Buderim Mews [2007] QBCCMCmr 47 (29 January 2007)

Last Updated: 12 February 2007

REFERENCE: 0819-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6253
Name of Scheme:	Buderim Mews
Address of Scheme:	101 Burnett Street BUDERIM QLD 4556

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

Darryl George Laird and Janet Fae Laird, the owners of lot 4

I hereby order that the application for an order for removal of an unauthorised gas dispersing chimney/flue which the owner of lot 2 caused to be erected on her rooftop (which is common property) and adjacent to the lower balcony of lot 4 is dismissed. I further order that the gas dispersing chimney/flue which the owner of lot 2 caused to be erected on the common property rooftop and adjacent to the lower balcony of lot 4 is deemed to have been authorised by special resolution of the body corporate in general meeting. This authorisation is subject to the condition that the gas heater is utilised only when cold weather reasonably requires it.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0819-2006

"Buderim Mews" CTS 6253

Scheme

"Buderim Mews" community titles scheme 6253 was registered as a building units (now known as building format) plan of subdivision on 14 March 1989 comprising four lots and common property. The scheme is regulated by the Act’s Standard Module.

Application

This application is brought by the owners of lot 4, Darryl George Laird and Janet Fae Laird (the applicants), against the owner of lot 2, Erica Beatrice Haines (nee Orth) (the respondent) seeking an order for removal of an unauthorised gas dispersing chimney/flue which the respondent caused to be erected on her rooftop (which is common property) and adjacent to the lower balcony of lot 4.

In the grounds to their application, the applicants state that the respondent installed the flue on 14 April 2005 without obtaining body corporate approval. They state that the flue is located about 6.5 metres from their lower balcony and not only limits their right to enjoyment of life but also has proven to be a danger to their health. They further state that at the last two AGMs voting on motions to either approve or remove the flue were deadlocked.

On 1 September 2006, the applicants sent a Form 1 to the body corporate managers, complaining of a breach of by-law 14 by the owner of lot 2. A by-law contravention notice has not, however, been issued to the respondent, as a notice of opposition, signed by, or for the owners of at least one-half of the lots included in the scheme, was issued.

Submissions

Submissions in response to the application were sought from all owners (excluding the applicants), particularly the respondent, and the committee. One submission was received, from the respondent. The submission was to the following effect:

	During an absence from the scheme for five years prior to December 2004, various "changes" (for example, installation of air-conditioners, building up of balconies and changes to fencing) were made at "Buderim Mews" for which no body corporate approval appears to have been obtained.
	The respondent and her husband carried out renovations in early 2005 which included installation of an air conditioner and small gas internal wall unit (Rinnai Slimline 25) which required fluing to the outside. At no stage did they intend to do the wrong thing but thought it was normal procedure to flue this fireplace to the outside as per instructions from licensed gasfitters and plumbers who worked on the project and who issued a Gas System Compliance Certificate under section 734(3) Petroleum and Gas (Production and Safety) Act 2004.
	At an EGM held on 9 September 2005, the matter was raised again and it was resolved that the applicants would not pursue the matter further.
	In response to the applicants’ claim that the flue endangers their health, the respondent has submitted reports regarding the safety of LPG gas in domestic situations. They also submit that the gas heater has only been operated on four or five occasions since its installation on 14 April 2005 on nights when it was extremely cold and when the applicants would have presumably been indoors. The gas cylinders supplying the gas heater have not been replaced or refilled since installation.
	The flue cannot be said to impede the applicants’ view as there are also within view, a satellite dish, TV antenna and roof of a new development, Monetery 1.

The applicants exercised their right to inspect the submissions made but did not submit a reply to them.

Jurisdiction

This is a dispute between two owners and comes within the dispute resolution provisions of the Act.^[1]

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

(c) a claimed or anticipated contractual matter about-

(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)).

Decision

I regard the installation of the flue on the roof as an "improvement"^[2] to common property for the benefit of the owner of lot 2.

Section 114 of the Standard Module makes provision for improvements to common property by lot owners. It provides as follows (bolding my emphasis):

114 Improvements to common property by lot owner--Act,
s 159
(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--
(a) the improvement is a minor improvement; and
(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.
(4) The owner of a lot who is given an authority under this
section--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the
authority in good condition, unless excused by the body
corporate.

In making decisions of any kind, including whether or not to grant authorisation under section 114 of the Standard Module, the body corporate has a legislative obligation to act reasonably and for the benefit of owners.^[3]

Based on the information presented in both the application and submission, it appears to me that the applicants have unreasonably refused permission for the installation of the flu on common property. My reasons are as follows.

Firstly, the applicants claim that their "right to enjoyment of life" has been limited. However, there is no statutory or common law right to "enjoyment of life". While it is possible that the applicants’ view from their balcony has been adversely affected by the installation of the flue, there is similarly no legal right to a view. In any event, I question how the view of the flue could be any more detrimental than the view of the existing satellite dish on the same roof, and the roof of the neighbouring property, "Monterey", containing another satellite dish and TV antennae.

I further consider that the applicants’ claim that their health has been adversely affected (particularly, Mrs Laird’s) somewhat spurious in light of the respondent’s assertion that the heater has only been used on four or five occasions since its installation on nights of extremely cold weather when the applicants were unlikely to be making use of their balcony. Additionally, the respondent has submitted information proclaiming the safety of LPG gas in domestic situations. It appears as though LPG is safely and commonly used for cooking and heating in domestic situations and is environmentally friendly. I note that, during the teleconference, Mr Laird commented that he does make use of the balcony area, even in cold weather at night, however, he did not claim to have been adversely affected health wise, although Mrs Laird claims to have suffered a dramatic deterioration in her health over the previous two winters, including the loss of 8kgs the first winter the flue was installed and 15 kgs the second winter. The applicants did not provide any material to substantiate their claim that the deterioration in Mrs Laird’s health was due to the emissions from the gas flue.

The applicants refer to a breach of by-law 14, however there is no by-law 14 recorded for this scheme. It appears as though the applicants were referring to by-law 5 in Schedule 3 of the Building Units and Group Titles Act 1980 which provides as follows:

5 Damage to common property
(1) A proprietor or occupier of a lot shall not mark, paint, drive
nails or screws or the like into, or otherwise damage or deface,
any structure that forms part of the common property except
with the consent in writing of the body corporate, but this
by-law does not prevent a proprietor or person authorised by
the proprietor from installing--
(a) any locking or other safety device for protection of his
or her lot against intruders; or
(b) any screen or other device to prevent entry of animals or
insects upon his or her lot.
(2) Provided that the locking or other safety device or, as the case
may be, screen or other device is constructed in a competent
manner, is maintained in a state of good and serviceable repair
by the proprietor and does not detract from the amenity of the
building.

In any event, it appears as though there was sufficient opposition to prevent a by-law contravention notice being issued to the respondents. I believe this further supports my contention that the body corporate’s refusal to grant permission for the installation of the flue is unreasonable.

In the circumstances, on the basis that I consider it just and equitable to do so, I have dismissed the application for an order that the flue be removed, and instead have made an order authorising its installation. I have imposed a condition that the gas heater only be utilised on occasions when cold weather reasonably requires it.

While I did not consider the information presented in this application sufficient to demonstrate any nuisance within section 167 of the Act, the applicants are at liberty to lodge a further application to resolve a dispute in the future, if they believe and can demonstrate that the use of the heater and resultant emissions from the gas flue begin to constitute a nuisance. To constitute a nuisance, there must be a hazard or unreasonable interference with the use or enjoyment of another lot or common property.

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^[1] See ss. 226, 227 & 228
^[2] Schedule 6 definition of "improvement" includes the erection of a building, a structural change and a non-structural change, including, for example, the installation of air conditioning.
^[3] See ss. 94 &152 Act