This article discusses how to escalate ongoing noise and abuse caused by repeated body corporate bylaw breaches, including the correct use of contravention notices under Queensland law.
Question: How do we escalate a bylaw breach notice if the behaviour continually occurs.
We have noisy and abusive neighbours. Our Body Corporate Committee states that if a bylaw is continuously breached and a notice is sent to the offending party, they have 7 days to rectify their behaviour. If they reoffend after 7 days, corrective action has to start again from the beginning.
Therefore, in our building, the same bylaw can be breached by the same party numerous times. As long as the behaviour occurs outside of the 7 day period, no further action other than an initial warning can be taken by the committee. Is this correct?
Answer: If a future contravention notice is used, then the neighbour can be prosecuted if they breach the by-law again, within 3 months of receipt of the future contravention notice.
No, it’s not correct. Two types of by-law breach are addressed by the Act in Queensland. Enforcing by-laws involves issuing a by-law contravention notice to the offender/s. There are two types of notice, one for each type of breach.
The first is a continuing contravention notice and the body corporate issues that notice when it reasonably believes that an occupier is contravening a provision of the by-laws and the circumstances of the breach make it likely that the contravention will continue. A good example is a by-law that requires body corporate approval for external improvements. If a lot owner erects a pergola without approval, then it is likely the breach of by-laws will continue.
Contrast this to the other type of notice, being a future contravention notice. A body corporate gives one of those when it reasonably believes that an occupier has contravened a provision of the by-laws and the circumstances of the breach make it likely that the contravention will be repeated. A good example is a by-law that prohibits parking on common property, except in a designated space. If a lot owner regularly parks their car in breach of the by-law, the breach does not happen continuously, it happens repeatedly.
So, as you can see, using a continuous contravention notice to address a noisy and abusive neighbour, is like trying to hammer in a nail with a screwdriver – it’s the wrong tool for the job. If a future contravention notice is used, then the neighbour can be prosecuted if they breach the by-law again, within 3 months of receipt of the future contravention notice.
As to compliance with a continuing contravention notice, and the 7 day furphy, let’s assume that the noisy and abusive neighbour has rigged up a loudspeaker which plays loud rock music, interspersed with a voiceover spouting abuse at the other lot owners. After being asked to turn it off, the neighbour refuses. In that instance the body corporate would issue a continuous contravention notice. Within that notice the Body Corporate has to provide a period of time for the neighbour to comply with the by-laws, which must be reasonable in the circumstances. In this case, that would not be 7 days! I would think that an hour would be more than sufficient to enable the neighbour to turn off the loudspeaker. If the neighbour turned it off, waited 5 minutes and turned it back on, then the body corporate would move to issue a future contravention notice. If the music is turned back on after that notice was issued, then the body corporate could prosecute the neighbour in the local magistrates court, seeking a fine of up to $2757 (for an individual), plus costs.
This post appears in Strata News #549.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
Leave a Reply