L'Colonial Court [2002] QBCCMCmr 197 (15 April 2002)

P J HANLYREFERENCE: 0726-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9169
Name of Scheme:	L'Colonial Court
Address of Scheme:	4 Murlong Crescent PALM BEACH QLD 4221

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

Denis Maurice Degiovanni, the co-owner of lot 3



I hereby order that the application for an order that the co-owner of lot 3, Denis Maurice Degiovanni, be permitted to install a split system air conditioner in his lot with the outside motor located on common property on the western wall of the scheme, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0726-2001

“L'Colonial Court” CTS 9169

The applicant, Denis Maurice Degiovanni, the co-owner of lot 3, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), to install a split system air conditioner in his lot.

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 he has applied to the body corporate for permission to install a split system air conditioner, but that permission had been denied because one owner, who has five lots, and therefore the majority of voting power, voted against the proposal.

All owners were invited to respond to the application. Three owners supported the application, and the owner of the five lots, who was also the original developer, opposed it.

The by-laws of this scheme were recorded on 16 April 1984, at the time that the plan was registered. The applicant purchased his lot in 1996. By-law 14 provides that an owner shall not mark, paint, drive nails or screws or the like or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate. By-law 24 prohibits any structural alteration (including any alteration to gas, water, electrical installations or work for the purpose of enclosing the balcony) to any lot without the prior written permission in writing of the body corporate.

Mrs Phelps opposed the application and stated numerous reasons for her opposition. She was concerned about noise emission, and pointed out that by allowing the applicant to install a split system air conditioner, a precedent would be set for other owners to do the same. She also expressed concern that the aesthetics of the scheme would be significantly reduced by a proliferation of air conditioners. The applicant had earlier stated in a letter to Mrs Phelps that allowing his air conditioner did not set a precedent. I disagree. The body corporate is obligated to administer manage and control the common property and body corporate assets for the benefit of all owners. If it were to allow one air conditioner, it could hardly refuse another, unless there were compelling reasons to do so. It follows that by allowing all owners to install split system air conditioners, there could well be difficulties at a later time from noise emission, and there could also be an adverse effect on the aesthetics of the building.


Furthermore, if the owners of lots 6 and 9 decided that they also wanted split system air conditioners, the logical position for the air conditioning motors would be in a similar position to that proposed by the applicant, and this could in fact create a noise nuisance to the applicant, which would hardly be particularly pleasing to him.

Mrs Phelps also expressed concern that the air conditioner, once installed, would become a fixture, and therefore be the responsibility of the body corporate to insure and maintain. This is incorrect (see section 109(3) of the Standard Module, particularly the example to section 109(3)(b)).

Mrs Phelps addressed a number of other issued raised by the applicant in his grounds, but as the only order sought by the applicant related to the air conditioner, I do not intend to canvass these issues.

I do not propose to order that the applicant be allowed to install his split system air conditioner. I am not satisfied that Mrs Phelps’ refusal of the applicant’s request is unjustified. She owns five lots, and is entitled to have five votes. If those votes are opposed to a particular proposal, with proper justification being shown for the opposition, then I am not persuaded to overturn her votes.

It may be that there are other alternatives, which have not been considered, for example siting the outside motor on the balcony of the applicant’s lot. There are countless schemes on the Gold Coast where the outside motor of a split system air conditioner is located on a balcony. Of course, that would be a matter for the applicant to consider, and propose to the body corporate. If he were to do so, it may be advisable for him to provide a report from an air conditioning expert as to the level of noise emission likely from such a proposal. 2n