Teresa Lodge [2006] QBCCMCmr 18 (12 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0658-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3923
Name of Scheme:	Teresa Lodge
Address of Scheme:	12 McLay Street COORPAROO QLD 4151

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

Janice Walters, the owner of lot 2

I hereby order that the authorisation given by the body corporate of Teresa Lodge to Janice Walters, the owner of lot 2 establishing the conditions of installation of the air conditioning system for her lot, is invalid and of no effect. I further order that Janice Walters, the owner of lot 2, (the owner) is entitled as of right, to proceed with the installation of an air conditioning system to her lot, including the placement of an external condenser unit on the balcony of her lot, without further reference to or approval of the body corporate PROVIDED HOWEVER • that the owner must obtain the consent of the body corporate in respect of any required use of common property involved in the installation (for example, for drainage of the unit); and • that upon installation, the air conditioning system when operating does not result in a contravention of body corporate by-laws or create a nuisance to others in the use and enjoyment of their lots and / or common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0658-2005

"Teresa Lodge" CTS 3923

The applicant, Janice Walters, the owner of lot 2 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

1.	Invalidate the decision of the body corporate that the installation of air conditioners be installed on the roof only.
2.	Approval is sought to install the air conditioner condensing unit on the balcony of Unit 2, 12 McLay Street, Coorparoo as recommended by air conditioner experts.

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 6 lots recorded under a building unit plan of subdivision. The regulation module applying to the scheme is the small schemes module.

The dispute concerns the placement of the external component (the condenser unit) of an air conditioning system. In short, the applicant seeks to overturn or invalidate a body corporate requirement that the condenser unit be placed on the common property roof of the scheme. In stead the applicant seeks to locate the external condenser unit on her balcony. The body corporate has refused its consent or approval for this, and the applicant has made application to this office for an order in accordance with her desire to place the unit on her balcony.

It is not necessary for me to set out the facts or circumstances of this dispute in any detail. Whilst there is some dispute regarding various aspects, there are no conflict in dispute the resolution of which is pivotal to the outcome of this application.

One aspect I consider to be very important (pivotal in fact) to the outcome of this dispute is an issue not canvassed by the parties: namely is the body corporate able to approve the placement of the condenser unit on the conditions which it has. The applicant, and the body corporate, appear to have accepted this aspect without question, and the applicant appears to have sought to challenge it decision only on the basis of reasonableness and practicality etc.

To succeed on the question of reasonableness, the applicant would need to show that the body corporate was not acting reasonably in the enforcement of the by-laws and the administration of the common property, as it is required to do under section 94 of the Act. I suggest that on the present information, this might prove difficult. There appears nothing discriminatory in what the body corporate has done: its determination regarding the placement of the condenser unit applies equally to all owners. Moreover, the considerations taken account of by the body corporate appear reasonable, are seemingly based on compliance with by-laws, and appear to be in the interests of owners generally. In the circumstances, I would need to be convinced on the question of alleged unreasonableness on the part of the body corporate in regard to this matter.

However, before a body corporate can make a decision on a matter (like for example, the placement of air conditioning condenser units) it must first have jurisdiction. Jurisdiction for a decision can be found variously, including in:

• a body corporate’s duty to control, manage and administer the common property, and alternatively,
• it duty to enforce the by-laws and control issues of nuisance.

I have checked the plan for the scheme and find that the balcony where the applicant proposes to locate the condenser unit is within the boundaries of her lot, and is not common property. A body corporate has a significantly more limited jurisdiction in respect of lots. In fact, the decision of the body corporate is that the unit in question must be placed on common property and cannot be placed on the balcony of the lot. Usually it is the other way round; an owner seeking body corporate authorisation to use part of the common property, not their own lot. I conclude that there is no basis for the body corporate’s position regarding the condenser units based on control, management and administration of common property.

The other basis on which the body corporate might have jurisdiction for its position is the enforcement of by-laws. Firstly, it is possible that the body corporate might have passed and thereafter recorded a by-law setting out the location and basis on which air conditioning might be installed, including on common property. I consider there is jurisdiction for such a by-law on the basis of the body corporate being able to enact by-laws for the use and enjoyment of a lot. However I note that a specific by-law to this effect is not currently recorded for the body corporate.

The other type of by-law which might have required body corporate consent to the installation of the condenser unit on a lot’s balcony is the by-law which requires an owner to obtain body corporate authorisation or consent to any change to the external appearance of the lot. For example in the standard by-laws to the Act, there is a by law which provides that:

The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

However, no equivalent by-law exists in the recorded by-laws for this scheme, and consequently, the body corporate’s written approval to the installation of the condenser unit is not required. The body corporate’s recorded by-law 8 is headed "Appearance of Building" and I have considered this by-law, however I conclude that it has no relevance or application to the installation of a condenser unit on the balcony. The items referred to as being prohibited are not in the nature of a condenser unit.

Rather than the specific by-laws outlined above, the body corporate appears to be relying on more generic by-laws, for example noise and obstruction, as the basis of its jurisdiction to determine the conditions of approval of the air condition system. However, I have an issue with reliance on these two particular by-laws. Reliance on both is prefaced on the belief that the installation of the compressor unit on the balcony of the applicant’s lot will lead to a breach of either or both by-laws. Given that the unit has not been installed, then any allegation that its use once installed would constitute a breach of by-law could only be regarded as belief only. No breach of a by-law can arise based on a belief that an action will lead to a breach of by-laws. Rather, the breach must be actual, based usually on the happening (be it one off or continuing) of some specified event.

I acknowledge that a "future contravention notice" might be issued by a body corporate, for an event that might happen in the future, however, such a notice could only be issued on the basis of an actual (past) event. For example, if the owner of a lot held a party at the lot causing much noise and perhaps damage to common property, or the leaving of rubbish on common property.
On the basis of the actual party, the body corporate might issue the owner with a future contravention notice requiring that no party causing similar noise / defacement of common property / or rubbish be held in the future. However, in contrast, no future contravention notice can arise based on simply a belief that a condenser unit might create noise or obstruction, when no actual evidence of this exists. Rather, a by-law contravention only arises once the unit has been installed, and then only if the body corporate believes that its installation has resulted in a contravention of the by-laws. As the unit has not been installed, I conclude there cannot be any objection or refusal of authorisation of it based on anticipated future contravention of a by-law.

I conclude there is no currently recorded by-law for this scheme on which the body corporate can rely to refuse the applicant permission to install the condenser unit on her balcony. Moreover, I conclude that in the circumstances, the issue is beyond the jurisdiction of the body corporate, subject to one matter I will shortly touch upon. In the circumstances, I conclude that the applicant has a right to proceed with installation of the air conditioner, including the condenser unit on the balcony of her lot, without consulting the body corporate on this issue, and without obtaining its approval.

However, there are a number of reservations to be pointed out and I do suggest that the applicant should proceed giving due consideration to all circumstances which might arise. Clearly, it is possible that once installed, the installation might result in an alleged breach of by-laws. The by-laws are required to be observed by all owners and occupiers. As well, section 167 of the Act headed "Nuisances" might also be relevant. That section provides:

167 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.

It will then be a matter to be determined whether a breach of by-laws has in fact occurred or a nuisance or unreasonable interference been created from the operation of the installed unit. This is a matter of fact that can only be determined at the appropriate time. However, there is probably much the applicant can do to avoid or reduce this possibility. In particular, the installation should be done in a way which limits to the greatest possible extent, any possible nuisance to or interference with enjoyment of lots or common property by others. This includes many aspects but specifically for example, the selection of the unit, the manner of installation, the specific location relative to the location and layout of other units, the direction in which the unit faces, and other steps taken to avoid possible nuisances (including drainage requirements), and generally all measures taken to reduce the impact of the unit on others. It is for the applicant to ensure all aspects of compliance with the by-laws and to not create a nuisance.

The matter of possible body corporate involvement to which I referred earlier is drainage of the unit. It is usual for condenser units to require drainage of waste water. If this involves common property, then the body corporate will need to be consulted. I suggest that the body corporate cannot prevent the installation by refusing permission for drainage as this will arguably be unreasonable, and moreover, a lot owner has easement rights over common property in respect of the provision of utility infrastructure (say a pipe) supplying a utility service (eg. air-conditioning) to a lot. For this reason I doubt the ability of the body corporate to refuse permission for reasonable drainage. However, the body corporate does have the right to indicate how it requires the unit to be drained, if common property is involved. The body corporate must act reasonably in determining this.