Dominion House [2006] QBCCMCmr 202 (24 April 2006)

Last Updated: 19 December 2006

REFERENCE: 0911-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10374
Name of Scheme:	Dominion House
Address of Scheme:	34 Dominions Road ASHMORE QLD 4212

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

P McPhillimy, the Owner(s) of lots 9 and 11

I hereby order, that the Body Corporate of Dominion House CTS 10374 (the respondent) is deemed to have approved the installation of all existing air conditioners and/or condensers on the common property of the complex, as a result of acquiescence to the installations over a number of years. This order remains subject to the nuisance provisions of the Act (S167). I further order, that all improvements authorised to be made to the common property (including air-conditioners), must be entered in the Register of Authorisations in accordance with S146(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0911-2005

"Dominion House" CTS 10374

The Application

The applicant has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1. The Committee serve a Form BCCM 10 Notice of Continuing Contravention of a Body Corporate By-Law against the owner of lot 1 for the removal of the unauthorised and illegal air-conditioning system located outside the Applicant’s lot; and

2. Subject to the owner of Lot 1 complying with the Form BCCM 10 Notice of a Continuing Contravention of a Body Corporate By-Law, the Committee enforce the Notice by making an application to the Commissioner seeking an order for the removal of the illegal air-conditioning unit; and

3. The Committee undertake all necessary work to ensure the common property is brought back into a state of good repair which includes, but is not limited to, rectifying the following common property issues as raised above:-

a. Damage to anti-slip tread on common property steps and ramps
b. Damage to common property ceilings
c. Damage to common property tiles or lack of tiling in several common property areas
d. Water leaks on common property
e. Damage to common property down pipes
f. Abandoned rubbish lying on common property
g. Unground tree stumps
h. Unsightly graffiti on common property walls
i. Lack of weed and pest control
j. Damage to grassed areas by occupiers

4. The Committee, within 7 days of an order being made, provide access to all utilities and common property to the Applicant (on behalf of Guardrite) by providing all necessary keys and access information,

Jurisdiction

Dominion House CTS 10374 is a 21 lot scheme under the Body Corporate and Community Management Act 1997 ( the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). It was created under a Building Unit Plan 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

(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)).

Applicable Law

The legislation includes provisions to the effect that:

• An occupier must not use or permit use of the lot or common property in a way that causes a nuisance or hazard (Act, 167);
• The body corporate must administer the common property reasonably and for the benefit of owners (Act 94, 152);
• Any improvement to common property by an owner for the benefit of their lot requires approval by special resolution, except in limited circumstances for very minor improvements (Standard Module, 114);
• If a by-law for a community titles scheme is inconsistent with the Act (including a regulation module applying to the scheme) or another act, the by-law is invalid to the extent of the inconsistency (Act, 180); and
• The Body Corporate must maintain common property in good condition (Standard Module, 109).

Background

The grounds presented are the subject of an 8 page solicitor prepared narrative plus 48 pages of appendices. These include photos, letters and minutes of committee meetings.

Before moving onto a summary of the grounds, it is appropriate that I firstly note that the scheme is governed by the Standard Module of the Body Corporate and Community Management Regulations 1997, rather than the Commercial Module as the application states. However nothing turns on this aspect in my determination.

The following is a summary of the grounds which require addressing in this determination.

Air Conditioner

The applicant advises that in June 2004 they became aware that the owner of Lot 1 had installed a split system air conditioner. Unit 1 is located below unit 11. The condenser for Unit 1’s air conditioner is mounted on the outside wall of the building and is described by the applicant as being next to one of the applicant’s windows.

The applicant wrote to the committee, requesting removal of the unit on the basis it interfered with peaceful use and enjoyment. The committee meeting minutes of 28 July resolve to monitor the matter, which the applicant finds inadequate.


The applicant then engaged a solicitor who wrote to the Body Corporate alleging that By-law 8 had been breached:

(a) An owner must not make a change to the external appearance of a lot or make any structural alterations to a lot except with the consent in writing of the body corporate.
(b) A change to the external appearance or structural alteration to a lot means, but is not limited to, the erection of external blinds or awnings, changes to utility infrastructure or the erection of any structure.
(c) Despite by-law 8(a) an Occupier may at his own expense install an air-conditioning unit in the lot. However, before installing the air conditioning unit, the occupier must provide to the Body Corporate Committee a copy of the plans so that the Body Corporate Committee can ensure the installation of the air conditioning unit does not compromise the aesthetic appearance or structural integrity of the building on the Scheme Land. If the occupier removes the air conditioning unit, he must reinstate the building and/or Common Property to its original condition.
(d) Pursuant to by-law 8(b), the Body Corporate accepts the current alterations to the rear entrance of Lot 1. Any future alterations to the rear entrances of the ground floor lots must be styled the same or very similar to that of Lot 1.

These by-laws were executed 19 August 1999.

In their letter of 3 November 2005, the solicitor argues that the owner of Lot 1 has not sought the necessary written consent of the committee under 8(b) and requests that a Form 10 be issued. Secondly they argue that by-law 2 should be invoked which states:

An Occupier must not create any noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the Common Property, having regard to the nature and type of business being lawfully conducted on any lot.

The applicant observes that the condenser is installed on the wall outside lot 1, but mostly on the wall outside lot 11. Photographic evidence supports this. They argue that the applicant’s express consent should have been sought in the circumstances, though no legislation, by-law or civil precedent is identified for this assertion.

On 15 November 2005, the committee noted that the building had a great many unapproved air-conditioners and resolved to approve all of them. It also resolved that the noise level of the unit outside units 1 and 11 was not excessive, especially considering the zoning of the building.

Maintenance

The applicant’s concerns regarding the maintenance issues listed (under the "Application" heading above), were also raised in the solicitor’s letter of 3 November 2005. They refer to S89 of the Commercial Module, which is dealt with in S109 of the Standard Module. The relevant aspects of these modules are the same.

At the next committee meeting, only the "Damage to common property tiles or lack of tiling in several common property areas" was authorised for immediate expenditure, as sufficient funds had only just become available. This involved securing a quote to replace the tiles with "weathertext" boarding.

Access Keys and Utilities

On 19 October 2005, the applicant wrote to the Body Corporate manager requesting "keys to Control Boxes and Automatic Gates, keys to Power Board and keys to all Telecom service boards". He advises that this is necessary as the applicant runs a 24 hours Security and Traffic Control Operation and is often engaged on holidays by Energex, Council or other bodies.

On 15 November 2005, the committee refused this request. No reason is documented in the minutes or the letter advising of this decision.

Submissions

Five submissions were received.

The owners of lots 4 and 5 made a joint submission stating that they believe the current committee is doing a good job and indicating that the applicant is making spurious allegations. They note considerable discord under the previous committee (headed by the applicant) after security gates were installed which they say, by and large, met the applicant’s needs rather than any other owners.

The owner of unit 2 made a submission, evidencing their own concerns with the security gates and praising the current committee. They express the view that the applicant is venting his sour grapes in an aggressive way.

The fourth submission was from the owner of lot 1, in his capacity as owner. He advises he bought this unit in May 2005 and to the best of his knowledge the air conditioner had been there since June 2004. He had assumed it was correctly authorised. At the time it was installed, the applicant was a member of the committee and was appointed chairman in September 2004. He expresses some misgivings that the letter the applicant produces (addressed to the previous owner of lot 1 in June 2004), cannot be found in the Body Corporate or Body Corporate Manager’s records. He notes the ratification of all units by the committee and that it was professionally installed. He observes that any aesthetic concerns are absurd, given the current covering of various units all over the building. Photos he attaches tend to support this last point, including the fact that the applicant has a "through the window" unit installed perhaps 8 feet from the condenser in dispute.

The fifth submission is signed off by the owner of unit 1 as chairman of the committee for the Body Corporate. It is 16 pages long including appendices. He advises that the current committee was formed at an AGM held on 14 July 2005. He states that the applicant resigned from the committee at that meeting, as other owners had resolved to open the security gates during business hours. He states that the applicant has "subjected the committee and individual owners to an extensive programme of harassment" since that time. A number of incidents, not specific to this application are described.

He points out that the air conditioning is not on the applicant’s lot as the external wall is common property. He questions the alleged proximity of the unit to the applicant’s window. He points out that the applicant’s window is kept closed as it has an air conditioner installed through it and that there are another 3 through the wall units in the applicant’s unit also. He cannot see how this unit is louder than the applicant’s are.

He again refers to the letter, the applicant states it was sent to the previous owner of lot 1. He notes that the applicant took no action against this unit while he was on the committee. He notes there are at least 23 air conditioning units of varying ages, styles and sizes installed on the building. He alleges that most are not approved, including the applicant’s (he says he has checked minutes back to 1993).

He observes that the by-law as it was written at that time, is probably not suited to current technology. He cites the committee ratification of all units on 15 November, rather than forcing all occupiers to submit plans and the like for approval. They intend to amend the by-law at the next AGM. In this regard, I note that the Body Corporate must bear in mind that any change to the by-law cannot be inconsistent with the Act.

He notes that the applicant has a full metal repair and fabrication facility in the second unit he owns in the complex (unit 9). He attaches a letter from the owner of Lot 8, stating that the sounds of grinding and hammering on metal are unlikely to be less than the sound of air conditioning. He states that several members of the committee have noted the metal fabrication noises and, therefore, the sound of unit 1’s air conditioner did not constitute a noise problem.

There are very detailed responses to the applicant’s maintenance issues. While these are briefly summarised below, the submission states that many things have fallen behind due to the lack of available funds due to the installation of security gates and the failure of the previous committee to collect a special levy. The submission notes many of the issues existed before the new committee came to be:

Matter	Response
Anti slip strips	Fixed.
Damage under walk ways	Long standing and not dangerous. Budget constraints.
Damaged tiles	The dangerous ones are fixed.
Water leaks	Long standing and not urgent.
Drain Pipe	Long standing and not urgent.
Rubbish	Minimal and well kept given nature of premises
Abandoned rubbish	Next to the bin
Unground tree stumps	Large stump is Council’s responsibility & has now been ground back. Small ones are flush with the ground.
Graffiti	Not common property and on the wall of next door building
Weed Control	Mowing was stopped during the drought, due to complaints regarding dust. It has now resumed and the weeds are back in control.

In relation to the request for access to common property and utilities, the Body Corporate describes the applicant’s business as the supply of "Stop and Go men to roadworks" and does not see how the provision of utility keys is important.

They observe there is nothing in the power boxes that needs to be accessed in a power failure and that the gates to the complex can be operated manually without a key. They advise that the applicant is in receipt of the instructions to do this. They advise they have contacted Telstra, who state they would never require access to their switchbox after hours. They advise that the applicant had a representative at the meeting where the decision to refuse access was discussed and decided.

Determination

Air-conditioner

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. 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.

Given that the boundaries of the lots within this plan are the external walls, it is difficult to envisage a situation where by-law 8(c) could come into play. Most air-conditioners, are either going to protrude into the common property or require the mounting of a compressor on the common property. In those circumstances, S114 of the Body Corporate and Community Management (Standard Module) Regulation 1997 comes into play.

This section addresses Improvements to Common Property:

(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 section 42
(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.

A minor improvement is defined in the Schedule of the Standard Module as an improvement with an installed value of $250.00 or less. As the cost of installing the condenser on the common property is in excess of this amount, the authorisation of a special resolution is required. It is also likely that a great many of the other air conditioners in the complex should have gone to a special resolution for authorisation.

Therefore, technically the resolution by the Committee to ratify the installation of all existing air conditioners was invalid. However, given that under Section 276(1) of the Act "an adjudicator may make an order that is just and equitable in the circumstances", it is appropriate I turn my mind to this issue.

The photographic evidence provided in this matter shows that the complex is already peppered by all shapes, sizes and ages of air conditioners. Until the installation of the unit in question, it appears this was an accepted status quo. Indeed, most of the air conditioning units have been there so long, the Body Corporate could be said to have acquiesced to the installation of all existing units. In my view, this acquiescence also extends to the unit the subject of this dispute, given the long tradition of acquiescing to air-conditioners and given that it had been in place for a year before the Body Corporate was requested to intervene.

I find that the body corporate acquiesced to the air conditioner in question and to all air conditioners existing on the complex at the time of this application. This amounts to a deemed approval for all air conditioners existing at the time of this application. Therefore, I will make an order to this effect.

There remains the issue of noise levels emanating form the air conditioner in question. While the applicant has produced a letter which he states was sent to the previous owners in June 2004, he produces no evidence of having pursued this issue until July 2005. It is difficult to accept that the noise from the unit in question could be more intrusive than the applicant’s four units or his metal shop. The delay in follow up reinforces this view in my mind.

In essence I require more evidence (e.g. acoustic engineers report) that the unit in question is causing a nuisance in terms of S167 of the Act, before I would order removal of the unit on that basis.

Maintenance Issues

It is not the role of an adjudicator to take over the administration of maintenance in a complex. This would require the ongoing inspection of all matters, their prioritisation, development of short and long term budgets, and possibly the imposition of special levies. Section 4(a) of the Body Corporate and Community Management Act 1997 recognises that self management is an inherent aspect of community titles schemes

From the evidence before me, it appears that any urgent aspects of the maintenance items listed have received attention, with other matters to be dealt with in subsequent budgets.
Access Keys and Utilities

Given that the applicant can access his vehicles and premises by manually operating the gates, I too have some difficulty understanding the applicant’s need to access the power and switch boards for the complex. It also appears clear that the Body Corporate has elected to accept the risk of being inconvenienced in case of emergency, and make the keys available on an as needed basis.

I have found no compelling reason to order that the applicant be given keys for access to the security gate or the utilities and will make an order accordingly.