Palm Crest Heights [2007] QBCCMCmr 648 (19 November 2007)

Last Updated: 4 January 2008

REFERENCE: 0387-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19265
Name of Scheme:	Palm Crest Heights
Address of Scheme:	Palm Meadows Drive CARRARA QLD 4211

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

the Body Corporate for Palm Crest Heights

I hereby order that the Owners of Lot 86, Qun Wu and Yu Feng Liu, are entitled to retain the existing satellite dish on the patio of their lot, providing that it is always positioned on the patio where it will be least visible from the exterior of Lot 86. I further order that approval for the satellite dish is conditional on the owners of Lot 86 ensuring that the current lattice screen remains firmly affixed to the building and is painted, within 30 days of the date of this order, in a colour to match the adjacent wall, unless the Body Corporate for Palm Crest Heights notifies the Owners of Lot 86 in writing that the lattice screen is no longer required. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0387-2007

"Palm Crest Heights" CTS 19265

Palm Crest Heights community titles scheme (Palm Crest Heights) consists of 129 lots and common property. The community management statement (CMS) for Palm Crest Heights indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Group Titles Plan 4094, and Group Titles Plan of Resubdivision 100514, 101241, 102209, 102386 and 103663.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Body Corporate for Palm Crest Heights (applicant) on 4 May 2007, pursuant a Committee meeting on 23 November 2006. The application sought the following order against Qun Wu and Yu Feng Liu, the Owners of Lot 86 (respondents):

That the owner of Lot 86/Unit 81, Mr and Mrs Q Wu and Y F Liu, be ordered to remove the satellite dish from the patio of the unit as they have failed to adequately screen the satellite dish as requested by the body corporate and in accordance with the conditions of approval to install the satellite dish.

PROCEDURAL MATTERS

In May 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Conciliation did not proceed because it seemed the matter had been resolved. When the applicant advised that the matter had not been resolved the application proceeded through to adjudication.

Under section 243 of the Act, a copy of the application was provided to the respondents and the Body Corporate, with an invitation to the respondents and all owners to respond to the matters raised by the application. Submissions were made by the respondents, the building managers and ten other owners. The applicant inspected the submissions received but did not avail itself of the opportunity to make a written reply to the submissions.^[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the installation of a satellite dish on the patio of Lot 86 (also known as Unit 81). The facts of the dispute can be summarised as follows.

­	In July 2004 the building manager reported to the Body Corporate that a satellite dish had been installed on the patio of Lot 86.
­	The Committee then decided that the respondents just remove the satellite dish, as a breach of by-laws, and it seems a letter was sent to the respondents on 3 September 2004.
­	On 14 October 2004 the Committee resolved to approve an application by the respondents, apparently dated 7 September 2004, to install a satellite dish on the condition that ‘soft screening’ such as lattice being put in place and approved by the building manager. The meeting minutes noted that the dish was only just visible and that screening would ensure that it is not viewable from common property.
­	The Body Corporate has not indicated whether it wrote formally to the respondents to advice them of the decision or relied upon them to read the Committee meeting minutes.
­	On 3 February 2005 the Body Corporate Manager (BCM) wrote to the respondents advising them of By-law 7.7 and the requirement that the satellite dish be screened. It requested the screening be installed within 14 days or the dish be removed.
­	On 24 August 2006 the BCM wrote again to request the screening or removal of the dish;
­	On 7 November 2006 the BCM wrote noting that approval for the satellite dish was subject to the installation of screening which has not been installed despite numerous requests over an extended period this did not occur. Accordingly, it advised that approval for the dish had been withdrawn and the dish was to be removed within 14 days.
­	On 23 November 2006 a Committee meeting noted that the respondent had advised that the previously installed screen had been removed in bad weather but that they would reinstall it. The BCM had told the respondent to provide a photo of the reinstalled screen but the screen had not been reinstalled.
­	On 13 December 2006 the building manager advised the BCM that a temporary screen had been put back up.
­	On 9 February 2007 the BCM wrote advising that screening of the required standard had not been installed, and that the installed trellis needed to be properly installed in a timber frame abutting the adjacent pillars, and be painted to match the adjacent walls.

The Body Corporate argues that it has been reasonable in enforcing the by-laws but that the respondent has not complied with the conditions of approval. It says it has received complaints from other owners regarding the appearance of the lot.

The respondents indicate the satellite dish is used to receive Chinese TV and say this is needed because Ms Liu doesn’t understand English and their children are learning Chinese. They say the dish is on their patio, totally covered by the required screen and trees, and makes no change to the external appearance of the complex. They refer to changes made to other lots in the scheme that have ‘totally changed’ the external appearance of the respective lots, and note that Unit 116 has a clearly visible TV antenna on its roof. Accordingly, they are unclear why they are not allowed to have their dish. They also note that the schemes next door have satellite dishes everywhere. They say the dish was approved with the screen, the screen was removed by bad weather but they put it back six months ago and don’t understand why that is not enough. They provide photographs of their lot and others in the scheme.

Two submissions from other owners oppose the application:

­

The owner of a lot located across from Lot 86 says that the dish is not visible and does not change the external appearance of Lot 86 and, but for this application, they would not have been aware of the dish.

­

Another owner argues the dish is not in view when driving past the lot, and on that basis they believe it is obscured or has been removed. They say they have no complaint with a satellite dish on the property. They also say they have noticed satellite dishes and aerials all over the scheme which could be deemed offensive. They believe the Body Corporate should offer ways in which the screening could be suitable, rather than generalising their requirement of ‘a standard suitable to the building manager’, who might not be agreeable depending on their mood or the feelings toward the respondents. They note that there may be a need for technical advice on how to screen the dish so that it doesn’t interfere with the signal.

The building managers support the application but say it does not show how often they have spoken to the respondents on the matter. They argue the dish should never have been approved, but that the condition for screening implied that any screening be erected in a professional and adequate manner. They say the respondent was slow to erect screening and have not erected a screen that complies with the condition or screens the dish effectively. They argue that the dish is unsightly, they do not see how it can be effectively screened, the attempted screening is unsightly, and no cooperation has ever been received from the owners. They note that a large palm has recently been placed by the dish which is an improvement but the dish is still obvious. They say that others who have been requested to remove reception devices have done so, and allowing the dish is discriminatory to others who cannot have a similar dish.

Six submissions from other owners support the application. In particular:

­	One claims the dish affects the visual amenity of the scheme and that the screen is poorly constructed and inadequate;
­	Another says the location of the dish offends other owners who have to look at it, and that standards regarding the grounds and the appearance of units must be upheld because a mismatch of attachments would bring down the value of the complex as a whole;
­	Another says cable is preferable and, as the only dish in the complex, it should be removed. They argue screening will only set an example for other residents who want satellite dishes.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[2]

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 the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

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)).

DETERMINATION

The main issue for consideration in this matter is whether the respondents have breached the by-laws by installing and retaining the satellite dish and, if so, whether the Body Corporate is entitled to require the removal of the dish.

Applicable by-laws

The CMS for Palm Crest Heights, recorded on 27 April 2004, includes By-law 7.7 as follows:

BY-LAW 7 USE LIMITATIONS

7.7	TV etc Antennae
(a)	An Owner or Occupier must not allow any television, radio or other electronic antenna or device to be erected, constructed, or placed, or permit it to remain on any Lot or on the Common Property unless and until it has been approved in writing by the Body Corporate.
(b)	That approval will not be given unless the antenna or device is contained within the Dwelling on the Lot and not visible from outside the Dwelling.

I am satisfied that the satellite dish in question falls within the scope of By-law 7.7.

When a body corporate is pursuing a by-law issue, the first formal step is generally to issue a contravention notice. The contravention notice, which must state certain things including the nature of the breach, must be given to the person who the body corporate believes is breaching the by-law. If the issuing of a contravention notice does not rectify the matter, the body corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office. The Body Corporate’s letter to the respondents of 7 November 2006 meets the requirements of a by-law contravention notice. Accordingly I am satisfied that the Body Corporate was entitled to pursue this application.

Approval of the satellite dish

By-law 7.7 does not prevent the installation of satellite dishes. Rather, it specifically gives the Body Corporate the discretion to approve the installation of satellite dishes. This is a decision that the Committee can take^[3] however the Committee must act reasonably in making this decision.^[4]

In acting reasonably, the Committee can consider the visual impact of the dish on other owners and can impose reasonable conditions on the granting of approval. However I do not consider that it would be reasonable for the Committee to impose a blanket ban on satellite dishes without consideration of the circumstances of each request, as that would amount to an attempt by the Committee to override the by-law.^[5]

Similarly, I do not consider that it would be reasonable to refuse a satellite dish on the basis that other owners prefer to use other modes (such as cable) for receiving television and entertainment services. I see no reason why the owner of a lot should not be entitled to access any such services at their own cost if there is no significant impact from that access on other owners. In this case there appear to be good reasons why the respondents require satellite access.

Given that the Committee noted on 14 October 2004 that the satellited dish was "only just visible" it is hard to justify that it would have been reasonable on that basis to refuse the dish. While I appreciate that it is desirable for the Body Corporate to main consistency in the appearance of the scheme, I do not consider that it is reasonable to require absolute uniformity in the appearance of dwellings in the scheme. In this regard I note the comments of an Adjudicator who determined a previous dispute in this scheme regarding an air conditioning unit.^[6] He commented that:

"It is important to note that By-laws 3.4 and 7.2 prohibit anything that varies the external appearance of the Dwelling as a whole. Dwelling is defined in By-law 1.4 Definitions as a residential dwelling constructed on a lot. The intent of these by-laws is to maintain the visual integrity of a building. The by-laws do not prevent minor changes that do not in substance interfere with the external appearance. If it were otherwise, it would not even be possible to stand on a balcony as this would affect the external appearance."

While By-law 7.7 uses different terms to those in By-laws 3.4 and 7.2, I consider that the same principle applies. I do not consider that By-law 7.7 can reasonably be interpreted to prevent a satellite dish just because it is visible in any manner, even in the most minor way. Rather, I consider that the intent of the by-law is to prevent satellite dishes that are visible in substance and have an impact on the visual integrity of the building. To the extent that the by-law purports to go beyond that intent I am of the view that the by-law would be oppressive and unreasonable.

In considering the visual impact of the dish I have regard to the fact that satellite dishes are an increasing common sight in residential areas, including in adjacent schemes. As such it not necessarily discordant or out of place, and I have difficulty with any suggestion that a small and barely visible dish could have any impact on property values in the scheme.

In light of these factors I am of the view that it would have been unreasonable for the Committee to have refused to approve the satellite dish outright. However I do not necessarily consider it was unreasonable for the Committee to impose conditions on their approval.

In regard to the requirement for a screen, it seems that a lattice screen, even if it fully complied with the Committee’s apparent requirements, has significantly greater visual impact on other users of the scheme than the dish itself. As such I am unclear why the Committee required it. But I do not consider that the requirement was unreasonable or was outside the Committee’s powers.

I do have a concern with the condition that the screen be approved by the building manager. While the Committee can certainly take advice from the building manager I do not consider that it is appropriate for it to delegate its decision-making responsibilities. I also note that the building manager has expressed the clear view that the dish should never have been approved (despite the capacity in the by-laws for this to occur) and so it could be argued that they would not act impartially in determining whether any screen complied with the Committee’s requirements.

Alleged breach of the conditions of approval

Where a Body Corporate gives approval for something under the by-laws subject to conditions, it is reasonable for it to withdraw that approval if the conditions are not met.

In mid October 2004 the Committee granted the conditional approval and reiterated the requirements by letter in early February 2005. The application does not indicate that any further action on the matter was taken by the Body Corporate until late August 2006. The application does not indicate what occurred in the intervening 18 months. The respondents say they put up the screen but that it later came down in bad weather. This seems to accord with the information in the Committee minutes and the building manager’s submission. After some correspondence in November the respondents put the screen back up but the Committee decided in February 2007 that the screen was not satisfactory and maintained its withdrawal of approval of the dish.

I accept that the respondents have been tardy in progressing this matter, in requesting approval for the dish in the first instance, in putting up a screen pursuant to the terms of the approval, and in reinstating the screen after it came down. However I am not satisfied that they are currently in breach of the conditions of approval.

From the material before me it seems that the respondents erected a screen at some point after February 2005 and put the same or a substantially similar screen back up in December 2006. If this is the case it is not apparent that the Body Corporate made any objection to the screen initially installed and only objected when it became apparent that the screen was no longer there. In this case it would be unreasonable for the Body Corporate to accept the screen as initially installed as complying with the conditions of approval and then later seek to impose a different requirement.

Moreover the Committee have given little detail as to how the screen, as currently installed, fails to meet the original conditions of approval and have not answered repeated requests for details about what modifications the Committee would require for the lattice to comply with the original approval conditions.

On the basis of the photographs provided by both the Body Corporate and the respondent I note that the dish appears to be small and barely visible. I have difficulty identifying any adverse impact of the dish on the visual amenity of the scheme.

Conclusion

While the respondents have certainly not been without fault in this matter, I accept that they erected the current screen in good faith on the understanding that it complied with the apparent terms of the Committee’s approval for the satellite dish. I do not consider that it is reasonable for the Body Corporate to now claim that the screen does not comply the terms of the approval when they have provided no evidence that the current screen is substantially different from that previously installed or that they objected to the original screen for failing to comply with the conditions. Moreover I consider it is unreasonable for the Committee to now seek to set more onerous conditions than were initially imposed.

For these reasons I have determined that it is just and equitable in the circumstances for the respondents to be entitled to retain the satellite dish. In the absence of any clear indication from the Body Corporate as to what modifications they would like to lattice screen, I have ordered that the approval for the dish is conditional on the respondents keeping the dish in the least visible location on the patio, ensuring that the lattice remains firmly fixed to the wall, and that the lattice is painted to match the adjacent wall. I do not consider that such requirements will be onerous for the respondents and trust they will allay any concerns of owners opposing the dish.

I note that the lattice, even meeting the specifications proposed by the Body Corporate, appears to have a greater visual impact on other owners than the barely visible satellite dish. With this in mind, it may be that the Body Corporate no longer wishes the lattice to remain. If this is the case the Body Corporate should advise the respondents in writing. If the respondents receive this advice they should remove the lattice but regardless may retain the dish.

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^[1] See sections 246 and 244 of the Act respectively

^[2] See sections 227, 228, 276 and Schedule 5 of the Act

^[3] Unless the Body Corporate has resolved at a general meeting that it is a restricted issue for the Committee, which is not apparent here – see section 24(1)(c) of the Accommodation Module
^[4] Section 94(2) of the Act

^[5] It owners generally wish to prevent any satellite dishes, they would need to approve a by-law to that effect. However it should be noted that an adjudicator is empowered to invalidate a by-law that they are satisfied that it is oppressive or unreasonable having regard to the interests of all owners and occupiers.
^[6] PG Daniels in Palm Crest Heights [2000] QBCCMCmr 72 (15 February 2000)