Paradise Point Towers [2003] QBCCMCmr 35 (25 July 2003)

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

I hereby order that, unless Robert Anthony Vaughan and Margaret Vaughan, the co-owners of Lot 28, sooner obtain the authorisation of the body corporate by special resolution to retain the additional air-conditioning fixtures and associated equipment (including wiring, piping etc) installed on the roof area in early 2002, having first complied with all reasonable requirements of the body corporate committee, then they must within four (4) months of the date of this order remove all of the additional air-conditioning fixtures and associated equipment and restore the common property to its previous state.

I further order that the lock fitted to the gate by Robert and Margaret Vaughan may remain providing that they supply a duplicate key to the body corporate committee, and remove, and keep removed, the sign attached by them to the gate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0013-2003

"Paradise Point Towers" CTS 10892

JURISDICTION:
This is a dispute between the body corporate (the applicant) and an owner (the respondents Robert Anthony VAUGHAN and Margaret VAUGHAN, the co-owners of Lot 28), concerning the installation of air-conditioning compressors and associated equipment on the common property roof for which they have exclusive use, and the installation of a lock and "Private Property" sign on a gate giving access from the exclusive-use roof area to a common property stairwell. These are both matters falling within the disputes resolution provisions of the legislation (see sections 227, 228,276 and Schedule 5 of the Act).

General powers of an Adjudicator in making an order:

Section 276(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 –

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:
In accordance with section 243 of the Act, a copy of the application was provided to the respondents (Vaughan) and to all other owners, with an invitation to respond to the matter of dispute raised in the application. The respondents lodged a written submission, as did one owner who supported the application. The applicant did not exercise its right to view and reply to the submissions (see sections 244 and 246 of the Act).

The brief facts of the matter are as follows.

The respondent owners of Lot 28 purchased their penthouse unit in July 2001 at which time there were two air-conditioning compressor units servicing their unit which were located on the roof above. The rights owners of this lot have in respect to the roof area are set out in By-law 25 which provides as follows –

The Owner for the time being of Lot 28 in BUP 4293 together with its, his, their and any of their successors, executors, administrators, assigns and licensees shall have the irrevocable right of exclusive use and enjoyment of that part of the roof of the building being directly above the uppermost level of Lot 28 in BUP 4293 and such area shall be maintained run and upkept by the Owner of Lot 28 at its, his or their sole expense and may be used only for the purpose of a casual entertainment area and this resolution may not be altered or rescinded without a resolution without dissent being passed by the Body Corporate.

In early 2002 the respondents extended the air-conditioning of their unit by installing further air-conditioning equipment on the roof exclusive-use area. The installation includes a lot or loose electrical wiring and ducting on the roof floor, but also includes a length of cabling slung at head height across part of the area. They did this without reference to the body corporate committee or the body corporate in general meeting. The respondents believed at the time that their exclusive use of the roof was in the nature of a form of title to the roof area, and they could use it anyway they wished.

At its meeting held on 28 May 2002, the committee noted that additional air-conditioning had been recently installed by the respondents on the common property roof without having applied for approval and without knowledge of the particular guidelines laid down by the committee concerning air-conditioning installation. The minutes also show that the committee was also concerned as to the following: that the fixing of cables etc, may have damaged the roof waterproofing membrane; that the power drain may cause the building’s capacity to be exceeded; that the installation may interfere with or increase the cost of the impending membrane replacement; that the disposal of condensate was in an approved manner; and that the strung cabling was visible and unsightly. The respondents were present at the meeting but declined to respond to these concerns.

At its meeting on 10 September 2002, the committee noted that the respondents had still not applied for permission to install the air-conditioning and referred the matter to its solicitor. By letter dated 27 September 2002, the body corporate’s solicitors, Herd & Janes, wrote to the respondents informing them that an application was necessary and that it should be accompanied by the following: certification by an electrician that the power drain by the air-conditioning and appliances in Lot 28 did not exceed safety limits for the cabling and switchboard; that condensate was being disposed of in an approved manner; that recent wiring and switch-gear in stalled on the common property roof be removed; and an undertaking that the installation did not damage the membrane.

At its meeting on 17 October 2002 the committee noted that no application had yet been received from the respondents and for its solicitor to resolve the matter.

By letter dated 22 November 2002, the respondents gave a written response to the committee’s requests, but only to the extent that they stated that: similar air-conditioning and switch-gear was installed for Lot 27; that an Energex consultant assessed the cabling and power loading as satisfactory; a membrane consultant assisted with the installation; and the condensate was drained into the waste system.

At its meeting on 10 December 2002, the committee noted the respondent’s letter and resolved to advise them that it would be making an application for an adjudicator to resolve the dispute.

In regard to the gate locking and signage, a further letter from the respondents to the committee dated 22 November 2002 advised of this action by stating that access would be gained by telephoning them (number included in sign) and giving 24 hours notice.

At its meeting on 10 December (see above), the committee also resolved to advise the respondents that restricting access to the roof by locking the gate, was unacceptable on the grounds that: the gate was common property; the gate (with the other three gates) are fire exits from the top floor units; and the committee requires access at all times to repair and maintain the exhaust fans serving various units. It also resolved to make application regarding this matter also.

The respondents have submitted that they have sought legal advice on their position and are now aware that they should have first sought permission from the body corporate before installing the additional air-conditioning. They are now also aware that the committee has set requirements for the installing air-conditioning. Tony Vaughan admits the error and apologises to the committee, stating In hindsight, my wife and I should have taken more notice of the correspondence received regarding the airconditioning installation but as I have already said, we firmly believed that we were quite within our rights.

In regard to the lock and sign, they submit that this is necessary because many unauthorised people have been making free access of the area without our consent. In reference to the 24 hour notice requirement, they say it is a reasonable period for maintenance and repair service providers. In an emergency, authorised persons would have no difficulty in breaking the lock.

DETERMINATION:
"Paradise Point Towers" was registered as a building units plan (now termed a building format plan) on 7 August 1981 and comprises 28 residential lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Air-conditioning:
Section 124 of the Standard Module provides that where an owner has exclusive use of an area of common property, and wishes to make an improvement to the area then unless the by-law itself specifically specifies that improvements may be installed, then the owner must first obtain the authorisation of the body corporate by special resolution (unless the value of the improvement is $200 or less, which is not relevant here). Under the section, improvement includes any fixture, such as the air-conditioning equipment installed by the respondents.

As the by-law does not make any such provision, what the respondents should have done was to have first discussed their proposal with the committee and after its technical, aesthetic and other requirements were met, submitted a motion incorporating the proposal for consideration at the next general meeting of the body corporate. Providing the motion was successful, only then should the respondents have arranged for the installation.

The situation now is that there is no authorisation of the installation by special resolution of the body corporate in general meeting, and the installation does not meet the committee’s standard requirements.

The statement by the respondents that they were unaware of the law concerning the installation of improvements to exclusive-use areas, provides them with no exemption from compliance with the law in the matter. If they believe they were misled by the solicitor acting for them in the purchase of the lot as to the nature of their rights over the exclusive-use area, then they may have some cause of action against the solicitor, but that does not affect their obligations under section 124 to have first sought authorisation by special resolution.

In my order to this matter, I have made it self-actuating for removal of the additional air-conditional material if within a set time the respondents have not met the requirements for installation and have obtained proper authorisation by special resolution. This will require providing the required information to the committee, making whatever alterations are necessary, and then submitting an appropriate motion to a general meeting for authorisation. If there is no general meeting scheduled to be held in the set period, then they may have to fund such a meeting themselves depending on whether they wish to pursue the matter.

I would mention to the respondents that, if after having done all of the above the motion is rejected, then they have the right to make application for the rejection to be overturned if they can show the rejection to be "unreasonable". I mention this as a matter of course and not as any comment on the respondent’s particular circumstance.

Lock and Sign:
From the above comments it can be seen that, while the respondents may have certain rights in respect of the relevant roof area, the roof remains common property. While common property is the property of the owners as tenants in common, it is the body corporate which administers and controls it (see sections 35, 94 and 152 of the Act). The gate is situated in a wall surrounding the relevant area, and whether it is situated within or without the area, it is certainly common property.

There are two specific needs here that, in my view, need to be accommodated.

Firstly, while the roof area is common property, the respondents do have the right to exclude persons other than those who have a legitimate right to use the area. The respondents have said in their submission that the reason for attaching the lock was because many unauthorised people have been making free access of the area without our consent. Presumably the respondents are talking about other occupiers or visitors who are unaware of the exclusive-use status of the roof area. In the circumstances I consider it reasonable that the respondents are able to take steps to prevent further intrusions, including fixing a lock to a boundary gate. However, they should have first approached the committee with their concern and suggestion rather than place the lock on a gate that is common property under the control of the body corporate (committee).

Secondly, section 109(1) of the Standard Module imposes on the body corporate the duty to maintain common property in good condition, including structurally sound condition where relevant. While By-law 25 imposes on the respondents the duty to generally maintain the roof area, the body corporate still has a maintenance responsibility in respect to the building membrane, to certain boundary structures, to building infrastructure (pipes, wiring etc), building structure integrity, and to equipment servicing lots (ventilation fans). Accordingly, the body corporate has a right to enter onto the roof area to discharges its maintenance duties, comprising routine inspections, particular inspections, and servicing and repair. In summary, the body corporate, represented by its administrative arm the committee, does not have a general right to enter onto the roof but a right to enter to carry out its statutory duties.

It appears to me that the order that is just and equitable in the circumstances to resolve the gate matter, is that the lock remain but that a key be supplied to the committee (see section 276(1) of the Act). The committee may then decide a policy as to who should hold a key. I have also ordered removal of the sign, which the committee rightly considers offensive, apart from it being placed on general common property, though there is a statutory requirement for notice to be given, except in the case of an emergency (eg a burst water pipe), a statutory requirement. The legislation provides at section 163 for a power of entry both in respect of a lot and exclusive-use common property (the same rules apply), and the requirements of notice that apply. This requirement applies to entry by the body corporate to the roof area, and the parties should read this for themselves.

Number of Scheme:	10892
Name of Scheme:	Paradise Point Towers
Address of Scheme:	8 Paradise Point PARADISE POINT QLD 4216

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 contractual matter about –
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Paradise Point Towers [2003] QBCCMCmr 35 (25 July 2003)