Yeronga Lodge [2006] QBCCMCmr 13 (6 January 2006)

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

I hereby order as follows-

1. that the respondent, Blair Vanden-Driesen, owner of Unit 1, remove his air-conditioner condenser and associated fittings from the exterior wall of Yeronga Lodge and that the wall be returned to its original condition at his expense within fourteen (14) days of the date of this order unless he does within that time, submit a motion to the committee for inclusion at a general meeting for a vote by special resolution of the body corporate, that he may maintain that or similar apparatus;
2. if the respondent wishes to submit a motion to the committee, it should include the desired location and specifications of the proposed air conditioning apparatus, details of the circumstances that warrant special consideration being given to the respondent, if any, and details of conditions or restrictions on usage to which the respondent would be willing to agree to in order to address the concerns of the body corporate members, particularly with regard to noise and vibration;
3. that if the respondent submits such a motion to the committee, the committee must within six (6) weeks of the date of receipt convene a general meeting at which the motion shall be voted on as a special resolution;
4. In accordance with section 114 of the Body Corporate and Community Management (Standard Module) Regulations 1997, authority may be given by the body corporate on conditions which the body corporate considers appropriate and if the respondent is given authority, he must comply with the conditions of the authority and maintain the apparatus in good condition unless excused by the body corporate;

5. that the respondent Blair Vanden-Driesen does not operate either or any air-conditioning apparatus between the hours of 10pm and 5am, unless authorised to do so by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0591-2005

"Yeronga Lodge" CTS 12026

APPLICATION

This is an application dated 13^th August 2005 and amended on 15^th September 2005 by the body corporate for Yeronga Lodge (the applicant) against Blair Vanden-Driesen, (the respondent) owner of Unit 1 in the scheme for an order as follows –

JURISDICTION

Yeronga Lodge Community Titles 12026 is a Community Titles Scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). There are six lots in the scheme created under a Building Unit Pan (BUP) of subdivision.

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)).

The body corporate says that in March 2004 the respondent, who was at that time the secretary of the body corporate, installed two air-conditioner condensers, one on his balcony and one on the wall above it. He did this without any reference to the committee or other owners.

The owner of Unit 4 which is situated above the respondent’s unit has told the committee that the condenser is noisy. The body corporate has taken steps at meetings to conciliate with regard to the noise issue, and has taken noise level readings, and asked the respondent to relocate the condenser. On 14^th March 2005, the owner of Lot 4, Lily Armstrong (Ms Armstrong) gave to the committee two Notices of Contravention of By-Laws. On 18^th July 2005, after further attempts at negotiation, the committee sent to the respondent two Notices of Continuing Contravention of a Body Corporate By-Law, one quoting Schedule 3, section 30, " Damage to Common Property" in full, concerning damage to the common property wall, and the other quoting Schedule 3, Section 30, Noise 1. The second Notice explained that the air-conditioning is "causing vibrating through the cavity brick common wall of unit 4 and causing major noise problems for the owner of Unit 4."

The respondent has referred the committee to his solicitor when attempts have been made to resolve the problem.

Owner of Unit 4, Ms Armstrong, sent a diary documenting the inconvenience caused to her, which diary she has maintained on the recommendation of the local authority. The air-conditioning noise was first documented between 8^th – 10^th March 2004 when it was noisy "until 11.30pm". From March to October 2004, it was not a problem, which Ms Armstrong attributes to the winter season. From 8^th October 2004 Ms Armstrong had several nights when she could not sleep for the noise continuing sometimes all night. She had to move into another bedroom in her unit. With the exception of a quiet period between 15^th – 28^th November 2004, her sleep was regularly disturbed until the first week in March 2005. She sent the Notice of Contravention to the committee on 14^th March 2005.

The noise recommenced on 21st June 2005, and continued intermittently in July until the first week in August 2005. She is able to tell when both units are on, and hears a "loud vibrating motor noise" and sometimes "a rattle noise as if unstable." She can hear the noise within her unit and also very loudly on her balcony and in her garage. She notices that after a body corporate meeting, negotiation with the respondent, "or after Council sends him a notice..." (from which I understand she has reported the matter to Council), the respondent" tries to keep to reasonable hours for a while.... but then he gets slack again." She believes from discussing the problem with Energex and "Daikin" air conditioning suppliers that the air-conditioner "is a cheaper rowdier type." Other persons present in her unit have heard the noise, but when she or others have confronted the respondent he has either denied that the air conditioning was turned on or that the units made a noise.

The respondent says that he actually installed both the air-conditioner condensers on 14th January 2004 and not in March 2004, and since he was the sole member of the committee at that time, he granted permission to himself. He says that "the committee does not fully understand its obligations under the various Body Corporate Acts ..." He says the current committee is not properly constituted and so the order sought cannot be granted.

He says that the suggestion that there was no body corporate meeting to discuss the installation is incorrect as at that time he was the sole member of the committee and granted himself approval. He admits however, that the matter was raised in October 2004, but denies that there were any conciliation meetings. He has obtained noise level readings inside his bedroom and lounge room which indicate the noise levels comply with Australian Standards. He says that the Contravention Notices are invalid because they deal with "schedule 3 of the BCCM Act which concerns the Code of Conduct for letting agents". He says that the by-laws for the scheme were not quoted, but that some generic by-laws of the Act and a former Act were quoted.

He says if he has defaced the common property wall then so have other lot owners " through the installation of screws or other objects which damage or deface an exterior wall of their lot and they have not obtained the body corporate’s written approval to place nails/hooks to hang pot plants etc." He attaches a photograph of Unit 5 which I believe is to show a sunshade in place over Unit 5’s balcony. He says the air conditioner is mounted on brackets and it is only the brackets which are in the wall.
He believes the issue is not with the appearance of the air-conditioner but with vibrations specifically and not even "noise". He will investigate this issue and attempt to have it rectified.

He says he did not have notice of the committee meeting of 13^th August 2005 although Ms Armstrong attended and she is not a committee member, and concludes that he was excluded deliberately.

Lastly, he says that he needs air conditioning for his health and attaches a doctor’s letter to that effect. A copy of a letter from a neighbour, Chris Hartsuiker, also states that the neighbour is not disturbed by the air-conditioner. The neighbour is at Unit 1, 40 Yeronga Place which is not in the same scheme, and is a newer building which the neighbour thinks might account for the fact that he has not been disturbed.

The respondent attaches as Annexure 6 a document headed "By-laws – BUP 3129 "Yeronga Lodge" July 1983."

In reply, the body corporate says that if the respondent was at the time of installation the sole committee member, (which is denied as Robyn Haigh acted as Treasurer at that time, although the respondent signed documents as " Secretary/treasurer" on behalf of the committee) then if he granted himself permission for the air-conditioner he has no concept of " conflict of interest."

It says that issues of other residents defacing the common property wall are irrelevant., although it believes no other resident has drilled holes or passed pipes through the wall. It confirms that the committee does have concerns about the noise and the placement as well as the vibration. It suggests that the proper approach by the respondent might have avoided the disharmony created by him. The committee does not require that the respondent does not have air-conditioning at all, only that his air-conditioning does not disturb other lot-owners. His air-conditioning is unattractive and a major inconvenience to one lot-owner.

DETERMINATION

The applicant relies on the failure of the respondent to comply with two by-laws for the scheme, and the respondent says that the breach notices sent to his solicitor are invalid because the wrong by-laws were quoted in the Notices.

In fact, I find that whilst the dispute may also concern by-laws which is a subject I shall address later, the main cause for concern is that the respondent made an improvement to common property in 2004 ( either January or March) without the consent of the body corporate at a general meeting. The consent of the committee is not enough, so arguments concerning whether the committee was properly constituted (or consisted of only one person) are not valid.

Section 114 of the Standard Module states as follows-

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

good condition, unless excused by the body corporate.

An "improvement" defined in the Act as including--

of air conditioning.

A "minor improvement" is defined as one that has an installed value of less than $250. It is clear that the respondent needed a special resolution of the body corporate to install his air conditioning condenser on common property (the exterior wall) and to lead ducting through the common property. A special resolution requires that two-thirds of all those who cast a vote be in favour and not more than 25% of all lot owners be against. ( that is, for this scheme, 1.5 = 2) (Section 106 Act). The reason behind section 114 is to prevent exactly the sort of harm that has befallen Yeronga Lodge, in that at the time such a resolution is passed, conditions may be imposed, for example, the maintenance of the air-conditioner, the type and hours of employment of it, and the future maintenance and making good of the wall if necessary.

Equally, a future purchaser will be able to see from body corporate records that the air-conditioner is either unlawfully in place, or was approved subject to certain conditions and know what his or her liability is.

I will make an order that the respondent removes the condenser and brackets and any ducting affixed or led through the common property unless the body corporate by special resolution at a general meeting gives him authority to maintain it. That authority may be subject to reasonable conditions.

With regard to the condenser situated on the respondent’s balcony and not affixed to common property, the by-laws may become relevant. By-laws quite often state that " the permission of the body corporate" must be obtained if a lot owner wishes to do something which if he did it without permission would cause a breach. In such cases, the permission of the committee is sufficient unless the by-law states that permission must be given by resolution at a general meeting.

The by-laws for Yeronga Lodge are in issue. A by-law for a scheme can only be a by-law if it is recorded as such in the Land Titles Registry of the Department of Natural Resources and Mines, (the Titles Office). Section 179 of the Act states -

A by-law comes into force on the day the registrar records the community management statement containing the by-law or a later date stated in the by-law.

Historically, when the Act came into effect in July 1997, existing schemes such as Yeronga Lodge were deemed to have an "interim" community management statement in which were included by-laws which were identical to the by- laws that, immediately before the commencement of the Act, were the by- laws in force for the scheme (section 337(2)(g)(i) Act.) Bodies corporate were then given three years in which to record a new Community Management Statement (CMS) which could include, amongst other things, new by-laws adopted by the scheme. If a scheme did not register its own particulars within three years of the assent of the Act, the Registrar recorded a CMS for the scheme, giving the scheme a Standard Module regulation as the governing regulation, and stating as follows-

"By-Laws
Taken to be those in effect as at 13 July 2000"

The scheme therefore kept whatever by-laws it had prior to the recording of the standard CMS, which were the by-laws on the "interim" CMS. In other words, if a body corporate did not wish to update its by-laws, they remained as they were in 1997 before the commencement of the Act. A standard CMS for Yeronga Lodge was recorded by the Registrar on 15th July 2000 in accordance with the current section 339(2) of the Act.

There are no by-laws recorded on the CMS in the Titles Office for Yeronga Lodge. Prior to 1997 there have been no previous dealings where individual by- laws have been recorded. In such circumstances, Annexure 6 submitted by the respondent does not represent the current by-laws for the scheme and the by-laws in force in 1997, were those under the former legislation, the Building Units and Group Titles Act 1980 (BUGTA).

Section 30 of BUGTA states -

(1) Except as provided in this section the by-laws set forth in Schedule 3 shall be the by-laws in force in respect of each plan."

Section 30 goes on to set out how a body corporate may make, add to or repeal its own by-laws by notification on the prescribed form in the land registry and recording by the Registrar of Titles. Section 30(3) states -

"An amendment of, addition to or repeal of the by-laws has no force or effect until the registrar of titles has, pursuant to a notification in the prescribed form lodged in the land registry by the body corporate, recorded the notification on the registered plan."

The by-laws set out in Schedule 3 of BUGTA are the only by-laws that can apply to Yeronga Lodge since there are no other by-laws recorded. These are the by-laws correctly quoted by the committee on the contravention notices dated 18^th July 2005. For convenience, I have set out the by-laws in Schedule 3 of BUGTA at the end of this decision.

By-law 8 does not allow a lot-owner to hang washing or bedding on his balcony, or place an article" although it follows that such "article" would under the "ejusdem generis" rule, mean "a like article" and that therefore the placing of an air-conditioning condenser on a lot-owner’s balcony would not need the permission in writing of the committee. However, the noise by-law may not be breached.

In disputes which concern a matter of degree, such as a dispute about noise, it is always difficult to make a determination. It is clear that only one lot-owner, Ms Armstrong, is concerned by the noise, and I find that her recording of the times during which she is disturbed unexaggerated. Whether or not she is a particularly light sleeper or more susceptible to noise than others I cannot know. I note that she has put up with considerable disturbance with fairly good grace for well over a year, and that she has not made much of changing bedrooms within her own house, no doubt at some inconvenience to herself, in order ameliorate the problem.

I also note, that the respondent has, perhaps understandably, only managed to record noise levels from within his own lot, which noise recordings would be totally irrelevant to the sound or vibration experienced outside his lot or within another lot. It is noted, that even within his own lot, the air-conditioner appears particularly loud in the master bedroom at 55 decibels at 1 metre’s distance, and louder than recommended in the lounge room at 51 decibels.

In matter 0622-2002 –Mariner Views CTS 9252 , the adjudicator said-

"The Environmental Protection Agency provides that for air conditioning equipment, noise (should be) no louder than 50 decibels during 7 am to 10 pm, and between 10 pm and 7 am, either 40 decibels (or 5 decibels above background noise level). These specifications are the same as those accepted by the Brisbane City Council, which I refer to as a guide.

As well, the BCC fact sheet provides the following table as a practical guide to different decibel levels:

The air-conditioning noise levels quoted remain the levels above which an ‘on-the-spot’ fine may be issued by the Council.

Further, the respondent does not deny that his air-conditioning is noisy in Ms Armstrong’s unit. He has not experienced it himself, and therefore does not know. He relies on a very narrow and technical argument which has no foundation in law, that he gave himself permission for the installation, that the current committee has used the wrong paperwork, that in any event, that committee is not competent, and others have defaced the common property. Finally, he concludes that he has to have air-conditioning, which rather suggests that if there is a noise problem in Unit 4, he does not care.

I find these remarks unhelpful in addressing a perfectly ordinary problem. Many unit owners have successfully installed air-conditioning without causing undue inconvenience to neighbours. In fact, it has been held by certain adjudicators that air-conditioning is a utility almost accepted as standard in Queensland, and that a refusal to install air-conditioning may be, without more, unreasonable.

In matter 0804-2003 Windsong Terraces CTS17963 , the adjudicator said -

The importance of a lot owner being able to have quiet enjoyment of her own home may therefore outweigh the convenience of air-conditioning.

It may assist the body corporate to take engineering advice concerning suitable makes and installation locations for air-conditioning units suitable for lots at Yeronga Lodge. In future, other lot owners may also wish to put in air conditioning. The body corporate may also like to consider drawing up guidelines or standards for the operation of air conditioning units. These can be incorporated into the by-laws of the scheme by a special resolution at a general meeting and by recording a new Community Management Statement in the Land Titles Registry. Many schemes have such guidelines.

There is also a wealth of information available about installing air-conditioning units from the websites of both the Brisbane City Council and the Environmental Protection Agency. Hints for reducing noise can be found in the Noise Fact sheet " Air Conditioning Equipment" available from the Brisbane City Council. These include maintenance, limiting hours of operation, selecting a modern quieter air-conditioner, making an acoustic enclosure, and making modifications to the fan or compressor unit.

I shall make an order that the respondent removes the apparatus on the exterior wall of Yeronga Lodge within 14 days of the date of this order unless he does within that time, submit a motion to the committee for inclusion at a general meeting for a vote by special resolution of the body corporate, that he may maintain the apparatus. The motion should include the location and specifications of the proposed air conditioning apparatus, details of the circumstances that warrant special consideration being given to the respondent, if any, and details of conditions or restrictions on usage to which the respondent would be willing to agree to in order to address the concerns of the body corporate members, particularly with regard to noise and vibration.

In the event of receiving a motion from the respondent within 14 days of the date of this order, the body corporate must call a general meeting within six weeks of such receipt, for the motion to be voted upon. The committee may also propose conditions of approval. If the motion is not passed, or if the respondent does not submit the requisite motion, then the respondent is at his own expense, to make good any damage in the way of screw holes or ducting holes following removal of the apparatus.

With regard to the issue of noise and vibration emanating from the either or both air-conditioning condensers and the condenser on the balcony, which does not need the consent of the body corporate, the respondent shall operate his air-conditioning only between the hours of 5 am and 10 pm each day, and shall not operate the unit or units during any other time unless the respondent has first satisfied the body corporate committee that the operation of it during other times will not cause a nuisance to any other lot-owners

On a final point, and in the interests of improved communication, the committee should be aware that by virtue of section 28(4) of the Standard Module, notice of a forthcoming committee meeting must be given to all lot owners at the same time as it is given to committee members. Non-committee members have no right to attend the meeting but on giving 24 hours notice to the secretary may ask to attend, but cannot at the meeting have any input if the committee do not wish them to do so, and must not be present for certain items ( section 32B(3) Standard Module). The committee may invite any person, including a person who is not a lot-owner, for example a professional engineer, or air-conditioning expert, to attend or to address a committee meeting. (section 32B(1)(b) Standard Module).

____________________________________________________________________

Building Units and Group Title Act 1980
Schedule 3 By laws
section 30
1 Noise
A proprietor or occupier of a lot shall not upon the parcel
create any noise likely to interfere with the peaceful
enjoyment of the proprietor or occupier of another lot or of
any person lawfully using common property.

2 Vehicles
Save where a by-law made pursuant to section 30(7)of this
Act authorises a proprietor or occupier so to do, the proprietor
or occupier of a lot shall not park or stand any motor or other
vehicle upon common property except with the consent in
writing of the body corporate.

3 Obstruction
A proprietor or occupier of a lot shall not obstruct lawful use
of common property by any person.

4 Damage to lawns etc. on common property
A proprietor or occupier of a lot shall not
(a) damage any lawn, garden, tree, shrub, plant or flower
being part of or situated upon common property; or
(b) except with the consent in writing of the body corporate,
use for his or her own purposes as a garden any portion
of the common property.

5 Damage to common property

6 Behaviour of invitees
A proprietor or occupier of a lot shall take all reasonable steps
to ensure that his or her invitees do not behave in a manner
likely to interfere with the peaceful enjoyment of the
proprietor or occupier of another lot or of any person lawfully
using common property.

7 Depositing rubbish etc. on common property
A proprietor or occupier of a lot shall not deposit or throw
upon the common property any rubbish, dirt, dust or other
material likely to interfere with the peaceful enjoyment of the
proprietor or occupier of another lot or of any person lawfully
using the common property.

8 Appearance of building
In the case of a building units plan, a proprietor or occupier of
a lot shall not, except with the consent in writing of the body
corporate, hang any washing, towel, bedding, clothing or
other article or display any sign, advertisement, placard,
banner, pamphlet or like matter on any part of his or her lot in
such a way as to be visible from outside the building.

9 Storage of flammable liquids etc.
A proprietor or occupier of a lot shall not, except with the
consent in writing of the body corporate, use or store upon his
or her lot or upon the common property any flammable
chemical, liquid or gas or other flammable material, other
than chemicals, liquids, gases or other material used or
intended to be used for domestic purposes, or any such
chemical, liquid, gas or other material in a fuel tank of a motor
vehicle or internal combustion engine.

10 Garbage disposal
A proprietor or occupier of a lot shall

11 Keeping of animals
Subject to section 30(12), ( which deals with guide dogs) a proprietor or occupier of a lot
shall not, without the approval in writing of the body
corporate, keep any animal upon his or her lot or the common
property.

The Commissioner’s office offers a free Information Service on 1800 060 119. There are also brochures available ( eg a brochure entitled "By-Laws") from the Information Service and on the Commissioner’s website at www.dtftwid.qld.gov.au/Dispute+Resolution/BCCM

Number of Scheme:	12026
Name of Scheme:	Yeronga Lodge
Address of Scheme:	44 Yeronga Street YERONGA QLD 4104

`o`	that the respondent remove the air-conditioner condenser and associated fittings from the wall of Unit 1 and that the wall be returned to its original condition;
`o`	that only one condenser be installed in unit 1, and that should be on the balcony of unit 1;
`o`	that the condenser installed on the balcony should be of a standard approved by the body corporate;
`o`	that the approved condenser should be regularly serviced;
`o`	that the hours of use of the approved condenser be restricted to such that it is not being used between the hors of 10.00pm and 5.00 am.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Yeronga Lodge [2006] QBCCMCmr 13 (6 January 2006)