Fern Leas [2001] QBCCMCmr 319 (14 June 2001)

RA MeekREFERENCE: 0134-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13691
Name of Scheme:	Fern Leas
Address of Scheme:	51 Greenmeadow Road MANSFIELD QLD 4122

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

Allan Neighbour, the Owner of lot 3



RA MeekI hereby order that the application for an order that the split air conditioner installed without body corporate permission, be removed, is dismissed.

I further order that the body corporate and the parties to this dispute, Mr Neighbour and Mr and Mrs Giess should explore the option of relocating the outdoor unit of the system to another site.

I further order that the cost of relocating the outdoor unit is to borne by Mr and Mrs Giess.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0134-2001

“Fern Leas” CTS 13691

The applicant Allan Neighbour, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“That the split air conditioner installed without body corporate permission, be removed and the building restored to its original (sic) state. A letter dated the 20/12/2000 from Skehan Body Corp suggests that the air conditioner be relocated on the side wall adjacent the garage for lot 1. This is simply not acceptable (sic) as it is shifting the problem to another wall. Which will result in the further defacement of the building.”

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)).

In the supporting grounds, the applicant (Mr Neighbour) states “the air-conditioner is located on a common wall to both units 1 and 3 bedrooms. Whilst the unit is running, it causes a vibration through the wall and it is impossible to sleep in No. 3 bedroom.”.

Submissions were sought from all owners (except the applicant) and the committee.

The respondents, Mr and Mrs Giess (The Giess’s) have made written submission to the application. The Giess’s confirm that body corporate approval to install the split system air-conditioner was not initially sought. The system was installed on 20 October 2000 and some time after this they realised that body corporate approval was necessary. Based on apparent advice from the body corporate manager, a motion (motion 11) seeking approval of the system was put to a committee meeting convened on 8 November 2000. Minutes of the committee meeting confirm that motion 11 was passed. Whether this method of approval is correct or not, I will address later.

The Giess’s submission also includes a number of items of correspondence relating to the problem of noise created by vibration from the system. In an effort to resolve the problem the body corporate manager (Skehan) contacted the Environmental Health Department, Brisbane City Council. It would appear that Brisbane City Council found that vibration from the system was generating a rattling noise in Mr Neighbour’s bedroom window. The council could find no breach of legislation in the matter and reported this to Mr Neighbour.

The Giess’s have offered, at their expense, to relocate the system to ground level to stop any vibration from the system. Skehan put this proposal and the body corporate’s offer to rectify any window defects to Mr Neighbour however, I am unaware of any acceptance of either offer by Mr Neighbour.

The owners of Lots 2 and 4 have made written submission and both parties indicate their support for the Giess’s and have no objection to the installation of the air-conditioner.

I will now address the question of body corporate approval for the installation.

“Fern Leas” CTS13691 was registered as a building units plan (BUP) on 3 October 1974 and comprises 4 lots. In the case of “Fern Leas” the outside of the building is common property.

The major components of a split system air-conditioner are generally referred to as the indoor unit and the outdoor unit. The installation of the outdoor unit on a common property wall is “the making of an improvement to the common property” within the meaning of section 114 of the Body Corporate and Community Management (Standard Module) Regulations 1997. Owners may only make improvements to common property in accordance with this section, which provides:

Improvements to common property by lot owner—Act, s 121

114.(1) The body corporate may, if asked by the owner of a lot, authorise

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.

Under the “Dictionary” Schedule to the Standard Module, a “minor improvement” means “an improvement with an installed value of $200 or less.” In the absence of any documentation to indicate otherwise, I will assume that the installed value of the air-conditioner is more than $200. This being the case a motion seeking approval for the installation should have been put to the body corporate at general meeting and by special resolution.

Section 98 of the Act describes how a motion is passed by special resolution. I think in this matter I need to explain clearly how the provisions of Section 98 apply.

For a motion to be passed by special resolution the following three provisions must be met.

Firstly, there must be more votes for the motion than against the motion.

Secondly, the number of votes against the motion must not be more than 25% of the number of lots.

Thirdly, the total of the contribution schedule lot entitlements for the lots that voted against the motion must not be more than 25% of the total contribution schedule lot entitlements.

“Fern Leas” is comprised of 4 lots. The community management statement shows that each lot has a contribution schedule lot entitlement of 1 with the total contribution schedule lot entitlements being 4.

As noted above the owners of lots 2 and 4 have stated that they have no objection to the installation and I assume that if the matter were put to a vote their consent would still be given. I assume that the Giess’s would also vote Yes to the motion. And I assume that Mr Neighbour would vote No. The result would be 3 votes for the motion and 1 vote against the motion.

In this instance, the motion would be passed; the first provision is met (there are more votes for the motion than against the motion). The second provision is met (Mr Neighbour’s 1 vote is not more than 25% of the number of lots). And finally, the third provision is met (Mr Neighbour’s lot entitlement is not more than 25% of the total contribution schedule lot entitlements).

Given that Section 114 of the Standard Module required the owner, the Giess’s, to put their proposal to the body corporate at general meeting and this was not done, I would normally have ordered that a general meeting be convened to consider such a motion. However from the information before me including the submissions in favour of the installation this would seem pointless.

Section 223(3) of the Act provides that an adjudicator may order the body corporate to ratify a proposal on stated terms. Accordingly, I am going to order that motion 11 passed at a committee meeting held on 8 November 2000 is to be taken to be a resolution of the body corporate at general meeting.

I will now turn to the second part of my order.

As early as 20 December 2000 the Giess’s had offered to relocate the outdoor unit to the ground floor slab to reduce any vibration in the common wall. At that time I understand that Mr Neighbour refused the offer.

As the applicant, Mr Neighbour made written response to the submissions. Mr Neighbour stated the vibration problem affected only one wall and indicated that he hoped “that the air con could be relocated so it disturbs no other person.” It is unfortunate that after so many months of refusing just such an offer, Mr Neighbour now considers that this course of action is appropriate. Perhaps this matter could have been resolved much sooner had Mr Neighbour agreed to the Giess’s original offer.

I am therefore going to order the body corporate, Mr Neighbour and Mr and Mrs Giess to investigate all possible sites for the relocation of the outdoor unit. My order also provides that the Giess’s shall bear the cost of relocating the outdoor unit. Finally, I would suggest to the parties that the site chosen must be one that is reasonable given that the respondents will be bearing the cost.