Tea Tree Grove At Hendra [2004] QBCCMCmr 53 (29 January 2004)

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

I hereby order that the application for "Approval of the BC Committee to leave the condenser unit in its present location. It being determined by the licensed contractor for installation as being the most suitable given the particular unique layout of this lot. Seeing that suitable screening has been undertaken and no neighbours have complained and all have agreed that it is the most suitable location given the circumstances." is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0493-2003

"Tea Tree Grove at Hendra" CTS 28335

APPLICATION

This application was made by Steven and Khin Kenworthy, former owners of Lot 50 (applicants) on 21 July 2003 under the Body Corporate and Community Management Act 1997 (Act). The applicants sought orders against the Body Corporate for Tea Tree Grove at Hendra (respondent) in the following terms:

Tea Tree Grove at Hendra community titles scheme (Tea Tree Grove at Hendra) consists of 79 lots and common property. The community management statement (CMS) for Tea Tree Grove at Hendra indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent body corporate with an invitation to the committee to the matters raised in the application. A written submission was made by the chairperson of the committee, and an unsolicited submission was made by a lot owner. The applicants did not avail themselves of the opportunity to inspect or reply to the submissions received (see sections 246 and 244 of the Act respectively).

In September 2003 the applicants advised that they had sold their lot but that they wanted the application to proceed for the sake of the new owner. A member of the Commissioner’s Office contacted the applicants to clarify this matter. I understand that Mr Kenworthy then indicated that he intended to withdraw the application. Having not received a written withdrawal, on 11 November 2003 the Office wrote to the applicants requesting confirmation of whether they wished to proceed with the application (see section 241(2) of the Act). The applicants responded that they and the "new tenant" wished to proceed. The applicants were advised that an order may not be warranted if the applicant no longer has a continuing interest in the subject of the dispute, and noting that if the new owner was in dispute on this matter then they may wish to lodge an application. The applicants’ response indicated that they wished the current application to proceed.

A dispute resolution recommendation was subsequently made referring the dispute to departmental adjudication.

JURISDICTION

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:

(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)).

MATTERS IN DISPUTE

The application relates to the disputed location of an air conditioner condenser. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.

The body corporate committee considered an application for the installation of an air conditioning unit in Lot 50 (the minutes refer to the date of the meeting as 21 January 2002 although the application implies approval given in January 2003). The meeting resolved to approve the application "subject to the owner conforming to the body corporate’s Architectural Guidelines including the compressor being located on the ground level". At a committee meeting on 7 April 2003, the committee reported that a condenser had been installed on the balcony of Lot 50 and was visible from the road. It was resolved to write to the owners of Lot 50 advising that the condenser be relocated to ground level within 30 days or further action would be taken. On 2 June 2003 a further committee meeting noted that the aforementioned letter had been sent on 24 April 2003 but that the condenser had not been removed. The committee then resolved to issue a contravention notice to the owners of Lot 50 and to take further action with this Office if the notice was not complied with.

The applicants argue that the approval conditions gave no consideration to the unique layout of the lot, being 2 metres shorter than the average lot size and located at the end of a side road. They also argue that the installation contractor refused to site the unit between a gas outlet and an external hot water system for safety reasons, and the balcony was suggested because of limited ground floor space. Installation proceeded on that basis, and no further body corporate approval was sought.

The respondent body corporate argues that the approval of external condensers at ground level only is for the comfort of residents and the appearance of the townhouses. It suggests that only 4 of the 79 townhouses in the scheme have not complied with these requirements. The applicants argue that the condenser is screened so that it does not detract from the external appearance. The unsolicited submission noted that the condenser was not visible from the street. The applicants also refer to other air conditioners in the scheme that are not located on the ground floor, and provide a photograph, purportedly of Lot 26, which does appear to show an air conditioning unit on the upper floor of two adjacent townhouses. It is unclear whether these townhouses are included in the four non compliant townhouses referred to by the body corporate.

I have been provided with a document entitled "Architectural/Landscaping Code" which the body corporate suggests was drawn up by an architect and a quantity surveyor. The document states that it is to be read in conjunction with the Schedule C to the Sales Contract being the "Tea Tree Grove at Hendra By-Laws", and that in accordance with the by-laws, permission of the body corporate is required in respect of the matters outlined in the Code. Under the heading of "Air Conditioning Unit" the Code states that "Wall mounted units are not permitted. External air-cooled compressor units (as part of split systems) may only be located on ground level in the rear courtyard."

An Owner or Occupier of a Lot must not without the prior written consent of the Body Corporate:-

By-law 1.04 defines terms used in the by-laws and defines "architectural guidelines" as "guidelines in relation to structural alterations published from time to time by the Body Corporate."

The body corporate has also provided information from Origin Energy regarding the gas hot water cylinders and gas outlets. The information is not specific to this situation but indicates clearances of 500 to 3500mm from ignition sources, depending on the circumstances and type of gas source.

DETERMINATION

Although the by-laws specifically contemplate architectural guidelines, it is arguable that the guidelines do not have the same enforceability as the by-laws because they are not included in the CMS. (If appropriate, I understand that guidelines of this nature can be included in Schedule D of a CMS.) On that basis, it would seem that the Code only has the status of a policy that guides the committee in its application of the by-laws. I note that owners should be alerted to the existence of the guidelines because of the reference in the by-laws.

By-law 3.01(i) and (iii) refer to the requirement and conditions for prior written consent for structural alterations. The meaning of "structural alterations" was considered in adjudicator’s statement of reasons in order 0212-1999:

I do not consider that a plain reading of "structural alteration" would encompass the installation of an air-conditioning unit. Therefore, in the absence of specific wording in the by-law extending the scope of a structural alteration, it is not evident that subclauses (i) and (iii) of by-law 3.01 require approval for an air-conditioning unit. Therefore, compliance with the architectural guidelines is not necessarily applicable to the installation of an air-conditioning unit.
By-law 3.01(ii), however, prevents alterations to the external appearance of a unit without consent. The installation of air conditioning is clearly beyond the "ordinary course of maintenance and upkeep" and so, if it involved an external alteration, would appear to require approval. The by-law implies that body corporate approval must be sought and, under section 94 of the Act, the body corporate must act reasonably in determining whether approval should be granted or not. In considering whether consent for an alteration will be granted, the body corporate may give consideration to a general policy (such as the terms of the architectural guidelines), however I would suggest that this does not avoid the body corporate’s responsibility to consider all the circumstances surrounding any request for an external alteration, and to make a determination on the merits.

In terms of the factors that a committee may consider, I note that the condenser does not appear visible in the photographs provided by the applicants, but the photographs do not show the balcony from all angles. It would be necessary for a qualified contractor to report on the safe clearances required from the existing barbeque gas outlet and gas hot water cylinder, and I have not been provided with conclusive information in this regard. It is also difficult to ascertain, from the photographs and information provided, whether or not there are any alternative ground floor locations for the condenser that are safe and suitable. Of itself I am not convinced of the applicants’ argument that it requires special consideration because the lot has a unique layout and smaller than average size, because the scheme plan suggests that the lot sizes in the scheme vary significantly.

I have canvassed these issues briefly for the information of the parties. However, for the reasons I have outlined below, I do not consider it necessary in the current application to investigate these matters further or to make a determination of these issues.

Applicants’ interest in this dispute

Section 276(1) gives adjudicators authority to make orders to resolve a dispute. A dispute is defined in section 227 of the Act by reference to the parties who are in dispute. Section 238(1) refers to an applicant being a person who is a "party to, or is directly concerned with, a dispute...".

Provided that an applicant has appropriate standing to make an application at the time of lodgement, strictly speaking they are entitled to pursue the matter to its final determination. However, this situation is qualified when the applicant has no significant or continuing interest in the relief being sought. For example, it would be difficult to argue that an applicant had a continuing interest in an application concerning alleged breaches of a noise by-law if they had sold their lot and no longer resided in the scheme. This can be contrasted to an application for reimbursement of expenses which the applicant incurred but believes should properly have been borne by the body corporate.

Departmental of Natural Resources and Mines records confirm that the applicants are no longer owners of a lot in this scheme. Transfer of the lot was effected in September 2003, after the dispute resolution application was made. When the application was lodged the applicants were within a category of persons entitled to make an application under section 227 of the Act, and were parties to a dispute in respect of which an adjudicator could make an order. However, following the sale of their lot, I do not consider that the applicants have a significant or continuing interest in the relief sought in this application. It is clear that they are no longer directly concerned with the location of the condenser and are no longer in ‘dispute’ with the respondent body corporate over this matter. Accordingly, I intend to dismiss the application.

Further steps

My dismissal of this application does not prevent other parties from pursuing this issue if a dispute exists between those other parties.
The new owner of Lot 50 may wish to progress this issue if they have a dispute with the body corporate. I am conscious that it is not apparent that an application has been made to the body corporate for specific approval to alter the external appearance of Lot 50 through the installation of a compressor on the balcony. If the new owner of Lot 50 seeks approval for the current location of the air conditioner, they should first make an appropriate request to the committee outlining full details of the circumstances and basis for the request. The committee must then consider the circumstances and make a reasonable decision in accordance with the Act. If other air conditioning units have been approved in locations other than on the ground floor, the comparative details should particularly be considered. If the new owner considers that the body corporate makes an unreasonable decision or otherwise breaches the Act, they may lodge a fresh application with the Commissioner’s Office seeking a determination of the matter.

Alternatively, if the condenser has not been relocated and this is of concern to the body corporate, it is open to the body corporate to issue a by-law contravention notice to the new owners and to lodge a dispute resolution application in this Office if the notice is not complied with.

However, I would encourage the body corporate and the new owners of Lot 50 to attempt to resolve this matter independently before any further dispute resolution application is made. If appropriate, the parties may wish to contact the Dispute Resolution Centre (DRC) in the Department of Justice and Attorney-General. DRC’s trained independent mediators can conduct mediations, usually free of charge. While disputes can be referred to the DRC by this Office, parties can contact DRC to arrange a mediation at any time.

	the provisions of the "Architectural/Landscaping Code" that only permit external air-cooled compressor units, as part of split system air conditioning units, to be installed on ground level in the rear courtyard, are enforceable;
	by-law 3.01 empowers the body corporate to refuse any air conditioner condensers that are not on the ground floor; and
	having regard to the merits of the individual circumstances, there are any reasons why it would be unreasonable for the body corporate to refuse to approve the installation of an air conditioner condenser on the balcony of Lot 50.

(i)	carry out structural alterations to the Dwelling upon his Lot;
(ii)	alter in any way the external appearance of the Dwelling upon his Lot except in the ordinary course of maintenance and upkeep of the Dwelling;
(iii)	consent for structural alternation will only be granted if the proposed alternations conform with the provisions of the architectural guidelines."

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Tea Tree Grove At Hendra [2004] QBCCMCmr 53 (29 January 2004)