Fernbrook [2004] QBCCMCmr 310 (17 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0102-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20243
Name of Scheme:	Fernbrook
Address of Scheme:	14 Paltarra Street, THE GAP Q 4061

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

I hereby order that the application by the body corporate for Fernbrook, for orders that - 1. Sally Kathryn Alexander the owner of lot 12 remove the air conditioner motor and condenser from the position on the exterior of her lot where it is presently situated; 2. That the air conditioner motion and condenser either be removed completely or if it is to be re-installed that Sally Kathryn Alexander firstly apply to the body corporate in writing detailing where the motion and condenser are to be re-positioned and that no work be carried out by Sally Kathryn Alexander or her servants or agents to re-install the air conditioner motor and condenser with the prior written consent of the body corporate committee, is dismissed. I further order that within six (6) weeks of the date of this order, and at her expense, the owner of lot 12, Sally Kathryn Alexander, shall reduce the visual impact of the air conditioning condenser unit installed on the roof of that lot by screening such unit in materials consistent with those used throughout the complex, and which shall be in colours consistent with those used throughout the complex.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0102-2004

"Fernbrook" CTS 20243

The applicant, the body corporate for Fernbrook, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

The applicant seeks orders that:

3. Sally Kathryn Alexander the owner of lot 12 remove the air conditioner motor and condenser from the position on the exterior of her lot where it is presently situated;
4. That the air conditioner motion and condenser either be removed completely or if it is to be re-installed that Sally Kathryn Alexander firstly apply to the body corporate in writing detailing where the motion and condenser are to be re-positioned and that no work be carried out by Sally Kathryn Alexander or her servants or agents to re-install the air conditioner motor and condenser with the prior written consent of the body corporate committee.

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 is a subdivision of 64 lots registered under a group title plan (now a standard format plan). The regulation module applying to the scheme is the standard module.

The application and submissions

This office sought submissions in respect of the application from the owner of lot 12, Sally Kathryn Alexander (the respondent) and all owners. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes. I therefore intend only to refer to those materials necessary for a determination of the issues raised.

At the request of the respondent, I undertook an inspection of the scheme generally, and the installation of the air conditioning compressor unit (the unit) at the lot specifically on Thursday 17 June 2004. I was assisted at that inspection by the father and occupier of lot 12, his solicitor, a former chairperson of the committee who owns an adjacent lot and objects to the visual amenity created by the installation of the unit from that lot, and finally a current member of the committee. At the inspection I was shown two other air conditioning compressor units installed on the exterior of lots, both of which I consider to be more conspicuous in terms of their location than that installed at the respondent’s lot. Both these units were installed without body corporate committee, but apparently at a time before the body corporate committee had put in place appropriate procedures.

I indicated a number of matters to all parties at the inspection including that –

• My power was to make orders which were "just and equitable" for the resolution of the dispute, and involved a discretion;
• That there was a clear distinction to be drawn between approval being sought by a lot owner for an improvement to a lot in contrast to an improvement to common property. The latter requires a special resolution in general meeting whereas the former only requires committee approval. Moreover, I indicated that in making improvements to a lot, I considered that an owner should be given more latitude then when the improvement affected common property. That is, I consider that in determining whether to give approval to an improvement to a lot under a by-law the committee was restricted and could only refuse approval where a clear and objective basis for objection could be shown to exist (for example excessive noise, detrimental effect on aesthetics).
• I concluded that the application was unnecessarily complicated by the actions of both parties. In particular, the fact that the dispute had been ongoing for over 3 years now and had generated considerable correspondence, which in itself created conflict and uncertainty, and further confused the issue.
• Finally that the position of neither party was particularly meritorious in my view. For example, the fact that certain installations had previously gotten through, but that a seeming similar installation by the respondent was now being objected to (suggesting inconsistency and making the allegations of bias or discrimination easy to make). Further the fact that it had taken the body corporate in excess of three years to make this application. From the respondent’s perspective, the failure to be both aware of the requirements of the by-laws and to comply with them. The reliance on self serving and partial evidence provided by the air conditioning installer. The arguing of a difficult legal construct (estoppel) where the basis for such claimed estoppel was an alleged verbal approval of a now dead former committee member.

The relevant by-law states –

No external blinds, awnings, pergolas, air conditioning units or other structures shall be erected or attached to any building without the previous consent in writing of the committee. Such consent shall not be arbitrarily withheld.

The objection of the body corporate committee appears to be twofold; the failure to obtain initial approval, and the visual amenity. The defence of the respondent is also twofold; the claimed estoppel (which I refuse to consider) and that in any event the body corporate is acting unreasonably in now refusing its approval under the by-law.

There is clear dispute regard the alleged failure to obtain approval, with allegations and counter allegations, denials and issues of estoppel. On this point I am not prepared to investigate the matter, and consider that there are deficiencies in the positions of both parties (see comments above).

The question then becomes whether the body corporate is unreasonably withholding its approval under the by-law or whether its refusal to approval the unit in its current location is a reasonable one.

On this aspect of the dispute, I inspected the unit from the upper level living room windows of the former chairperson’s lot. It appears that objection to the unit was first taken under the chairpersonship of this lot owner. Whilst I consider that the unit was visible from the living room of the former chairperson’s lot, so to were many other aspects of the scheme, and the overall impact was a palette of features I associate with community living – rooves, walls, pipes, gardens, paths, roadways etc. I concluded that the unit did not stand out particularly in this wider view. I further noted that the unit was becoming increasingly less visible due to the growth of a native tree. Whilst concern was expressed that this tree might be lost in a storm, I consider that this argument is not a reasonable one. If it is, then another tree can be easily planted, and I suggest within a short period, the unit will again disappear for the most part.

However, in deference to the position of the affected owners, and the committee, I did conclude that the unit should be screened by the respondent so as to lessen the visual impact alleged to be created by it. I indicated at the inspection that I intended to resolve this dispute by ordering the respondent to screen the unit using materials (eg lattice screening) and in colours consistent with the existing colours of the scheme. I have ordered accordingly.