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Queensland’s population seemingly boomed overnight from fellow Australians wanting to flee Covid-19 lockdowns in southern states to create a better lifestyle for themselves and their families.
According to the Australian Bureau of Statistics, in 2020 Queensland experienced its highest net gain of interstate migration in over a decade with more than 30,000 people moving interstate to the Sunshine State. It seems that many have decided to embrace community living – whether that be in a duplex, high rise accommodation complex or residential unit block.
There are many benefits of community living: convenience, size, and affordability, to name a few.
On the other hand, community living can have disadvantages that are inherently connected with people living in high density areas within close proximity to others.
One such disadvantage is the common complaint that another lot owner or occupier’s behaviour is causing a nuisance.
The Body Corporate and Community Management Act 1997 (Qld) and, typically, a body corporate scheme’s by-laws, contains a good framework to assist owners and occupiers to deal with nuisance complaints.
The Act plainly provides that an occupier must not use their lot or the common property in a way that:
• causes a nuisance or hazard;
• 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.
Many body corporate schemes also have a by-law which is drafted in very similar, if not the same, terms as the above.
It’s important to know that, generally speaking, a lot owner or occupier can do what they like within the confines of their own lot. It is only when an owner or occupier’s behaviour unreasonably interferes with another person’s use of their lot (or the common property) that the behaviour might justify a complaint that warrants further investigation.
Of course, what is a nuisance to one may not necessarily be a nuisance to another. Some examples of behaviours that might be considered to be a nuisance are:
• cigarette smoke emanating from one property to another;
• noisy children riding bikes on common property;
• excessive barking caused by a pet.
The following are steps that should be taken where an owner or occupier is feeling aggrieved by nuisance-like behaviour:
Contact the neighbour
Communicate with your neighbour about how their behaviour is impacting you. This might involve knocking on their door, or perhaps sending a handwritten note. In either case, be very clear about the nature of your concerns and your proposed solution.
Contact the body corporate
If contacting your neighbour leads to an unsatisfactory outcome, consider discussing your concerns with your body corporate manager or the body corporate committee. The particular circumstances of your complaint might also warrant you issuing a formal notice to the body corporate to inform them of a by-law contravention. If you choose to do so, you should ensure that you have sufficient evidence to confirm the basis for your complaint. The body corporate will have 14 days from receiving your notice to notify you whether a contravention notice has been issued to your neighbour.
If you are not satisfied with the body corporate’s response to your notice, or if the body corporate issues a contravention notice that is not complied with, proceedings may be commenced in the Office of the Commissioner for Body Corporate and Community Management or the Magistrates Court. There, the dispute will be determined in accordance with the law and on a case-by-case basis.
It can be useful to obtain legal advice early on, to ensure that you are complying with the framework outlined in the Act and to understand how your body corporate scheme’s by-laws apply to your situation.
If you require advice and guidance on a body corporate matter, contact the team at WGC Lawyers who have a special interest in this area.