Ten phone calls, fifty voice messages and a disgruntled lot owner who wants answers yesterday – there is always one. But when does it constitute a nuisance communication and what can you do about it?

Lets face it, whether your neighbour's TV is turned up to the max, the teenager next door is hosting a party or there are children screaming in the park, there is generally always something that you could complain about – that's the joys of community living. But sending voluminous, repetitive or abusive phone calls or communications to the Body Corporate or manager could end up doing more harm than sitting back and biting your lip every once in a while (As difficult as that may be).

The question which needs to be considered is when the lot owner or occupiers complaints become nuisance in itself?

Section 167 of the Body Corporate and Community Management Act 1997 (the Act) deals with nuisance and provides that:

"the occupier of a lot included … must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(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.

The scope of this section is surprisingly narrow.

In its application, even where excessive communications or telephone calls are being made to the Body Corporate Manager which would naturally fall within the ordinary meaning of 'nuisance', this does not itself mean that the elements of section 167 of the Act have been satisfied.

If the communications were not made from within the scheme, then it would not make sense to say that the nuisance interferes with the use of a particular lot or area of common property.

When your faced with this issue, one can usually turn to a nuisance By-Laws (contained within the Community Management Statement) for enforcement.

However, where section 167 of the Act or a nuisance By-Law does not apply in your circumstances, i.e. the nuisance does not directly interfere with the use of lot or common property i.e. nuisance communication to the Body Corporate Manager, the recent decision of Deagon Village [2018] QBCCMCmr 208 (20 April 2018) may assist with filing the gap.

In that case, the Adjudicator had to determine:

1. Whether it was appropriate to make orders that the respondent cease to engage in conduct allegedly to be causing nuisance or unreasonable interference with others at the scheme? and,
2. Whether it is appropriate to make an order restricting the ability of the respondent's communication with the Body Corporate and its representatives?

On the first issue, the Adjudicator was tasked with applying the test of 'reasonableness'. Generally, the Adjudicator has found that, whilst what is reasonable to one may be unreasonable to another, most decisions on this point come down to the repetition, tone and frequency of the correspondence (as applied in the case of Tank Tower [2015] QBCCMCmr 322 (9 July 2015).

In Deagon Village the orders restricting communication by a lot owner were sought as:

1. The respondent made a number of pone calls to the Body Corporate Manager and committee members in which on any given day varied. In some cases, more than ten calls were received on particular days, often in quick succession and sometimes occurring late at night through to early in the morning.
2. When the calls were not answered, the respondent left excessive numbers of voicemails, sometimes continuing until the voicemail box was full, with more than 50 voicemails reported in one particular day.
3. The phone calls and voicemail message made by the respondent were seen as abusive and involved profanity and yelling, and in most cases, were not about matter the body corporate or the body corporate manager could assist with.
4. It was also shown that the conduct of the respondent was negatively affecting the wellbeing of the persons receiving those calls as well as their employees.

Whilst the adjudicator was satisfied that the respondent's conduct amounted to nuisance communication, given the calls were not made from within the scheme, there was difficulty in finding that the nuisance was in conjunction with the use of the lot or the common property, such that it would be in breach of section 167 of the Act.

Notwithstanding this, even without a breach of section 167 of the Act or the by-laws, there still remained the question of whether the Body Corporate could decide to impose restrictions on communications in the face of conduct such as that of the respondent within Deagon Village.

In considering the submissions from both parties, the Adjudicator considered that the Body Corporate should not be placed in a position where the resources of the Body Corporate are unfairly burdened by the lengthy, repetitive and offensive communications of a single lot owner.

In the circumstances, the Adjudicator was satisfied that the Body Corporate had the right to place some restrictions and protocols on how lot owners and occupiers communicate with its representatives irrespective of whether or not a nuisance by-law or section 167 of the Act could be applied.

The restrictions imposed included:

• Telephone communication (including the leaving of voicemails or text messages) may only be made in the event of a genuine emergency or where the Body Corporate for Deagon Village has expressly invited it;
• Telephone communication may only be made totelephone number expressly nominated for the purpose by the Body Corporate for Deagon Village;
• Other than in the circumstances above, all communication with the Body Corporate for Deagon Village must be in written form and addressed only to the postal or email address nominated for that purpose by the Body Corporate; and
• Written and verbal communication must be courteous and not abusive or offensive.

With all considered, the adjudicator ordered that the body corporate was not required to respond to any communications from the Respondent, and was permitted to disregard any communications that were unreasonable in the circumstances.

This article was contributed by Juliette Nairn of OMB Solicitors.