Montague Central [2007] QBCCMCmr 569 (25 September 2007)

Last Updated: 26 September 2007

REFERENCE: 0454-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6593
Name of Scheme:	Montague Central
Address of Scheme:	170 Montague Road, SOUTH BRISBANE QLD 4101

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

Mikle Pty. Ltd. ACN 089914116, the Owner of lot 3.

I hereby declare that the applicant is entitled to have installed three split system air conditioning units on the external wall adjacent to lot 3, subject to the condition that the applicant is to remove the air conditioning units and repair any damage to the common property, including filling of holes and matching of paintwork, should it vacate the premises in the future.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0454-2007

"Montague Central" CTS 6593

Application

Montague Central Community Titles Scheme is a 9 lot scheme registered on a Building Format Plan (previously referred to as a Building Format Plan) and is regulated by the Body Corporate and Community Management Act 1997 (Act) and the Standard Module Regulation (Standard Module).

This application is made by the owner of lot 3 seeking the following Order:
Permission to install split system air conditioning units in the first and second upper floor offices, required because of the constant sunlight and heat penetration through the glass. The offices are occupied daily by executive management crucial to company operations. Given the extended months of high heat of recent years, OH&S Regulations make air conditioning necessary.
Background

The applicant is seeking permission to install split system air conditioning units and states that several other units in the complex have been permitted to install air conditioning condensers on the building face. It is submitted that there is no valid reason why permission should not be granted in this instance.

The applicant then states that windows cannot be kept open because of outside traffic noise and exposure to the weather and while the impact of direct sunlight is eased by the presence of vertical drapes, the heat levels inside the office are unacceptable. It is proposed that the air conditioning units will be professionally installed with due regard to safety regulations and the overall appearance of the premises.

Attached to the application were minutes of a flying Committee Meeting where the following motions were considered but rejected:

1. That the owner of unit 3 be given permission by the committee to have an air conditioner installed in the first office, the external unit to be on the Western/ South face of the building immediately adjacent to the first office of Unit 3 and water overflow to be plumbed under upstairs overhang to building’s drain with the following specifications:

a. Panasonic CU-A125KR

b. split system

c. 64dB

d. 700 x 270 mm

Motion lost. Yes 0; No 3.

2. That the owner of unit 3 be given permission by the committee to have an air conditioner installed in the first office, the external unit to be on the Western/ south face of the building immediately adjacent to the first office of Unit 3 and water overflow to be plumbed under upstairs overhang to building’s drain with the following specifications:

a. Panasonic LG LS-H096QNAO

b. split system

c. 560 x 260 mm

Motion lost. Yes 0; No 3.



Submissions

Pursuant to section 243 of the Act, submissions were sought from the body corporate and all members of the body corporate apart from the applicant.

The body corporate re-affirmed its strong opposition to installation of air conditioning units on the street frontage exterior walls of the complex.

One lot owner, who is also a committee member, made the following submissions:

• The complex consists of 9 commercial lots and has a three street frontage to Montague Road, Norfolk Street and Cameron Street;

• The predominant use of the lots over the years has been commercial, showroom and distribution offices for various goods, particularly fashion and computers;

• At the time of construction, all of the lots had air conditioning units placed on the roof with the exception of lot 4 which had one roof mounted unit and a unit mounted on the rear wall of the complex i.e. not facing a street frontage

• Therefore the air conditioning units supplied by the developer were not visible from the street frontages;

• There are currently 3, rather than 2, air conditioning units attached to the front of lot 3;

• It is misleading to say that several other units have air conditioners fitted to the building face because only the owner of lots 1 & 5 has installed air conditioning units on the exterior walls and has did so without committee approval. Lots 2, 3, 4, 6, 7, 8 & 9 have not installed air conditioners to the street frontage.

• He is not aware of permission ever having been given previously;

• There is no objection to installation of the air conditioning units on the roof of lot 3 in the same way that other lots have their air conditioning units on the roof;

• At a recent meeting the body corporate resolved to spend in excess of $50,000 in covering the exterior walls above the upper floor windows, with a low profile colourbond material and to paint the whole exterior of the building;

• These works are to enhance the appearance of the building and this benefit will be lost if the applicant is permitted to keep the multiple air conditioning units on exterior walls with a street frontage as the air conditioning units are unsightly and will lessen the visual attraction of the building.

A second lot owner, who is also a committee member, made the following submissions:

• At the time of construction all of the lots had air conditioning units installed on the roof-top area with the exception of lot 4 which had one roof-mounted unit and one unit mounted on the rear wall i.e. not on a street frontage;

• The applicant only sought permission for installation of two air-conditioning units although there are four air-conditioning units installed on the front of lot 3;

• The committee has unanimously voted against installation of the air- conditioning units, indicating how strongly it is opposed to presence of installation of air- conditioning units on the building frontage;

• To his knowledge no permission has been given to any other lot owner to install air-conditioning units on the exterior of the building;

• When he had to replace his own air conditioning unit, he purchased a roof-top unit as he knew a wall mounted unit would not be acceptable;

• The body corporate wrote to all owners in early 2007 requesting that air conditioning units be removed from the exterior of the building and drew their attention to by law 22 regarding putting screws, nails etc. into common property without the consent of the body corporate;

• There is no objection to the owners of lot 3 placing the air conditioning units on the roof area as with other lots in the complex;

• The presence of multiple units on the walls of the scheme is unsightly and will lead to a lessening of the value of the scheme.

A third lot owner made the following submissions:

• They support the submission by the owner of lot 4;

• As original owners they have attended most, if not all, meetings of the body corporate and have never agreed to installation of air conditioning units on the face of the building.

The applicant subsequently made the following comments in reply:

• The submissions from other lot owners contain a reference to "by law 22, which prohibits an owner or occupier from putting screws, nails etc. into the common property without the consent of the body corporate". However, the by-law 22 contained in the copy of the by-laws held by the applicant is completely different;

• The only relevant by-law contained in the applicant’s copy of the by-laws is by-law 28 which provides that "any fixture or fitting attached to the common property by the proprietor is to be maintained by the proprietor";

• When the premises were purchased there was an air conditioning unit already attached to the front of the unit;

• Although the body corporate argues that air conditioning units were fixed to the roof of the building and not visible from the road, the unit above lot 3 was of a size that was only able to supply limited air conditioning to part of the upper floor. This unit failed completely two years ago and the applicant arranged to have it replaced;

• The air conditioning units do not detract from the appearance of the building as neither is large or obtrusive;

• Individually controllable units could be regarded as an enhancement as they allow reduced use of power when the premises are only partly occupied;

• The applicant is prepared to remove the air conditioning units and repair any apparent damage to the common property should it decide to vacate the premises in the future.

Jurisdiction

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; 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

In order to gain an appreciation of the matters in dispute I conducted an exterior inspection of the site on Friday 21 September and noted that the building has three street frontages and since this application was lodged, the building has been repainted a beige colour to replace the previous aqua paintwork. On the Montague Road frontage I noted that three air- conditioning condenser units are attached to the external walls and on the Norfolk Road frontage I noted that the three air- conditioning units belonging to lot 3 remained attached to the external wall.


The Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

The Act gives the owners of units in a scheme the power to vote on what by- laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.
I have reviewed the by-laws for the scheme and note that by-law 13 provides as follows:

Marking etc. of Property
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.

However, it should be noted that the body corporate is required to act reasonably in enforcing the by-laws^[2]. Section 94 of the Act provides as follows:

Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

On one hand, there is an obligation cast upon lot owners to seek permission from the body corporate before they install any fixtures or fittings to the exterior of the building which, on a building format scheme, is common property. I can readily understand that owners who have "done the right thing" and installed expensive roof-top air-conditioning, oppose this application for permission to retain the relative cheap split system air conditioning systems that have been affixed to the exterior walls.

On the one hand I believe there may have been an element of acquiescence on the part of the body corporate i.e. where the body corporate has failed to act on the matter for some time causing the person in question to assume some implicit approval. In the present circumstances I believe that the principle of acquiescence is applicable. Notwithstanding that the applicant may have installed the air-conditioning units in breach of the relevant by-law, I am of the view that the delay by the body corporate in taking action in respect of the alleged by-law breach is such that it would be unreasonable to now require removal of the air conditioning units.

Further, the absence of any action by the body corporate to remove the air conditioning units on the Montague Road frontage indicates that the body corporate may be seeking to enforce by-laws against one lot owner but not another. I believe that the body corporate may be acting in a discriminatory manner in seeking removal of the air-conditioning units which service lot 3 but not the air-conditioning units which service 1 and 5, and attached to the wall of the Montague Road frontage.




I note that the submissions contain considerable comment regarding the visual impact of the air conditioning units on the walls of the building facing Norfolk Street. When I inspected the site on 21 September I noted that the building has been repainted a beige colour to replace the previous aqua paintwork. In my view the air conditioning units are now much less conspicuous owing to the changed colour of the walls.

Finally, I note that this is a commercial building, and it is not uncommon for commercial premises in that area to have various items such as signage, fire fighting equipment and utility infrastructure such as air conditioning attached to external walls.

Having regard to all of the foregoing, I believe that at this point in time it would be unreasonable to now require the applicant to remove the wall mounted air conditioning units and to replace these units with a large roof mounted unit.

At the same time however, I recognise that the body corporate has now made it clear that it does not favour the installation of air conditioning units on the exterior walls of the building, and propose to make my order subject to the following condition: that the applicant is to remove the air conditioning units and repair any damage to the common property, should it vacate the premises in the future.

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^[1] See sections 227, 228, 276 and Schedule 5 of the Act
^[2] Section 94(2) Body Corporate and Community Management Act 1997 (Act)