Weyba Gardens II [2006] QBCCMCmr 232 (8 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0858-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2482
Name of Scheme:	Weyba Gardens II
Address of Scheme:	4 Lake Weyba Drive NOOSAVILLE QLD 4566

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

Body Corporate of Weyba Gardens II.

I hereby order that the owner of lot 14, Jennifer Nitz (the respondent), shall within 3 months of the date of this order, at her own expense: (a) relocate the said air conditioner from its current position to the ground level of the Southern wall of the unit, in accordance with the terms and conditions advised by the Body Corporate; and (b) restore the common property to its original state prior to the unauthorised installation. I further order, that the Body Corporate of Weyba Gardens II (the applicant) is deemed to have approved the installation of all other existing air conditioners and/or condensers on the common property of the complex which were purported to be approved by the Committee alone. This order remains subject to the nuisance provisions of the Act (S167). I further order that, subject to the by-laws, the respondent’s air conditioner will be deemed to have been approved for installation, when it has been moved to the ground level of the Southern wall of the unit in accordance with the terms and conditions advised by the Body Corporate. 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 S145(3) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0858-2005

"Weyba Gardens II" CTS 2482

Application

Weyba Gardens II Community Titles Scheme is a 20 lot scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Act’s Accommodation Module Regulation (Accommodation Module). This module is typically adopted by schemes where the majority of lots are for holiday letting or under residential leases.

The applicant seeks an order against the owner of Lot 14, Jennifer Nitz (the respondent) for:

The repositioning of an air conditioning unit in accordance with the registered by-laws 15, 24, 40 43 and the "Terms and Conditions of the Installation of Air Conditioning Units" as previously set out by the Body Corporate for Weyba Gardens II CTS 2482.

The air conditioning unit must be moved to the ground level of the South wall of the unit"

Jurisdiction

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)).

Legislation

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);
• 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 (Accommodation Module, 113); and
• 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).

Relevant By-laws

24. Structural Alterations

No structural alteration or external addition shall be made to any lot (including any alterations to gas, water or electrical installations and including installation of any air conditioning system, or adding to or altering (in) any manner any external area of the lot) without the prior permission in writing of the Committee.

40. Damage to Common Property

An owner of a lot shall not mark paint or drive nails or screws or the like into or otherwise damage or deface any structure that forms part of the common property except with the consent in writing of the Body Corporate .......................

Background

On an unspecified date, the respondent arranged for installation of a split system air conditioner for her lot. She did not seek Body Corporate approval.

On 22 December 2004, the Body Corporate wrote to the respondent pointing out that she had not sought approval, that they consider the position of its installation dangerous and provided the usual terms and conditions they impose on installation as follows:

Terms and Conditions for the Installation of Air Conditioning Units

1. Each unit owner shall apply to the Body Corporate in writing and the Body Corporate must give its consent in writing

2. By-law 12 "Noise", B-Law 24 "Structural Alterations", BY-Law 40 "Damage to Common Property", By-Law 43 "Recovery of Costs" shall not be breached.

3. The air conditioning compressor installation shall be confined to an area 1m x 1m x1m, and be mounted on a concrete slab in the garden outside the living room, and below the level of the window so as to reduce visual impact on other units generally.

OR

The air conditioning compressor installation shall be confined to an area 1m x 1m x 1m and shall be positioned so as not to cause any unreasonable obstruction.

OR

The air conditioning compressor installation shall be mounted on the floor and below the level of the top of the balcony railing so as to reduce visual impact on other units generally.

4. Noise level from the external unit shall not exceed 66 dB (A) measured by Australian Standard 1217.4 or 76 dB (A) measured by the Sound Pressure Level (JIS) method. Apertures on the common property walls shall be completed in a workmanlike manner.

5. Conduit, ducting and condensate waste water pipe shall be firmly affixed and be directed into downpipes, located so as to cause the least possible visual impact and if necessary be painted to blend in with the exterior of the building colour

6. All costs of installation and liability including insurance, shall be borne by the respective owner.
7. All maintenance and service costs will be at the cost of the respective owner.

8. The Body Corporate Committee consent can be withdrawn at any time.

The respondent did not reply to the Body Corporate’s letter of 22 December 2004, so the Body Corporate Manager sent a reminder letter on 2 March 2005. The respondent sent an undated response which was received by the Body Corporate on 21 March 2005. In the letter, she sought approval of the compressor unit in its current position. Her grounds were:

o It is the most effective use of power consumption according to an electrician;
o The installation is standard to the industry;
o Positioning the unit where required by the Body Corporate would increase the risk of Legionella Bacterium growth;
o She advises that she would seek compensation from the Body Corporate if she is sued for any infections resulting from her air conditioner.

The Body Corporate issued a "Contravention of Body Corporate By-Law" Notice on 30 August 2005.

On 11 October 2005 the Body Corporate Committee resolved to lodge a Dispute Resolution Application.

Submissions

A total of five submissions were received. One is from the chairman of the Body Corporate who states that the current position is dangerous, reversing trucks could rip it off the wall and it is unsightly. He has made inquiries and understands that Legionnaires’ Disease is not a concern for new air conditioners.

A further three non-resident owners support the application to move the condenser. One submission was based only on the by-laws. The other two owners had seen the actual unit and both say it is unsightly and dangerous in its current position.

The other submission was from the respondent. She advises that:

o At the time she installed the air conditioned, residents were being encouraged by the (then) manager to do so, as it encouraged occupancy rates;
o No mention of the need for Body Corporate approval or positioning rules were advised when she told the (then) manager that she had engaged an electrician;
o She was not required to obtain Body Corporate approval for air conditioning for her other unit at Mooloolaba;
o The work was undertaken by a registered electrical contractor and according to building regulation;
o It was installed in a position to maximise energy efficiency;
o The compressor does not protrude further than the drain grate below it and is situated "within (her) car parking area" and is not a pathway that should be used by others.

Determination

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 24 could come into play in relation to air conditioners. 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, S113 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 Accommodation 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.

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 the issue.

The respondent raises a number of arguments as to why the unit should not be moved. I note the observations that:

o the current positioning promotes the most efficient use of energy;
o the installation is standard to the industry; and
o the work was undertaken by a registered electrical contractor.

I have undertaken some research in relation to the respondent’s concern about Legionnaire’s disease. The following is an excerpt from the Department of Employment and Workplace Relations, Office of the Australian Safety and Compensation Council web site:

Do Air Conditioning Systems Transmit (Legionnaires’) Disease?

Transmission may occur where the system contains stagnant warm water breeding the bacteria which contaminate the ventilation air.

1. Evaporative air conditioners which recycle water can been discovered in these air conditioners (sic). However, no outbreak has been reported to have been caused by an evaporative air conditioner.

2. Cooling Towers in some large refrigerated air conditioning systems for commercial and industrial use could breed the bacteria in the warm water. If the cooling tower is near the
fresh air intake for the air- conditioning unit, bacteria from the cooling tower may contaminate the air entering the air conditioner by 'spray drift'.

3. Humidifiers in air conditioning units which humidify the air are not commonly used in Australia. In countries with much cooler climates (eg.U.K.) nearly every air conditioning
system has a humidifier. These are the countries where the major outbreaks have occurred. There are two types of humidifiers, the water spray or curtain system and the steam spray. The steam system are safe due to the high temperature of the water. The water spray systems recirculate surplus water with the recirculating tank being a potential breeding area for Legionella bacteria.

Given the above, I am not inclined to include the concern regarding Legionnaire’s Disease in my consideration.

The respondent also argues that:

o as a resident she had been encouraged to install air conditioning;
o the manager did not tell her that Body Corporate approval was required; and
o she did not have to obtain approval for her other unit.

I am not persuaded by any of these arguments. The Act gives the owners of units in a scheme the power to vote on the by-laws to apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. The body corporate has a duty to enforce the by-laws (Act 94(1)).

Further, it should be noted that before the purchase of a unit, a purchaser has an opportunity to review scheme by-laws by conducting a search with the Department of Natural Resources and Mines. As well as being part of standard conveyancing practice in the purchase of a lot in a community titles scheme, it is also one of the "suggested matters for examination" on the "Contract Warning" which is contained in each contract of sale for a lot in a community titles scheme in Queensland. So purchasers are therefore able to peruse the by-laws for a scheme such as this prior to purchase and decide not to proceed with the purchase if they wish. Once they move in, they are bound by the by-laws.

The final argument the respondent raises is that she would be expected to be the only foot traffic passing by the compressor.

Photos supplied by both the respondent and applicant at the request of the adjudicator, reveal that the compressor unit is affixed to the wall outside unit 14, around 4 feet off the ground. The wall that the unit is mounted on, abuts the common property and follows through to the exclusive use carport for unit 14. There appears to be three bays in the carport, with a thoroughfare provided between the other 2 bays. In other words, there would be no natural attraction for anyone but the respondent and the respondent’s guests to pass close to the condenser.

However, I have formed the view that the compressor does pose a public liability risk. In my view it remains reasonably foreseeable that incidents such as a child chasing a ball into the carport, or a gardener walking into the unit while clearing debris from the common property, could occur.

In the circumstances, I will order relocation of the compressor.