Paringa Lodge [2000] QBCCMCmr 679 (22 December 2000)

RA MeekREFERENCE: 0701-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14940
Name of Scheme:	Paringa Lodge
Address of Scheme:	146 MacQuarie Street ST LUCIA QLD 4067

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

June Veronica Nichols, the owner of lot 8



RA MeekI hereby order that the owner of lot 8, June Veronica Nichols, is hereby authorised, at her expense, to install a gas hot water heating system on the common property wall which is currently a glass window adjoining her kitchen, which system shall be located on common property being a wall of the small common property landing area adjacent to the stair well adjacent servicing the lot, and other lots, PROVIDED THAT the system is installed by an appropriately qualified person, using proper materials, and is installed in such a way as to be as unobtrusive as possible.

I further order that thereafter the owner of lot 8, June Veronica Nichols, or the owner of lot 8 from time to time, shall be responsible for the future maintenance of the wall and window area where the new gas hot water system is located.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0701-2000

“Paringa Lodge” CTS 14940

The applicant June Veronica Nichols, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Installation of a functioning, reliable gas hot water system.

The applicant has also sought an interim order, as follows –

... for installation of the above essential utility ...

Section 223(1) provides that an adjudicator may make an order, including an interim 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)).

The circumstances of this application are not the usual circumstance relating to an interim order. The applicant is in fact seeking final relief more expeditiously. Notwithstanding this, I have determined to consider the application on its merits on a more expeditious basis given the fact that the improvement sought to be made is the replacement of a hot water system, which the applicant alleges, and I agree, is an essential service, and necessary to maintain the amenity and proper use of a unit.

The application essentially seeks that the applicant be given permission to install part of a new gas hot water system on common property.

In the course of investigating this matter, this office sought submissions from the body corporate, and individual owners. Two owners responded opposing the application. Prior to the making of this order, I and an inspector from this office personally inspected the scheme, and conducted a meeting of the parties to discuss the application.

In the supporting grounds, the applicant states that –

A functioning hot water system is an essential utility for living in the unit. Without it, the unit is unsaleable.

Much of the applicant’s grounds are statements of her opinions only, and are irrelevant to the determination of this application. I suggest that in the future, the applicant confine herself to relevant facts, and not subjective opinion.

The applicant’s hot water system, which is a gas appliance located under her kitchen sink, is in need of replacement. The applicant has apparently investigated the various replacement options which include an electric and another gas hot water system. In the case of a replacement electric hot water system, whilst this might be installed within the confines of her lot, the applicant alleges that such installation was (1) not possible, except with considerable re-configuration of the existing system, and (2) not viable, given that it would cost in the vicinity of “$2/3000.00”. The applicant provides no written or expert confirmation of this, and these matters were disputed by one owner available at the inspection.

I also dispute the applicant’s evidence in this regard. The applicant invited me to contact the agency / person she had dealt with. I informed the applicant that it was not my role to make such inquiries and investigations. Rather it if for a party seeking a particular outcome to provide or present to an adjudicator information or evidence sufficient to satisfy an adjudicator of the merit of their proposal.

In the case of a gas hot system, the applicant contends that regulations require that such units can no longer be installed in a confined or enclosed space. The applicant proposes that –

A BOSCH slim-line unit installed flush against the kitchen window. ... The BOSCH unit measures 5 inches in depth, 15 inches in width and would be secured in place by steel rods and supports.

The applicant discussed the proposed location of the installation at the inspection.

The applicant’s grounds then go on to discuss the apparent difficulties she has encountered from the body corporate in obtaining approval from the body corporate regarding her proposal, singling out the chairperson in particular for an alleged lack of assistance received. I suggest to the applicant that rather than the chairperson’s actions, it is in fact her actions which are unreasonable.

As the chairperson indicated in her submission, and I agree, the chairperson alone, nor the committee even, had the authority to approve the applicant’s proposal. The applicant proposes an improvement to common property for the benefit of her lot. Section 114 of the standard module provides that –

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Improvements to common property by lot owner—Act, s 121
114.(1) The body corporate may, if asked by the owner of a lot, authorize the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless—
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section 24 —
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

The improvement proposed here is certainly not minor, having an installed value of approximately $700-800. Properly the applicant was required to submit her proposal to the body corporate by way of a motion at a general meeting. If not approved the applicant who have had a right to make application to this office on the basis that the body corporate had refused her proposal unreasonably.

The applicant did not do this. Rather the applicant sought to demand the required approval from perhaps the only member of the committee prepared to listen to her. Secondly, when such approval was not forth coming, the applicant proceeded by way of application to this office. It is arguable that even this office does not have jurisdiction on the basis that the body corporate has not yet had the opportunity to consider the proposal, or refuse it, and thereby, for a dispute to arise. Nevertheless I am prepared to overlook this aspect, given the nature of the service involved, and the attendant urgency. Be assured though, had the applicant’s proposal involved a non-essential service, for example the proposed installation of an air conditioning unit on common property, I would have dismissed this application.

At the inspection, the applicant was in attendance, along with the chairperson, the body corporate manager, and the owners of a lot who are opposing the application (Anderson). The applicant indicated in basic terms her proposal, and how it impacted physically on common property. Anderson (and from submissions received, one other owner) oppose the applicant’s proposal.

The principle reasons for their objection is that they consider that it is possible for the applicant to install a new electric hot water system within her lot, thereby not affecting common property. These owners alleged that when hot water systems had been replaced in other units, they had been replaced with electric units to overcome the problem of gas units now having to be located externally. The applicant responded that it was not possible to install an electric unit, for the reasons outlined above; that it was technically not possible, and that the cost made it not viable. I refute this contention. Common sense, and the fact that virtually every new unit being constructed has located somewhere within the lot, an electric hot water system, of varying sizes and capacities, suggests that it is very possible. Moreover, I do not agree that the cost would be as the applicant suggests. In respect of this aspect, I conclude that the applicant has determined the system she wants, and has chosen to only hear the information which supports this conclusion. At this point, I consider that it is certainly open for me to form the conclusion that the applicant is simply being unreasonable, and dismissing this application.

At the inspection, Anderson also raised the issue of the safety of the proposed unit, in its location on common property. The applicant did not respond to this aspect. I however consider this concern not to be warranted. The units are designed in such a way as to not be such an obvious or apparent danger. As well, I find it difficult to envisage a scenario where such potentiality would arise.

At the inspection, I raised the issue of other improvements which might have been made to the common property over the years. Surprisingly there were very few. The tiling of common property floor areas outside units was mentioned, but I did not consider this to be analogous to what the applicant was proposing here. I mentioned air-conditioning compressor units, and the applicant indicated that there had been a unit installed on an adjoining balcony which disturbed her sleep. However this balcony forms part of the lot, and is not common property. Again, I could find no analogy to assist my investigation.

I then considered the location of the proposed improvement. It is clear that the area proposed is common property. The applicant’s lot is one of 2 lots located on the forth floor, with two floors above this. There is a lift servicing all floors, as well as two cement stairways, one servicing the six units on each side of the building. It seems to me that the stairwell which services the applicant’s lot would only be utilised by a maximum of six owners, and then, only really by the owners of lots 8, 10 and 12 presumably (ie. the applicant and the owners or occupiers of the two lots above the applicant’s lot). I do not foresee the owners or occupiers of lots below the applicant’s lot regularly using the stairwell above their lot.

Each stairwell is fully enclosed, and the proposed location of the unit could not be seen from practical locations external to the building. The unit would therefore only be seen by persons using the particular stairwell, and I have outlined the likely users above. It consider it to be a very limited field.

Moreover, the existing gas infrastructure is located in the stairwell area. The gas regulation device is located on and accessed from common property. Moreover, there is a flute or exhaust device for all units, located on common property on the adjacent wall. This device is still in place even for those lots which have converted to electricity, and moreover, is clearly visible from the exterior of the building.

The applicant makes the point that both gas and electric HWS installation would involve the body corporate common property. I agree with this statement, although an electric HWS would have less visual impact, being limited to wiring to connect the service to a fuse box located in each stairwell foyer. Nevertheless common property would be involved whatever system was selected.

I also note that the system originally installed for all lots was a gas system, which as I indicated above, the regulator at least was installed on, and accessed via, common property. I consider this favours the applicant’s argument to retain a gas HWS, rather than changing to electricity.

The applicant is also entitled to rely on certain statutory rights of easement to support her proposal. Section 61 of the Act provides as follows –

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Easements in favor of lots for utility services and utility
infrastructure
61.(1) An easement exists in favor of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.
(2) However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies.

If we accept that the applicant is entitled to claim an easement over common property for the purpose of supplying a utility service to her lot, which she does have, then the question becomes whether the exercise of such rights, as the applicant is proposing, interferes unreasonably with the use and enjoyment of other lots or the common property.

I conclude, on the basis of the matters I have set out above, that they do not. In the circumstances, I intend to authorise the applicant to install the gas hot water system on the common property in the location proposed and discussed at the inspection. I have ordered accordingly. n