3 Parkland Boulevard [2007] QBCCMCmr 329 (31 May 2007)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Richard and Yvonne Read, the owner of Lot 3008

I hereby order that Felice Ciniglio and Jennifer Gibson, the owner of Lot 3059 is deemed to have been authorised by the body corporate for 3 Parkland Boulevard community titles scheme 33918 to install the air conditioning unit, its associated infrastructure, and fixtures and fittings (the air conditioning unit) on common property adjacent to the Level G part of Lot 3059. This authorisation continues until the body corporate, at the next general meeting at which it is practicable to include an appropriate motion on the agenda, considers authorising the installation of the air conditioning unit by special resolution and in accordance with section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

I further order that if the body corporate at the next general meeting at which it is practicable to include an appropriate motion on the agenda does not authorise the installation of the air conditioning unit (or a part thereof) in its present location by special resolution, within one month of the date of the general meeting, Felice Ciniglio and Jennifer Gibson the owner of Lot 3059 must at their own expense remove or relocate the air conditioning unit (or a part thereof) in accordance with the body corporate’s resolution and repair any damage caused to common property by the removal or relocation.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0186-2007

"3 Parkland Boulevard" CTS 33918

Application
This application is by Richard and Yvonne Read (applicants) against Philip Ciniglio and Jennifer Gibson, the owner of Lot 3059 (respondents) seeking an outcome that an air-conditioning compressor be removed and re-sited subject to the approval of the principal body corporate and the "3 Parkland Boulevard" body corporate.

The applicants’ main submissions are to the effect that the compressor outside the balcony area of Lot 3059 can be clearly seen from outside the scheme, has changed the appearance of the scheme, is an eyesore and sets a dangerous precedent. The applicants believe that the principal body corporate should be involved as it has insisted that the owner of a lot in Block 5 remove an unapproved tint from windows and the air-conditioning issue is also one regarding aesthetics and the setting of a precedent for the entire scheme.

Jurisdiction
"3 Parkland Boulevard" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). This scheme is a subsidiary scheme for the principal scheme, Parklands community titles scheme 33664 (the principal body corporate or PBC).

An adjudicator may make an order that is just and equitable in the circumstances 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].

Interim order
The applicants also sought an interim order "preventing the respondents from covering the air-conditioning compressor with a louvred box until an adjudicator’s order is made". By interim order dated 14 March 2007, I dismissed the application for an interim order.

Submissions
In accordance with the Act, submissions were called and a copy of the application was provided to the respondents, the PBC, and to the body corporate manager for distribution to the owner of each lot (excluding the applicants and the respondents) and the committee. Submissions were received from the respondents, the committee, the PBC and a number of lot owners. The applicants made a written reply to submissions under section 244 of the Act.

The respondents stated that they have followed due process and have met the resolutions made by the committee. They say that they presented 3 options to the committee at its meeting dated 21 September 2006 and that the committee approved the installation of the air-conditioner in the installed location subject to terms and conditions. The respondents state that the cover is consistent with covers installed by the developer on the level below their unit.

The application was supported by 4 lot owners and opposed by 1 lot owner. Another owner questioned whether the compressor had been installed in accordance with the committee’s approval. The body corporate committee submitted that the September 2006 approval remains unchanged. The committee for the PBC submitted that at its meeting dated 11 April 2007, it resolved that the change is a minor change to a lot and it has no intention to breach the subsidiary body corporate for the installation of the air-conditioning unit and louvres in Lot 3059.

In their reply to submissions the applicants stated that the louvres on a lower floor covering the building’s main plant go from floor to ceiling; have different shaped louvres; and are of a lighter hue to that installed by the respondents.

Determination
This is the second dispute resolution application dealing with the installation of air-conditioning to service Lot 3059. The first application (Ref. No. 0443-2006) was lodged by the body corporate. In making this application, the body corporate relied on By-Law 14.1 of the scheme by-laws which relates to the appearance of a lot. The body corporate subsequently withdrew the application.

The respondents have provided an extract from the minutes of the committee meeting dated 21 September 2006 confirming that committee approval was given to the installation of the air conditioner in its current location subject to six terms and conditions. These included terms and conditions about the location of the unit, the colour of the unit’s cover and the associated piping and ducting, the maintenance and insurance of the unit and its noise rating. The respondents submit that the committee were presented with 3 options and decided to allow the air-conditioner to remain in its current location. The respondents clarified this location in a drawing attached to their submission marked as "21/9/06 Proposal 1". This drawing indicates that the air-conditioning unit is located on the roof of the balcony below and outside ‘Bed 1 Terrace’. The respondents also provided a photograph showing the location of the unit. The committee submits that it has resolved "to not alter its resolution of the 21^st September 2006".

It would seem that the general impression is that the air conditioning unit is located on a part of Lot 3059. The boundaries of the Lot are determined by reference to the relevant survey plan, the Land Title Act 1994, and the Registrar of Titles Directions for the Preparation of Plans. The scheme was established by the registration of survey plan, SP152868 which is in a building format. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings"^[4]. The boundary of a lot can be the centre of a floor, wall or ceiling of the lot; a structural element such as the outer edge of a floor or a concrete base not abutting a wall; or the outer face of balustrades or railings^[5].

Lot 3059 is situated on Level F and Level G of SP152868. The survey plan shows that:

Given the provisions of the Land Title Act 1994 and the Registrar of Titles Directions for the Preparation of Plans, the relevant boundaries of Lot 3059 are:

Consequently, I consider that the air conditioning unit on the top of the roofing structure outside the balcony railing on Level G is on common property and not on a part of Lot 3059. The air conditioning unit is an improvement to common property^[6] for the benefit of Lot 3059. Therefore, section 113 of the Accommodation Module applies, quote:

(2) The improvement must be authorised by special resolution of the body corporate unless--

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

As the improvement is not a minor improvement^[7], it could only be made with the authorisation of the body corporate by special resolution in general meeting. The committee cannot authorise the owner to make the improvement^[8].

The respondents have not obtained the authority of the body corporate by special resolution to install the air conditioning, its associated infrastructure or the unit’s covering. However, I do not consider this to be reason to now make the order in the terms being sought. The applicants and some other owners have expressed their concerns about appearance and precedent setting. There have not been any arguments suggesting that the unit’s position or operation is unreasonably affecting another person’s use of their lot or the common property. What constitutes good appearance is, to a large extent subjective. It could be validly argued that uniformity is preferable. Similarly, an opinion that owners should be able to make this type of improvement to common property and that the appearance is not detrimentally affected by the improvement is equally valid. In this case, it is reasonable that the matter be submitted for the consideration of lot owners in this scheme for determination.

In my view, the appropriate decision is to permit the unit, its associated infrastructure and fixtures or fittings to remain in the present location on common property pending the determination of owners. There is currently no indication from owners generally as to whether they support or oppose the installation. While the issue of precedence may be relevant, owners should have the opportunity to consider the installation on its merits. If owners vote against the installation in its present location, it is reasonable that the respondents remove the air conditioning in accordance with the body corporate’s resolution. While the air conditioning would seem to have been installed since late 2005, it is evident that the installation has been the subject of dispute, first by the body corporate committee and then by the applicant.

For these reasons I have ordered that the unit can remain in its present location unless owners in general meeting decide otherwise.

^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 284(1), Act.
^[4] Section 48C(1), Land Title Act 1994.
^[5] Section 49C, Land Title Act 1994 and Direction 9.6.1, Registrar of Titles Directions for the Preparation of Plans.
^[6] "Improvement" defined, Schedule 6 Dictionary, Act to include "a non-structural change, including, for example, the installation of air conditioning".
^[7] An improvement with an installed value of $250 or less; Dictionary Accommodation Module.
^[8] Section 100, Act; section 24(1)(d), Accommodation Module.

Number of Scheme:	33918
Name of Scheme:	3 Parkland Boulevard
Address of Scheme:	3 Parkland Boulevard BRISBANE QLD 4000

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

3 Parkland Boulevard [2007] QBCCMCmr 329 (31 May 2007)