Brooklodge [2003] QBCCMCmr 54 (8 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0069-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13137
Name of Scheme:	Brooklodge
Address of Scheme:	Jones Street HIGHGATE HILL Q 4101

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Rodney Kendall, the owner of lot 6

I hereby order that within one week of the date of this order, the owner of lot 1, Derek John Webb, shall dismantle the dish and pole currently hanging or protruding out of a window of his lot, and remove the improvement entirely from the window. I further order that thereafter, the dish is not to be re-installed on, or protruded over any part of the common property in any manner, even on a temporary basis, until such time as the relevant authorisation of the body corporate in general meeting is sought and has been obtained.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0069-2003

"Brooklodge" CTS 13137

The applicant, Rodney Kendall, the owner of lot 6 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That Mr DJ Webb, the proprietor of unit 1 be directed to remove a satellite dish he s affixed to the side of the building without reference to or seeking approval from the body corporate.

Section 276(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 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.

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

The applicant states that the owner of lot 1, Derek John Webb, has affixed a satellite dish to the side of the building. He further states –

At no time did he approach the body corporate or seek its approval to take such action. The other seven owners have had no say in the matter. This is a clear breach of section 114 of ... standard module. An order is therefore sought to direct Mr Webb to remove the satellite disk.

This office sought submissions regarding the application from the respondent, all other owners, and the committee of the body corporate. Five of the remaining six owners have responded. All submissions from other owners are critical of the respondent’s action, and seek compliance with the relevant rules.

The respondent in his submission states that a small satellite (60cm) dish is being used by him as part of digital research. The respondent states that

The dish is not affixed to the side of the building as stated ... but is affixed inside my bathroom and is actually on a metal tube sticking out of my bathroom window, there are no screws or fixings to the wall or any part of the common property. It is not erected on the side of the building. I therefore did not believe it required permission or approval from the body corporate.

After referring to a previous circumstance where he sought permission for an awing, the respondent concludes –

I must note here that many buildings are getting dishs fitted for data / tv services, this is 2003 not 1903 and as a leader in my field ... I do not wish to be restricted in doing something new which will be commonplace everywhere in the next few years ... So if you inform me to remove my dish while we all step back into the 1900’s I will slide it into my bathroom when I am not using it, but I would like to leave it out permanently.

The applicant has responded to the submission of the applicant stating that –

While the dish is on a steel pole through the bathroom window, a piece of timber with cables, leads etc is resting on another piece of timber which is itself resting on the window sill. ... In other words the window sill – common property – is being used to support and brace the dish and / or its attachments.

In any case, the dish is an addition to the external appearance of the building and the body corporate has not been consulted as to whether they wish such a change to the appearance of the building to occur. ...

The section referred to by the applicant, section 114, is as follows –

114 Improvements to common property by lot owner--Act, s 121
(1) The body corporate may, if asked by the owner of a lot, authorise 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 section24--
(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.

One owner in a submission has sent a photo of the dish.

I conclude that the respondent’s affixing of the dish on a pole and then extending it out a window of the lot is in the nature of an improvement for the purposes of the legislation. Certainly, the protrusion of the dish through a window and suspending it adjacent to common property is within the contemplation of an improvement to the common property for the benefit of the owner’s lot, in my view. If it were not, then the absurd situation could arise of owners or occupiers projecting, hanging or suspending all sorts of items or structures out of windows or off balconies without there being any recourse available to the body corporate. In addition, there are public liability issues created by the respondent’s action. What if the pole / dish were to fall out of the window injuring someone on the common property. Alternatively, it might be dislodged in a storm.

I consider that the respondent requires a special resolution of the body corporate in general meeting to the making of this improvement. Moreover, even if permission or authorisation is given by the body corporate, I consider that the improvement would need to be installed / affixed in a professional and safe manner, and not simply left protruding out of a lot window. In the circumstances, I intend to order that the respondent, within one week of the date of this order, dismantle the dish and pole and remove it entirely from the window of the lot. Thereafter, the dish is not to be re-installed on any part of the common property in any manner, even on a temporary basis, until such time as the relevant authorisation of the body corporate in general meeting is sought and has been obtained. I have ordered accordingly.