Heritage Village Ormiston West [2010] QBCCMCmr 36 (28 January 2010)

Last Updated: 19 March 2010

REFERENCE: 0769-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19720
Name of Scheme:	Heritage Village Ormiston West
Address of Scheme:	88 Freeth Street WEST ORMISTON QLD 4160

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

Margaret Davey, the Owner(s) of lot 11

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0769-2009

“Heritage Village Ormiston West” CTS 19720

Application

Heritage Village Ormiston West Community Titles Scheme (Heritage) is a 48 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 and lot boundaries are designated under a group titles plan (now known as a standard format plan).

This application is by Margaret Davey, owner of lot 11 (lot 11 owner) seeking orders against the body corporate for Riviera Sands (body corporate). The lot 11 owner is seeking to overturn the result of voting at a general meeting at which owners gave the lot 11 owner permission to install an Apricus split-system solar hot water system but failed to authorise the lot 11 owner’s preferred ‘Edwards’ roof mounted solar powered hot water system.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the lot 11 owner, were to the effect that:

• She wants to install a solar hot water system and most units will probably need to install similar systems as the government will make it mandatory to replace electric hot water with other systems and gas is not available at Heritage;
• Her preferred option is a very efficient system with very few components to cause extra expense. The committee prefer a split system that has more components including an electric motor to move the water;
• Her system will be on the top roof and will not be visible to the majority of residents; and
• The vote at the annual general meeting was very close with 14 votes in favour of her preferred option and 15 votes in favour of the committee version.
  

The body corporate was given an opportunity to provide written submissions. The main submissions by the committee were to the effect that owners were informed of the various options and voted in favour of the split system. It was submitted that community living requires all residents to be considerate of others and observant of body corporate decisions and by-laws that are applicable to all owners.

Applicable law

By-law 13 for Heritage provides that the occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot. The lot 11 owner does not dispute that she requires body corporate approval to install a solar hot water system on her roof. However, the application challenges the reasonableness of the body corporate’s decision to approve only an Apricus split system hot water system rather than the Edwards roof mounted hot water system preferred by the lot 11 owner.

A body corporate is required to act reasonably in carrying out its functions, including in making or not making a decision (Act 94(2), 100(5)). Further, an adjudicator may make an order that is just and equitable to resolve a dispute, including to decide whether or not to declare a resolution purportedly passed to be void or to give effect to a motion that was not passed (Act 276, Schedule 5 – Items 8, 10).

Individual owners who vote at a general meeting are not under any statutory obligation to act reasonably or to provide any reasons why they voted in a particular manner. However, section 94 provides a statutory obligation that the body corporate act reasonably in making a decision. This statutory requirement is only satisfied if the ultimate decision is objectively reasonable.[1]

Reasonableness is a question of fact. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[2] The question is not whether the decision was the "correct" one but whether it is objectively reasonable.[3]

Findings

Having read the submissions, I am satisfied that owners have differences of opinions on the importance of uniformity of appearance of lots, on the aesthetic appearance of solar hot water systems, and on the preferred type of solar hot water system. Submissions from some owners express significant concern about the aesthetic appearance of the scheme if various owners are allowed to install solar hot water systems of different appearance. Other owners indicate a preference that any individual owner be allowed to install the type of hot water system that the individual owner prefers.

As a matter of law, I would not find it objectively unreasonable if owners decided that it was appropriate for the body corporate to allow individual owners to install whichever solar hot water system they like. On the other hand, I would not find it objectively unreasonable if owners decided it was preferable that the body corporate nominate a particular style of solar hot water system and only approve solar hot water systems with a similar appearance.

In the present circumstances, owners have voted to authorise the applicant to install an Apricus split system solar hot water system (or similar) provided that the installation is in a colour sympathetic to the complex. I am not satisfied that this decision of the body corporate is objectively unreasonable or otherwise unlawful. Similarly, in the context of this decision it is not objectively unreasonable or otherwise unlawful for the body corporate to refuse to approve the installation of an Edwards roof mounted solar powered hot water system.

Conclusion

Ultimately this application evidences a difference of opinion rather than a contravention of the legislation. In particular, while the lot 11 owner expresses a preference for not having a solar hot water system that uses an electric pump it is an exaggeration to suggest that the need for an electric pump defeats the purpose of installing a solar hot water system to save electricity.

I finally note that amendments to the legislation effective from 1 January 2010 prevent body corporate by-laws from prohibiting the installation of solar hot water systems (Act 180(8), Building Act 246O). The Heritage by-laws do not prohibit the installation of solar hot water systems but merely require consent before an owner changes the appearance of their lot. If an owner applies to install a solar hot water system then consent cannot normally be withheld if that would prevent a person from installing a solar hot water system or photovoltaic cells on the roof or other external surface of the building (Building Act 246S, 246T). However, the body corporate for Heritage has voted to approve the installation of an Apricus split system solar hot water system (or similar) provided that the installation is in a colour sympathetic to the complex. I therefore do not consider that withholding of consent to the Edwards roof mounted hot water system on the basis of appearance would contravene this legislation where the body corporate has approved the Apricus split system solar hot water system.

Order

For these reasons, the application is dismissed.

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[1] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at page 12.
[2] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621. See also McKinnon v Treasury [2006] HCA 45 per Hayne J at paragraph 61.
[3] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at page 34.