Mapleton [2002] QBCCMCmr 281 (9 May 2002)

P J HANLYREFERENCE: 0719-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26608
Name of Scheme:	Mapleton
Address of Scheme:	26 Whytecliffe Street ALBION QLD 4010

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

Norman John Ford and Veronica Mary Ann Ford, the co-owners of lot 1



I hereby order that within 1 month of the date of this order the body corporate shall, at its expense, remove the hot water system presently located in the exclusive use courtyard of lot 1 and relocate the said hot water system to a suitable area of common property, which is not subject to an exclusive use by-law.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0719-2001

“Mapleton” CTS 26608

The applicants, Norman John Ford and Veronica Mary Ann Ford, the co-owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We request the gas hot water system which is located in our exclusive use courtyard and which services 3 units to be relocated to the other side of the courtyard fence.

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 applicants state that the hot water system is located in their exclusive use courtyard and the overflow from the system makes their tiles slippery, which they consider dangerous. In addition, the applicants state that the other owners will more readily be able to access the hot water system if it is relocated, particularly if the pilot light goes out.

Submissions were sought from all owners. Three owners responded as well as the body corporate manager. I have read all of the material provided, and noted the owners’ objections to the proposed relocation.

I have also noted that the original plans for this scheme included individual hot water systems for all lots. For reasons best known to the developer, and presumably associated with cost, the scheme was ultimately provided with only two hot water systems, each of which services 3 lots. The hot water system of which the applicants complain is located in their exclusive use courtyard. Some owners who have objected to the relocation appear to believe that it is acceptable for the applicants’ exclusive use area to be reduced by the presence of the hot water system, but that it is not acceptable for the non-exclusive use areas of common property to be reduced by the presence of the hot water system. I do not agree. The hot water system is part of the utility infrastructure, and thereby the common property, of this scheme (it services more than lot) and is the responsibility of the body corporate, notwithstanding that the owners of lot 1 are responsible for the other parts of common property within the courtyard under by-law 25. The rationale for this finding is that only the owners of lot 1 have the benefit of the other parts of common property within the exclusive use area, but 3 of the 6 owners have the benefit of the hot water system. Part of the body corporate’s duty in respect of common property is to administer manage and control it for the good of all lot owners. I do not consider that the body corporate has discharged this duty to date in relation to the hot water system. It is clearly inconvenient for the hot water system to be located in the exclusive use courtyard attached to lot 1. Even if the pilot light only goes out once a year, there could be significant inconvenience to the other lot owners if the owners of lot 1 happen to be on holidays at the time, and are not there to re-light it. It is not acceptable to say that the body corporate can access the courtyard in emergency situations, using force if necessary, when an alternative is available. It is also not acceptable to suggest that the owners of the other two lots could be given a key to access the courtyard, even if it were made clear that the key was to be used only for the purpose of re-lighting the pilot light. The owners of lot 1 are entitled to the quiet, uninterrupted enjoyment of their lot and their exclusive use courtyard. For these reasons, I propose to order that the body corporate shall, at its expense, and within 1 month of the date of this order, remove the hot water system from lot 1’s exclusive use courtyard and relocate it to some other suitable area of common property, which is not the subject of an exclusive use allocation.

Reference has also been made in the material to the applicants’ possible intention to install a split system air-conditioning unit, such that the outside compressor is located on or near the present position occupied by the hot water system. The applicants should note that if it is in fact their intention to install such a split system air-conditioning unit, wherever it may be located, then they must obtain necessary approval from the body corporate.2y