Admiralty Quays [2004] QBCCMCmr 535 (4 November 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lord

I hereby order that the owner of lot 105, Lord Richard Felsing-Protasowski, shall be permitted to install a peephole in the entry door to the lot and affix a door knocker to the entry door to the lot provided that within 7 days of the installations he supplies the body corporate with written certification from the Queensland Fire and Rescue Service that the installations have not negated the fire rating of the entry door.

I further order that the owner of lot 105, Lord Richard Felsing-Protasowski, shall be permitted to
install a lockable power point in his car parking area provided that prior to such installation he supplies the body corporate with written confirmation from the body corporate’s insurers that such installation and its intended use are acceptable to the insurer.

I further order, in the event that the insurer accepts the installation of the power point and its intended use, but increases the premium payable for such insurance, the owner of lot 105, Lord Richard Felsing-Protasowski shall pay any such increased premium attributable to the installation and its intended use as directed by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0358-2004

"Admiralty Quays" CTS 24592

ORDERS SOUGHT

The applicant has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for that scheme (section 227(1)(b) of the Act).

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

(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)).

SCHEME DETAILS

Admiralty Quays registered as a building format plan in 1998 and comprises 173 lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant sought body corporate approval for the installation of the peephole and door knocker and for the provision of a 240volt power outlet inside the carparking area allocated to his lot on 16 July 2003.

On 7 August 2003, the body corporate manager informed the applicant that the committee declined his request in relation to the peephole and the door knocker. On 15 August 2003, the body corporate manager advised the applicant that the committee had also declined his request in relation to the power outlet within his carparking area. The body corporate manager further stated that there are no power points installed within the boundary of any parking lot at the scheme.

Following those decisions, the applicant commissioned a report from JCP Enterprises Pty Ltd (JCP), Private Investigators, and from D R Cameron & Associates (Cameron), Consulting Electrical Engineers.
The JCP report, dated 15 November 2003, stated that "although access to all floors (within the scheme) was restricted, it was obtained to sufficient levels to locate 4 units with additions to their entry doors. ... The additions include peep-holes, camera surveillance units and door chime buttons."

The report also provided photographs of the applicant’s car spaces on which were superimposed the proposed conduit run (to provide a power outlet within the car spaces) of approximately 4 metres from the applicant’s storeroom to the car spaces. The report noted that there is a "maze of conduits, exposed wiring and pipes of all sizes colours and shapes positioned all over the walls and ceiling of the carparking area" (level 2 of the carparking area of the scheme).

The Cameron report, dated 18 May 2004, provided an analysis of the expected annual cost of electricity as charged by Silver Energy and used by any of the applicant’s vehicles equipped with an inbuilt battery charger and satellite tracking security device, for which the applicant required the power outlet within his carparking areas.

The applicant apologized for the fact that his application was lodged outside of the time limit prescribed under section 242(2)(b) of the Act, but advised that the accumulation of evidence combined with his personal workload and prolonged absences from the jurisdiction had contributed to the delay.

The body corporate committee and all owners were invited to respond to the application. Six owners and the body corporate committee lodged submissions. Of those six owners, four had no objection to the peephole. One of the four also did not object to the door knocker and to the provision of power to the car spaces. The other three of these four owners either opposed the remaining items, or, in one case, opposed the door knocker, but had no comment to make on the provision of power to the car spaces on the basis that there was insufficient information to allow him to form a view.

Two owners opposed all proposals. One of these owners gave no reasons for his opposition, whereas the other owner expressed concerns over safety issues, noise nuisance and intellectual property rights.

The body corporate committee opposed all proposals. In respect of the peephole and the door knocker, the committee stated that it wanted to guard the uniformity of the building because this is an integral part of the prestige associated with the scheme. The issue of potential noise nuisance from the door knocker was also raised. The Committee opposed the provision of a power point within the applicant’s car parking areas on the grounds of safety.

The applicant exercised his right to reply to the submissions, and also provided a further report from Cameron, dated 21 July 2004, addressing the aspects of safety raised by the committee and some owners.

DETERMINATION

Dealing firstly with the applicant’s failure to lodge his application within the time frame required under section 242(2)(b) of the Act, I note that the body corporate committee did not take issue with the application in this regard. Furthermore, I accept the applicant’s submission that the delay has in no way prejudiced the body corporate, particularly as the committee had refused all of the applicant’s requests.

I also accept that the time taken by the applicant to obtain the reports to which I have referred above was a factor in the delay. I have been assisted in my deliberations by these reports.

I am satisfied under section 242(3)(b) of the Act that there is good reason to waive the non-compliance.

As to the substantive issues, I shall deal with those in the order in which they appear in the application.

Door knocker

Section 114 of the Standard Module provides:

(1) The body corporate may, if asked by the owner of a lot, authorise the

interest in land includes personal representative etc.), a reference to a person having

an interest in land includes a reference to the person’s personal representatives,

successors and assigns.

The body corporate committee refused the applicant’s request on the basis that the door knocker would detract from the appearance of the lot. The committee was also concerned that acceding to the request would set a precedent, and potentially see a proliferation of unacceptable door adornments. The committee also raised concern over the potential noise created by the use of the door knocker.

The applicant does not seek to justify his request for the door knocker on anything other than purely aesthetic grounds. He has a similar door knocker on his Sydney apartment, and it bears his family’s Coat of Arms. The applicant expresses the view that the door knocker is unobtrusive, in keeping with the amenity of the building and that it provides no inconvenience or obstruction to any other owner. He also pointed out in his reply that no other owner of a lot on his floor had objected to it.

Whilst I accept that the door knocker is probably unnecessary, I am not satisfied that it should be refused on this basis. I consider that it is unobtrusive, that it is tasteful and that it will not have an adverse impact on the general amenity or value of the lot, or the building as a whole. I am not persuaded that there is any greater likelihood of noise nuisance from the door knocker than from loud knocking on the door by hand. Of course, if it transpires that unreasonable levels of noise are generated by the use of the door knocker, the body corporate, or any affected owner, could seek redress from this office through the lodgement of an application.

I note that some concerns were raised as to the possibility that the process of fixing the door knocker to the door might negate the fire rating of the door. There is insufficient material before me to allow me to make a finding in this regard, however, I intend to allow the applicant to affix the door knocker, subject to the condition that he provide the body corporate with certification from the Queensland Fire and Rescue Services that the door knocker has not negated the fire rating of the door.

Peephole

I intend to allow the applicant to install the peephole. My reasons for this decision are similar to those expressed above except that for this item I consider that there is a justifiable safety issue and therefore I do not regard the peephole as unnecessary. I accept the applicant’s statement that a knock at an entry door gives the occupant of the lot no indication of the identity or number of persons seeking entry to the lot and that, in these circumstances, a peephole assists the occupant to ascertain that information.

Once again, I note the concerns expressed over the fire rating of the door if an insertion were to be made for the peephole, and I shall therefore allow the applicant to install the peephole subject to the condition that he provide the body corporate with certification from the Queensland Fire and Rescue Services that the peephole has not negated the fire rating of the door.

Lockable power point within the applicant’s car parking area

The body corporate committee and those owners who addressed this issue were largely concerned with safety issues, and to a lesser extent, the cost of the electricity.

I consider that the safety issues have been adequately answered by the Cameron report dated 21 July 2004, which concluded that having regard to the type of battery charger (Projecta) involved, the type of battery with which each vehicle is fitted, and allowing for all foreseeable contingencies, the report’s author was "unable to envisage any circumstances or conditions which would result in the batteries attached to the vehicles concerned exploding or emitting any inflammable fumes which could be ignited."

I also consider that the minimal cost of the electricity (estimated to be no more than $1.14 per annum) has been addressed in the earlier Cameron report, dated 18 May 2004. I also note that the applicant agreed to meet all ongoing power costs in any event. If, as seems to be the case, the source of the power is unable to be separately assessed so as to precisely quantify the cost, perhaps the body corporate may decide to charge the applicant the sum of, say, $50 per annum, which I think the applicant would be happy to pay just so as to derive the benefit of having his vehicle’s battery fully charged at any time that he might require to use the vehicle.

I note that the committee also raised the possibility that flexible leads running to the car might constitute a tripping hazard for any owner using the common property steps directly adjacent to the applicant’s car parking area. Although the applicant’s car parking area allows for tandem parking of two vehicles, I understand from the material that he only ever intends to have one vehicle at a time parked at the scheme. It appears from the photographs that the proposed site for the power point is on the opposite column to the steps, and if the vehicle parked "nose-in" then the lead would also be on the opposite side to the steps and in a position where other owners would not need to walk.

I intend to allow the applicant to have a lockable power point installed in his car parking area, subject to the condition that he obtain written advice from the body corporate’s insurers that such an installation and its intended use are acceptable to the insurer and/or will not increase the insurance premium. If it is acceptable but will increase the premium, then the applicant must pay to the body corporate the amount by which the premium increases, as part of his usual contributions.

Number of Scheme:	24592
Name of Scheme:	Admiralty Quays
Address of Scheme:	32 Macrossan Street BRISBANE QLD 4000

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Admiralty Quays [2004] QBCCMCmr 535 (4 November 2004)