Leigh Lodge [2001] QBCCMCmr 159 (16 March 2001)

P J HANLYREFERENCE: 0757-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14942
Name of Scheme:	Leigh Lodge
Address of Scheme:	245 Cavendish Road COORPAROO QLD 4151

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

Cynthia Lenore Hannam, the owner of lot 4



I hereby order that within 2 months of the date of this order the owner of lot 6 shall remove the air-conditioning unit presently installed in the front of lot 6, unless within that time frame the body corporate gives retrospective approval to its installation or gives approval to the installation of a new air-conditioning unit.






STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0757-2000

“Leigh Lodge” CTS 14942

The applicant, Cynthia Lenore Hannam, the owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

•	Tenants to cease using air-conditioner in unit 6 which was unauthorised by body corporate.
•	Owner of unit 6 to immobilize air-conditioner or replace it with a new model air-conditioner which is quieter and installed in a position not directed to other units and with approval from body corporate.

Section 223(1) of the Act 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 the air-conditioner was installed many years ago, apparently without body corporate approval. The applicant further states that the air-conditioner is old and outmoded and emits hot air and loud noise when in use. The applicant further states that the air-conditioner is installed in a window directly opposite her front door, and the recent constant use of the air-conditioner by the new tenants is disturbing her peaceful enjoyment of her lot.

The owner of lot 6 was invited to respond to the application. A response was received from Mr Jim Sweeney, the executor of the estate of the late owner of the lot, Ms Mercia Salisbury. Mr Sweeney contends that the air-conditioner is in satisfactory working order and that while it continues to function satisfactorily, there should be no requirement for it to be replaced. Mr Sweeney also contends that as there has been no request to the body corporate during the last 10 years for the air-conditioner to be removed, it should be deemed to be an approved installation.

All other owners in the scheme were also invited to respond to the application. Two other owners responded, and expressed their support for the application. One resident owner stated that the air-conditioner is “noisy and emits a surplus of hot air”, and when it is in use, he “feel(s) it is necessary to close my front door and window in order to shut out these disturbances, even from the level above.”

The other, non-resident, owner stated that her tenants have mentioned to her in the past that the air-conditioner emits heat and noise, which impacts upon the tenants’ use of the common area.

The Standard Module regulates this scheme. The plan was registered on 20 December 1966 under the Building Units Titles Act 1965 (BUTA). Upon commencement of the Building Units and Group Titles Act 1980 (BUGTA) the by-laws from BUTA were repealed and the new by-laws applicable to the scheme were those contained in the Third Schedule of BUGTA. Upon commencement of the Body Corporate and Community Management Act 1997 and by virtue of section 283(2)(g) of that Act, those by-laws continued in force. By-law 5 provides that a proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property, except with the consent in writing of the body corporate.

The outside wall of lot 6 is common property, as a lot is described in the Registrar of Titles: Directions for the Preparation of Plans (version 2) as being “bounded by the centre of floors, walls and ceilings, unless otherwise permitted by these Directions.” Accordingly, the air-conditioner installed in lot 6 required the consent in writing of the body corporate prior to its installation.

Furthermore, section 129 of the Act provides as follows:
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.

On the basis of the evidence of three owners in this 6 lot scheme, I am satisfied that the air-conditioner installed in lot 6 is interfering unreasonably with their use and enjoyment of their respective lots because of the noise and the hot air being emitted by it. I do not accept the argument advanced by Mr Sweeney that whilst ever the air-conditioner is continuing to function satisfactorily that there should be no requirement to replace it. I also do not accept the argument that it should be deemed to be an approved installation just because there has been no previous complaint about it.

I propose to order that within 2 months of the date of this order the owner of lot 6 shall remove the air-conditioning unit presently installed in the front of lot 6, unless within that time frame the body corporate gives retrospective approval to its installation or gives approval to the installation of a new air-conditioning unit.