The Bachelors [2000] QBCCMCmr 59 (9 February 2000)

RA MeekREFERENCE: 0634-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9030
Name of Scheme:	The Bachelors
Address of Scheme:	544 Main Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Harald Joseph Maschina, the owner of lot 5

RA MeekI hereby order that the motion proposed by Harald Joseph Maschina, the owner of lot 5, that he be authorised to proceed with the installation of an air conditioning motor plant to be placed on the common property walkway, considered but not carried at the EGM of the body corporate held on 4 October 1999, is deemed to have been carried.

I further order the owner of lot 5, Harald Joseph Maschina, is authorised to proceed with the installation of the air conditioning compressor unit on common property of the scheme, provided such unit is installed in a professional manner, using proper materials, and the owner ensures that any waste water emanating from the unit is properly disposed of.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0634-1999

“The Bachelors” CTS 9030

The applicant Harald Joseph Maschina, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

... (a finding that) the special resolution of the body corporate failed on unreasonable grounds and that the owners of lot 5 be authorised to install an air conditioning plant motor on the common property in such a fashion so as not to interfere with the other occupants of the building.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that at the EGM held on 4 October 1999, he and another owner proposed a motion requesting consent to the installation of an air conditioning plant motor “on the common property directly outside our units”. The applicant further states that the air conditioning units were “extremely quiet in their operation” and that all maintenance of the units would remain the responsibility of the lot owners. The applicant appears to have given various assurances in respect of the unit, including –

•	All installation fees, maintenance and drainage for the system would remain the responsibility of the owners;
•	That the noise levels must not interfere with the peaceful enjoyment of other owners within the building.

The manager subsequently advised the applicant that the motion had failed due to two owners (1 family with four votes) voting against the motion. The applicant states that all other voting members of the body corporate supported the installation. The applicant has included copies of the voting paper, line drawings and the minutes of meeting. The applicant concludes –

As the motor unit is to be installed in an alcove at the end of the building, which has no pedestrian through fare, and the unit shall be professionally installed with all maintenance costs to be the owners responsibility, I respectfully request that this submission to install the plant unit be considered and subsequently approved by the commissioner.

The minutes of meeting record that the motion was lost by 10 votes in favour to four against. I note from the minutes of meeting that the motion is stated to require a resolution without dissent. This is not correct. Under section 114 of the standard module, the proposal required a special resolution. Of those lots which voted against the proposal, it is clear from the minutes that three of the lots are owned (or at least controlled) by an R Leitch with the remaining lot, by an M Ward. These two owners have put in a joint submission opposing the application. In that submission they state –

We strongly oppose any use of the common property walkway for any air conditioning unit, as this will cause inconvenience, create a public liability responsibility, and restrict use of the common property by other occupiers.

From the site plan, it is clear that the external compressor unit of the air conditioning unit (the unit) is to be installed in an “alcove” which is not part of any through fare. I acknowledge that it remains common property, but how it will cause inconvenience or restrict the use of common property, at least by its location, is beyond me.

The plans reveal that, for relevant purposes, lot 5 is on level C. It is at the western end of the scheme, and is serviced by a common property walkway. Lot 5 is the first lot of 6 adjoining lots located along the walkway. A staircase is located at each end of the common walkway. Whilst the location of the entry to the staircase is not shown on the building unit plan, it is shown on the site drawing. This drawing shows that the entrance to the stairs on the western end is located not at the end of the walkway, but slightly along this walkway, creating a small void area of common property, which the applicant refers to as the “alcove”. This is an area of common property which no person seeking access to lots 5 to 10, or any other lot, would be required to pass. The respondents allegation of a restriction on the use of common property, and an inconvenience to other occupiers, is therefore not made out.

The respondents further state that the Act states that “exclusive use” of common property has to be a vote without dissent. I have previously explained that what is proposed here is an improvement to common property, and not exclusive use of common property. A special resolution is required, and not a resolution without dissent.

The minutes of meetings also record other objections of the respondents. I consider that certain of these objections are simply not valid, and I do not propose to comment on them further. In respect of drainage, it would clearly be for the applicant to ensure that any excess water was drained away and did not pool on common property. In respect of maintenance, maintenance of the unit would be totally the responsibility of the applicant. There can be no question of body corporate responsibility for maintenance of the unit. I am satisfied that noise will not cause a problem, since this is one of the main objections which persons raise in respect of air conditioners. I consider that significant advances have been made to reduce the level of noise emanating from such units.

The respondents further allege that the unit could be installed in the applicants garage, and that the installation of the unit on the common property in the manner proposed will advantage this unit owner to the disadvantage of other unit owners. I agree that the facility of the “alcove” is not available to all owners, and that those for example in lots 6 to 9 would not have the benefit of the alcove to install any proposed unit in, however I consider that this should not mean that those owners who can avail themselves of part of the common property, with minimal or no inconvenience to other owners or occupiers, should not be permitted to do so. It may be that the other lots would need to make other arrangements about the installation of units in their lots, however this is not what I am being asked to determine here and I make no finding on this point.

In the circumstances, I consider the objections of the respondents are unreasonable. Of 16 lots, 10 owners considered that the applicant’s proposal was a reasonable one. Only two owners (albeit of 4 lots) objected to the proposal. I consider that the objections expressed by the respondents have little serious merit, and if accepted, would effectively mean that no improvement was ever authorised to common property by an owner. This is not the intent of the legislation. In the circumstances, I intend to authorise the installation of the air-conditioning unit in the common property alcove adjoining lot 5. I have ordered accordingly.