Tea Tree Grove At Hendra [2004] QBCCMCmr 21 (13 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0446-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28335
Name of Scheme:	Tea Tree Grove At Hendra
Address of Scheme:	139 Pring Street HENDRA QLD 4011

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate of Tea Tree Grove at Hendra

I hereby order that within two (2) months of the date of this order, the owner of lot 46, Jason Rex Butcher, shall at his expense, erect or cause to be erected a lattice panel so as to screen the external compressor unit of the air conditioning unit he has installed on the upper level of his lot 46, and shall paint the lattice screen in colours consistent with the current colour scheme of the building. I further order that the owner of lot 46, Jason Rex Butcher shall be responsible at his expense for all future maintenance of the lattice screen.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0446-2003

"Tea Tree Grove At Hendra" CTS 28335

The applicant, the body corporate of Tea Tree Grove at Hendra has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

That Mr Jason Butcher remove the air conditioning installation at lot / townhouse 46.

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 scheme

The scheme contains 63 lots recorded under a building format plan of subdivision.

The application

The applicant is the body corporate for the scheme. The application seeks that the owner of lot 46, Jason Rex Butcher (the respondent) remove the air conditioning installation at the lot. The application alleges that on or before December 2001, the respondent "permitted an air conditioner to be installed without the permission of the body corporate". The application then outlines the course of events following the installation, including the issuance of at least 2 contravention notices.

Submissions

This office invited submissions from the respondent and all owners regarding the application. The respondent and one other owner elected to respond to the notice. The respondent states that a contractor installed the air conditioning unit (the unit) in March 2001. He states –

On his recommendation, the condenser unit was located on the recessed rear wall of the upper story of the townhouse requiring minimal ducting and an increase in cooling efficiency. The rear of lot 46 faces the local gym complex (covered with airconditioning condensers). The installed unit cannot be seen from inside "Teatree Grove" except from a small portion of roadway adjacent to the tennis court, and is of similar colour to the external rendering of the townhouse.

The respondent further states –

A letter and contravention notice was received from the body corporate in December 2001. No correspondence at all was received in 2002. It is now 2 years and 4 months since the unit was installed. ... The owner submits that the condenser unit has been installed professionally in a reasonable and unobtrusive location out of view of the residents, and does not require relocation.

The other owner who made a submission is supportive of the position of the respondent, stating that the body corporate should give approval for the unit to remain in its present location and suggesting that "only additional screening may be required".

Reply

The body corporate has replied to the submissions. The reply states that the issue in dispute is the question of consent to the installation. From this, the body corporate states that if an application had been made, "would have directed that the condenser unit be installed on the ground level". The reply further states –

... there is a set of Architectural Guidelines to ensure that any additions that owners wish to make are within agreed parameters.

I am concerned that the applicant body corporate is only now raising this issue of "Architectural Guidelines". They are not mentioned in either the contravention notices nor the grounds to the original application. Moreover, they are not by-laws and are not part of the discoverable record. An owner or occupier is not bound by matters other than what is on the body corporate record, namely the by-laws. I intend to not consider this late reference to Architectural Guidelines.

The body corporate concludes that –

What the body corporate does object to and has been endeavouring to address, is the indiscriminate changing of the external facades of townhouses at (the scheme) through the addition of services such as air conditioning units. All the body corporate is trying to ensure that these services are at ground level and out of sight of other owners and their guests.

Determination

I sought that the body corporate explain its delay in prosecuting the alleged by-law contravention. Essentially the body corporate refers to poor body corporate administration by a pervious manager. The current manager was appointed in July 2002. Notwithstanding this, it still took some 7 months before the body corporate reactivated the matter.

The contravention notice refers to by-law 3.01. The by-law provides that –

An owner or occupier must not without the prior written consent of the body corporate:

1) Carry out structural alternations to the dwelling ...
2) Alter in any way the external appearance of the dwelling upon his lot except in the ordinary course of maintain and upkeep of the dwelling;
3) Consent for structural alteration will only be granted if the proposed alterations conform with the provisions of the architectural guidelines.

The issues here are reasonably straightforward. The respondent does not deny that the unit was installed without consent. However, I do not consider that the installation of an air conditioning unit constitutes a structural alteration. I conclude that only by-law 3.01(ii) applies. I consider that the air conditioning unit alters the external appearance of the lot, and as such prior written consent of the body corporate was required. The respondent has failed to deal with the issue of his failure to obtain the necessary consent.

The respondent has sought to argue acquiescence on the part of the body corporate in dealing with this matter. There is some merit in this argument, however it does not alter the fact that the installation was made without the requisite consent as the by-laws requires. Each owner or occupier is required to comply with the by-laws in every respect. Ignorance of the relevant by-laws does not excuse non-compliance.

As for the allegation of acquiescence, I consider that the body corporate did initially take action in 2001, then failed to follow this up for a substantial period. I would dismiss this application if the body corporate action only commenced in 2003, but the respondent was on notice from 2001 that the body corporate objected to the installation. However, I do consider that this body corporate has on the whole failed to prosecute this alleged contravention in a timely manner, such that the respondent might reasonably have concluded that the body corporate had accepted the installation.

My other concern is that this contravention is only one of a number of contraventions by owners or occupiers. This is alluded to in the reply of the body corporate manager, in the passage I have quoted above. In these circumstances, I am reluctant to order the removal of the unit. I further note that of 63 owners from whom submissions were sought, only one owner excluding the respondent considered the matter of sufficient concern to make a submission. I suggest that this response is indicative of the level of concern of other owners to this alleged contravention.

In the circumstances, I am not prepared to order the removal of the air conditioning unit. However I do propose to order that it must be screened with lattice as suggested by the other owner and then painted in colours consistent with the current colour scheme of the building. Moreover, the screen shall be at the expense of the respondent, as will be all future maintenance of the lattice screen.