Aarons [2006] QBCCMCmr 756 (27 September 2006)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Steed, the co-owner of Lot 29

I hereby order that if Casuarina Lifestyle Pty Ltd, the owner of Lot 44 does not obtain the authorisation of the body corporate for Aarons community titles scheme 11476 for the installation of an air conditioning unit on scheme land for the benefit of Lot 44 as specified by the Body Corporate and Community Management Act 1997 and the By-Laws for the scheme within one month of the date of this order, the body corporate must act to require the owner of Lot 44 to:

1. Remove the air conditioning unit from Lot 44;
2. Remove any associated fixtures or fittings from common property; and
3. Rectify any damage to common property caused by the installation and removal of the air conditioning unit and any associated fixtures or fittings.

I further order that the body corporate authorisation for the installation of an air conditioning unit mentioned in this order must only be given if the owner of Lot 44 can satisfy the body corporate that:

1. The installation of the air conditioning unit is in accordance with any applicable statutory requirements;
2. Any damage to common property caused by any installation of an air conditioning unit for the benefit of Lot 44 is rectified by the owner of Lot 44;
3. The operation of the air conditioning unit will not cause a nuisance or hazard;
4. The operation of the air conditioning unit will not interfere unreasonably with the use or enjoyment of another lot included in the scheme; and
5. The operation of the air conditioning unit will not interfere unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0273-2006

"Aarons" CTS 11476

APPLICATION

This application is by David Steed, the co-owner of Lot 29 (applicant) against the body corporate. The applicant is seeking the following outcome:

The Commissioner order the body corporate to take immediate action and remove this illegal, unapproved installation.

This illegal, unapproved installation is creating a seriously major safety issue creating large wet areas on concrete on common property including pathways, used for common access, lying dormant on tennis court, staining and causing damage to building and facade.

This installation discharges 3 litres of condensate per hour onto the balcony of unit 29 leaving green slime and thus creates a green slimy slippery safety hazard.

Body Corporate Committee needs to pursue Aaron Thompson as the owner of unit 44 and; have the installation removed, employ competent suitable engineers to provide a report with a strategy to repair and reinstate the Body Corporate Common Property to the standard required by the engineers.

Explicit in all of the above is that the total cost is born by unit 44 Aaron Thompson for his total involvement and knowledge in all of the above.

The applicant has named all owners and Casuarina Lifestyle Pty Ltd (the owner of Lot 44) as the persons who would be affected by the outcome sought. Aaron Thompson has been mentioned in the application as the nominee of the owner of Lot 44.

The applicant’s main submissions were to the effect that:

JURISDICTION

"Aarons" Community Titles Scheme 11476 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1]. An order may require a person to act, or prohibit a person from acting, in a way stated in the order^[2]. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate^[3].

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. The time for making a submission was subsequently extended. A submission was received from the committee and a lot owner.

Kathryn James made a submission supporting the application stating that:

In investigating this application and given the above statement in the body corporate’s submission about the decision of the committee at its meeting dated 25 May 2006, on 18 August 2006 I requested a member of the commissioner’s office telephone the body corporate manager (Ms Elliott of Complete Body Corporate Services) and request a copy of any notice given to the owner of Lot 44 as a consequence of the committee meeting dated 25 May 2006. On the same date, the manager facsimiled a letter dated 31 March 2006 from Complete Body Corporate Services to The Directors, Casuarina Lifestyle Pty Ltd.

Further investigation entailed requiring the applicant and the body corporate to provide further information which I considered would help resolve the issues raised by the application.

By letter dated 21 August 2006, I required the applicant to provide the following information:

By letter dated 21 August 2006 I required the body corporate secretary to provide the following information:

By letter dated 7 September 2006, Complete Body Corporate Services provided the following information:

By letter dated 9 September 2006, the applicant provided the following information:

DETERMINATION

Applicable law
The body corporate’s general functions include administering the common property and body corporate assets for the benefit of lot owners, enforcing the community management statement (including any by-laws for the scheme), and carrying out other functions given to the body corporate under the Act or the community management statement^[4]. The body corporate must act reasonably in anything it does under section 94(1)^[5]. The body corporate has all the powers necessary for carrying out its functions^[6].

The by-laws form part of the community management statement (the CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers.

A lot owner may make an improvement to common property for the benefit of the owner’s lot if authorised by the body corporate^[7]. The occupier of a lot must not use the lot or common property in a way that causes a nuisance or hazard or interferes unreasonably with the use or enjoyment of another lot or of common property^[8].

Scheme information
The plan of subdivision for the scheme is Building Units Plan 3691. The plan shows that Lot 29 is located on Level C directly below Lot 44 on Level D. The community management statement for the scheme recorded by the registrar of titles in May 2000 includes the scheme By-Laws.

The applicant has referred to By-Laws 6, 7.4, 8, 9, 10 of the scheme By-Laws. By-Law 6 refers to damage to common property and requires the consent of the body corporate before damage of the nature contemplated in the By-law is carried out. By-law 7 relates to the behaviour of invitees with clause 4 relating to the owner or occupier of a lot compensating the body corporate for damage to common property caused by their invitees. By-Law 8 relates to littering. By-Law 9 relates to depositing rubbish onto common property. By-Law 10 concerns the appearance of the building with clause 3 providing that work altering the external appearance of the building requires the written consent of the body corporate.

While not mentioned by the applicant, By-Law 19 relates to structural alterations and states that "no structural alteration shall be made to any lot [...including the installation of any airconditioning system] without the prior permission in writing of the Committee".

Background
It would seem that the disputed air conditioning unit was installed in January 2006.

The minutes of committee meeting dated 6 February 2006 note that Kay James informed the meeting that units 3, 41 and 44 installed air conditioning systems without prior body corporate permission and adequate drainage. The minutes state that Aaron Thompson (the company nominee of the owner of Lot 44) was present at the meeting.

The minutes of committee meeting dated 16 February 2006 record that it was resolved "to notify the owners of units 3, 40, 41 and 44 that unauthorised air conditioning units had been fitted which is a breach of the By-Laws. Notification to be done within ten days of this meeting". The minutes note that Aaron Thompson was not present at the meeting.

The Minutes of an undated committee meeting at which Rod Henderson proxy for Philip Walford and Kathy Young proxy for John Gardner were present note that the body corporate manager had not written to the owners of the above lots. It would seem that this meeting was held after the February meetings. Aaron Thompson was not present at this meeting.

By letter dated 31 March 2006, Complete Body Corporate Services notified The Directors of Casuarina Lifestyle Pty Ltd that the air conditioning system has been installed in Lot 44 without permission being granted and that "adequate provision has not been made for condensation drainage". The letter states "that the continual dripping of the condensation is a safety hazard" and requested that it be remedied.

In April 2006, the applicant made this dispute resolution application. After amendments were made to the application, submissions were sought in May 2006.

On 6 May 2006, the body corporate manager received a request from the applicant to give Aaron Thompson of Casuarina Life Styles a by-law contravention notice. The request from the applicant was in the approved form and referred to By-Laws 6, 7.4, 8, 9 and 10.3.

The minutes of the committee meeting dated 25 May 2006 record that it was resolved that the last official meeting was held on 6 February 2006 and that two subsequent meetings called by unit owners "require review in terms of legality". The committee also acknowledged the complaint from the applicant regarding the installation of air conditioning in Lot 44 and were advised by the body corporate manager that a notice to remedy was issued to the owner of the Lot on 31 March 2006. The minutes state that Aaron Thompson was present at the meeting.

The minutes of the committee meeting dated 25 July 2006 record that the committee agreed to seek details from the owner of Lot 44 as to the action being taken to remove the air conditioning unit. Aaron Thompson (the chairperson of the meeting) informed the meeting that quotes to relocate the air conditioning unit were expected in August 2006 and that the unit would be relocated subject to body corporate approval.

Decision
It is not disputed that an air conditioning unit has been installed on Lot 44. While it has not been demonstrated that common property has been damaged by the installation, there have not been any submissions disputing the claims that common property has been damaged. The statements made by the applicant and Ms James about the unit’s operation having consequential effects on Lot 29 and common property have not been disputed by the body corporate or any other affected person. In fact, it is evident that the body corporate agrees that the condensation overflow caused by the operation of the unit is a safety hazard. While the owner of Lot 44 was named as a person who would be affected by the outcome sought and is aware of the application given that the owner’s nominee is the chairperson, there has not been any submission from the owner questioning any of the statements made in the application.

By-Law 19 of the scheme By-Laws provides for the installation of an air conditioning system, and requires the authority of the committee. This By-Law would have effect where the system was wholly installed on a lot and common property was not affected. Where the installation included work on common property, section 113 of the Accommodation Module will also apply. Additionally, By-Laws 6 and 10 may have some relevance. In either situation, it is evident that body corporate consent was required before the air conditioning unit was installed, and that the necessary consent was not sought or obtained.

I am satisfied that the operation of the air conditioning unit interferes with the enjoyment of Lot 29 and has the potential to cause a hazard and interfere with a person’s use or enjoyment of common property.

In these circumstances, the body corporate has a responsibility to pursue the matter. While the committee has given consideration to the unit’s installation, the giving of one letter to the owner of Lot 44 does not, in my view, constitute reasonably enforcing the legislation or the scheme By-Laws. The letter dated 31 March 2006 necessitates some action by the owner of Lot 44, but does not in any way demonstrate that the owner has any obligation under the Act or the By-Laws to remedy the alleged problem. It is also apparent that the committee has not initiated any subsequent action despite being given a notice by the applicant pursuant to section 185 of the Act.

In my view, the body corporate has not shown that it has acted in a reasonable manner in relation to the installation of the air conditioning unit on Lot 44. In the circumstances, I consider that it is necessary and appropriate to make an order that the body corporate proceed against the owner of Lot 44 should the owner not obtain the necessary body corporate approval for the installation of the air conditioning unit. Given the time that has passed since the air conditioner was installed and in view of the minuted intention of the owner to relocate the unit, I have included a time limit for proper approval to be obtained. In view of the consequential problems experienced from the air conditioner’s operation, I have specified reasonable conditions on which the body corporate may give its approval.

^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 284(1), Act.
^[4] Section 94(1), Act.
^[5] Section 94(2), Act.
^[6] Section 95, Act.
^[7] Section 113, Accommodation Module.
^[8] Section 167, Act.

Number of Scheme:	11476
Name of Scheme:	Aarons
Address of Scheme:	3355 Gold Coast Highway SURFERS PARADISE QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Aarons [2006] QBCCMCmr 756 (27 September 2006)