landing in your courtyard. Even good circumstantial evidence may not be enough; see Montego Sands [2020] QBCCMCmr 160. So, set up some cameras and / or get your thinking cap on about how to obtain that smoking gun evidence. Once you have it, the next thing to do is to consider whether the littering breaches a by-law or constitutes a nuisance or unreasonable interference with the use of your lot.

In the former case, draw up a BCCM Form 1 Notice to Body Corporate of Contravention, staple your evidence to it, and hand it over to the Body Corporate. What you do next in that process, depends on what the Body Corporate does.

In a perfect world, the Body Corporate enforces the by-laws against the litter bugs! In an imperfect world, when the Body Corporate (almost inevitably) does nothing, you can bring a dispute resolution application against the Body Corporate seeking orders that it enforce the by-laws against the litter bugs. If the littering does not breach a by-law, but it is a nuisance (in the technical legal sense), or an unreasonable interference with the use and enjoyment of your lot (here is one of mine that explains what that is – (Miles v Gough [2017] QCA 190) then you can start a dispute resolution application against the litter bugs directly. In that application you seek orders that the littering not be repeated.

Now, that is the ‘standard’ answer to your problem. Here is a fun answer! (Fun for lawyers at least). Grab the Body Corporate insurance invoices for the last 4 or 5 years. Then, with your courtyard neighbours, do some statutory declarations as to the nature, volume and frequencies of the rain of litter. Ensure that those declarations make clear that the litter is not being generated in the courtyard itself, but is coming from above. Next, get yourself a good lawyer’s letter to the body corporate’s current insurer, attaching the statutory declarations and pointing out the risks arising from the rain of litter; damage to property, injury, death… make sure you copy the Body Corporate committee when your lawyer sends the letter. Odds are that the premium will then go up. When it does, propose a motion at the next general meeting under section 201(2)(c) of the Standard Module, that the courtyard owners be exempt from paying the increase in premium. Nothing like hitting the litter bugs in the back pocket. Of course, by the time the lawyers letter goes, you will already have the committee’s attention and who knows, they may even start doing something about the issue before the premium increases!

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in the May 2022 edition of The QLD Strata Magazine.

Question: How do we deal with the intimidating bully next door who makes loud and unnecessary noise all day long?

How do we deal with an intimidating bully? We are relatively new owner/residents in a tower block in QLD – 7 apartments per floor. The neighbour’s door is very close to ours at one end of the corridor. He has been renting his place for several years and works from home. We are semi-retired and also work from home.

Our neighbour rises and begins making noise from 4.30 am every day. We are woken by loud kitchen noises, the garbage disposal unit and his dog barking loudly. These noises continue throughout the day.

We tried friendly discussions and even a note slipped under his door, but not much has changed. We don’t want to feel uncomfortable every time we open our door to leave, or to come home. If we lodge an application through the Commissioner’s Office, we will have escalated the situation, even if the outcome goes our way for achieving our right to peaceful enjoyment of our home.

We’ve spent over a million dollars purchasing what we thought was our last home. We weren’t expecting our new life to be tainted by a bully half our age.

Answer: Any option comes with pros and cons and only you can make the decision.

I can see you are in a difficult spot and you’ve articulated the challenges well. The first thing I suggest is not referring to this as ‘bullying’. As offended as you are by the behaviour, bullying has no actual definition in strata legislation and it tends to have a specific meaning not applicable to this situation. Doing so will remove a little of the emotion from the situation.

After that, you have decisions to make. Do you undertake the formal processes against this person, which would include by-law enforcement or pursuing a nuisance against them? That will take a lot of time, money and effort and as you say, runs the risk of inflaming the situation. You will need to compile a log of these breaches, if you haven’t already done so.

Do you simply ‘do nothing’ and find a way to live with the situation, hoping the person eventually ceases the behaviour, or moves out? Maybe that will happen, although you have zero control over that.

There may also be alternative dispute resolution options to pursue. Again, that will take time and effort.

Any option comes with pros and cons and only you can make the decision. Actually, I think you have already made the decision, judging by your final comment about having spent over a million dollars on your final home. That tells me you think your need to protect your investment outweighs other considerations. Time now to take a deep breath and follow through.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #555.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #541.

Question: Under the Queensland Legislation, is it an offence for residents to throw objects from their balconies?

We regularly have residents throwing objects from their balconies, including soft drink cans, water bottles and cigarette butts. These objects become a safety hazard for people below, who may be struck by these objects.

Is there legislation in Queensland which makes such behaviour an offence?

Answer: Do you have evidence, such as video footage, which shows the objects being thrown and also identifies who threw them and from what lot?

Your query prompts several of my own. Do you have evidence, such as video footage, which shows the objects being thrown and also identifies who threw them and from what lot? You’ll need that if you wish to proceed with any action. Have you or the body corporate taken any steps to address this situation? Has anyone spoken with the alleged throwers, or, if they are occupiers (the phrase used for tenants under body corporate legislation), has anyone spoken with their managing agent or landlord? Has anything been put to them in writing?

These questions need to be addressed prior to any consideration of ‘offences’. To be clear, there is a difference between an offence and a dispute in this context. An offence is typically something that comes with legislated, monetary penalties. There are no offence provisions in Queensland’s body corporate legislation that address the situation you describe, although a breach of by-laws may result in monetary penalty depending upon how that breach is enforced.

Really, your issue is that a dispute seemingly exists between you/the body corporate and the alleged throwers. Apart from taking the self-resolution steps described above, the options to resolve this dispute are to enforce by-laws or pursue a breach of the nuisance provisions of body corporate legislation. These disputes will typically get resolved in my former Office, namely, the Office of the Commissioner for Body Corporate and Community Management and that can take some time.

If any of what you describe results in injury or property damage, then that’s a Police matter. Not everything which occurs in a body corporate is the body corporate’s responsibility to manage.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #475.

Question: Is it acceptable for the apartments above us to hose their balconies and balustrades into our courtyard and pool? Each time this occurs it takes hours to clean all the dirt from 6 floors above.

We live in a ground floor apartment in a block of 12. The front and side balconies above us have over the edge drainage which drains directly into our courtyard and swimming pool. Is it acceptable for the apartments above us to hose their balconies and balustrades into our courtyard and pool?

Each time this occurs it takes hours to clean all the dirt from 6 floors above as our drainage is 100mm floor wastes. It also takes endless time cleaning and re-balancing the chemicals in our pool.

Can this be stopped?

Answer: 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;

As an owner you are entitled to the peaceable enjoyment of your lot

Section 167 of the Body Corporate and Community Management Act 1997 states:

Nuisances:

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; or

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.

Having water pushed into your lot would seem to count as a nuisance so the question is what are you going to do about it?

First step is to refer the matter to the Committee so they can make an assessment. Is the problem a design fault? If so, perhaps runoff pipes can be installed. Maybe the balconies need to have a small lip added so that owners push the water down through their drains instead of over the balcony. If there is a technical solution the body corporate should consider it.

However, in some cases though it is difficult to fix the problem by rectifying the building. Then, you might need to appeal to individual owners to have them change their behaviour. A letter from the committee to the relevant owners might help but occupants change and people forget over time. Otherwise, you might have to take action against individual owners – not pleasant or easy but something to be considered.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #457.

Question: We are unable to navigate an area of common property at night due to a bright light shining into this space from a neighbour.

We are unable to navigate 6 steps to the clothesline at night without being blinded by a light shining into this space from a neighbour.

The area of Common Property has become dangerous and impossible to use at night due to residents being blinded by the light.

Answer: Given that the light is affecting common property, we recommend that you contact the Body Corporate Manager and/or Committee with your concerns.

Light coming from a lot in the Scheme

Light can cause a nuisance and interfere unreasonably with the use or enjoyment of the common property, which may contravene:

s.167 of the Body Corporate and Community Management Act 1997 (‘the Act’) regarding nuisance; and/or

the Scheme’s by-laws, if there is a relevant by-law (such as creating a nuisance or a hazard).

Given that the light is affecting common property, we recommend that you contact the Body Corporate Manager and/or Committee with your concerns. If no action is taken by the Body Corporate, you can:

progress the contravention of s.167 of the Act through the Commissioner’s Office; and/or

issue a BCCM Form 1 to the Body Corporate requesting that it takes action in respect of the by-law contravention (if any). If no action is taken by the Body Corporate, you can then progress to the Commissioner’s Office.

Light coming from a neighbour outside the Scheme

If the light is coming from a neighbour that is not located within the Scheme, we recommend that you contact your local council about the light nuisance.

Given that the light is affecting common property, the Council may require the involvement of the Body Corporate in making a complaint.

Peter Hunt Mathews Hunt Legal E: peter.hunt@mathewshuntlegal.com.au

This post appears in Strata News #246.

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