Karingal [2006] QBCCMCmr 32 (23 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0648-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12150
Name of Scheme:	Karingal
Address of Scheme:	12 Fraser Avenue, MIAMI Q 4220

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

Peter Scott, the Owner(s) of lot 5

I hereby order, pursuant to an application by Peter Scott, owner of lot 5 (applicant), that the body corporate is deemed to have approved the installation of an air conditioner in the window of his lot as a result of acquiescence to the installation over a number of years. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0648-2005

"Karingal" CTS 12150

Application

Karingal Community Titles Scheme (Karingal) is a 12 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes and lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Peter John Scott, owner of lot 5 (applicant) seeking orders against the body corporate (respondent). The body corporate has requested that the applicant remove an air conditioning unit that is positioned in the window frame of his unit at the side of the building. The applicant is seeking an order allowing him to retain this air conditioner.

Submissions

The applicants’ main submissions were to the effect that:

• The air conditioner was installed twelve or thirteen years ago when his parents were owner occupiers of the unit;
• He has lived in the unit as carer for his parents for the past eight years and has inherited the unit; and
• The original air conditioner was replaced about three years ago with a new Panasonic model but this was in the exact same position and with the same dimensions.

Submissions by other owners and on behalf of the body corporate were to the effect that:

• The window mounted air conditioner was fitted to unit 5 by way of alteration to common property without application or approval;
• The air conditioner is thought to have been installed after the applicant took up residency and certainly less than ten years ago;
• On 5 June 2003 the committee decided the air conditioner could remain on compassionate grounds due to the health of the applicant’s elderly mother but this was subject to removal on the applicant’s mother no longer residing in the unit;
• No other units have sought window mounted air conditioning. In particular, the aluminium windows in the building are not designed to support the weight of these units, corrosion of the units or their fittings can cause additional maintenance costs to the building and the units affect the appearance of the building; and
• Window mounted air conditioners are unsightly but it is likely that owners would approve an inside mounted air conditioner.

Decision

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); and
• A resolution, once passed, may only be revoked by the passing of a resolution of the same type (Standard Module, 58).
Deemed approval of the air conditioner

While there is some dispute about the length of time an air conditioner has been installed in the window of lot 5, there seems to be little doubt that an air conditioner has been installed there for several years.

The submissions indicate that the window mounted air conditioner extends approximately forty centimetres outside the window of lot 5 into the common property of the scheme. Under the legislation, the owners of lot 5 at the time should therefore have obtained the benefit of a special resolution to allow them to install the air conditioner. There is no evidence of any proper authorisation by special resolution and if the body corporate had acted quickly to seek to have the air conditioner then it would ordinarily be expected that the owners at the time would have needed to remove it at their own cost.

However, there are special circumstances that alter the situation here. It appears unreasonable and inequitable for the body corporate to require the applicant to remove the air conditioner at his own cost when owners have known of the air conditioner for a number of years and acquiesced to its presence. Rather, the lapsing of years places the body corporate in a position as though it is deemed to have approved the installation of the air conditioner.

I accept evidence from the committee to the effect that they concluded for compassionate reasons in 2003 that the air conditioner should be allowed to stay as long as the applicant’s mother occupied the unit. This decision shows that the committee anticipated that any future occupier would be required to remove the air conditioner at a later date. However, at the time the committee reached this decision the body corporate had already acquiesced for a number of years to there being an air conditioner in the window of lot 5.

In short, I find that the body corporate is deemed to have approved the installation of an air conditioner in the window of lot 5 due to the lapsing of a number of years before the body corporate took any steps to require removal of that air conditioner or place any conditions on when it would need to be removed.

Body corporate can require removal of the air conditioner

I have found that the body corporate acquiesced to an air conditioner in the window of lot 5 for a number of years and that this amounts to a deemed approval for lot 5 to have an air conditioner in its window. However, this does not mean that the body corporate is never able to revoke this deemed approval. The deemed approval should be treated in much the same way as a resolution passed by the body corporate that is able to be revoked by a subsequent resolution (Standard Module, 58(2)).

Owners may therefore wish to consider revoking any deemed approval for the air conditioner in a general meeting. As this change relates to an improvement to common property by a lot owner I conclude that any revocation should be by special resolution (Standard Module, 114).

All owners should also be aware of the general limitation that a body corporate must administer the common property reasonably for the benefit of owners (Act 94, 152). In circumstances such as this it may be unreasonable for owners to vote to require removal of the air conditioner without offering some form of compensation to lot 5, or at least giving permission for lot 5 to install a split system air conditioner. This is not a matter that I need to consider at this time but is something owners should consider as part of putting forward any motion to require the applicant to remove the air conditioner.

Some submissions express concern that other owners may also wish to install air conditioners of a similar type and that the body corporate would be discriminating against those other owners if it allowed lot 5 to retain a window air conditioner but only approved split system air conditioners for other lots. However, I note that the air conditioner for lot 5 was installed a number of years ago and it would seem reasonable for the body corporate to update installation requirements for any future installations. The body corporate could therefore impose any additional reasonable requirements including that future installations be a modern split system rather than a window installation.

In particular, if the committee is considering granting some form of general approval for owners to install split system air conditioners then it may be prudent for the committee to seek advice from a professional installer about any issues such as preferred placement of the external compressor, any noise considerations, considerations of electrical supply, and appropriate drainage for any condensation overflow. Alternatively, the applicant himself may wish to talk to other owners and a professional installer about the type of installation that would be acceptable to those other owners. The applicant could then talk to the body corporate manager about drafting an appropriate motion for submission before all owners at the next annual general meeting.

Order

I have found that the body corporate acquiesced to an air conditioner in the window of lot 5 for a number of years and that this amounts to a deemed approval for lot 5 to have an air conditioner in its window. I will therefore make an order to this effect.

This means that owners will first have to pass a special resolution before they can require the applicant to remove the air conditioner and may have to offer some compensation or at least allow him to install a split system air conditioner instead.

However, I will not make the order sought which would prevent the body corporate requiring the applicant to remove his air conditioner in any circumstances.