Ceil [2009] QBCCMCmr 336 (4 September 2009)

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

I hereby order that Gillian Baker and Jacqueline Hicks, co-owners of Lot 1104, shall cause to be removed from the roof of Lot 1104, the aerial presently situated thereon, within two months of the date of this order, and shall not reinstate any aerial without the consent of the body corporate in accordance with scheme by-laws and the architectural code for the scheme.

I further order as follows –
1. that if the aerial is not so removed within two months of the date of this order, then the body corporate may enter upon the lot on giving notice to the occupiers of Lot 1104 in accordance with section 163 Body Corporate and Community Management Act 1997 to carry out the removal of the aerial; and
2. in the event that the body corporate removes the aerial it must make good any holes or damage caused to the roof or to Lot 1104 by so doing, and may recover the reasonable cost of so doing from Gillian Baker and Jacqueline Hicks as a debt; and
3. that if removed by the body corporate the aerial shall be delivered to the occupiers of Lot 1104.

This is an application dated 5th March 2009 by Ceil Body Corporate CTS 32391 (the body corporate) against Gillian Baker and Jacqueline Hicks (the Respondents) co-owners of Lot 1104 in the scheme, for an order that the Respondents “remove the antennae and failing compliance with the order within the prescribed time, that the Body Corporate may enter upon the lot and remove the antennae and all removal costs and storage costs are borne by the owners of Lot 1104.”

“Ceil” CTS 32391 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 137 lots in the scheme created under four Standard Format Plans of subdivision. It is a subsidiary scheme in Coomera Waters Two CTS 29695.

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

(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)).

The body corporate refers to a conciliation conducted by this Office. I have no knowledge of any matters occurring at conciliation since conciliation sessions are confidential. In an application for adjudication the applicant must plead the case “de novo” that is, it is a new application which will be assessed on its merits.

“An owner of occupier of a lot must not erect, construct or place or permit to remain on any Lot or Common Property, any television, radio or other electronic antennae or device of any type unless the same has been approved in writing by the Committee or unless the same is contained within a Lot and not visible from the exterior of the Lot.”

It also refers to By-law 44 which state that owners and occupiers must observe and comply with the Architectural Code.

It says that the Architectural Code, does not permit antennae within the estate because communication cabling infrastructure is provided within the estate and lot owners are to connect to that so as to eliminate antennae being placed on properties. Section 13.9 of the Architectural Code states –

When the site communications infrastructure is installed for Coomera Waters, to provide free to air TV and potentially, other services. You must make connection to the system for the control of entry gates (where applicable) and for television. Connection to the reticulated system is at Your expense and You must use only suitable:-

approved by the ARC, for such connection to all outlets within Your Dwelling.”

The body corporate provides two colour photographs of a stick-type aerial on a roof.

The body corporate first wrote to the Respondents on 29th April 2008 about the aerial and it was mentioned in committee meeting minutes on 12th August 2008. The body corporate sent the Respondents a by-law contravention notice on 3rd September 2008 referring to, and quoting By-law 14, and giving the Respondents seven days to remove the aerial as it had not been approved by the body corporate.

In accordance with section 243(2)(a) Act submissions were invited from all lot owners.

Geok Lim and Philip Knopp, co-owners of Lot 1010 Ceil say they would like the TV aerial removed. They do not give reasons.

Janine White, for Remax Complete Realty managing agent for the Respondents says that this application is the first notice that the Respondents have received about the aerial. By undated submission she says that she has notified the Respondents of the application, and that they would like the antennae (sic) to remain so as to enable the residents to receive a good picture quality. She notes that the “property at 3 Pathfinder” also has a similar antenna, and she understands that the antenna has been at 1104 “ for a number of years.”

The body corporate exercised its right of Reply. It noted that there is no submission from the Respondents and only from the managing agent who is not an owner in the scheme. The Respondents were told about the problem at the address given as their registered address and it has been mentioned in subsequent minutes since, copies of which have also been sent to them.

It says that the aerial has only been there for a length of time because the Respondents won’t remove it. The property at 3, Pathfinder is not part of Ceil body corporate and is therefore irrelevant, although that body corporate is also taking steps to remove it. All owners are treated alike. On 22nd April 2009 at a committee meeting, the committee of Ceil resolved to seek the removal of aerials at Lots 1033, 1032 and 1214.

The Respondents did not make a submission. Because of this, on 4th August 2009 I caused this Office to contact the Applicants by telephone and email to ascertain if they were aware of this application.

The Applicant Jacqueline Hicks confirmed that she had received a copy of the application some time ago, and thought that the managing agent was handling the matter. A copy of the application was emailed to her and she said she would make a submission by the end of that week.

Both Respondents submitted on 13th August 2009, that the aerial had been erected without their knowledge or approval, and they have now sought the permission of the committee to keep the aerial as without it the tenants “would not have any reception”. They say it cannot be seen from the street as it is positioned to the rear of the house, and it is not detrimental to the view of residents in the immediate area. A request to keep the aerial has been sent to Silver Stewart King and Burns the body corporate manager, and an undated copy of that letter was attached to the submission.

Whilst the matter has not been put before a committee meeting, on 24th August 2009, following my enquiry, the body corporate manager, on behalf of the body corporate, responded that it had received no correspondence with the managing agent, Remax, and that the architectural “code is clear in its intention.” It requires that owners connect to the free-to-air TV service provided by the scheme at their own expense.

It says that the Respondents purchased from the original owners and are aware of the architectural code. It says that the fact that the agent has not passed on information is irrelevant since all body corporate correspondence has been sent to the Respondents at the address given by them to the body corporate. It requires the Respondents to remove the aerial within 30 days.

Emails from committee members Veronika Williams, Dion Moore and Greg Clark were attached concurring with this view. Other committee members were unavailable or did not respond.

On 27th August 2009 I sought a submission from the occupiers by 3rd September 2009. The property agent Remax responded that there are new tenants now in Lot 1104 who commenced their tenancy on 10th August 2009. Vicki Jackson, the senior property manager now handling Lot 1104 says that she contacted Ms Baker, one of the Respondents, who advised that the aerial was in place when they brought the Lot, and “had been installed by previous tenants contrary to the Architectural Code and Scheme By-law 14.” She also says that it has been there a number of years and cannot be seen from the street. She says that the tenants might seek compensation from the owners if they were without TV reception. The tenants should not be disadvantaged by something that occurred before their tenancy commenced, nor should the owners have to pay compensation to the tenants “because of something that happened that they were not aware of.” She asks for a favourable outcome for the tenants and her clients.

In this matter a contravention notice was sent to the Respondents on 3rd September 2008, now over a year ago, correctly referring to the number and text of By-law 14 of the scheme which forbids owners from erecting antennae without the permission in writing of the body corporate.

Since the filing of this application, the Respondents have now sought the committee’s permission to keep the aerial in position. However, three committee members are not willing to give the required permission and it seems unlikely that the body corporate, having decided to take steps to seek the removal of the aerial, will be willing to grant permission for it to remain.

I have some concerns here that the body corporate manager is advising the committee of its duty to adhere to the Architectural Code, when in fact the by-laws (By-law 14) specifically allows the committee to give consent for the erection of an aerial. To refuse an application, citing the architectural code as the reason for refusal, is a circular argument. There is no reason given for the likely refusal other than that “ the code is clear.” It may be that the body corporate should revise the wording of its by-law if its policy is never to consent to an aerial being erected.

It was only on 13th August 2009 that the Respondent owners made a submission that the aerial “had been erected without the knowledge of approval of the owners” which I took to mean themselves. It now appears from the response by Remax on 3rd September 2009 that this might be a reference to former owners from whom the Respondents bought the unit.

This means that the Respondents have known from the date of their purchase of Lot 1104 that the aerial does not comply with By-law 14 or the Architectural Code. All owners are bound by the by-laws of the scheme, contained in the community management statement, as if they had personally contracted with the body corporate to be so. (Section 59(3) Act.) If the Respondents had no actual knowledge of the by-laws and the Architectural Code, for example, because they had not bothered themselves with reading the legal paperwork, they are taken to have constructive knowledge of the by-laws which adhere to their scheme.

The aerial has now been in position for some time, “a number of years”, although the body corporate says that is so because it has taken so long for the Respondents to take action on this matter. I note that the body corporate’s first letter to the Respondents was sent on 29th April 2008, and although it is possible that the Respondents did not receive this letter, the mail was sent to the address notified to the body corporate by the Respondents.

I am satisfied that this aerial was erected without the consent of the committee being sought, as acknowledged by the Respondents. I am also satisfied that the Respondents have been aware of the breach of the by-law and code for some time and have not sought to regularise the situation with the committee. The allegation that the Respondents’ tenants would receive “no reception” unless they have the aerial is not strongly made out. The scheme provides free-to-air reception “and potentially other services” although I am not advised what those are. It seems that other occupiers in the scheme have TV reception through the service offered by the body corporate.

The body corporate wishes to enter onto the site and remove the aerial if it is not removed in 30 days, and recuperate the costs of so doing from the Respondents. Section 171(1)(d) Standard Module allows the body corporate to carry out work which an owner or occupier has an obligation to carry out under an adjudicator’s order if the owner or occupier does not carry it out. Section 171(2) allows the body corporate to carry out the work and recover the reasonable cost of so doing from the owner of the lot as a debt. I see no reason why the removal of a TV aerial should not be covered by the word “work”.

However, I have some sympathy for the current tenants who have commenced their tenancy during the term of this dispute.

I also note that only one owner made a submission in a scheme of 137 lots, so clearly this is not an issue which concerns the visual amenity of many. It appears that the body corporate is anxious that TV aerials do not proliferate and is taking steps to remove those which have appeared without consent.

In order for the tenants to make alternative arrangements for TV reception with their landlords, (one of whom I note is serving in the Australian Navy, and might not always be easily able to attend to matters relating to the unit), I order that the antenna be removed within two months of the date of this order. Failing such removal, the body corporate may, on giving at least seven days’ written notice to the occupiers pursuant to section 163(2)(b)(i)(B) Act, thereafter enter onto the lot to remove the antenna, and make good any holes or damage caused by such removal. The cost of removal and any necessary work shall be charged to the Respondents as a debt pursuant to section 171(2) Standard Module. I shall not order any storage costs, but if the aerial is removed by the body corporate it shall be delivered to the current occupiers of Lot 1104 who may do with it as the property agent or their landlords request.

Number of Scheme:	32391
Name of Scheme:	Ceil
Address of Scheme:	Ragamuffin Drive West COOMERA WATERS QLD 4209

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ceil [2009] QBCCMCmr 336 (4 September 2009)