Fairway View Caloundra [2005] QBCCMCmr 202 (14 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0003-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19838
Name of Scheme:	Fairway View Caloundra
Address of Scheme:	8 Lyon Street DICKY BEACH QLD 4551

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

Jeanette Margaret Jones & Margot Anne Knowles, the owners of lot 4

I hereby order that the application by Jeanette Margaret Jones & Margot Anne Knowles, the owners of lot 4 for an order that their outside air conditioner unit not be located from present site, is dismissed. I further order that within two (2) months of the date of this order, Jeanette Margaret Jones & Margot Anne Knowles, the owners of lot 4, shall relocate their outside air conditioner unit from its present location to a location within the courtyard of their lot approved by the body corporate, and on such other conditions (eg height) as the body corporate might require.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0003-2005

"Fairway View Caloundra" CTS 19838

The applicants, Jeanette Margaret Jones & Margot Anne Knowles, the owners of lot 4 have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Air conditioner outside unit not be located from present site.

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 is a subdivision of 50 lots recorded under a group title plan (now a standard format plan) of subdivision. The regulation module applying to the scheme is the standard module.

The dispute concerns the placement of an airconditioning condenser unit (the unit) by the owners of lot 4, Jeanette Margaret Jones & Margot Anne Knowles, without authorisation of the body corporate. The actual location of the unit (whether on part of a lot or common property of the parcel) is unclear to me and neither party (the applicant nor the body corporate) had thought it necessary to clarify this aspect in their grounds. The body corporate has refused to grant approval for the unit in its current location on the basis of by-law 13 which provides:

The (owner) of a lot shall not, without first obtaining the written consent of the committee erect or cause to be erected any improvements to the lot or to the adjoining body corporate common property ... which consent may be refused ...

The committee has refused its consent to the unit being located in the location selected by the applicants, and the applicants have sought an order that the unit is not required to be re-located. The applicants conclude their grounds with an allegation of discrimination, quote:

It should be noted here that the complex is made up of townhouses and villas, and it is apparent that air conditioners in townhouses can be installed only in rear courtyards, whereas villas have areas outside the rear courtyard but within the confines of the property, thus enabling the installation of an air conditioner unit. A blanket ruling that by the body corporate for external units to be in rear courtyards discriminates against the owners of villas.

Though it is again not absolutely clear, this statement implies that:

• The applicants have a villa lot, and not a townhouse; and
• That the unit is installed on an exterior wall of their lot adjoining common property.

It is a reasonably usual scenario for bodies corporate to have by-laws regulating changes to the external appearance of a lot. The intent of such by-laws is to allow the body corporate to maintain uniformity of external appearance.

The body corporate has responded to the application, opposing it. In part, the submission states:

The body corporate recently approved a number of air conditioner installations. These approvals will only be granted if:

•	The air conditioners are split systems;
•	The external units are positioned within the courtyard of the premises and no higher than fence level.

The body corporate then provides a series of reasons why in the instant case the unit was not approved. I do not consider it necessary to enquire into these.

It is clear in my view that the body corporate is authorised under the by-law to give approval in respect of matters such as air conditioners. This is so, notwithstanding that the unit might in fact be located on the applicant’s own lot. Section 94 of the Act provides that:

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

The relevance of this section is that the body corporate must enforce the CMS, including by-laws for the scheme. In doing so, it must act reasonably. The question is whether the body corporate’s refusal to grant approval for the applicant’s air conditioner is unreasonable. In the circumstances, I do not conclude that it is so unreasonable.

I consider the position of the body corporate on the matter of air conditioners is an objective one: namely that they must be split system and the external component must be located within the courtyard of the premises and no higher than fence level. It seems to me that these requirements are being applied to all owners and not simply the applicant. The applicant claims discrimination, alleging that villas should be considered differently from townhouses, and (as best I can determine the applicant’s argument) because villas have an external part to their lot, then those owners should be exempt from the requirement for the units to be located in their courtyards, but instead, can be located on part of the lot but adjoining or adjacent to common property. I do not accept this argument. The applicants are not denying that their lot does not also have a courtyard. How is the body corporate being discriminatory by requiring that all external units be located in courtyards, irrespective of whether the lot is either villa or townhouse style. It seems to me that the requirement of the body corporate is one applying to all owners. It does not discriminate between owners as the applicant’s contend.

This office sought submissions from all owners in the scheme regarding the application. It is clear, by a margin of 5 to one of those who chose to make a submission, that there is majority support for the position which the body corporate has adopted on this issue.

In the circumstances, I conclude that this application should be dismissed. I am satisfied that the body corporate has not acted unreasonably, and that the applicants should be required to relocated their external unit to a location approved by the body corporate for the scheme. I have ordered accordingly.