Hawthorne Bridge View [2007] QBCCMCmr 355 (8 June 2007)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Susan Mills, the owner of Lot 5

I hereby order that the application for an order by Susan Mills, the owner of Lot 5 against the body corporate for Hawthorne Bridge View community titles scheme 17969 (the body corporate) seeking approval for all owners who wish to have air conditioning installed in their own units, is dismissed.

I further order that the body corporate must call and hold a general meeting within two months of receiving from Susan Mills, the owner of Lot 5:

1. A written motion proposing the installation of air conditioning for the benefit of Lot 5 and the installation is on a part of Lot 5 and subject to a scheme By-Law, or the installation is on part of common property; and
2. Written documentation explaining the proposed installation including but not limited to details about the position on the Lot or common property on which the air conditioning infrastructure is proposed to be installed, proposed methods to be used to box or paint infrastructure in a way to match to the closest possible extent the colour of the building (if necessary); and details about the noise level expected be made by the air conditioner proposed to be installed.

I further order that the agenda for the general meeting must include the motion mentioned in the above provision of the order and any other motion properly submitted.

I further order that the notice of the general meeting must include the documentation mentioned in the above provision of this order and any other documents provided to the body corporate as a consequence of the submission of a motion included on the agenda for the meeting.

I further order that within 14 days of the date of this order, the body corporate must provide a copy of this order (including the 4 pages of Statement of Adjudicator’s Reasons for Decision) to the owner of each lot included in the scheme as stated on the body corporate roll.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0259-2007

"Hawthorne Bridge View" CTS 17969

Application
This application is by Susan Mills, the owner of Lot 5 (applicant) against the body corporate seeking approval for all owners who wish to have air conditioning installed in their own units.

The applicant has referred to the Annual General Meeting dated 31 January 2007 (AGM) where it was determined that the motion seeking "Approval to install air conditioning" was lost with 2 yes votes and 3 no votes. The applicant submits that the above motion was submitted by the owners of Lots 3 and 5, and that Hiderose Pty Ltd (the owner of Lots 1, 2 and 6) opposed it on aesthetic or visual grounds. She states air conditioning is needed given the increasing heat and climate change.

Jurisdiction
"Hawthorne Bridge View"is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (Small Schemes 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].

Procedural matters
On 11 April 2007, a copy of the application was provided to the body corporate manager (Dan Dreger of Matthews Body Corporate Management Pty Ltd) for distribution to the owner of each lot (excluding the applicant) and the committee, with an invitation to the committee and all owners to respond to the matters raised in the application^[4]. By email dated 3 May 2007, Dan Dreger informed the commissioner that the application was forwarded to the owners on 13 April 2007.

No submissions have been received from lot owners.

A dispute resolution recommendation has been made referring the dispute to departmental adjudication^[5].

Determination
An owner who proposes to carry out work such as installing air conditioning should take into consideration:

It is important to recognise what constitutes part of a lot and what is common property. Common property in a community titles scheme is owned by all owners as tenants in common^[6] and its existence is the primary reason for the creation of a body corporate comprised of lot owners^[7].

This scheme was created on the registration of Building Units Plan 100794 (a building units plan is now referred to as a building format plan). The boundaries of each lot are determined by reference to the survey plan, the Land Title Act 1994, and the Registrar of Titles Directions for the Preparation of Plans. A building format plan "defines land using the structural elements of a building, including, for example, floors, walls and ceilings"^[8]. 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^[9].

For this scheme, each of the lots shown on the survey plan includes a balcony. Generally, the boundary of each lot is the centre of the wall, floor or ceiling and if the balcony is bounded by balustrades or railings, the outer face of the concrete base or the outer face of balustrades or railings. The scheme land outside each lot is common property.

Generally, where an owner proposes to have the work carried out wholly on that person’s lot, the owner will only require body corporate approval if there is a relevant provision in the scheme by-laws.

In this instance, it would seem that a by-law such as ‘By-Law III Structural Alterations Prohibited’ is relevant. This By-Law states (in part) that body corporate consent is required to carry out structural alterations to a lot; to alter drainage or electrical connections and services; and to alter the external appearance of a lot. Given the terms of the By-Law, the consent could be given by the body corporate in general meeting or by the committee (unless it is a restricted issue for the committee^[10]).

Work such as the installation of air conditioning is an improvement^[11]. Section 75 of the Small Schemes Module applies where an improvement is being proposed made to common property by a lot owner and it is for the benefit of the owner’s lot. Section 75 states:

75 Improvements to common property by lot owner--Act, s 121 [Standard Module, s 114]

(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.

(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.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.

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

An improvement that is not a minor improvement^[12] can only be made with the authorisation of the body corporate by special resolution in general meeting.

If an owner’s proposal to install air conditioning is subject to approval of the committee or the body corporate in general meeting, it is reasonable that the owner give sufficient information about the proposed installation to allow the committee or the body corporate to make an informed decision.

This information should include for instance: details about where the infrastructure is proposed to be installed (including ducting and wiring); whether common property would be affected in any way; methods proposed to box or paint pipes, conduits and ducts in a way to match to the closest possible extent the colour of the building (if necessary); and details about the noise level expected to be made by the air conditioner during normal operating conditions (noise can be a significant issue if the condenser unit for the air conditioner is close to another lot).

If the body corporate refuses to give consent to a proposal to install air conditioning, the lot owner may dispute the decision and an adjudicator may give consideration to whether it is just and equitable to reverse the stance being taken by the body corporate on the basis for example, that the opposition is unreasonable.

Decision
In this case, the applicant has demonstrated that the body corporate has opposed a proposal submitted by two owners to install air conditioning. The applicant states that Hiderose Pty Ltd (the owner of Lots 1, 2 and 6) opposed the motion submitted to the AGM on aesthetic or visual grounds. Given that there have not been any submissions made in response to the application, this has not been confirmed. 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 of the building or the scheme is not detrimentally affected by the improvement is equally valid. The applicant has not provided any statements about this issue.

As indicated above, the body corporate is entitled to be given information about the proposal. The motion stated in the minutes of the AGM does not provide any information about where the owners of Lots 3 and 5 propose to install the air conditioning infrastructure and whether common property will be affected in any way. While it is noted that the outcome sought refers to a unit being installed within each unit, the applicant has not provided any detail about where the infrastructure will be installed and the reason for seeking body corporate approval.

Rather, the applicant has relied solely on the need for air conditioning to combat weather conditions. We live in a sub-tropical climate and it is becoming increasingly popular to install air conditioning and a person’s right to choose to have air conditioning should not be prevented simply because the person resides in a community title scheme. However, there are factors which must be considered in a community titles context. For example, a lot owner proposing to install the air conditioning on common property must request the approval of the other owners in accordance with the legislation. While air conditioning may be seen as enhancing the enjoyment of the applicant’s lot, this needs to be balanced with the views of the committee members or the body corporate members (if applicable). Genuine concerns about a proposed installation may in certain circumstances override an owner’s desire to have their lot air conditioned.

In most cases, the specific circumstances relating to the proposed installation of air conditioning will be significant in the determination of a dispute about such an installation. In this case, there is insufficient material to make any judgement on the circumstances. For this reason, I do not consider it appropriate that an order be made authorising the applicant to install air conditioning infrastructure. In addition, an order cannot be made in the terms sought as it is not evident that all owners want air conditioning or that a dispute exists involving all owners.

However, I do not consider that it would be just and equitable to simply dismiss the application. The applicant clearly wants to install air conditioning and the matter should be progressed in a proper manner.

I note that the present committee is comprised of the applicant, Sasha Dettori and Trevor Matthews as a non-voting member. It should be noted that a committee under the Small Schemes Module can only consist of the person or persons chosen as secretary and treasurer^[13]. There is no capacity for there to be ordinary members and there is no requirement that the body corporate manager be a non-voting member. Given that it would seem that the applicant and Sasha Dettori want to have air conditioning, a conflict of interest^[14] would exist precluding the committee from deciding a proposal should it be able to.

For these reasons, I have ordered that the body corporate hold a general meeting within two months of the applicant submitting a motion proposing the installation of air conditioning on her lot or the common property. If the applicant chooses to submit a motion, she should ensure that information of the nature mentioned in the order is provided to the body corporate (possibly the body corporate manager) for distribution to each lot owner with the notice of the general meeting. Similarly, any other owner who would like to install air conditioning has the opportunity to submit an appropriate motion and material to enable their motion to also be considered at the same meeting.

As the order provides general information about the installation of air conditioning, I have ordered that a copy be given to each owner.

While this order does not provide a remedy should the body corporate oppose any future proposal, it does provide an opportunity for the body corporate to deal with this matter internally and for it to seek to reach agreement about air conditioning issues. If a motion about the installation of air conditioning is defeated at the meeting, the applicant or the relevant owner may submit a dispute resolution application providing grounds challenging the reasons for the opposition.

^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 284(1), Act.
^[4] Section 243, Act.
^[5] Section 248, Act.
^[6] Section 35, Act.
^[7] Section 31, Act.
^[8] Section 48C (1), Land Title Act 1994.
^[9] Section 49C, Land Title Act 1994 and Direction 9.6.1, Registrar of Titles Directions for the Preparation of Plans.
^[10] See section 100, Act and section 15, Small Schemes Module.
^[11] "Improvement" defined, Schedule 6 Dictionary, Act to include "a non-structural change, including, for example, the installation of air conditioning".
^[12] An improvement with an installed value of $200 or less; Dictionary Small Schemes Module.
^[13] Section 10, Small Schemes Module.
^[14] Section 18, Small Schemes Module.

Number of Scheme:	17969
Name of Scheme:	Hawthorne Bridge View
Address of Scheme:	30 Miles Street HAWTHORNE QLD 4171

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Hawthorne Bridge View [2007] QBCCMCmr 355 (8 June 2007)