Coral Palms [2006] QBCCMCmr 429 (3 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0552-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10291
Name of Scheme:	Coral Palms
Address of Scheme:	14 Dunlop Court MERMAID WATERS QLD 4218

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

Judith Lees, the Owner of lot 11

I hereby order that the application for the following orders: That the permission of the Committee of the Committee of the Body to install an air conditioner on the balcony be rescinded until all adjoining owners have been consulted. To stop the air conditioner being installed until all adjoining property owners are consulted. Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0552-2006

"Coral Palms" CTS 10291

THE SCHEME

Coral Palms is a community titles scheme registered on a building unit plan (now described as a building format plan). The scheme comprises 18 lots and common property and is regulated by the
Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module)
APPLICATION

The applicant has lodged a dispute resolution application under the Body Corporate and Community Management Act 1997 (the Act) seeking the following outcome:

That the permission of the Committee of the Committee of the Body to install an air conditioner on the balcony be rescinded until all adjoining owners have been consulted.

The applicant also seeks the following Interim Order:
To stop the air conditioner being installed until all adjoining property owners are consulted.
BACKGROUND

In support of the application the applicant states that the owners/ occupiers of an adjoining lot intend to install an air conditioning unit on a ground floor balcony approximately, 3 to 4 metres below her bedroom window. The applicant states that she is concerned about noise that would be generated by the unit and heat exhausted from the unit which, she believes, will rise and increase the temperature of her unit.

The applicant further states that she wrote to the body corporate committee on 26 January 2006 objecting to installation of the air conditioning unit but apparently this letter has not come to the attention of the new Secretary.
JURISDICTION
The application evidences a dispute between the owners of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).


Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. The examples included in the Act under section 279 are suggestive of the
circumstances where an interim order might be made i.e. an interim order is generally of a temporary nature to maintain the status quo. Given that an interim order may be made ex parte, without reference to, or submissions from the respondents named in the application, I believe that
an interim order should be in the nature of injunctive relief to maintain the status quo until substantive issues can be determined. However the substantive elements of the dispute can only be finally determined by way of final order after consideration of submissions from all parties.

SUBMISSIONS

The Commissioner issued the Body Corporate with formal notice of the application in
accordance with section 243 (1) of the Act and in accordance with section 243(2) of the Act, the Commissioner also invited the Body Corporate Committee, and all owners of a lot included in the
scheme, to make written submissions about the application.

Submissions were received from the Body Corporate and from a number of lot owners.

The first lot owner advised that her unit is in close proximity to the subject lot and has no objection to the installation of the air conditioning unit.

The second submission was from the owner of lot 8 whose bedroom window opens up to the balcony in dispute. The owner has agreed to turn the unit off at 9PM each night.

The third lot owner stated that they have no objection to installation of the air conditioner and that numerous air conditioning units have already been installed on various balconies with the consent of the body corporate.

The owner of unit 7 stated that she is elderly person who suffers from heat distress due to summer heat, confirmed by a letter from her Doctor, and sought permission to install a low noise air conditioning unit (Pansonic CSUW18DKR) on the balcony which is within her lot, 3-4 metres away from the applicant’s unit. Further, many other owners, including the applicant, have installed air conditioning units on their balconies. Literature attached to the submission includes information from the manufacturer stating that the outdoor unit consists of "an e-scroll compressor and 2 wing fan" which operates "without bothering your neighbours".

One lot owner supported the application and suggested that the unit should be placed on the side patio facing the car park.

The Body Corporate Committee made the following submissions:

• On 29 March 2006 an application was received from the owner of lot 7 seeking permission to install the air conditioning unit;
• By flying minute dated 24 April 2006 the committee granted its approval which was notified to the owner of lot 7 on 27 April 2006;
• This decision was made notwithstanding the objection of the applicant, which was taken into account at the time of making the decision, on the grounds that

- numerous lot owners (including the applicant) had previously given their approval to similar installations;

- the installation is within a lot; and

- the owner of lot 7 is elderly and in poor health;

• The application should be dismissed in its entirety to avoid further expense and inconvenience;
• In the committee’s view, it would be unreasonable to refuse permission and permission has previously been given to other lot owners;

•	The proposed system would generate less heat/ noise than other systems;
•	The proposed installation complies with the body corporate’s requirements;
•	The owner of the neighbouring lot has no objection.

DETERMINATION

The applicant has not provided objective material to support a claim that noise/ heat levels generated by the air-conditioning unit would be excessive or contrary to noise regulations which could support her claim that the noise would disturb the use of her lot and accordingly, has not provided any particulars to the body corporate or me to indicate that their use or enjoyment of their lot would be adversely affected by the air-conditioner.

As noted above, the invited the Body Corporate Committee, and all owners of a lot included in the
scheme, to make written submissions about the application. Having regard to the various submissions including the following submissions from the body corporate

- numerous lot owners (including the applicant) had previously given their approval to similar installations;

- the installation is within a lot; and

- the owner of lot 7 is elderly and in poor health and suffers from heat distress in the summer;

I can see no reasonable basis upon which the body corporate would be entitled to refuse permission in this instance and therefore propose to dismiss this application.

Although an interim order was originally sought by the applicant, this order is to have effect as a final order.