The Vaucluse Apartments [2005] QBCCMCmr 699 (12 December 2005)

Last Updated: 16 January 2006

REFERENCE: 0589-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15331
Name of Scheme:	The Vaucluse Apartments
Address of Scheme:	28 - 30 Oatland Esplanade RUNAWAY BAY QLD 4216

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

James Wessel Bakker & Shirley May Bakker, the owner of lot 8

I hereby order that the application by James Wessel Bakker & Shirley May Bakker, the owners of lot 8, for an order for the removal of two airconditioning units from the common property ledge or spandrel by Suzanne Joy Sykes, the owner of lot 5, is dismissed. I further order that within two months of the date of this order, at her cost, Suzanne Joy Sykes, the owner of lot 5 (Sykes) shall remove from the common property ledge or spandrel adjoining her lot 5, either one of two air-conditioning units which has located there without body corporate approval, and thereafter reinstate the common property to its former state and condition of repair.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0589-2005

"The Vaucluse Apartments" CTS 15331

The applicants, James Wessel Bakker & Shirley May Bakker, the owners of lot 8, have sought the following order of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Removal of airconditioning units from the ledge or spandrel.

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 9 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

This is a dispute seeking the removal of two airconditioner external or condenser units installed by the owner of lot 5, Suzanne Joy Sykes, on the common property of the parcel, namely the ledge or spandrel of the building.

I have considered all material the subject of this application including the application itself, the submissions in response, and the reply of the applicant. I conclude that there are numerous aspects of non-compliance with correct procedures, along with several statements by all parties I do not consider either correct and / or relevant. For example, it is irrelevant for the purposes of this application that the respondent is a "renovator" or that the applicants do not "live permanently at his apartment". Finally, it is clear that the applicant fails to indicate certain facts I consider relevant, in particular relating to air conditioning approvals in the building and the fact that their lot has the benefit of ducted air-conditioning.

I intend to order the removal of one of the two air conditioning units installed by the respondent on common property. In doing this, I am dismissing the application in so far as it relates to and seeks the removal of both air-conditioning units which the respondent has installed. This order is a just and equitable resolution of this dispute for the following reasons:

• I am satisfied that at the AGM of the body corporate held on 25 October 2004 the respondent received body corporate approval "to install an airconditioner". I consider that this approval was given, and is valid, notwithstanding that the approval was not the subject of a formal motion notified to owners as part of the agenda of the meeting. It is clear that if not all, then most owners were present at this meeting. In the circumstances, I am prepared to accept that approval was given to the respondent for the installation of one air conditioning unit.

• I do not accept the respondent’s explanation or justification of why a second air conditioner was installed. Whatever the reason or need for the second air conditioner, this is not something other owners or the body corporate should simply be burdened or encumbered with. If circumstances were such that it transpired that one air conditioning unit was not sufficient, then it was incumbent on the respondent to seek further approval for the second air conditioning unit, and not proceed as she did to simply install the second unit. It was incumbent on the respondent to get the technical details right. The fact that the respondent states that she had at the time "a number of personal problems" does not excuse her action of simply proceeding with the installation of two units. The respondent had approval for one unit, and it is not reasonable that the respondent proceed to install two units, unless and until such time as approval for the installation of the second unit was obtained.
• The applicant’s actions lack consistency. The contravention notice of 2 May 2005 (which incidentally pre-dates the flying committee motion to issue the notice ("issued" on 17 May 2005 and dated 23 May 2005) and signed by the applicant as chairperson, refers to removal of "a 2^nd airconditioner installed on the units balcony without permission". It is implicit in this that at this time at least the applicants considered that the first unit had been approved by the body corporate, or at the very least, the applicants did not seek the removal of both units. By the time of their application however, this changes to "removal of airconditioning units" – plural.
• A body corporate is not allowed to discriminate between owners / occupiers in the administration of common property. Section 94 of the Act states that the body corporate must administer the common property for the benefit of owners and must act reasonably in anything it does in this regard. It is not reasonable in my view when certain owners but not others are allowed airconditioning. It is clear that the body corporate generally has a policy in favour of allowing air conditioning units (see the minutes of the 2004 AGM). Generally, what is allowed for certain owners must be allowed for all, within reasonable limits. It is evident that both the applicant’s lot above and the lot 2 below the respondent’s both have the benefit of air conditioning. Why should the respondent’s be precluded from this?
• The applicants’ allegation of noise is unsubstantiated. Moreover, it is incorrect in my view to state that "as noise rises only our unit is affected". While hot air rises, noise travels, and this might be up, down or sideways. Whilst the noise might have a more limited impact on other owners, it is not for the reason alleged by the applicants. It may have something to do with the configuration of the building or other factors, but it is not for the reason that it rises.
• Generally, neither the applicants nor the body corporate can dictate the type (ie. the brand) of air conditioner which must be installed. However, I agree that the body corporate might:

o approve only split system units rather than window mounted air conditioners;
o approve the installation subject to it being within agreed / specified noise parameters when operating;
o specify the location on common property and the method of installation including that it be professional, and that the unit is thereafter properly maintained by the owner.