Girraween [2010] QBCCMCmr 49 (8 February 2010)

Last Updated: 23 March 2010

REFERENCE: 0712-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14658
Name of Scheme:	Girraween
Address of Scheme:	103 Windermere Road HAMILTON QLD 4007

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Owen Barbeler and Craig Casagrande, the owner of Lot 2

I hereby order that unless the resolution on Motion 2 at the Extraordinary General Meeting dated 17 February 2009 is properly amended or revoked by the body corporate for Girraween community titles scheme 14658, it must be complied with within 3 months of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0712-2009

“Girraween” CTS 14658

The scheme
“Girraween” community titles scheme 14658 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by Owen Barbeler and Craig Casagrande, the owner of Lot 2 (Applicants) seeking an outcome that Elsie Fraser, the owner of Lot 6 (Respondent) relocate air-conditioning equipment to the location agreed by the committee per the motion passed at the Extraordinary General Meeting dated 17 February 2009 (2009 EGM).

The Applicants detailed a background to the dispute submitting:

• A copy of the minutes of the Annual General Meeting dated 16 August 2007 (2007 AGM) which indicate under ‘General Business’: air-conditioning “units are to be placed on external garage walls” (Attachment C). The Applicants state Lots 2, 4 and 6 were contemplating installing air-conditioning.
• The Respondent installed air-conditioning equipment servicing Lot 6 on common property in November 2007 without Body Corporate approval. They state the equipment was installed below bedroom windows of Lot 2 (Attachment A is a photograph of the equipment). The Applicants say the equipment was audible within Lot 2 and interferes with the peaceful enjoyment of the Lot.
• A copy of a letter dated 29 November 2007 from R. Jackson Pty Ltd (Body Corporate Manager) to the Respondent about a breach of By-Law 1 relating to noise (Attachment D).
• A copy of a by-law contravention notice to the Body Corporate dated 5 December 2007 from the Applicants complaining about the air-conditioner (Attachment E).
• A copy of a letter dated 20 December 2007 signed by 3 committee members stating it is felt that the air-conditioning is not contravening the by-law and that an acoustic sound level test should be carried out (Attachment F).
• A conciliation agreement was reached in January 2008 to relocate the air-conditioning equipment “to the southern or rear wall of the complex, at the ground level, to the west of the garden tap”, with the cost to be shared by the owners of Lots 2 and 6 subject to Body Corporate authorisation in general meeting (Attachment H).
• A copy of the minutes of the Extraordinary General Meeting dated 15 July 2008 (2008 EGM) indicating: Motion 2 approved the installation on common property of 2 air-conditioning units to service Lot 4; Motion 3 approved the installation on common property of 4 air-conditioning units to service Lot 2; Motion 5 proposing “that my air-conditioner compressor be relocated to the back wall of the building on the Western side of the tap as it was conditionally agreed to at the Conciliatory meeting” was not resolved; an amended Motion 5 was passed by 5 votes to 1 that the relocation of the air-conditioning equipment be subject to an acoustic test; and Motions 6 and 7 proposing alternatives about the repositioning of the unit servicing Lot 6 were not passed (Attachment I).
• A copy of the minutes of the Annual General Meeting dated 30 September 2008 noting under ‘General Business’ that the acoustic test be carried out (Attachment K).
• A copy of a noise assessment of the air-conditioning condenser by ASK Consulting Engineers Pty Ltd dated 13 November 2008 stating: based on the Environmental Protection Regulation 1998, “the noise limit between 10pm and 7am...is excessive...and the Unit 6 air-conditioning system should not be operated in this time period in its current state. During the daytime...the noise from the air-conditioning system is compliant” (Attachment L).
• A copy of the minutes of the committee meeting dated 2 December 2008 noting the relocation of the air-conditioning equipment to the position agreed to at conciliation, with Mr Barbeler to contribute $800 and subject to authorisation in general meeting (Attachment P).
• A copy of the minutes of the 2009 EGM noting Motion 2 was resolved by special resolution: “that the Body Corporate grant permission to the owner of Lot 6 to install an air-conditioning condenser, servicing Lot 6 only, against the rear wall (southern) of the complex at ground level, immediately to the west of the garden tap. The owners of Lot 2 to contribute 50%, up to a value of $800 towards the re-location of the unit to this position. All pipes to be re-installed on the southern wall, vertically inside a cover pipe along the external wall and into the eave adjacent to Lot 6. The owner of Lot 6 to make good any damage to common property attributed to the re-location of the condenser and associated fittings. Installation to be undertaken at a time convenient for the owners of Lot 2 to be in attendance.” The minutes indicate Motion 3: “that the Body Corporate approve my air-conditioning compressor and piping to be re-located to the ground at the back of the building on the western side of the tap as it was conditionally agreed to at the Conciliation Meeting” was not passed (Attachment Q). The Applicants state the motion proposed by the committee per the agreement at the committee meeting was passed and the motion that did not include the detail agreed at the committee meeting was not passed.
• A copy of a letter dated 10 March 2009 from the Respondent to the Body Corporate Manager stating: “I do not know when I will next be in Brisbane to attend to arrangements regarding my air-conditioning compressor” (Attachment S).
• The Respondent occupied the Lot in July 2009 and did not progress the relocation of the air-conditioning equipment.
  

Submissions to the Commissioner
On 6 August 2009, the Commissioner provided a copy of the application to the Respondent, and to the Body Corporate Manager for distribution to the owner of each lot (excluding the Applicants), with an invitation to respond to the matters raised in the application (s 243, Act). On 31 August, the Commissioner sought submissions again. The Respondent and three lot owners made submissions. The Applicants made a written reply to submissions.

The Respondent submitted Lots 2 and 4 installed air-conditioning units along the western wall before she had her unit installed. She adds that no-one had Body Corporate approval at this stage. The Respondent proposed possible solutions to the dispute including having another acoustic test undertaken, relocating the air-conditioning equipment to another part of scheme land or seeking approval to keep the equipment in the same position provided it is only operated between 7 am and 10 pm. She states it would be more cost effective to relocate the equipment to a part of scheme land near the part approved by the Body Corporate. The Respondent is concerned about the expense to relocate the equipment to the position authorised by the Body Corporate saying this position may also cause a noise problem and it is not a safe place for the condenser. She says it does not seem to be feasible to soundproof or change the unit. The Respondent made submissions explaining what she believes occurred when the air-conditioning equipment was installed and what occurred leading up to the conciliation agreement which she says the Applicants have reneged on. She states the delay in relocating the equipment as agreed at the conciliation was caused by not calling a meeting to approve the relocation, the Applicants not being available for the sound test and because she had to return to the bush. With respect to the material provided by the Applicants, the Respondent states: she abstained from voting on her Motion 5 at the July 2008 EGM to let others decide; and she agreed to the terms of the December 2008 committee meeting, not to Mr Barbeler or the Body Corporate Manager being allowed to write her motion or to the details about repairing damage and Mr Barbeler supervising the job. The Respondent states she was unable to organise a contractor in July 2009 because of personal reasons.

Mr Thompson of Lot 1 stated it was not contemplated in 2007 that multiple compressor units would be installed; a disagreement arose between the Applicants and the Respondent about the level of noise from the unit servicing Lot 6; the Respondent had agreed to relocate her compressor unit to the southern wall; and the relocation may exacerbate the noise level.

Mrs Hefferan of Lot 4 made submissions about the installation of the air-conditioning units saying the Applicants are being unreasonable about their demands.

Mr Jordan of Lot 5 submitted that in 2007 the committee assumed that single compressor units were going to be fitted for each lot and that as a consequence of the multiple units installed, the Respondent installed her unit in the only available space left on the western wall. He believes the Respondent had approval as a consequence of the 2007 AGM and that for the sake of goodwill and harmony, the owners of Lots 1, 3 and 5 agreed to leave the units positioned on the rear wall. Mr Jordan considers Lot 6’s unit should remain somewhere adjacent to the western wall.

The Applicants responded they do not believe the solutions offered by the Respondent will resolve the matter saying (with respect to 2 of the options) they do not believe the alternative position at the end of the garden will comply with noise nuisance levels and internal corridors are inappropriate for air-conditioning condensers. The Applicants do not consider an undertaking to operate the air-conditioning during specified hours is a realistic solution. They say they made offers to contribute to the cost of relocation on the basis that the matter would be resolved in a timely manner without further costs, the Respondent has not carried out the relocation, and they have spent time and money on dispute resolution applications and the acoustic test. As a consequence, they submit they are no longer inclined to contribute to the relocation cost.

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Decision
It is apparent from the material that the owners of Lots 2, 4 and 6 have installed air-conditioning infrastructure along the western wall of the building, and the owners of Lots 2 and 4 have installed infrastructure on the southern wall of the building. The minutes of the 2009 EGM indicate the Body Corporate has approved the owner of Lot 6 relocating infrastructure to a position against the southern wall of the building. The plan of subdivision (Building Units Plan 406) indicates these parts of scheme land are common property. Common property is land owned by the lot owners, the members of the Body Corporate (s 31 and 35(1), Act). The Body Corporate must administer common property for the benefit of lot owners (s 94, Act). It may authorise an owner to make improvements to common property for the benefit of the owner’s lot (s 164, Standard Module).

It is not argued that the installation of the infrastructure does not constitute improvements to common property, or that the owners of Lots 2, 4 and 6 had proper authorisation when they each installed air-conditioning infrastructure on common property. The minutes of the 2007 AGM refer to a discussion under ‘General Business’. It should be noted that other than motions typically of a procedural nature, a decision can only be made in general meeting on a motion that has been included on the agenda and in the voting paper (s 87(5), Standard Module). However, the legislation does not specifically prevent ratification. A body corporate may ratify a decision even if the work was carried out before it properly passed a resolution authorising the work (Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160, de Jersey CJ, Keane JA and Holmes JA, 18 May 2007 at para 12). It is evident that the Body Corporate subsequently authorised the improvements made to common property by the owners of Lots 2 and 4 at the 2008 EGM.

The Body Corporate did not however authorise the improvement made to common property by the owner of Lot 6 at the 2008 EGM. Rather, it amended the relevant Motion 5. The amended resolution was that any authorisation would be subject to an acoustic test. A motion may be amended at a general meeting provided it does not change the subject matter of the motion (s 94, Standard Module). Section 94(3) prescribes how votes are counted for the amended motion. A
person who has cast a vote on the motion must be counted as voting against the motion (s 94(3)(b)). While I do not consider it necessary to make any finding on this issue, this may have been the reason for recording a no vote on the amended Motion 5. It is apparent that the Body Corporate did not similarly authorise the improvement made by the owner of Lot 6 because of the issue relating to noise.

Even though this issue arose soon after the improvement was made, it would seem from the material that the Body Corporate did not seek to enforce a by-law against the owner even though the Applicants had, in December 2007, given notice to the Body Corporate in the approved form (there is nothing to suggest the November 2007 letter from the Body Corporate Manager was properly authorised by the Body Corporate). For this reason, it would seem the Applicants made the conciliation application (s 185, Act). Despite some delays, the Body Corporate engaged a person to undertake a noise assessment of the air-conditioning condenser servicing Lot 6. The findings by ASK Consulting Engineers are clear. In the absence of substantive information to the contrary, I do not consider there is a basis to argue ASK does not have the necessary qualifications and expertise to make an objective assessment.

It is apparent that armed with this assessment, the committee made a decision at the December 2008 committee meeting and the Body Corporate passed Motion 2 at the 2009 EGM. While the Respondent has concerns about those parts of the resolution relating to how the pipes are to be installed, repairing any damage to common property and the attendance of the Applicants, it is apparent that this resolution has not been questioned under the dispute resolution provisions of the Act, nor has it been subsequently amended or revoked by the Body Corporate. On its face, the resolution is not unlawful or unenforceable. The Body Corporate is entitled to make conditions about consequential damage to common property and to authorise a representative to observe work carried out on common property. In my view, the resolution is one that is capable of being put into effect. There is nothing to suggest the resolution has been complied with. Consequently, at this time the owner of Lot 6 does not have proper Body Corporate authorisation for installing air-conditioning infrastructure on common property. However, there is no evidence the Body Corporate has taken any action to ensure the resolution is implemented.

The Applicants, not the Body Corporate have made this application. They have sought an outcome that the Respondent relocates the infrastructure in accordance with the resolution passed on Motion 2 at the 2009 EGM. In the circumstances, I do not consider there is any basis to make an order that interferes with the resolution. To a large extent, it is consistent with the conciliation agreement and earlier Body Corporate decisions. The Applicants would seem to now have an issue regarding that part of the resolution relating to their contribution. However, I do not consider there is any basis for an order severing this part of the resolution in the context of this application, primarily because no outcome has been sought about this aspect of the resolution and this payment may have been a condition of the Body Corporate’s authority. Given the outcome sought, I believe this order can only require that the resolution passed on Motion 2 be complied with.

In my view, it is appropriate to include an ancillary provision that the resolution be complied with within 3 months, a period I consider is reasonable in the circumstances where almost 12 months have passed since the Body Corporate made the decision and there is nothing to suggest the operation of the air-conditioning unit has a continuous detrimental impact on the use and enjoyment of Lot 2. Given the submissions and even though it has already considered a number of options, I have also made provision for the Body Corporate to make any further decision on this matter it considers necessary or appropriate. If the Body Corporate does give further consideration to this matter, it must ensure that it acts reasonably in making a decision(s 94(2), Act).

With respect to the type of resolution passed on Motion 2, it should be noted that section 114 of the previous 1997 Standard Module Regulation required authorisation by special resolution where an owner proposed making an improvement to common property of the nature mentioned in this application. This regulation was repealed on 30 August 2008. The current Standard Module requires a lesser ordinary resolution if a matter relating to an improvement to common property by a lot owner is proposed to be determined in general meeting (s 164(2), Standard Module).