Karri Court [2005] QBCCMCmr 533 (28 September 2005)

Last Updated: 19 July 2006

REFERENCE: 0376-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13439
Name of Scheme:	Karri Court
Address of Scheme:	63 Northcote Street EAST BRISBANE QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Philip and Ursula Hilyard, the owner of Lot 8

I hereby order that the application for an order by Philip and Ursula Hilyard, the owner of Lot 8 seeking an outcome to install air conditioning on an external wall on the common property for the community titles scheme, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0376-2005

"Karri Court" CTS 13439

APPLICATION

This application is by Philip and Ursula Hilyard, the owner of Lot 8 (Applicants) against the body corporate (Respondent). The Applicants have named all lot owners and specifically Lucia Giacco, the owner of Lot 6 as persons who would be affected by the outcome sought by the application (Affected persons). The Applicants are seeking an outcome to complete the installation of a reverse cycle air conditioner.

JURISDICTION

"Karri Court" Community Titles Scheme 13439 is a 12 lot 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 Applicants’ main submissions were to the effect that:

• They purchased Lot 8 in February 2005 and decided to install air conditioning due to the Brisbane climate and because of the position of the Lot which faces west.
• They propose to install the outside unit of the air conditioner on the back wall of the building using brackets. It is proposed that the water overflow from the unit will be connected to a grate at ground level.
• The unit will not be visible from the street and it faces a vacant allotment at the rear of the building.
• On 24 February 2005, they received permission from the body corporate manager, AD Body Corporate. The contractor was subsequently prevented from installing the unit by Lucia Giaccio, the only person voting to prevent the installation.
• Emma Bretherton, the body corporate chairperson has incorrectly referred to the loudness of the unit as the unit would be above and below the windows of the nearest neighbours.

In accordance with the Act, submissions were called and a copy of the application was provided to Lucia Giacco, and to the body corporate manager for distribution to the owner of each lot (excluding the Applicants) and the committee. A submission was received from Lucia Giacco and from the committee.

Submissions from Lucia Giacco opposed the application on the basis that:

• The air conditioning unit would detract from the amenity of the lot and its surrounds and set a precedent.
• The installation of the unit will damage common property.
• The noise from the unit will interfere with a person’s peaceful enjoyment of the lot or common property.

The submission on behalf of the body corporate committee was to the effect that:

• The previous body corporate manager attempted to give the Applicants approval to install air conditioning, but the body corporate committee decided otherwise.
• The installation of the air conditioner must be approved in accordance with section 114 of the Standard Module.
• Due to the layout of the lots in the building, if the Applicants install an air conditioner on the back wall of Lot 8, another owner proposing to similarly install an air conditioner on the back wall of that person’s lot could result in the air conditioning being visible from the street.
• The body corporate has not received the vital information on condensate control.
• The noise from the air conditioning unit is also of concern, particularly given its proximity to Lots 4 and 12.

DETERMINATION

"Karri Court" was established by the registration of Building Units Plan 1671. 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. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings^[1]". Section 49C of the Land Titles Act 1994 provides that "except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling". The plan of subdivision shows Lots 1 to 12. Generally, the boundary on each Lot is the centre of the floor, wall or ceiling. The parts of scheme land which are not part of the Lots included in the scheme are common property (for example, the roof, the outside walls of each building, and the land surrounding the building).

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. Section 167 of the Act provides the basic rule governing an owner’s use of common property and provides, quote:

Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

As the body corporate administers, manages and controls the common property, a lot owner or occupier does not have a right to use common property for that person’s own benefit without body corporate authorisation in accordance with the Act, the Standard Module, or in accordance with a by-law for the scheme.

The installation of air conditioning is defined as an improvement^[2]. The improvement is for the benefit of the Applicants Lot. The wall on which it is proposed to install the air conditioning is common property. Therefore, section 114 of the Standard Module applies, quote:

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.

Given the expected cost of the air conditioning, the improvement is not a minor improvement^[3]. Consequently, the authorisation requires a special resolution^[4] in general meeting of the body corporate reflecting the significance of a request from a lot owner to make an improvement to common property for the benefit of the owner’s lot.

It would seem that an approach was made by the Applicants to the previous body corporate manager and that Emma Bretherton, as the only committee member subsequently voted against the Applicants’ request by voting in writing outside a committee meeting dated 28 March 2005. Neither, the body corporate manager nor the committee could authorise a request from a lot owner to which section 114 of the Standard Module is applicable. In addition, Emma Bretherton, as the only committee member at the relevant time, could not make a body corporate decision.

It is apparent that the Applicants have not properly sought body corporate authorisation, and the body corporate has not yet given proper consideration to a request to install air conditioning. The Applicants have expressed the reasons for the request, and two lot owners have stated their opposition to the present request. However, the opinion of the remaining lot owners has not been properly sought. Given the significance of the Applicants proposal, I consider that the Applicants must demonstrate that body corporate authorisation has been sought in accordance with section 114 of the Standard Module, and that the body corporate has unreasonably refused to authorise the making of the improvement. The Applicants have not properly sought body corporate authority, and have not satisfactorily argued that the identified opposition to their proposal is unreasonable. For these reasons, I have dismissed the outcome sought.

In my view, the Applicants should make a request to the body corporate in the form of the submission of an appropriate motion for consideration at a general meeting. The Applicants can also include an explanatory note about the motion provided the note is not longer than 300 words^[5]. It will then be a matter for the consideration of lot owners by special resolution.

However, before the matter is considered in general meeting, it may be preferable that the lot owners discuss the issue of air conditioning in an attempt to determine an agreeable solution. In my view, it should be recognised that we live in a sub-tropical climate and it is becoming increasingly popular to install air conditioning and a person’s right to choose to have air conditioning should not be hindered simply because the person resides in a community title scheme. However, there are factors which must be considered in a community titles context. For example, a lot owner proposing to install the air conditioning on common property must request the approval of the other owners in accordance with the legislation. In my view, the owner must provide the necessary material to the owners to ensure that the owners are aware of the issues such as the proposed position of the air conditioning, the proposed work to be carried out on the common property (if any), the noise level emanating from the air conditioning, and the possible effects the operation of the air conditioning may have on the use and enjoyment of common property and the other lots in the scheme. A body corporate must give proper consideration to a request and cannot, without good reason, simply reject the proposal on the basis of creating a precedent. The placement of the air conditioning on the common property wall at the rear of Lot 8 may be acceptable if the position is the only viable option for this Lot, and does not otherwise contravene section 167 of the Act or a scheme by-law such as the Noise By-Law or the Obstruction/Nuisance By-Law. However, the Applicants should be aware that if installed air conditioning is subsequently found to breach section 167 or a body corporate By-Law, the use of the unit may be subsequently restricted or prevented.

I have not ordered that the body corporate must convene a general meeting to give consideration to a request from the Applicants as I consider that the parties should commence some dialogue with respect to this issue before formalising any necessary decisions in accordance with the legislation. However, I do not consider that the body corporate should unnecessarily inhibit any attempts to further this matter. The Applicants initially sought approval in February 2005, and if they had obtained the proper assistance, they may have had an opportunity to have this matter considered by lot owners in general meeting.

^[1] Section 48C(1), Land Title Act 1994
^[2] Schedule 6, Act
^[3] An improvement with an installed value of $250 or less; Dictionary Standard Module
^[4] Section 106, Act "Counting of votes for special resolution"
^[5] Section 42C, Standard Module.