Vallarta [2004] QBCCMCmr 320 (22 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0051-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13785
Name of Scheme:	Vallarta
Address of Scheme:	4 Parnoo Street CHEVRON ISLAND QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Luke Daniel Jess Moreta, the owner of lot 1

I hereby order that the application by Luke Daniel Jess Moreta, the owner of lot 1, for an order for approval to leave installed a bedroom window air conditioner, is dismissed. I further order that unless Luke Daniel Jess Moreta, the owner of lot 1, obtains the approval of the body corporate within two (2) months of the date of this order by way of special resolution for the air conditioning unit installed to remain, then it must be removed, and the common property reinstated, within such time.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0051-2004

"Vallarta" CTS 13785

The applicant, Luke Daniel Jess Moreta, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

The outcome I am seeking is for the approval to leave installed a bedroom window air conditioner.

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 4 lots registered under a building unit plan (now a building 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 committee 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.

The applicant seeks a determination that he be authorised to keep the air conditioning unit he has installed in the bedroom of a lot. The air conditioning unit is an order style, window mounted air conditioning unit. Photographic evidence of the unit suggests that it is not new, but probably second hand. The back of the unit protrudes onto common property of the parcel.

The installation of the unit is an improvement to common property for the benefit of the lot. Section 114 provides as follows –

114 Improvements to common property by lot owner--Act, s 159
(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 section42--
(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.

The requirements of the section for such an improvement are a special resolution of the body corporate in general meeting. That is, it will be necessary for the applicant to submit a motion for inclusion on the agenda of the next general meeting of the body corporate seeking approval for the air conditioning unit. If approval is given by special resolution, then the applicant may retain the unit. However, if approval is not given, then it will be necessary for the applicant to remove the unit as installed and reinstate the common property. I have ordered that unless the applicant obtains the relevant approval of the body corporate within two (2) months by way of special resolution for the air conditioning unit installed to remain, then it must be removed, and the common property reinstated. Consequently, the order sought by the applicant will be dismissed.

Whilst the applicant has sought an order that the air conditioning as installed be approved, I have dismissed this application, and instead ordered its removal unless approval for the same is obtained within a specified time period. There are a number of reasons for refusing to order in terms sought by the applicant including:

• The applicant’s failure to obtain approval by way of special resolution as required by section 114 of the standard module;
• The fact that other owners have previously followed correct procedures and obtained necessary approvals;
• The age and style of the air conditioning unit installed.

There is no doubt in my view that it is a reasonable expectation of an owner to be allowed the use of common property for the purposes of air conditioning. However, in so authorising the use of common property for this purpose, the body corporate is able to set or establish the conditions under which it will be done. These may reasonably include the type and style of air conditioning unit. These days, there appears to be a clear preference for split system air conditioning units, as opposed to wall mounted type units, both for aesthetics and other reasons. Further, the body corporate is able to include conditions as to the location of the unit on common property and the method of installation. In determining any of these conditions, the body corporate must act reasonably.