Palmhurst [2008] QBCCMCmr 37 (1 February 2008)

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

I hereby order that the Samara Ernst, the owner of lot 4 (applicant) may install a small split system air conditioner on the northern wall of her unit adjacent to her window, provided that:

1. The type of system installed is the Fujitsu 7000 or similar;
2. The installation is performed professionally in a manner that minimises any detrimental impact to the external appearance of the building, does not obstruct reasonable use of the common property, and is not dissimilar to the way in which other air conditioners have been installed for the complex;
3. The air conditioner can be removed by whoever is the owner of lot 4 for the time being on condition that the wall is returned to its 'as original' condition; and
4. The air conditioner and associated improvements are to be maintained in good condition by whoever is the owner of lot 4 for the time being.

I further order that the body corporate must add details of the above authorisation to the register of improvements to common property for the benefit of an owner's lot as required under section 146(3) of the Standard Module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0919-2007

"Palmhurst" CTS 414

Palmhurst Community Titles Scheme (Palmhurst) is a 16 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes. Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Samara Ernst, owner of lot 4 (applicant) seeking orders against the body corporate (respondent). The applicant is seeking authorisation to install a small split system air conditioner for the second bedroom of her unit.

The main grounds in support of the application, provided on behalf of the applicant, were to the effect that:

The applicant has provided a letter from Winfield's Electrical to the effect that the Fujitsu 7000 inverter is the smallest split system on the market with a sound pressure level of 48db.

The applicant says that she sought permission by special resolution to install her air conditioner but that owners unreasonably voted against her being granted permission. A copy of the minutes of the extraordinary general meeting on 19 October 2007 is provided.

Submissions were sought from the committee and all owners in respect of the application. While the body corporate manager confirms that the request for submissions was distributed, no submissions have been received by this office.

I requested from the applicant some additional photographs of air conditioners at the scheme and details of the applicant's proposed air conditioner. The material provided simply confirmed matters alleged in the additional application so it was unnecessary to distribute this additional material to other owners.

I also reviewed the community management statement for the scheme. Again, this did not raise any additional matters requiring a specific response from other owners.

Palmhurst is registered under a building units plan and I am satisfied that the installation of an air conditioner partly extending onto the exterior wall constitutes an improvement to common property for the benefit of the lot.

I am further satisfied from the applicant's submissions that a number of other units in the complex have air conditioners installed. Some of these air conditioners are split system air conditioners and other air conditioners are a 'box' style. One of the 'box' style air conditioners is installed for the unit above the applicant's on the same wall that the applicant wishes to install an air conditioner.

The lack of submissions from other owners and the body corporate has resulted in a situation where no reasonable basis has been provided for the refusal of the body corporate to allow the applicant to install the proposed air conditioner. Particularly given that a number of other owners have installed air conditioners, including on the same wall, it is difficult to imagine that there is any good reason to stop the applicant installing her proposed air conditioner. This is particularly as the proposed air conditioner is modern and low-powered and because other air conditioners have been installed within the scheme including on the same wall.

I further note that the photograph provided by the applicant of the proposed installation area indicates that the installation would be over a garden bed and at least partially screened by shrubbery.

It is possible to imagine the installation of another air conditioner would be a problem in some circumstances. This might include if the installation is poorly done, poorly positioned, or not maintained. However, these types of issues could be easily dealt with by placing reasonable conditions on the installation and it is unreasonable to absolutely prohibit the installation.

A statutory requirement to act reasonably is satisfied if the decision is objectively reasonable.^[1] The test is an objective one that requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.^[2]

Based on the findings above, I am satisfied that it is unreasonable to prevent the applicant installing an air conditioner in the general area proposed. A just and equitable order in the circumstances is to allow the applicant to install an air conditioner subject to reasonable conditions. I will require that the type of system installed is the Fujitsu 7000 or similar as proposed by the applicant. Further, that the installation is performed professionally in a manner that minimises any detrimental impact to the external appearance of the building, does not obstruct reasonable use of the common property, and is not dissimilar to the way in which other air conditioners have been installed for the complex.

Finally, I have included the usual condition under the Palmhurst by-laws that the air conditioner can be removed by whoever is the owner of lot 4 for the time being on condition that the wall is returned to its 'as original' condition and the usual requirement under the legislation that the air conditioner and associated improvements are to be maintained in good condition by whoever is the owner of lot 4 for the time being.

^[1] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.
^[2] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621.

Number of Scheme:	414
Name of Scheme:	Palmhurst
Address of Scheme:	2 - 4 Springfield Crescent MANOORA CAIRNS QLD 4870

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palmhurst [2008] QBCCMCmr 37 (1 February 2008)