Gail Court [2005] QBCCMCmr 237 (4 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0075-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14851
Name of Scheme:	Gail Court
Address of Scheme:	24 Gail Street Kedron Qld 4031

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Gail Court community titles scheme 14851

I hereby order that within two (2) months of the date of this order, Deborah Hodges, the owner of Lot 8 must remove from common property the air conditioning unit situated on the Level B eastern side of the building, and reinstate or repair any parts of the common property damaged by the removal of the air conditioning unit to its former state and condition of repair.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0075-2005

"Gail Court" CTS 14851

APPLICATION

This application is by the body corporate (applicant) against Deborah Hodges, the owner of Lot 8 (respondent). The applicant is seeking an outcome that the respondent:

•	remove the air conditioning unit (unit) from the front of the property and replace the glass window;
•	either remove the unit completely or move it to the roof or the rear of the Lot;
•	reimburse the body corporate for the costs associated with the adjudication process.

JURISDICTION

"Gail Court" Community Titles Scheme 14851 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

SUBMISSIONS

The applicant’s main submissions were to the effect that:

• Before 6 October 2004, the respondent installed the unit through a window on the front of the Lot 8.
• The respondent has contravened By-Law 8 "Appearance of Lot" and the committee resolved on 1 November 2004 not to approve the installation.
• On 18 November 2004, the body corporate gave the respondent a "Notice of Continuing Contravention of a Body Corporate By-Law" and the respondent has not complied with this notice.
• The owners of 8 of the 10 lots consider that the unit is unsightly and detracts from the appearance of the property.

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the body corporate manager for distribution to the owner of each lot.

The respondent’s main submissions were to the effect that:

• The installation of the unit is a minor change and permission was not required from the body corporate.
• The objections to the unit are based on subjective opinion.

Submissions from other lot owners indicated that:

• The unit is positioned in a window fronting onto an open courtyard and the entrance to the complex.
• Two other lots have installed air-conditioning units with body corporate approval at the rear of the building.

DETERMINATION

"Gail Court" was established by the registration of Building Units Plan 204 on 5 October 1967. With the commencement of the Act on 13 July 1997, a building units plan is now classified as a building format plan of subdivision under the Land Title Act 1994. The boundary of a lot created under the plan can be the floor, wall or ceiling of the lot, and can also be a structural element such as the centre of a wall which is not full height or the outer face of balustrades or railings (section 49C, Land Title Act 1994 and Registrar of titles directions for the preparation of plans).

Lot 8 is situated on Levels "A" and "B" of BUP 204. A balcony is located on Level B on the eastern side of Lot 8. This balcony is part of the Lot. The outer wall or balustrade of the balcony is the boundary between the lot and the common property. The photographs supplied by the applicant shows that this balcony has been enclosed and that the unit is positioned in a window and extends past the outer wall or balustrade of the balcony. The part of the unit extending past the balcony is on common property for the scheme.

Section 35 of the Act provides that owners own the common property as tenants in common which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property. A lot owner proposing to make an addition to common property must do so in accordance with the requirements of the Act and the Standard Module.

In this case, the unit has been installed for the benefit of the owner of Lot 8 and is overhanging common property. The installation of air conditioning is defined by the Act as an improvement (Schedule 6, Act). Section 114 of the Standard Module applies in this instance and provides that an owner proposing to make an improvement to common property of this nature for the benefit of the owner’s lot must obtain the authorisation of the body corporate by special resolution at a general meeting. The respondent required this authorisation before installing the unit in its present position. The respondent has not obtained this authorisation, and it is clear that at least 3 lot owners do not support the installation of the unit in this location. Section 106 pf the Act provides that a motion is passed by special resolution only if the following criteria are satisfied:

1. At least two-thirds of the number of votes cast are in favour of the motion.
2. The number of votes counted against the motion are not more than 25% of the number of lots in the scheme.
3. The total of the contribution schedule lot entitlements for the lots voting against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots in the scheme.

There are 10 lots in this scheme. As the 3 lots identified as opposing the installation of the unit could vote to defeat a relevant motion requiring a special resolution proposed to be considered at a general meeting, I am satisfied that the body corporate would not authorise this improvement to common property if the request was now submitted to a general meeting.

In addition, as the body corporate initiated legislative processes with respect to the installation within a reasonable time frame of the installation of the unit, I do not consider that the body corporate has acquiesced in any way to the installation. Further, the respondent has not shown that the body corporate has either permitted the installation of other air conditioning units on the eastern side of the building or has taken this action while allowing other similarly installed air conditioning units on the scheme. It is evident that the body corporate has approved the installation of air conditioning, but only on the western side of the building. In my view, the body corporate may reasonably adopt such an approach provided that all owners have equal access to this part of the scheme. The respondent has not demonstrated that she cannot reasonably use this part of scheme land for the air conditioning of her lot.

For these reasons, I have ordered that the respondent must remove the air conditioning unit from the window on the eastern side of the building.

The applicant has stated that the unit could be relocated to another part of the scheme land. If the respondent proposes to relocate the unit, then any relocation must be accordance with the requirements of the legislation. Therefore, the decision on the relocation lies with the body corporate if indeed its authorisation is necessary. The applicant has also sought the reimbursement of the costs of adjudication. This claim is dismissed.