Warwick Tower [2006] QBCCMCmr 156 (28 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0798-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13161
Name of Scheme:	Warwick Tower
Address of Scheme:	51 Marine Parade, REDCLIFFE QLD 4020

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

Jeanette Williamson, the owner of lot 16

I hereby order that the application by Jeanette Ann Williamson (nee Twell) the owner of lot 16, for an order for permission to install air conditioning in unit 16, Warwick Tower, 51 Marine Parade, Redcliffe, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0798-2005

"Warwick Tower" CTS 13161

The applicant, Jeanette Ann Williamson (nee Twell) the owner of lot 16, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Permission to install air conditioning in unit 16, Warwick Tower, 51 Marine Parade, Redcliffe.

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 16 lots recorded under a building unit plan of subdivision. The regulation module applying to the scheme is the standard module.

This dispute concerns the proposal by the applicant to install the external components of air-conditioning units on the roof of the building which is common property. The applicant is the owner of one of two lots located immediately below the roof of the building. The applicant seeks to overturn the outcome of a "without dissent resolution" which was defeated at a "postal" EGM held on 10 October 2005. That motion proposed that the body corporate approve the installation of air conditioning in unit 16 and that installation of two compressors be placed on the roof of the building. This motion was defeated with the following vote, 4 "yes", 5 "no" and 3 abstentions.

In essence the applicant is seeking that I overrule the above determination, and allow her to air condition her unit by permitting the installation of the air-conditioning compressor units on the roof of the building immediately above those rooms intended to be serviced by the air-conditioning, subject to conditions "as deemed necessary".

In respect of the resolution of 10 October, 2005, I consider this resolution deficient in several respects. Firstly, improvements to common property for the benefit of a lot do not require a resolution without dissent, Rather, a special resolution is required under section 114 of the standard module is required (see below). In any event, I acknowledge that the motion would not have been carried notwithstanding the lesser resolution required for it to be so carried.

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.

My second concern with the meeting is that there is no such thing as a "postal" EGM. Perhaps this was suggested or proposed by the body corporate manager, or even the owners themselves. Whilst owners can vote by voting paper and return their voting papers by post and thereafter not attend the meeting in person, this is not a postal EGM. If a general meeting of the body corporate is convened, then there must be an ability for owners to attend in person, or by proxy, if they so choose. This aspect is relevant in the present circumstances, as certain owners have suggested to me that they have not had the opportunity to meet on the issue of the air-conditioning. Certainly, if these invalid "postal" meetings are held, then there will be no opportunity to meet and discuss issues. Perhaps the body corporate needs to reconsider its practice on this aspect.

I intend to dismiss this application for the reason that I am not satisfied that the body corporate has acted unreasonably in refusing its permission for air-conditioning to be installed on the roof of the building for the benefit of a single lot. Essentially, I am acknowledging that certain aspects of the concerns raised by owners are valid. However, in dismissing this application, I intend to make the dismissal conditional on further action on the part of the body corporate. Essentially I conclude that the applicant’s proposal is at this stage not optimal, but that there might be circumstances in the future where this determination might change.

My reason for concluding that currently the applicant’s proposal is not optimal is that it does not address the issue of air conditioning from a "whole of building" perspective. This has been referred to or alluded to by certain other owners in submissions. The applicant has made a reply to submissions, but does not appear to have specifically addressed the several points raised in those submissions. The point of a reply is precisely that: to address issues raised in submissions, not to provide further information supportive of the application. I consider the applicant should have sought to address the contents of submissions made in her reply. Certainly submissions opposing the application raise pertinent points and I consider the applicant’s material, in both her application or reply, do not satisfactorily or effectively address.

I return to my point of the "whole of building" perspective. There are 16 lots in the building, seemingly 2 per floor. The building was constructed without consideration of air conditioning. Whilst if the applicant’s proposal were allowed, it might be possible to air condition the top two units, and similarly, any units on the ground floor level (if there are any) which might be serviced by units located on common property immediately adjacent to any ground floor lots, this nevertheless leaves the issue of air conditioning for the remaining 12+ lots unaddressed.

In connection with the desire of an owner to air-condition a lot, in my view, there has been a change in community opinion on this issue over time based on a number of practical and social factors. In the last decade or so, air-conditioning has changed in most peoples mind from what might have been regarded as a luxury to something which is now considered possibly a requirement for reasonably comfortable living. In certain circumstances, air-conditioning might even be regarded as a necessity. For example, in the increasingly hot summers we have experienced, for the health and wellbeing of young babies and aged persons. Security is another factor affecting this, as persons are less willing to leave windows open. It is clear to see that new buildings these days are being built with provision for air-conditioning. Builders are providing for air-conditioning in a standardised way, rather than in a hap-hazard fashion.
Whilst the applicant’s proposal benefits her lot and one other, it does not contemplate air conditioning of most other lots. I suggest that other owners have a similar right to air condition their lots as does the applicant, and the applicant should not be afforded an advantage to the exclusion of other owners simply because of the location of her lot. Consequently, the applicant’s proposal was rejected by the body corporate, and at this stage, I conclude reasonably so.

However, I consider that what the body corporate should do in the immediate future is to address the issue of how air conditioning might in future be made available to all lot owners who so choose to air-condition their lots. Owners have suggested in submissions alternative locations for the compressor units. I suggest that the body corporate should at its cost commission a report or reports on the feasibility of placing the condenser units in such a way that air conditioning of any lot which desires it could be achieved. This will involve some cost to the body corporate in commissioning the report(s). Also, there might be additional costs in installing certain "utility infrastructure" so that air conditioning of individual lots might be achieved. The analogy would be putting in the cabling so that lots in the building might receive cable television or cable internet services. With air conditioning, it might require the provision of additional power or the installation of drainage pipes to drain waste water. I consider that these investigation and utility infrastructure costs should be borne by the body corporate (provided they are reasonable) and the cost to owners is then restricted to the costs associated with the specific installation of air conditioning to the lot. Moreover, I consider that in these circumstances, a body corporate is able to adopt a standard method and location of installation for all units, and to further impose any reasonable conditions it considers necessary. These conditions might even include the type of unit to be installed, or at a minimum, the maximum level of noise permitted of any unit so installed.

Whilst I have dismissed this application, as I consider it does not deal effectively with the position raised by those opposing the application, I consider that the body corporate should undertake and complete its investigations within a six month period. So that by 1 October, 2006 I suggest that the body corporate should be in a position to favourably consider applications for air-conditioning of individual lot, subject to (reasonable) conditions the body corporate might consider necessary to impose. If the body corporate is not in this position by the time specified, then the applicant, and any other owner for that matter is authorised to make further application regarding air-conditioning of their lot in a method they consider appropriate. I have already indicated that I am reasonably favourably disposed toward the reasonable use of common property for air conditioning of a lot. The ball is now in the hands of the body corporate to control the outcome this matter. If it chooses not to act, then in future, it may have decisions of this nature imposed on it.