Chardonnay Palms [2010] QBCCMCmr 28 (21 January 2010)

Last Updated: 19 March 2010

REFERENCE: 0745-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17994
Name of Scheme:	Chardonnay Palms
Address of Scheme:	85 Petrel Avenue MERMAID BEACH QLD 4218

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

Myola Lands Pty Ltd, the Owner of lot 3

I hereby order that the body corporate for Chardonnay Palms Community Titles Scheme 17994 is deemed to have authorised the Owner of Lot 3, Myola Lands Pty Ltd to install a split system Daikin Model air conditioner (Model FTXS50GVMA / RXS50FBVMA) within Lot 3, subject to the following conditions: (a) The condenser will be installed on the tiled floor of the front patio between the front wall and the column supporting the balcony above lot 3; (b) The condenser may have installed immediately above it an acoustic baffle/shelf to minimise any sound which may travel upward to other units. (c) The condenser will be drained to a waste water drain immediately adjacent to lot 3 located in the garden but no pipe work will cross common property nor will any pipe work be visible from the common property; (d) All costs of installation, maintenance and insurance will be met by the owner of lot 3; (e) All maintenance will remain the responsibility of the owner/occupier of lot 3; (f) The owner of lot 3 will indemnify the body corporate for any third party claim for damages resulting from the air conditioning unit, be it personal or property damage; (g) Any complaint relating to noise of operation will be attended to promptly by the owner of lot 3; (h) Should the drainage system expelling water cause complaints or damage to common property or other lots the problem will be rectified expeditiously by the owner of lot 3; (i) Any damage to the common property during installation is to be rectified to the complete satisfaction of the committee at the owner’s expense (j) The unit must be operated so as not to contravene section 440U of the Environmental Protection Act 1994.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0745-2009

“Chardonnay Palms” CTS 17994

APPLICATION

This is an application by the owner of lot 3, Myola Lands Pty Ltd, represented by the director, Mr Christopher Maddocks (the Applicant), against the Body Corporate for Chardonnay Palms (the Respondent), seeking body corporate approval to install air conditioning at lot 3 on the ground floor subject to the following terms and conditions:

(a) The condenser will be installed on the tiled floor of the front patio between the front wall and the column supporting the balcony above lot 3;
(b) Gold Coast City Council (GCCC) guidelines specify the maximum decibel rating of 50; the proposed condenser will have a decibel rating of between 44 to 47dBA (for cooling) and 45 to 48dBA for heating);
(c) The condenser may have installed immediately above it an acoustic baffle/shelf to minimise any sound which may travel upward to other units.
(d) The condenser will be drained to a waste water drain immediately adjacent to lot 3 located in the garden but no pipe work will cross common property nor will any pipe work be visible from the common property;
(e) All costs of installation, maintenance and insurance will be met by the owner of lot 3;
(f) All maintenance will remain the responsibility of the owner/occupier of the lot;
(g) The owner of lot 3 will indemnify the body corporate for any third party claim for damages resulting from the air conditioning unit, be it personal or property damage;
(h) Any complaint relating to noise of operation will be attended to promptly and without question by the owner of lot 3;
(i) Should the drainage system expelling water cause complaints or damage to common property or other lots the problem will be rectified expeditiously by the owner of lot 3;
(j) Any damage to the common property during installation is to be rectified to the complete satisfaction of the committee at the owner’s expense.

The grounds to the application are to the effect that:

• The Applicant initially made application in January 2008 as part of renovations to lot 3 to install air conditioning in the West facing ground floor unit to compensate for the extreme heat of summer experienced in the apartment which is not alleviated by coastal breezes.
• The current tenants of lot 3 have a 13 month old baby and the owner’s intention was to install the air conditioning as much for the child’s benefit as the adults’ quality of life.
• As one other air conditioning condenser was already visible on the balcony of lot 5 on the first level, the Applicant did not envisage that his application would encounter opposition or discrimination from the Committee, but since March 2008 the Committee has continually thwarted any attempts to resolve this dispute.
• The Applicant provides the following chronology of events in respect of the matter:
  1. 22/01/08 – Submitted a written application for renovation of lot 3 including proposed installation of air conditioning condensers on front and rear patios;
  2. 31/01/08 – Received request for specifications and location of air conditioning condenser;
  3. 04/03/08 – Replied, stating that specifications would follow;
  4. 12/03/08 – Replied enclosing specifications (including decibel rating) and accompanying drawing showing potential location; mock up photograph showing air conditioning condenser in situ on the front patio;
  5. 13/03/08 – letter from Committee containing minutes of meeting of 13/03/08 stating application refused for various reasons including that the proposed air conditioning condenser exceeded the GCCC suggested decibel level Note it was minuted at this meeting that the by-laws be modified at the AGM to prohibit the installation of any air conditioning units in the building;
  6. 14/04/08 – reply to the body corporate committee noting that Applicant had not received notice of the committee meeting of 13/03/08; also included updated application to install air conditioning which did conform to the GCCC decibel rating guidelines together with other specifications, location drawing and photograph of its proposed location and a list of conditions under which the air conditioning could be approved. Applicant also pointed out that he had searched the records of the body corporate (for the last three years) held by Teys and could find no approval for the air conditioning installed on the balcony of lot 5;
  7. 19/07/08 – A committee meeting was held in lot 3 to discuss the air conditioning installation;
  8. 05/08/08 – Response from committee containing minutes of meeting of 19/07/08 advising that application was again denied and:
     1. committee required additional information on sound enclosure to the condenser;
     2. the Applicant trial a summer without air conditioning to see its impact on the tenants;
     3. the application to install air conditioning be referred by the committee to owners at the AGM
  9. 06/11/08 – Letter from Applicant to committee
  10. 23/12/08 – In AGM agenda Applicant’s motion to install air conditioning was included (Motion 16) as well as a motion (Motion 14) with alternatives to amend by-law 14 dealing with air conditioning. Applicant also submitted an amendment to by-law 14 which would have established a procedure and guidelines for owners wishing to gain approval for the installation of air conditioning
  11. 23/12/08 – Application for air conditioning was defeated at AGM (3 votes to 5) Committee’s motion to amend by-law 14 to prohibit air conditioning condensers being located on a balcony or in a garden was carried
  12. 15/04/09 – Conciliation session was conducted on 14 April 2009 which did not resolve the dispute.
      

JURISDICTION

“Chardonnay Palms” was registered as a building units (now known as building format) plan of subdivision on 23 September 1994 comprising 12 lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module).

This is a dispute between the owner of lot 3 and the body corporate and comes within the dispute resolution provisions of the Act (see sections 226, 227 & 228).

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)).

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the body corporate manager, Teys Strata (Gold Coast) Pty Ltd for distribution to the owners of all lots (excluding the Applicant) and the Committee, with an invitation to respond to the matters raised in the application.

Submissions from owners of 4 lots were received, as well as a submission from the Committee.

Without exception, the five submissions received were unequivocally opposed to the installation of air conditioning in lot 3. The main concern expressed appears to be with anticipated noise from the compressor which is proposed to be situated on the front balcony of lot 3. Further concern was expressed that the compressor and drainage pipes would be visible from the street entrance of the apartment block and the balcony of lot 11. Another concern raised was that the unit would blow hot air onto the adjoining veranda of lot 2, upstairs apartment balconies and pool area. One owner stated that no other units in Chardonnay Palms either have or want an air conditioner. She went on to state that one unit did have an air conditioner installed many years ago, but it has been broken for at least the last two and half years.

Comment was made that Chardonnay Palms is a nice happy friendly place of like minded people trying to maintain their homes in an environmentally friendly, eco-respecting manner. They plant native plants, have their own composting worm farm and are currently considering solar panels for the roof to reduce their carbon foot-print and electricity bills. Further comment was made that because of the scheme’s proximity to the beach and sea breezes, they simply do not need air conditioners. Another owner commented that it is relatively easy for the Applicant to compromise and find an internal air conditioner that assuages his tenants’ asthma and heat issues. The same owner claims that the operating parameters of the proposed air conditioner will likely exceed the noise levels prescribed by the GCCC guidelines, especially as the air conditioner gets older and louder.

The Applicant exercised its right to inspect the submissions made but did not respond to them.

DETERMINATION

Question for Determination

This scheme was created on the registration of Building Units Plan 100740 (a building units plan is now referred to as a building format plan). The boundaries of each lot are determined by reference to the survey plan, the Land Title Act 1994, and the Registrar of Titles Directions for the Preparation of Plans. A building format plan “defines land using the structural elements of a building, including, for example, floors, walls and ceilings”[1]. The boundary of a lot can be the centre of a floor, wall or ceiling of the lot; a structural element such as the outer edge of a floor or a concrete base not abutting a wall; or the outer face of balustrades or railings[2].

For this scheme, each of the lots shown on the survey plan includes two balconies, one at the Eastern side and one at the Western side. Each of the ground floor units also includes a garden. Generally, the boundary of each lot is the centre of the wall, floor or ceiling and if the balcony is bounded by balustrades or railings, the outer face of the concrete base or the outer face of balustrades or railings. The scheme land outside each lot is common property.

The proposed installation of air conditioning by the owner of lot 3 appears to me to be entirely within the boundaries of lot 3. As such the Applicant will only require body corporate approval if there is a relevant provision in the scheme by-laws.

For the purpose of this application, it is necessary to me to consider the by-laws in existence at the time the Applicant sought body corporate approval for the air conditioning installation. At all relevant times (when the Applicant made his updated request for approval to the committee on 14 April 2008 and when the Applicant’s motion was defeated at the AGM on 23 December 2008) the following by-law was relevant:

14. No structural alteration shall be made to any unit (including any alteration to gas, water, electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony of any unit and including the installation of any air-conditioning system) without the prior permission in writing of the committee.
    

In this case, the applicant has demonstrated that the committee and the body corporate have refused a proposal submitted by him to install air conditioning within lot 3. The question for determination in this application is whether the committee (at its meeting of 19 July 2008) and/or the body corporate (at its AGM on 23 December 2008) have unreasonably refused that permission.

Applicable Law

As part of its general functions under the legislation, the body corporate must enforce the community management statement, including any by-laws, for the scheme (Section 94(1)(b), Act). The body corporate must act reasonably in anything it does in this regard, including making, or not making a decision (Section 94(2), Act). A decision of the committee is a decision of the body corporate (section 100(1), Act). The committee too, must act reasonably in making a decision (section 100(5), Act).

Findings

By-law 14 as it existed at the relevant time provides that air conditioning may not be installed without the prior permission in writing of the committee. The committee is entitled to approve or refuse a request for an air conditioner, provided that it acts reasonably in doing so.

The reasons for the refusal to approve the proposed installation of air conditioning have been recorded in some detail in the minutes of the committee meeting of 19 July 2008 and also in the submissions made in response to this application. I note that the only submissions made in response to the application were by committee members who were present at the committee meeting on 19 July 2008.

It appears to me that the main concerns about the proposed installation were:

• hot air being blown onto the adjoining veranda of lot 2, upstairs apartment balconies and pool area;
• there is no need for air conditioners because of the scheme’s proximity to the beach and sea breezes;
• external appearance of the building being affected by the compressor and drainage; and
• anticipated noise from the compressor which is proposed to be situated on the front balcony of lot 3.
  

I will consider each of these issues in turn.

Hot Air

I am not persuaded on the material before me that this is a significant issue. The photograph depicting the proposed location of the compressor suggests that any hot air from the compressor that doesn’t dissipate will affect the Southern corner of the balcony of lot 3. I cannot accept that the unit could cause hot air to be expelled in the vicinity of the pool area, given the distance between the two and consider that any impact on lot 2 would have to be minimal given the concrete wall and lattice screening separating lots 2 and 3.

Scheme’s Proximity to the Beach and Sea Breezes

The fact that the building’s aspect might catch the ocean breeze is not in itself, in my opinion, sufficient reason to refuse an air conditioner. If an occupier prefers to be cooled by an air conditioner, they should not be prevented simply because others prefer an open window. The Applicant also suggests that lot 3, being a West-facing ground floor unit experiences extreme heat in summer which is not alleviated by coastal breezes.

External Appearance of the Building

Given the photographs provided by the applicant and my view of the external appearance of the building through a street view on Google Maps, I am not convinced that the siting of an air conditioner of the dimensions and location described by the Applicant would have a significant negative impact on the external appearance of the units. In particular, I note rather dense foliage both in the garden in lot 3’s balcony and in the common property grounds that appears to me to effectively screen the balcony of lot 3 from view to a large extent. I am also mindful of the existence of a concrete wall behind which the garden is located which would block any view of the compressor on the balcony of lot 3 from the front door entrance to the complex. I cannot see how the occupier of lot 11 could possibly see the compressor or associated pipes from the balcony of her lot, as she claims she would be able to. The proposed location for the compressor is underneath the balcony of the lot above.

Air conditioners are a common sight on Queensland buildings. Even if units of the same dimension were located in similar positions in each lot, I am not satisfied on the material provided that there would be a substantial visual impact. Moreover, the committee is able to limit approval to air conditioning units in unobtrusive locations or that are screened.

Potential Noise

Noise, to my mind, is a potentially more significant issue. The fact that there are environmental protection regulations regarding the noise of air conditioners suggests that there is an acknowledged issue with air conditioning noise. Moreover, there may be a valid argument that any noise impacts from one air conditioning unit could be amplified if the approval of one unit led to the approval of one or more units in each lot. However, I am mindful that the Applicant has supplied specifications for the sound level of the air conditioner he has purchased and I have not been provided with any evidence that these levels would contravene allowable noise limits under the Environmental Protection Act 1994.[3]

Other Relevant Factors

In this particular case, the Applicant has stated that one of the occupants of lot 3 suffers from breathing problems and that the air-conditioner would help her with these problems. Her daughter is also stated to suffer from skin irritation in hot weather. I am also mindful of the fact that air conditioning has previously been installed on the balcony of lot 5, although it is stated to be non-operational. I am also conscious of the fact that the only submissions made against this application were by committee members who refused the Applicant’s first and second requests for approval and that only five votes (which were likely the votes of the committee members) in a scheme of twelve lots were recorded against the request for approval at the AGM on 23 December 2008. I have also taken into account the following comments of an Adjudicator in a previous decision[4]:

• Regardless of an individual’s reasons for living where they do, Queensland’s sub-tropical temperatures can be difficult to tolerate for extended periods in the height of summer. Certain persons (including young children, aged persons, and those suffering medical conditions) have a greater sensitivity to the heat, and their health might be adversely affected by such heat.
• Air conditioners have become an expected part of modern living for many people, particularly in this climate. They are no longer considered a luxury, but are becoming almost a necessity for some, in the same way as a dishwasher or microwave are necessities for others.
• It is open to the committee to place conditions on the approval of air conditioners (such as the number, location, size, type, hours of usage, power requirements, drainage requirements, and decibel level) to minimise any perceived adverse impact.
  

I am also mindful of the conditions which the Applicant has suggested the air conditioner be allowed to be installed subject to, in order to alleviate the committee’s expressed concerns.

On balance, from an objective viewpoint, I consider that the committee and body corporate’s refusal to grant approval for the proposed air conditioning installation within lot 3 is unreasonable. I consider it just and equitable to allow the installation, subject to certain conditions. In addition to the conditions suggested by the Applicant (which I have modified slightly), I propose to include a condition that the unit be operated such that its operation does not contravene section 440U of the Environmental Protection Act 1994 (EPA). If noise from the unit is shown to exceed allowable levels under the EPA, the body corporate would have cause to issue a by-law contravention notice in relation to by-law 1 and to initiate action through this office, if necessary, to seek to limit the hours of operation of the unit, or its removal. I have included a condition that the condenser may (as opposed to must) have installed immediately above it an acoustic baffle/shelf to minimise any sound which may travel upward to other units to provide the Applicant with an option to reduce noise emitted from the unit if that is, or becomes, necessary.

New By-law 14

I am aware that the body corporate approved a change to by-law 14 at its AGM on 23 December 2008 and that this by-law was recorded by the Registrar of Titles in a New Community Management Statement on 19 February 2009. In relation to the installation of air-conditioning, by-law 14(b) provides as follows:

No alteration shall be made to any unit to install an air-conditioning system other than a portable air-conditioner wholly contained within the unit and not placed on a balcony or garden.

While I have not found it necessary to consider the new by-law for the purposes of the present application, in my view it is arguable that a by-law which purports to prohibit the installation of any air-conditioning system other than a portable air-conditioner wholly contained within the unit and not placed on a balcony or garden, may be considered oppressive or unreasonable.

If an Adjudicator is satisfied a by-law is, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable the Adjudicator may make an order requiring the body corporate to lodge a request to record a new community management statement –

(a) to remove the by-law; and
(b) if it is appropriate to restore an earlier by-law, to restore the earlier by-law.

ORDER

For these reasons I have made the order above.

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[1] Section 48C (1), Land Title Act 1994.
[2] Section 49C, Land Title Act 1994 and Direction 9.6.1, Registrar of Titles Directions for the Preparation of Plans.
[3] Section 440U of the Environmental Protection Act 1994 provides that occupier must not use or permit the use of air conditioning equipment between 7am and 10pm if it makes a noise more than five decibels above the background noise level and between 10pm and 7am if it makes a noise more than three decibels above the background noise level.
[4] Marriner Views  [2002] QBCCMCmr 668