Helensvale Hilltop [2000] QBCCMCmr 68 (14 February 2000)

RA MeekREFERENCE: 0623-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2322
Name of Scheme:	Helensvale Hilltop
Address of Scheme:	1 Dovalson Place, Helensvale QLD 4212

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

Kym Maree Lawson, the co-owner of lot 7

RA MeekI hereby order that Kym Maree Lawson, the co-owner of lot 7 is entitled to propose a motion for installation of a satellite dish antennae at a general meeting of the body corporate, which motion is to be determined by special resolution in accordance with the requirements of section 114 of the standard module. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0623-1999

“Helensvale Hilltop” CTS 2322

The applicant Kym Maree Lawson, the co-owner of lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Asked for permission to install Austar (pay TV) and was told that we were not permitted to have this. We believe that we should have had at least the chance to dispute this with the committee, but the decision was made without our participation.

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)).

I do not intend to restate the applicant’s grounds to this application as I consider that these are known to the other party via the submission process. On 27 July 1999, the body corporate advised the applicant, via the secretary, that the approval sought for Austar to install a rooftop antenna system, was refused by the committee. The committee based its determination on the by-laws which provide that no external radio or television antenna may be erected without the approval in writing of the body corporate. The secretary explained to the applicants that –

This is why the committee resolved to install an Optus concealed cable system to “backbone” the complex via conduits for the existing telephone lines. This enabled residents to enjoy the amenity of pay TV without detriment to the appearance of the complex.

The committee has responded to the application by way of submission. In that submission, the body corporate states that –

Ms Lawson and Mr Ryan are not precluded from a pay television facility. The body corporate installed Telstra cable television facilities in March 1996 and the whole complex is backboned for this by underground cabling which does not impinge upon the appearance of the complex. Ms Lawson and Mr Ryan are aware of this but choose to argue for a satellite dish on the basis of the need to watch a particular football programme. Committee believes it has acted both responsibly and fairly in the interests of the majority and does not accept the plaintiff’s argument.

The Committee ... also considers the requirements of by-law 8(7) are binding on it and the owners / occupiers of this complex.

The Committee believes that no case exists to substantiate the complaint by Ms Lawson and Mr Ryan. It does not wish to see a precedent established that will restrict the powers of this and future committees to faithfully administer the intention of the by-laws and observe the wishes of a majority of owners.

By-law 8(7) provides that the occupier of a lot must not, without the body corporate’s written approval, erect any fixtures, fittings, blinds or radio or television antennae.

It seems to me that the committee of the body corporate has interpreted this by-law as establishing an absolute prohibition on the installation of various improvements, including antennae. This however is not the case. It permits the installation of improvements to a lot, provided the written approval of the committee is obtained. The committee therefore must assess each application for approval on its merits, and not apply a blanket prohibition to all applications. Further, in determining each application for approval, the body corporate must act reasonably and for the benefit of lot owners.

However, I consider that in respect of this application, a significant requirement of the legislation has been overlooked by both parties. What is required here is not approval by the body corporate at committee level but rather, by special resolution of the body corporate in general meeting. The installation of a satellite dish antennae is an improvement to common property for the benefit of a lot owner. Under section 114 of the standard module, such an improvement requires the approval of the body corporate in general meeting by way of special resolution. To this extent at least, by-law 8(7) must be read subject to the requirements of the Act and standard module. I would expect that a professional body corporate manager would have advised the committee of the requirements of the legislation with regard to improvements.

This being the case, I am not in a position to consider this matter further. The applicant will need to propose a motion for inclusion on the agenda of the next general meeting. The motion will require a special resolution in order to be carried. If not carried, the applicant will have the right to refer the matter to this office for determination of whether the body corporate acted unreasonably in refusing authorisation. No assessment of the merits of this matter are made in this application, since this would be inappropriate. In the circumstances, I do not intend to dismiss this application, since it is not really a dismissal, but rather I intend to order that the applicant is entitled to refer the matter to the body corporate in general meeting for determination. This is a declaration of how the applicant should proceed with this matter.