Federation Court [2006] QBCCMCmr 7 (5 January 2006)

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

I hereby order that George Miller, owner of lot 6 (applicant) and Norma Guthrie, owner of lot 5 (respondent) may, within three weeks, submit motions to the body corporate proposing arrangements for the disposal of the common property antenna pole on the roof of lot 6 and seeking authorisation for the owners of lot 5 and 6 to install their own antennas on their own lots. If any motions are submitted pursuant to this order then the body corporate must consider those motions within two months of the date of this order.

I further order that if the body corporate does not, within two months, pass resolutions providing for the disposal of the common property antenna pole on the roof of lot 6 and providing authorisation for the owners of lot 5 and 6 to install their own antennas on their own lots then the body corporate must immediately repair the common property antenna pole on the roof of lot 6 and install an antenna servicing both lots 5 and 6 similar to the original antenna installed by the developer or the antenna servicing both lots 1 and 2. The applicant and respondent must share equally the reasonable costs of the body corporate in doing this and must reimburse the body corporate these costs within 7 days of being provided with copies of the relevant invoices.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0641-2005

"Federation Court" CTS 19618

Federation Court Community Titles Scheme (Federation Court) is a 6 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This is an application by George Miller, an owner of lot 6 (applicant) seeking orders against Norma Guthrie, the owner of lot 5 (respondent). The applicant said that the antenna attached to his roof originally serviced both lots 5 and 6 but that the owner of lot 5 subsequently attached their own antenna to the pole. The applicant complains that this second antenna interferes with his reception and sought orders that either the owner of lot 5 remove her antenna and utilise the original antenna or that the applicant erect her own antenna on her own roof.

The original antenna installed by the developer on the roof of lot 6 would have constituted common property utility infrastructure servicing both lots 5 and 6 (Act, 20). The body corporate would have had a legal responsibility to maintain this antenna and pole (Standard Module, 109).

However, statements made by owners during the course of this application indicate that the owner of lot 5 and a prior owner of lot 6 previously reached an informal agreement that they both put their own antennas on the common pole rather than continue to use the common antenna installed by the developer.

The current owner of lot 6 now wants the antenna for lot 5 to be removed from his lot. There is no evidence of any formal agreement allowing the owner of lot 5 to install an antenna within the boundaries of lot 6 and I do not see any reason why the current owner of lot 6 cannot revoke any permission that was given by the previous owner. In some circumstances it may be appropriate for some compensation to be paid if the person suffers loss from the revocation of permission. However, in this instance I do not consider any compensation to be justified provided that the antenna used by lot 5 is returned to the owner of that lot.

There is also no formal agreement between the body corporate and the previous owner of lot 6 allowing for the replacement of the common antenna with an antenna that serves only lot 6. A question therefore arises about whether the current owner of lot 6 can retain this antenna or if a common antenna should be restored similar to the original antenna installed by the developer.

The original antenna installed by the developer was common property utility infrastructure for the scheme (Act, 20). The parties have not provided any evidence of a resolution by the body corporate authorising removal of the original antenna. Further, the antenna pole remains as common property utility infrastructure and a resolution by the body corporate would be necessary to authorise sale or disposal of this pole to the owner of lot 6 or removal of the pole.

Based on the above, the applicant is entitled to require the respondent to remove her antenna from his lot. However, a decision needs to be made about a replacement antenna. On one hand, the body corporate may wish to restore a single antenna to be shared by both lots. Alternatively, the body corporate may wish to authorise the owners of lots 5 and 6 to each install an antenna on their own roof.

There are six units in Federation Court. Based on further information provided by the parties, units 1 and 2 have a common antenna that the body corporate would retain a legal responsibility to maintain. However, units 3 and 4 have their own antennas and the body corporate would not be responsible for maintaining those antennas. This means that all owners contribute to maintenance costs of the antenna for units 1 and 2 but the owners of units 3 and 4 have the sole responsibility for maintaining their own antennas. This may not seem exactly fair to all owners but, similarly, it may not seem exactly fair to all owners if they all contribute equally to maintenance of the driveway area when some owners may use the driveway more often then others. In the context of maintenance expenses for the scheme as a whole I do not consider it would be unjust or inequitable that some owners have the benefit of body corporate maintenance of the original antenna while other owners maintain their own antenna.

The original antenna for units 5 and 6 was replaced some time ago by the owners of those lots at the time. I do not think it is just and equitable for the present owners to require that antenna to be restored at body corporate expense. Rather, it is the present owners of units 5 and 6 who will benefit if the body corporate does restore a common antenna for both units and, on a just and equitable basis, I will order that the current owners of lot 5 and 6 must contribute equally to the costs of restoring a common antenna. However, if a common antenna is restored then it would constitute common property utility infrastructure that would need to be maintained by the body corporate at its own expense.

In the alternative, I will allow a brief period of time for either owner to put motions before the body corporate proposing that the body corporate sell or dispose of the remaining pole and authorise the owners of lots 5 and 6 to install their own antennas on their own lots. If the body corporate passes appropriate resolutions then each owner will be entitled to install their own antenna on their own lot and will be required to maintain their respective antennas at their own cost.

Number of Scheme:	19618
Name of Scheme:	Federation Court
Address of Scheme:	32 Government Road LABRADOR QLD 4215

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Federation Court [2006] QBCCMCmr 7 (5 January 2006)