Golden Outlook Carindale [2007] QBCCMCmr 14 (10 January 2007)

Number of Scheme:	19389
Name of Scheme:	Golden Outlook Carindale
Address of Scheme:	1160 Creek Road Carindale Qld 4152

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

I hereby order that the application for
"an order that owner of Lot 93 (unit 434) move the air conditioning unit currently installed on the second storey of her townhouse to a position where it does not disturb other residents or detract from the overall appearance of the lot"
is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0764-2006

"Golden Outlook Carindale" CTS 19389

APPLICATION

This is an application dated 12^th September 2006 by the body corporate for the scheme ( the body corporate) against Anneliese Nelson, now Anneliese Alloway, ( the Respondent) owner of Lot 93 in the scheme , for an order that the Respondent moves the air-conditioning unit currently installed on the second storey of the her townhouse at Lot 93 (Unit 43), to a position where it does not disturb other residents or detract from the overall appearance of the lot.

JURISDICTION

"Golden Outlook Carindale" Community Titles Scheme 19389 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 107 lots in the scheme created under several Group Titles Plans of subdivision.

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

(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)).

SUBMISSIONS

The body corporate says that By-law 19 concerns alterations to lots, and that the committee maintains a standard form for those lot-owners wishing to put in air conditioning. This form is "generally known" and referred to often in committee meeting minutes. On 10^th October 2005, the Respondent installed two air conditioning units without approaching the committee for approval. A member of the committee, Barry Mitchell (Mr Mitchell) notified Teys Strata , the body corporate manager (body corporate manager). Mr Mitchell had spoken to the Respondent during the installation, advised her of the required procedure, and asked her to postpone the work, but she would not do so.

On 10^th October 2005, the body corporate manager sent a letter to the Respondent notifying her of the by-laws concerning alterations to the external appearance of a lot. It asked for a written proposal to be submitted to the committee for consideration. The Respondent did not make application to the committee although she did acknowledge receipt of the letter.

One of the air conditioning units is situated on the second floor in full view of the common property and close to the bedroom of a neighbouring lot. The committee generally only approve air conditioning units on the ground floor and out of sight, and away from bedroom windows. The second air conditioning unit on the ground floor at lot 93 is of lesser concern to the committee.

A second letter was sent to the Respondent on 26^th October 2005 and an application form enclosed for the Respondent’s use. The Respondent then submitted the application form which was received by the body corporate on 4^th November 2005.

On 8^th November 2005 " an informal committee meeting" was held to discuss the situation. The committee found that the application form had been incorrectly completed, and could not approve either of the installations. The body corporate manager wrote to the Respondent on 17^th November 2006 telling her that there was no objection to the air conditioning unit on the ground floor provided that the "owner of the adjoining unit" ( who was not named) also has no objection. The committee did not approve the upper air conditioning unit, and said there had been " several letters of complaint" about it. The Respondent was asked to remove it "at her earliest convenience." She did not do so.

The next committee meeting was 30^th January 2006 and on 1^st February 2006, the body corporate manager gave the Respondent a further 14 days to remove the upper unit. On 28^th Feb 2006 , the Respondent replied making it clear that she would not move air conditioner, since it was not yet convenient for her to do so.

The committee meeting of 6^th March 2006 decided on a further 28 days for the Respondent to take action. On 8^th May 2006, the body corporate manager sent the Respondent a letter asking her to advise the committee of her intentions within 7 days.

On 21st June 2006, the committee decided to send a formal by-law breach notice to the Respondent. This was sent on 27th June 2006 detailing that By-laws 1 and 19 had been breached. The Respondent was given 7 days to take action. The committee meeting of 30 August 2006 noted that no action had been taken.

In accordance with section 243(2)(b) Act submissions were invited from all lot owners.

The owners of Lot 98, Hugh, Susan and Kimberly Findlay support the application. They do not say that they personally are affected in any way, although they are concerned about the possibility of others being disrupted by noise.

Ian and Margaret Macpherson (Mr and Mrs McPherson) owners of Lot 83 support the application. They have installed air conditioning units both in the living area and upstairs and say the procedure for doing so is well documented in minutes and information etc sent to all owners. When there are 107 townhouses with at least one common wall and the blocks are small, the necessity to submit an application to the committee is appreciated. The procedure has not been a problem for other owners, and the committee’s form is a " fairly quick and easy process" since the committee has meetings each month. Basilio Llora of Lot 15 also supports the application.

Sharynne Durbridge (Ms Durbridge) of Lot 104 says the Respondent’s upstairs air conditioning unit "is much noisier than the current " split system" air conditioners that are to be installed. It can be heard around the complex when it is operating, which is a nuisance." Also, it stands out visually and does not enhance the overall look of the property.

The Respondent supplied 7 photographs showing other air conditioning units around the complex, all easily visible and some of them positioned at first floor level attached to exterior walls. She says that she bought her Lot in August 2005 and did not know about the form used by the committee since the references to the form are in committee meeting minutes from a time before her ownership.

She further says that the downstairs air conditioning unit is not visible, and the upstairs one is only a 1 HP unit, both units being professionally installed.

On 10^th October 2005, when the work was being done, an " irate older man" yelled at her workers telling them to stop. The workers had all but finished at that time, and the man did not identify himself and demanded the top air conditioner be removed. He asked her to phone the body corporate manager and she felt threatened by his aggression. He approached her later in the day as well and said he would report her, and she felt very uncomfortable. Later, the same man and another woman peered over the fence at twilight into her lounge room, and she was frightened.

When she filled in the committee application form, she mistakenly drew the upper air conditioning unit below the bottom right hand corner when it is in fact to the right of the bottom right hand corner. She subsequently by letter requested retrospective approval for both applications, and apologised to the committee, although she did not produce a copy of this document. She says that neither of the air conditioning units is situate between her property and the one next door and there are several other similar installations in the complex. She believed there was no policy about air conditioning since there were so many units already installed, and she had not seen the by-laws.

She was told by the committee that approval had been granted for the lower unit conditional on the neighbour not objecting , but she has not heard that the neighbour objects even now, and only presumes approval is granted for the lower unit. With regard to the upper unit, she was asked to move it at her convenience, and at the time she was a student on a tight budget and it was not convenient.

She concludes that other installations are far more visible than hers and that she has had no objections from neighbours. Asking her to remove it now is "oppressive and impractical" and discriminatory since there is nowhere else it can go. It will disturb her tenants, and reduce her rental income if it is removed. Further, with regard to the visual effect, only 4 or 5 townhouses behind the Respondent’s lot can see it from their properties.

The body corporate did not exercise its right of a Reply.

DETERMINATION

In this matter, it is not in dispute that the Respondent installed two air-conditioning units to the exterior wall of her own property Lot 93, a two storey townhouse, on 10^th October 2005. One unit is on the ground level, and the other is attached at first floor level. The body corporate is concerned only with the apparatus attached at first floor level, although neither unit has been officially approved by the committee. The body corporate in fact does not object to the Respondent having air conditioning. This application is only for the apparatus currently installed on the first floor (second storey) to be removed to somewhere less conspicuous "to a position where it does not disturb other residents or detract from the overall appearance of the lot."

For the purposes of this dispute then, I take it that there is no objection to the Respondent’s positioning and installation of the apparatus on the ground floor. This is generally in accord with previous approvals given by the committee and as both parties point out, there are many lot owners in the scheme who have taken the opportunity to install air-conditioning. In fact, the request to the committee for installation of air conditioning is so common that the body corporate had devised its own form to make applications uniform, "Application Form for Installation of Airconditioner."

The dispute commenced because the Respondent did not seek committee approval, and says she was ignorant of the requirement to seek approval prior to installation, and also of the scheme by-laws, because she was a new owner only in August 2005.

She also did not take kindly to Mr Mitchell telling her workmen that the air-conditioning unit should not be installed without committee permission.

I do not find that such ignorance can be excused. It is the duty of all new owners to make themselves aware of by-laws, preferably before purchase, and the Respondent would certainly be aware of the need to consult the committee after Mr Mitchell’s advice, even if she did not want to receive it. It is not surprising that other lot owners came to look at the installation after Mr Mitchell advised the committee that the Respondent had installed the air- conditioner.

I find that the Respondent’s high-handed attitude since that time has simply inflamed the dispute. It is irrelevant that only 4 or 5 townhouses might be able to see the installation from their homes, or that the Respondent’s rental income may be affected if the unit was removed, which is simply conjecture in any event.

However, I also find that the body corporate has not pursued this matter with any great urgency, and that there is very little evidence that any neighbour (or any other lot owner) is actually disturbed by the Respondent’s air-conditioners.

Despite a reference to complaints from "other occupants," the body corporate did not send the Respondent a breach of by-law notice, until 27^th June 2006, some nearly 8 months after the installation of which they were well aware. Further, in that breach notice it is not clear whether the Respondent was to remove the upper unit or both air conditioning units within 7 days. It stated that the by-law breach was: " having an air conditioning unit installed without prior permission within your lot in a position very close to the neighbouring window where it is likely to cause nuisance to the occupiers of the neighbouring lot...."

By-law 19, as provided by the body corporate, states as follows –

"Alteration to Lots or Common Property

The relevant parts of this by-law have the effect that the body corporate must approve any structure erected on the exterior of a lot. The structure does not have to be visible to others or liable to cause a nuisance to neighbours. It would be up to the Respondent (as an applicant to the committee) to make an application to this Office if the body corporate was unreasonable in giving permission for any structures which the Respondent required to erect, and in fact, unless some detriment to others could be shown, it would be hard for the body corporate to find a good reason for a lot owner not to erect what he or she wished on the walls of their own property. In a Group Title Plan of subdivision, an owner owns the exterior walls and roof.

Whilst not so stated, the intention of this by-law is to maintain a uniform or high standard of external visual appearance in the scheme. Such by-laws are common in Group Title Plan schemes.

This identical wording is now carried at By-law 21 of the new Community Management Statement (CMS) which was recorded in the Land Titles Registry by the body corporate in July 2004. This means that the breach notice sent to the Respondent was technically incorrect and could have been challenged as such.

The other by-law quoted on the breach notice is the "noise" by-law at By-law 1 ( now By-law 3 in the new CMS.) In order to breach this by-law, a lot-owner or occupier must make a noise or permit the making of noise by their guests, tenants or workmen, which is " likely to interfere in any way with the peaceful enjoyment of other proprietors or occupiers of lots or of any person lawfully using the Common Property...."

As previously mentioned, there is very little evidence that the upstairs air-conditioning makes any noise or is likely to disturb others. The body corporate has not provided any copies of letters of complaint, nor do I note any listed in ‘correspondence received’ for relevant committee meeting minutes provided by the body corporate.

On 19^th December 2006, I sought information from the Respondent and from the body corporate about the Respondent’s neighbours. The body corporate manager advised that the neighbours for whom the body corporate were concerned were Lots 92 (Unit 44) and 94 (Unit 42). The Respondent replied that she did not know which neighbours the body corporate referred to in its application, nor did she know which neighbours were disturbed or how, since she has received no complaints.

I note that the owners of Lots 92 and 94 are Matthew Flaherty and Jacqueline Chapman, and Timothy Guy, respectively. There were no submissions from these lot owners, but these lots may be tenanted, and submissions have not been sought from occupiers. The sole evidence comes from Ms Durbridge owner of Lot 104 who says the upstairs air conditioning unit "is much noisier than the current " split system" air conditioners that are to be installed. It can be heard around the complex when it is operating, which is a nuisance." Mr and Mrs McPherson (whose unit is perhaps closer to the Respondent’s than Ms Durbridge’s) do not mention the noise. Out of a remaining 106 lots, this evidence is decidedly slim against the Respondent’s upper unit as regards a noise issue.

The Respondent says that the upstairs unit is only one HP. Neither the body corporate nor the Respondent provides a photograph of the air conditioning unit complained of.

On the evidence submitted, I do not feel that the body corporate has proved its case. What has understandably irked the committee is the cavalier way in which the Respondent first of all installed the air conditioning unit, and then the way in which she refused to remove it having been asked, at first politely by correspondence, and then following a breach notice.

However, there is no evidence that there is a detrimental effect on any member of the scheme because of the Respondent’s actions. Contrarily, there is photographic evidence provided by the Respondent that there are many such air conditioning units placed similarly to hers. These may be old installations, and the body corporate may be trying to improve on, or prevent the sort of eye sores occurring such as concern Mr and Mrs Macpherson. There is also ample evidence from the committee meeting minutes and the processes put in place by the body corporate, that the installations of air conditioning units is a common occurrence. I am rather led to believe from all the submitters, that the failure to follow the due process is where the dispute lies, and that if the Respondent, as a newcomer to the scheme, had made an application to the committee in the acceptable way, then she would have been allowed to proceed with her installation. Her fault is to flout the committee process.

Regrettable as that may be, I consider it harsh in the light of other similar installations, and very little evidence about noise, and none about visual amenity, that the Respondent should be asked to remove her upstairs unit at this time, now 15 months after its installation.

I find that the fact that the Respondent was not invited to the committee meeting on 8^th November 2005 to put her point of view, ( although of course the committee would have made its decision in private) was not a step designed to facilitate the resolution of this dispute. That the committee meeting is described as " an informal committee meeting" also is of concern, since there is no such thing.

There are properly convened committee meetings with notice given to all owners so that they may ask to attend in accordance with section 32B Standard Module, and there is chat over the garden fence by persons who may be on the committee, but at such gatherings no resolutions may be made. Perhaps, the description " informal committee meeting" may merely mean an extra- curricular properly convened committee meeting, but the use of such wording is ambiguous.

The fact that the body corporate has not been successful in this application is not to say that if the air conditioning unit (or either of them) proves to be noisy, or becomes noisy because it is not of a modern design for example, that the body corporate ( or any owner or occupier) may not make a complaint to the committee or this Office. The Respondent and her tenants must still comply with the noise by-laws for the scheme, and whether or not a by-law is breached, section 167 of the Act, which states as follows, still applies:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Golden Outlook Carindale [2007] QBCCMCmr 14 (10 January 2007)