Palm Crest Heights [2000] QBCCMCmr 72 (15 February 2000)

P G DanielsREFERENCE: 0638-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19265
Name of Scheme:	Palm Crest Heights
Address of Scheme:	Palm Meadows Drive CARARRA QLD 4211

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

Mr John William Reid the owner of lot 19

P G DanielsI hereby order that the Body Corporate of Palm Crest Heights is deemed to have consented to:

1)	the installation of a compressor unit for a split cycle reverse air-conditioner on the balcony of the dwelling on lot 19; and
2)	associated electrical connections and services

PROVIDED THAT the compressor unit is the same colour as the exterior of the dwelling on lot 19 and is positioned on the balcony where it will be least noticed from the exterior of the dwelling.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0638-1999

“Palm Crest Heights” CTS 19265

The applicant, Mr John William Reid, the owner of lot 19, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1.	The Body Corporate be ordered to approve the installation of a split cycle reverse air conditioner (as per my application) to unit 19. The compressor unit to be installed on the balcony as detailed in attachment.

2.	Rules on the wall mounted air conditioner in unit 54. Order that wall mounted air conditioners can be installed within this complex.

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)).

The applicant sought approval from the Body Corporate Committee to install an air-conditioner in his lot. He was informed that the air-conditioner would only be approved if the compressor unit was located on the ground floor of his unit. He had proposed that the compressor be placed on the balcony outside the master bedroom.

The issue is of some financial importance to the applicant. He states in his application:

“If the compressor unit was located on the ground floor, immediately below the balcony to my master bedroom, this would involve drilling through the tiles and concrete slab on the balcony and attaching pipes and electrical wiring along the wall with the compressor unit located near my front door. There is some doubt that it is possible to achieve this and if it were possible it would add at least $1000.00 to the cost of the air conditioner whilst serving no practical purpose.”

The Body Corporate Manager for this scheme, Body Corporate Services, made a submission on this application on instructions from the Committee. There is some recognition in this submission that the owner of lot 19 is in a different position to other lots in respect of the installation of air-conditioning. It is relevantly stated in the submission:

“The Committee appreciates that the applicants unit is different to many other units on the complex given that the location of the air-conditioning unit would be such that the ducting would need to be carried across through the roof which is different to other systems. However the Committee still does not believe that this presents a major difficulty.”

There are two objections to the compressor being located on the balcony. Firstly, that it will create an unreasonable amount of noise for neighbours. This is why it is a requirement that the compressor be installed on the ground floor. At this location the noise would be absorbed into the ground and there are no adjoining bedroom windows. Secondly, that it will alter the appearance of the building.

The issue raised in this application is whether the Body Corporate acting through its Committee can lawfully require that the compressor for the air-conditioning to lot 19 be installed on the ground rather than on the balcony.

The first point that needs to be made on this issue is that an owner of a lot can do whatever he/she wishes to the lot or in the lot provided there is no contravention of the Act or By-laws.

It is therefore necessary to examine the relevant legislation and By-laws to determine the position of the applicant and the Body Corporate acting through its Committee.

By-laws 3, 7.2 and 7.3 are relevant as is section 129 of the Act. I will set out each of them.

“BY-LAW 3 STRUCTURAL ALTERATIONS PROHIBITED

A Owner or Occupier must not without the prior written consent of the Body Corporate:-

3.1 carry out structural alterations to the Dwelling upon his Lot;

3.2 alter gas, water, drainage, septic, sewerage or electrical connections and services on or to his Lot;

3.3 in any way attempt to enclose or partially enclose any balcony or other open structure which forms part of the Dwelling upon his Lot; or

3.4 alter in any way the external appearance of the Dwelling upon his Lot, except in the ordinary course of maintenance and upkeep of the Dwelling and in compliance with any other relevant by-law.

7.2 Signs prohibited

A Owner or Occupier must not paint or affix any sign, advertisement, notice or poster to or on any part of the Dwelling upon his Lot or the Common Property, nor do anything to vary the external appearance of such Dwelling or the Common Property, without the prior written consent of the Body Corporate.

7.3 Nuisance

(a)

A Owner or Occupier of a Lot must not carry on any noxious or offensive trade or activity on any Lot nor do or permit to be done an it anything which may be or become an annoyance or nuisance to the Parcel or any other Owner or Occupier or which may in any way interfere with the quiet enjoyment of another Lot by its Owner or Occupier or which in any way increases the rate of insurance in respect of the Parcel.

ú

Nuisances

129. The occupier of a lot included in a community titles scheme 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 prohibitions provided by the above fall into three categories. Firstly, not altering electrical connections and services on or to a lot without the prior written consent of the Body Corporate: By-law 3.2. Secondly, not altering the external appearance of a dwelling without the prior written consent of the Body Corporate: By-laws 3.4 and 7.2. Thirdly, not doing anything, that is offensive, annoying, a nuisance or interferes unreasonably with the use or enjoyment of another lot: By-law 7.3 and section 129 of the Act. It will be observed that whilst the first two categories of activity are prohibited if there is no prior written consent of the Body Corporate, there is an absolute prohibition on matters falling within the third category.

I will address each category in respect of the applicant’s request that the compressor be installed on his balcony.

Electrical

It is important to observe that By-law 3.2 only prohibits an alteration to electrical connections and services. In this case the electrical work for the air-conditioning will be an addition to the electrical system. It is therefore my view that By-law 3.2 is irrelevant. However, even if it is necessary for the applicant to comply with By-law 3.2, the Body Corporate acting through its Committee could only refuse approval to alter electrical connections and services on grounds related to the electrical system. The Body Corporate could not refuse approval on grounds related to the appearance of the lot or noise as these are irrelevant considerations to By-law 3.2.

It is also clear to me that the Body Corporate acting through its Committee is not really concerned about the electrical work. The Body Corporate is willing to consent to the installation of an air-conditioner including the electrical work provided its conditions on noise and location are satisfied.

External Appearance

It is important to note that By-laws 3.4 and 7.2 prohibit anything that varies the external appearance of the Dwelling as a whole. Dwelling is defined in By-law 1.4 Definitions as a residential dwelling constructed on a lot. The intent of these by-laws is to maintain the visual integrity of a building. The by-laws do not prevent minor changes that do not in substance interfere with the external appearance. If it were otherwise, it would not even be possible to stand on a balcony as this would affect the external appearance.

As with the electrical work By-law, the Body Corporate cannot take into account irrelevant considerations in determining whether to give consent. In particular, the Body Corporate cannot refuse consent on the basis that something may create too much noise.

The conclusion I form about the above By-laws is that consent of the Body Corporate acting through the Committee is only required where the external appearance is altered in substance or where the visual integrity of the dwelling is altered.

I have not been provided with a photograph of the compressor or the balcony of lot 19. I am therefore unable to form a view about whether it is likely that the positioning of the compressor on the balcony will alter the external appearance of the dwelling. The applicant has made the following statement about the potential for change in appearance:

“7. The appearance of the unit will be almost unnoticeable from the balcony. Its colour will be the same as the exterior of the complex. If it were installed on the ground floor as required by the Committee, it would be close to the front door and would be noticeable from the street.”

This statement was not challenged by the body corporate manager in his submission on behalf of the Committee.

In my view the applicant makes a good point when he states that the compressor would make some change to the external appearance of the lot, whether it is on the ground floor or on the balcony. There will have to be some change.

The question that arises is whether the Committee should have consented to the location of the compressor on the balcony pursuant to the by-laws discussed above. In my view the consent should have been given. I accept that the Body Corporate can enforce a general policy that a compressor be located on the ground. However, such a policy cannot be enforced inflexibly. The Body Corporate must consider exceptional circumstances. In this case, it is stated in the application and recognised in the submission from the body corporate manager that the applicant’s unit is in a different position to many other units. The installation of a compressor on the ground is more problematic. I have stated the relevant paragraphs from the application and submission above. Additionally, it is unchallenged that the position of the compressor on the balcony will not interfere with the visual integrity of the dwelling particularly as there will always be some interference, whether the compressor is located on the ground floor or on the balcony. It is for these reasons that I am of the view that the resolution of the Committee not allowing the installation of the compressor on the balcony is unreasonable and a contravention of sections 87 and 114 of the Act. I intend to make an order giving the relevant consent subject to two conditions that will minimise the potential for the exterior appearance of the dwelling to be affected. These conditions are that the colour is the same as the exterior of the building and the compressor is located in a position where it will be noticed the least.

Offensive/Annoying

This is the most important part of the application given the potential for the noise from the compressor to interfere with the use of other lots. As I have stated above, the consent of the Body Corporate is irrelevant to these By-laws and legislation. The matters falling within these By-laws are absolutely prohibited.

The primary concern with the compressor is that it will create an unacceptable level of noise for other lot owners. The body corporate manager has relevantly stated in his submission:

“It is well known that even the most modern air-conditioners are still relatively noisy. The balconies in the units are located directly alongside bedroom units of adjoining units so that there is only a few feet separating the area where an air conditioner would be installed and a neighbour’s bedroom window. It is significant that the applicant has not canvassed the views of the neighbouring unit owners. The Committee believes that the neighbouring unit owners would in fact strongly object to the installation of an air-conditioner on the balcony alongside the neighbour’s bedroom window.”

There is certainly potential for noise to be a problem even to the extent of there being a contravention of the By-laws and section 129 of the Act. However, it must be noted that the consent of the Committee is not required prior to the installation of equipment that may subsequently create too much noise. The Body Corporate acting through the Committee cannot refuse consent to install a compressor on the balcony on this ground.

The Body Corporate will need to determine if it will introduce a new By-law that gives it specific power to approve the installation of an air-conditioning system. If such a specific and appropriate power is given, then the Body Corporate acting through its Committee will be able to make more focused decisions that include consideration of issues such as noise prior to the installation of an air-conditioner. The By-law could give the Body Corporate power to determine various matters such as the type of air-conditioner that can be approved and the approval process. The current by-laws do not allow such focused decisions to be made.


Conclusion

The applicant is entitled to an order that gives consents in terms of by-laws 3.2, 3.4 and 7.2. These are the only consents necessary for the installation of the air-conditioner proposed by the applicant.

However, the applicant should be aware that if the compressor is installed on the balcony of his lot and it creates noise whereby there is a contravention of by-law 7.3 and/or section 129 of the Act, then an order can be made that the compressor be removed. If this does occur, the applicant will of course have to bear a substantial cost of removing the compressor and installing it elsewhere. I caution the applicant to carefully assess the noise emitted by the compressor he has chosen and the impact of that noise on his neighbours in terms of By-law 7.3 and section 129 of the Act.

Finally, the applicant also sought an order in respect of the installation of a wall mounted air-conditioner. I have not considered granting this order as he did not seek Body Corporate approval to install such an air conditioner. There is no Body Corporate decision for me to review.