Heritage Gardens Cairns II [2002] QBCCMCmr 605 (2 October 2002)

DJ ReardonREFERENCE: 0370-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16572
Name of Scheme:	Heritage Gardens Cairns II
Address of Scheme:	60 Fearnley Street CAIRNS QLD 4870

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

Marcus Rose and Gwenda Rose, the Owners of Lot 3

DJ ReardonI hereby order that the Owners of Lot 3 may, at their own expense, relocate and install their split system air conditioning unit (“the unit”), such that the external components of the unit are attached to the outside of the southern wall of Lot 3, that being the wall that separates the interior aspects of Lot 3 with the patio.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0370-2002

“Heritage Gardens Cairns II” CTS 16572

1. Order sought

The Applicants, the Owners of Lot 3, have sought orders concerning a split system air conditioning unit currently servicing Lot 3. Specifically, the Applicants request approval to relocate the external part of the air conditioning unit from the side of Lot 3, to the front of Lot 3. Additionally, the Applicants seek an order that the Body Corporate bear any labour or installation costs incurred in relocating the air conditioning unit. Further particulars of the issues in dispute will be outlined below.

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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)).

The Heritage Gardens Cairns II community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan of subdivision), registered on 9 November 1995. A notification of change of by-laws of the Body Corporate was registered on 15 January 1996.

“Heritage Gardens Cairns II” consists of 30 lots and common property. The community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2. Application and submissions

This dispute resolution application was made on 24 June 2002. On 1 July 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) invited the Committee, the Resident Manager and all owners of lots included in the scheme to make a written submission about the application. The Committee, and a number of owners have made submissions about the application.

Pursuant to section 196 of the Act, the Applicants requested, and were provided with copies of the submissions made about the application. The Applicants have provided replies to the matters raised in the submissions.

On 16 August 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

In the course of investigating the application, I wrote to the Applicants on 22 August 2002, and requested further material in relation to the application, specifically

• A sketch plan of the scheme land, identifying the lot number and unit number of each lot included in the scheme, and showing the location of all installed air conditioning units relative to the lots.

• Photographs of the air conditioning unit installed in Lot 3, and the surrounding area.

• Photographs of the location the Applicants wished to install the air conditioning unit, and the surrounding area.

• Photographs of any air conditioners currently installed at the front of a lot, and the surrounding areas.

The Applicants provided me with this information under cover of a letter dated 9 September 2002.

3. Matters in dispute

As stated previously, this dispute resolution application concerns the location of a split system air conditioning unit servicing Lot 3 installed by the Applicants in January 2002. Currently, the external component of the air conditioning unit in question is installed on the eastern wall enclosing Lot 3 (this wall is described in the material as “the side wall”). The common property between this side wall and a building to the east of Lot 3 containing 3 garages (parts of lots 2, 3 and 4) has been enclosed by the Applicants, apparently with the approval of the Body Corporate. As a result, the air conditioning unit is located in an enclosed area, albeit that the area is outside the boundaries of Lot 3.

In the supporting grounds to the application, the Applicants indicate that they would have preferred to install the air conditioning unit on “the front of Lot 3”. Specifically, and from the material before me, I understand that the Applicants would prefer the external component of the air conditioning unit to be located on the outside of the southern wall of Lot 3. While this wall is within the boundaries of Lot 3, it separates the interior aspects of Lot 3 with a patio area, which is also within the boundaries of Lot 3. The Applicants consider that the current location of the external components of the air conditioning unit do not allow for adequate heat distribution, and may detract from the life of the air conditioning unit.

In the supporting grounds to the application, the Applicants state that when seeking the approval of the Body Corporate to install their air conditioning unit, the Resident Manager told them that they were not permitted to install the air conditioning unit on the front of Lot 3. As a result, the Applicants installed the unit in its current location.

The issue in dispute arises in that it appears that the Owner of Lot 2 (the lot adjacent to the Applicants’ lot) has been given approval to install the external part of a split system air conditioning unit on the front of Lot 2, in a location very similar to that preferred by the Applicants. I understand that the Applicants consider that this situation is unreasonable on the basis that owners have been treated inconsistently regarding approval for air conditioning units. For this reason, the Applicants have sought orders allowing them to install the unit on the front of the lot, and for the Body Corporate to pay the costs of relocating the air conditioning unit.
In its submission the Committee opposes the application and states that the general position of the Body Corporate is that air conditioning units cannot be installed on the front of lots unless there is no other practicable alternative (such as a side wall, or the rear of the unit). Lot 2 shares its side walls with Lots 1 and 3, and the Body Corporate states that it is not practicable to install the unit on the back of the lot due to windows and doors.

4. Determination

In my view, the issue that must be determined in this application is whether the Body Corporate has acted properly and reasonably concerning the Applicants’ request for approval for the installation of a split system air conditioning unit.

As a starting point, I note that the by-laws for the “Heritage Gardens II” Body Corporate include the following by-law relating to structural alterations to units. This by-law makes specific mention of the installation of air conditioning systems.

“NO STRUCTURAL ALTERATION

No structural alteration shall be made to any unit (including any alteration to gas, water, electrical installations or work for the purposes of enclosing in any manner whatsoever the balcony of any unit and including the installation of any air conditioning system) without the prior permission in writing of the Body Corporate.”

This by-law clearly requires owners to obtain the written approval of the Body Corporate before making any structural alterations to a unit, including the installation of air conditioning systems. The Applicants state that the Resident Manager for the scheme informed them of the Body Corporate’s position with respect to air conditioners. It is unclear from the material whether or not the Committee formally considered the Applicant’s request for approval for the installation of the air conditioning unit.

In any event, it is my view that the Resident Manager does not have authority to make this type of decision on behalf of the Body Corporate. At a minimum the matter should properly be determined by the Committee, or preferably by the Body Corporate at a general meeting.

Putting aside the issue of the form of approval, I will now turn to the “reasonableness” of the decision to refuse to grant the Applicants permission to install the air conditioner on the front of the unit, as was conveyed to the Applicants by the Resident Manager. Firstly, I would like to state that I consider that it is reasonable and proper, for a body corporate to endeavour to maintain the appearance of the scheme land, including by regulating alterations owners make to buildings that affect the appearance of the scheme.

However, I do consider that in this case, the Body Corporate’s focus on the “front” of lots is difficult to sustain. From the plans before me, it appears that the “Heritage Gardens II” scheme includes 7 main buildings containing lots. These buildings are loosely located around a central area of common property. The reference to the “front” of lots in the material appears to refer to the aspect of the lots that include a patio. However, applying this definition, the front of some lots face north, some face east, and some face south. It is important to note that the purported front of some lots face the back or sides of other lots included in the scheme.

As an example, I will refer to Lot 3. The front patio of Lot 3 faces in a southern, slightly southeastern direction. Directly in front of the patio of Lot 3 is the northern aspect of Lot 5. The front patio of Lot 5 faces an eastern direction. There is an air conditioning unit located on one of the northern walls of Lot 5 (a wall that could be described as a side wall) directly in front of the patio of Lot 3.

In my view, the air conditioning units installed on the wall enclosing Lot 5 is just as visible from other lots and common property, as would be an air conditioning unit installed in the location proposed by the Applicants. I also consider that the air conditioning units installed on the rear or side of a number of other lots included in the scheme are similarly visible.

In addition, while I can appreciate the Body Corporate’s arguments regarding practical implications of installing an air conditioning unit to service Lot 2, I cannot see how an air conditioning unit in the location proposed by the Applicants in respect of Lot 3, will have any significant additional visual impact. I also note that the air conditioning units servicing Lots 25, 26 and 28 are located on the purported “front” of the relevant lots.

In the circumstances, and taking into account the design of the scheme land, I consider that the Applicants proposal to install their air conditioning unit on the patio area located on the southern aspects of Lot 3 would have minimal additional visual impact on the scheme land. As such, I consider that it is reasonable for the Applicants to be permitted to install their air conditioning unit in this location.

I will now turn to the second order sought by the Applicants, that is, that the Body Corporate bears the cost of moving the Applicants’ air conditioning unit to the front of Lot 3. I do wish to state at the outset that although I consider that it is just and equitable for the Applicants to install their air conditioning unit at the front of Lot 3 for the reasons outlined above, it does not automatically follow that it is just and equitable for the Body Corporate to bear the cost of moving the air conditioning unit. Rather, I will consider this aspect of the dispute on its own merits.

If I understand it correctly, the Applicants consider that the initial request for approval to install the air conditioner at the front of Lot 3 was not given proper consideration by the Committee, and the response of the Resident Manager to the request was misleading. As a result, the Applicants consider that they should not have to bear the cost of relocating the air conditioning unit.

I am not convinced of the Applicants’ arguments on this point for a number of reasons. Firstly, it seems to me that the Applicants did not take sufficient steps to have their concerns about this issue addressed prior to incurring the cost of having the unit installed on the side wall of Lot 3. While I acknowledge that the approval for the air conditioning unit for Lot 2 came after the installation of the unit for Lot 3, it was always open for the Applicants to present a motion to a general meeting of the Body Corporate, which could have overruled any Committee decision.

Further, it was open for the Applicants to make a dispute resolution application to this office seeking approval for the installation of the air conditioning unit in the desired location, prior to installing the unit on the side of the lot, and incurring installation expenses.

Secondly, I do not consider that the initial purported decision of the Body Corporate was so unreasonable as to warrant an order that the Body Corporate bear the cost of relocating the air conditioning unit. While I have taken a different view on the issues than the Resident Manager/Committee, I do not consider that the initial decision was made out of any improper motivation or purpose.

For these reasons, I do not intend to make an order that the Body Corporate reimburse the Applicants for the cost of moving the air conditioner. It will now be for the Applicants to decide whether or not they want to incur the cost of moving the air conditioner to the front of Lot 3.