Raywyn Court [2002] QBCCMCmr 222 (19 April 2002)

REFERENCE: 0755-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14348
Name of Scheme:	Raywyn Court
Address of Scheme:	138 Chester Road

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

Michael Kevin McDonagh and Annegret McDonagh, the co-owners of lot 2



I hereby order that the application by Michael Kevin McDonagh and Annegret McDonagh, the co-owners of lot 2, for an order that they be granted permission to install split system air conditioning unit on the balcony of their unit 2 at Raywyn Court, is dismissed.

I further order that Michael Kevin McDonagh and Annegret McDonagh, the co-owners of lot 2, shall, within six (6) weeks of the date of this order, remove from the common property all parts of the two (2) air conditioning systems which they have installed there, and thereafter reinstate the common property to its former condition.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0755-2001

“Raywyn Court” CTS 14348

The applicants, Michael Kevin McDonagh and Annegret McDonagh, the co-owners of lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That we be granted permission to install split system air conditioning unit on the balcony of our unit 2 at Raywyn Court.

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 applicants state that they made application to the body corporate to install a split system air-conditioning unit on the balcony of their lot 2, which was refused by the body corporate. The applicants claim to need the air-conditioning unit, based on medical advice. The applicants state –

The decision of the body corporate is harsh and unjust as there is already an air-conditioning unit installed in one of the units. That (sic) unit that is installed is a (sic) order unit which is noiser (sic) than the split system unit we would propose to install.

Also Michael McDonagh operates a “B” double petrol tanker on odd hour shifts and requires quality sleep often during the day to ensure the safety of himself and the other road users.

Whilst not stated by the applicants, I understand that they have in fact proceeded with the installation of two air conditioners in their lot, with the condenser units being installed on common property of the parcel.

There are 10 lots in the scheme. All owners excepting the applicants voted on a voting circular to determine the issue. The issue put was straight forward, namely I agree / I do not agree to the installation of reverse cycle split system airconditioning units on the balcony of unit 2, overlooking the driveway. The outcome of the vote was 7 against, with 2 in favour, and the applicant’s vote not recorded.

Section 114 of the standard module provides as follows

ÿ
Improvements to common property by lot owner—Act, s 121
114.(1) The body corporate may, if asked by the owner of a lot, authorize 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.

It should be noted the section requires a special resolution in order for an improvement involving common property to be carried. One of the requirements of a special resolution is that the number of votes counted against the motion must not be more than 25% of the number of lots included in the scheme – 2.5 in this case. The number of votes case against the motion was in fact 7. The proposal failed this requirement of a special resolution by a significant proportion. It should be noted that the proposal also failed the two other limbs or requirements of a special resolution.

The issue to determine is whether the circumstances of this application warrant the proposal being carried. The circumstances raised by the applicants are the wife’s health and the husband’s occupation. In addition, they raise the issue of an existing air conditioning unit being installed.

The secretary of the body corporate in her submission has stated the circumstances of the installation of the air-conditioning unit being installed in unit 5. She states that it was installed more that 20 years ago, and body corporate records do not show any body corporate approval for its installation. Further, the secretary states that the last time the unit was operated was in the summer of 1993/94 and that “such operation caused significant disturbance to neighbours”. The occupier of lot 5 has provided a statement that she has rented the unit since 1995 and that she has “never used the air-conditioning unit mounted in the bedroom window of unit 5”. I am satisfied that the air conditioner is not in operation.

As to the health considerations of Mrs McDonagh, I have been advised that this was not provided to the body corporate with the applicant’s request to install the air-conditioning units. The date of the doctor’s letter postdates the applicant’s letter of request by 9 days.

In the circumstances, I am not prepared to overrule the body corporate’s rejection of the applicant’s proposal. In particular, the level of opposition to the proposal by owners (7 of 10) is compelling, and in my view, should not be overridden. Given this, I intend to order that the applicant’s removal the air-conditioning units from all parts of the common property, and reinstate the common property to its former condition.

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