Palmyra Gardens [2001] QBCCMCmr 64 (8 February 2001)

P J HANLYREFERENCE: 0662-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1221
Name of Scheme:	Palmyra Gardens
Address of Scheme:	2-8 Winkworth Street CAIRNS QLD 4870

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

Margaret Joy Vale, the owner of lot 5



I hereby order that the owners of lot 6, John Thomas McAuliffe and Brian Arnold McAuliffe, shall within 3 months of the date of this order submit a motion seeking body corporate authorisation for the air-conditioning unit that has been attached to the common property adjacent to the front door of lot 6.

I further order that the secretary of the body corporate shall place the motion submitted by the owners of lot 6 on the agenda of the next general meeting of the body corporate to be held after the date on which the motion is submitted.





STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0662-2000

“Palmyra Gardens” CTS 1221

The applicant, Margaret Joy Vale, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The owner of unit 6 remove the air-conditioning unit that has been attached to the wall next to the front door of the premises. Any relocation of the air-conditioner must ensure that minimal disturbance is caused to other unit occupiers.

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 owner of lot 6 has inappropriately installed an air-conditioner at the front of his lot which has impacted upon the visual amenity of nearby lots; has created a noise nuisance and has created a potential health hazard because of its close proximity to a common property footpath.

The owner of lot 6 and all other owners in the scheme were invited to respond to the application. The owner of lot 6 advised that he had received approval from the body corporate committee for the installation of the air-conditioning unit. Responses were received from two other owners, one of whom supported the application and the other of whom expressed the view that the complaint was totally unwarranted and vexatious.

A new community management statement, containing the by-laws for this scheme, was lodged with the Registrar of Titles on 16 July 1999. By-law 9 provides as follows:

Alterations to Lot

(a)

An occupier must not make a change to the external appearance of a lot or make any structural alterations to a lot, except with the consent in writing of the body corporate committee.

(b)

Despite by-law 9(a) an occupier may at his own expense install an airconditioning unit in the lot. However, before installing the airconditioning unit, the occupier must provide to the body corporate committee a copy of the plans so that the body corporate committee can ensure the installation of the airconditioning unit does not compromise the aesthetic integrity of the building. If the occupier removes the airconditioning unit, he must reinstate the building and/or the common property to its original condition.

The Standard Module regulates this scheme. Section 114 of the Standard Module provides as follows:
ú

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 —

(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.

(emphasis added by adjudicator)

Section 142(1) of the Act provides as follows:

ú

Limitations for by-laws

142.(1) If a by-law is inconsistent with this Act or another Act, the

by-law is invalid to the extent of the inconsistency.

As the air-conditioning unit installed by the owners of lot 6 is located on the common property (the outer wall of the scheme) and was not a minor improvement (defined in the Schedule to the Standard Module as an improvement with an installed value of $200.00 or less) then it should have been authorised by special resolution of the body corporate. Accordingly, although the owners of lot 6 sought the approval of the body corporate committee, and that approval was given by the chairperson (there being no committee members, and only an elected secretary, who happens to be one of the owners of lot 6, and who is therefore ineligible to vote on an issue in respect of which he had a direct interest), it does not satisfy the requirements of section 114(2) of the Act.

I note from the sketch plan provided by the owners of lot 6 that there are air-conditioning units installed in 11 other lots in this 16 lot scheme, including one installed in the applicant’s lot. I do not have any information as to the manner in which those air-conditioning units may have been authorised, assuming they all have been, but for the purposes of this application it is only necessary for me to be concerned with the air-conditioning unit installed in lot 6.

I do not propose to order that the air-conditioning unit in lot 6 be removed, but rather intend to order that the owners of lot 6 submit a motion seeking authorisation of the body corporate for the air-conditioning unit. In view of the number of air-conditioning units which have already been installed within the scheme, and the clear intention of owners that they be allowed to air-condition their lots subject to certain conditions being met, it would seem likely that such a motion would be successful. If, however, the motion were defeated, the owners of lot 6 would be entitled to lodge an application in this office to test the reasonableness of that outcome.

I was advised on 7 March 2001 by the body corporate manager that the annual general meeting for this scheme was held on 29 January 2001. I do not propose to order that an extraordinary general meeting be called just for the purpose of considering the motion, which I have ordered that the owners of lot 6 submit. As long as the owners of lot 6 submit the motion within the 3 month time period which I have allowed, it will be quite sufficient for that motion to be considered at the next general meeting after the date on which the motion is submitted, whenever that may be.2n