River Point [2001] QBCCMCmr 179 (28 March 2001)

P J HANLYREFERENCE: 0042-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11564
Name of Scheme:	River Point
Address of Scheme:	77 Brighton Parade, Southport Qld 4215

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

Richard Albert Dixon, the co-owner of lot 15



I hereby order that the application for an order that the co-owner of lot 15, Richard Albert Dixon, be granted permission to install an air-conditioning unit either on one of the ledges outside the lot or in the main bedroom window of the lot, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0042-2001

“River Point” CTS 11564

The applicant, Richard Albert Dixon, the co-owner of lot 15, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I wish to obtain permission to install an air-conditioning unit either on one of the ledges outside my unit or install a window air-conditioning unit in the main bedroom of my unit.

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 body corporate has given him permission to install an air-conditioning unit on the balcony of his lot, but he has received advice from an “air-conditioning expert” that this would be unsatisfactory because the balcony is solid concrete and will trap the hot air expelled from the compressor. The applicant further states that the placement of the air-conditioning unit on his balcony will interfere with his future plans to enclose the balcony, for which he says he has body corporate approval. The applicant seeks an order allowing him to install the air-conditioning unit either on a ledge outside his lot or through his main bedroom window.

The body corporate committee was invited to respond to the application. In his response the chairperson stated that the proposed locations for the applicant’s air-conditioning unit would contravene both by-law 1, concerning noise, and by-law 8, concerning the appearance of a lot.

I note that the committee has taken steps to have two other unauthorised air-conditioning units removed from the windows of two lots. I further note that the committee has authorised the installation of an air-conditioning unit on the applicant’s balcony. The applicant claims that he has been told that this location is unsuitable, but has not provided any confirmation of that advice.

I consider that the committee is discharging its duty to ensure that the by-laws applicable to the scheme are enforced. There is considerable merit in maintaining a uniform external appearance to the scheme, particularly in relation to the preservation of the value of lots. Whilst I concede that the Queensland climate is such that air-conditioning should be regarded as a necessity, the applicant has been given approval to install air-conditioning in such a position as to also protect the value of the property and other owners’ investments. I am not prepared to overturn the committee’s decision.

The application is dismissed.2n