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Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders |
Last Updated: 18 March 2011
REFERENCE: 1059-2010
ORDER OF AN ADJUDICATOR
MADE UNDER PART 9 OF CHAPTER 6
BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997
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Number of Scheme:
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37983
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Name of Scheme:
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This
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Address of Scheme:
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6 Santa Maria Court BURLEIGH WATERS QLD 4220
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TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for This
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1059-2010
“This” CTS 37983
This community titles scheme 37983 (This) consists of 110 lots and common property. The community management statement (CMS) for Mercantile-Dalgety Place indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme. Department of Environment and Resource Management records show the scheme is registered as Survey Plan 204161, 204162, 204172, 204173 and 204188.
APPLICATION
Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for This (applicant), on 12 November 2010, pursuant to a Committee resolution on 4 October 2010. The applicant sought the following order against Zhao Hui and Tingting Liu, Owners of Lot 48 (respondents):
For the owners to arrange for the removal of their satellite dish and re-installation where it is not visible from outside of their Lot, or to remove the dish and apply to the Body Corporate for approval for a smaller roof mounted one.
PROCEDURAL MATTERS
Initially an application for conciliation was lodged in August 2010[1]. A conciliation session was conducted and an agreement was reached in September 2010. It appears that this agreement did not resolve the dispute, and subsequently this application was lodged.
Under section 243 of the Act, a copy of the application was provided to the respondents and the Body Corporate, with an invitation to the respondents, and all owners to respond to the matters raised by the application. A submission was made by the respondents and by one other owner. The applicant inspected the submissions received and made a written reply.[2]
A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the application and submissions and seeking further information from the parties as detailed below.
MATTERS IN DISPUTE
The application relates to the installation of a satellite dish by the respondents on the exclusive use courtyard of Lot 48, which the Body Corporate considers is in breach of the by-laws.
The chronology of events in this dispute is as follows:
On 4 December 2009 the Body Corporate wrote to the respondents noting they had installed a satellite dish in breach of By-laws 6 and 9, and requesting its removal within seven days.
On 5 January 2010 the respondents apologised for installing the dish without approval. They said they saw others had satellite dishes and didn’t know they needed approval first. They said their parents couldn’t speak English and wanted to watch Chinese television. They tried to install the smallest dish possible but the installer said, because of the distance between the houses, that size was required so that they could get a signal. The dish was attached to a stand alone pole separate to the house and so they didn’t think there would be damage.
A further email on 3 February 2010 noted the dish was in the backyard and not in front.
On 4 February 2010 the Body Corporate advised the dish’s size and position were not acceptable as it was visible from the street and permission should have been sought first. They noted a smaller dish has been approved behind a garage roof façade on another lot.
On 11 February 2010 the respondents asked if the current dish would be ok if it was not visible (because they couldn’t return it), and noting that they would need to arrange a time with the installer to reposition it. The Body Corporate Manager (BCM), Charlotte Divall of Stewart Silver King and Burns, replied that she would pass that request on to the Committee.
The Committee meeting of 17 March 2010 noted a large dish had been installed on the Lot 48 roof without approval and the owners now sought approval. The Committee resolved to ask for the dish’s removal and to advise the owners could re-apply for a smaller dish.
The Body Corporate wrote again on 23 April 2010 noting that the large dish remained and was to be removed within seven days.
A Notice of continuing contravention of a body corporate by-law (BCCM Form 10) was issued by the Body Corporate on 6 May 2010 noting the dish had been installed without permission.
On 24 May 2010 a Committee meeting noted that the respondents had told the BCM that they would reposition the dish. The Committee resolved to request the immediate repositioning of the dish so that it was not visible or that it be removed, otherwise a conciliation application would be lodged. This letter was sent on 16 June 2010.
On 28 June 2010 the respondents advised the BCM that the installer had been on site and that it would take time to uninstall and reposition the dish.
On 1 July 2010 the BCM asked the completion date of the relocation, and the new location so that the Committee could consider it. The respondents replied on 15 July that it would be relocated that week and he would advise the height and location.
On 2 August 2010 the respondents advised that the relocation had been completed.
On 3 August 2010 the BCM asked for the new location and the respondent advised that it was two metres lower that originally and 1.5 metres away from the house in the backyard.
The Committee then apparently determined that the dish was still visible from outside the lot and proceeded to lodge the conciliation application on 13 August 2010.
At conciliation the parties agreed the Committee would reconsider approval for the dish.
The minutes of the meeting of 4 October 2010 indicated that the Committee had a lengthy discussion on the pros and cons of the dish. They noted that at no time had feedback been sought from neighbouring lots and that this would occur as part of the adjudication application process. The meeting resolved to proceed to lodge an adjudication application.
The application indicates that they believe it is important to uphold the by-laws and that By-law 9 requires prior approval. They argue that the dish is not minor and that it detracts from the amenity of the lot and the surrounds. Photographs of the dish are provided.
The submission from one of the respondents includes the following:
This is his first home in a body corporate and he didn’t know everything needed to go through the Body Corporate.
He saw other residences had satellite dishes in their backyards and, as his parents were coming to Australia, he contacted some satellite installers. He was advised that a large dish was required to access Mandarin channels from China. A smaller dish would only be able to access Cantonese channels which they would not be able to understand.
They did not install the larger dish recommended by the installer because they thought it was too big, but rather chose a medium size dish.
The dish was 4 metres above ground and 1 metre above the patio roof. The dish was relocated to 2.5 metres high without sacrificing any channels. Following the conciliation the installer came again and they worked for four hours to find the lowest location possible, which was 1.5 metres high. This has reduced the signal and the number of channels.
Only about 20cm of the top of the dish is now visible from the street, but the Body Corporate is still not happy.
They spent $1,200 on the dish installed in November 2009, and a further $450 for materials and labour to relocate the dish. They have done all they can.
Their neighbours don’t mind the dish.
One submission from other owners appears to support the application. It comprises an annotated copy of the application indicating that dish should be removed and that the respondents apply to the Body Corporate for approval for a smaller roof mounted dish.
The Body Corporate’s reply to submissions states that:
It cannot be an acceptable defence that the respondents did not know that Body Corporate approval was required.
To the knowledge of the Body Corporate, there are no other satellite dishes in THIS as they would have been challenged as unacceptable.
One dish was installed in another lot by a family in the same situation as the respondents. They installed a dish the same size as that installed by the respondents on the front fence overlooking the park. The Body Corporate advised this was inappropriate. The Body Corporate agreed to a compromise of a smaller dish in a more discrete location on the roof. The Body Corporate approached the current case based on that precedent.
Although the respondents say they chose a smaller dish, the dish is not small.
They agree that a small satellite dish, for example as needed or local cable companies, may be a standard utility, but not the large dish in this case.
There are a large number of properties who do not have the appropriate space in their back yard for such a facility.
The respondents say their neighbours do not mind the dish, but the decision affects not only the immediate neighbours but each of the 110 owners. If the attitude of neighbours is relevant, they ask that the agreement of the majority of owners be sought.
Owners purchased in the knowledge that by-laws would be adhered to, to maintain the aesthetic integrity of the buildings, the value of the investment and social harmony.
At my request[3] a member of the Commissioner’s Office contacted the Body Corporate to seek its views on the respondents’ claim that the dish had been moved lower, that only about 20cm of the dish was visible from the street, and the photograph provided by the respondent purportedly illustrating that. The Body Corporate then advised that the dish was in the same position as when the application was submitted. They reiterated that they respondents have not complied with the by-laws, that only a smaller dish would be considered an acceptable utility, and they do not wish to set a precedent where other owners are able to install large dishes where they like.
The Body Corporate provided a new photograph of the dish but the perspective was unclear. Accordingly, I requested a current photograph of the dish taken from the nearest part of common property. Further photographs were then provided.
JURISDICTION
I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[4]
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 claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.
An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[5] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[6]
DETERMINATION
The primary issues to consider in this matter are: what approval was required for the installation of the satellite dish; whether such approval was reasonably withheld; and whether the respondents should be required to remove the dish from its current location.
Location of the satellite dish
Initially the satellite dish was apparently installed on roof of the Lot 48. The respondent indicates that it was on a pole separate to the house, and so presumably the pole was situated in the yard of the lot. The dish was then relocated to the yard at the rear of the lot.
As this scheme is a building format plan of subdivision (BFP), the lot boundaries are defined on the survey plan by the structural elements of a building, including the floors, walls and ceilings. Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall or ceiling[7]. Accordingly, if the dish was installed on the roof top, it was on common property.
Similarly the courtyard at the side and rear of Lot 48 is not part of the lot. Rather, it is part of common property that has been allocated to the exclusive use of the occupiers of Lot 48, pursuant to By-law 23. Although the owners and occupiers of Lot 48 are afforded rights to the use of this area of common property under the exclusive use by-law, the area remains common property. It is evident that the dish is currently located in this exclusive use area, and if it was previously installed atop a pole that pole was apparently located in the exclusive use area.
Accordingly, at no time has the satellite dish been installed in Lot 48 itself.
Applicable by-laws
The focus of the Body Corporate’s application is that the installation of the dish was undertaken without approval and such was contrary to the by-laws, particularly By-law 9 and also By-law 6:
The installation of a satellite dish on common property without approval could be considered to cause damage to common property. However that does not prevent the subsequent approval of the installation. Moreover, the application of By-law 6 is subject to the application of the legislative provisions regarding improvements to common property, as a by-law is invalid to the extent of any inconsistency with the legislation[8]. I will comment on those legislative provisions shortly.
There may be a query as to whether By-law 9 in fact applies to the current situation, given that the changes were made to common property rather than to the lot itself. Moreover, if it does apply, By-law 9 is similarly subject to the legislative provisions regarding improvements to common property.
By-law 9 does not prohibit changes to the appearance of a lot. A change that is minor and does not detract from the amenity of the lot and its surrounds is not restricted at all, and do not require approval. Changes affecting the external appearance of a lot in a manner that are not minor and which detract from the amenity of the lot and surrounds may be approved by the Body Corporate. Although of course it is preferable if approval was sought in advance, that does not mean that retrospective approval cannot be given.
Accordingly, the first issue regarding the application of By-law 9 then is whether a change is minor and detracts from the surrounds. The second is whether a Body Corporate, acting reasonably[9], should approve or refuse permission for the change. I do not intend to comment on the original location of the dish as I have not been provided photographs of its visual impact and it is a moot point anyway. However I will, in due course, consider the effect of the change arising from the current location and whether it was reasonable in the circumstances for the Committee to refuse permission for the dish located in the courtyard. The fact that approval was not sought in advance is not necessarily a relevant factor in any such decision. Rather, the key issue is whether the change has or could have any adverse impact on the amenity of the lot or its surrounds.
Improvements to common property
For the information of parties, I note the following in respect of the dish if it was installed on the common property roof.
Normally, a proposal by an owner to make an improvement[10] to common property would fall under section 162 of the Accommodation Module. Section 162 provides that, on request, the Body Corporate may authorise an owner to make an improvement to common property for the benefit of the owner’s lot. Conditions may be imposed with any authorisation. An improvement must be authorised by an ordinary resolution unless (a) it is a minor improvement (defined as having an installed value of $3,000 or less), and (b) it does not detract from the appearance of any lot or the common property, and (c) the use of the improvement is not likely to promote a breach of the owner’s duties as an occupier.
The satellite dish has an installed value of less than $3,000 and so it falls within the definition of a minor improvement for the purpose of section 162. I am not aware of any basis upon which the use of a satellite dish would promote a breach of an occupier’s duties.
There is, however, a question of whether the dish on the roof would detract from the appearance of any lot or the common property. If the appearance was adverse, and ordinary resolution at a general meeting would have been required. Alternatively, if the dish did not detract from the appearance of any lot or the common property, the Committee would have been empowered to approve it, including with the imposition of any conditions. The Body Corporate or its Committee must act reasonably in making any decision under this section.
Improvements to exclusive use areas
Different legislative provisions arise in respect of the installation of the satellite dish on the exclusive use courtyard of Lot 48, whether in its current location on the ground or on a pole.
By-law 23 is the exclusive use by-law which grants the area of common property marked on the Exclusive Use Plan “EU2” in the Schedule E of the CMS as ‘BZ’ to Lot 48. The creation of exclusive use by-laws is provided for in sections 170 to 177 of the Act. An exclusive use by-law attaches to a lot and gives the occupier of the lot the exclusive use to the rights and enjoyment of the specified common property or body corporate asset. Sections 171 to 173 of the Accommodation Module provide for the operation of exclusive use by-laws.
By-law 23 does not make specific provision for improvements to the exclusive use areas. Under section 172, if the exclusive use by-law does not authorise the relevant lot owner to make an improvement to common property, an improvement to common property by that owner can only be made if the body corporate authorises it. If the installed value of the improvement is more than $3,000, the improvement can only be approved by an ordinary resolution. However, as the installed value of the dish was less than $3,000 in this case, in this case a Committee resolution would have been adequate authorisation.
Again, the Body Corporate or its Committee must act reasonably in making any decision under this section. The key issue to be considered in this regard is the impact of the proposed improvement on other lots and the common property. I will consider that question in due course.
It is not apparent from the material provided that the Committee considered its decision regarding the installation of the satellite dish in the courtyard in respect to an improvement to an exclusive use area under section 172 of the Accommodation Module. Rather, it appears to have considered the dish only in regard to a change to the appearance of a lot under By-law 9. However, the legislative provisions take precedence and so any issue regarding By-law 9 is a moot point once a decision has been made to approve or refuse the dish pursuant to section 172.
Statutory easements
A further issue is whether a statutory easement enables the installation of the satellite dish on common property. I consider this to be very relevant to the dispute. Section 115O of the Land Title Act 1994 provides as follows:
115O Easements in favour of lots for utility services and utility infrastructure
(1) An easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.
(2) However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies.
The definition of utility services and utility infrastructure in the Land Title Act 1994 points to the definitions of those terms in Schedule 6 of the Act. Utility service includes “a computer data or television service” and so would clearly cover the cable television services sought by the respondents. Utility infrastructure includes cables, wires, plant and equipment for supplying utility services, and so would cover the satellite dish equipment required to provide access to cable television services.
A statutory easement creates automatic rights and is subject only to the requirements of section 68 of the Act regarding the exercise of the rights, including that the rights must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property. Section 68 provides as follows:
68 Exercise of rights under statutory easement
(1) Rights under a statutory easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.
(2) If a statutory easement entitles a lot owner to enter another lot or common property to carry out work, the owner—
(a) must give reasonable written notice—
(i) to the other lot’s owner, and additionally, if the owner is not the occupier, the other lot’s occupier, before entering the lot to carry out work; or
(ii) to the body corporate, before entering the common property to carry out work; and
(b) must comply with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.
(3) If a statutory easement entitles the body corporate to enter a lot to carry out work, the body corporate must give reasonable written notice to the lot owner before entering the lot to carry out work.
(4) Subsections (2) and (3) do not apply if the need for the work to be carried out is, or is in the nature of, an emergency.
Cable and free-to-air television services are a utility service and the respondents have a prima facie right to provide this service to their lot. All lots share this right. The question then is whether the particular equipment installed is reasonably necessary to supply the service, and whether the equipment interferes unreasonably with the use or enjoyment of a lot or common property.
The Body Corporate has suggested that a small satellite which is adequate for local cable services would be acceptable but not a larger dish. However the Body Corporate has not addressed the apparent concerns that a smaller dish would not be adequate to access the services sought by the respondents. The respondents have paid the satellite dish installer to return on two occasions, I accept that if they could have accessed the desired overseas television services by installing a smaller dish they would have done so.
I do not consider that the occupiers’ wish to access overseas cable television to be unreasonable or uncommon. Previous disputes in this Office regarding satellite dish installations have arise for similar reasons. On balance, and in the absence of evidence to the contrary from the Body Corporate, I am inclined to the view that the current dish is reasonably necessary to supply the required utility service.
The next question, then, is whether exercise of the right to this utility service (the cable television) through the installation, operation and maintenance of the utility infrastructure (the satellite dish) interferes unreasonably with the use or enjoyment of any lot or the common property.
Impact of the satellite dish
The test regarding a statutory easement is whether there is any unreasonable interference with the use and enjoyment of any lot or the common property. For improvements to exclusive use areas of common property, and similarly By-law 9, the relevant issue is whether there is any adverse impact on the use or amenity of lots and common property. This is essentially the same test.
The primary issue raised by the Body Corporate in respect of the satellite dish (aside from the failure of the respondents to apply for approval, and their concerns regarding setting a precedent) is the size of the dish and that it detracts from the amenity of the lot and the surrounds. The Body Corporate does not elaborate on how the dish affects the amenity of the lot and surrounds. However it appears that the Body Corporate has maintained its objection to the dish while it remains visible from the outside of the lot[11].
The dish is certainly visible from the common property roadway nearest to the Lot 48 courtyard. However, it would seem from the photographs provided and from the scheme plans that this may be the only location where anyone other than the immediate neighbours of Lot 48 would have any sight of the dish. Two or three immediate neighbours would presumably be able to see the dish from their lots and courtyards.
The photographs provided by the Body Corporate in the application (apparently taken on 30 August 2010) show almost the entire dish visible over the fence from the street. The respondents say that they have since lowered the dish further and that now only about 20cm of the dish is visible. They provide a photograph in which it appears that most of the dish is obscured by the fence and foliage within the courtyard. A small amount of the top of the dish appears to protrude above the foliage. The Body Corporate has claimed in response that the dish is in the same location as when they lodged the application. However their own most recent photographs taken from the same location as the August photographs seem to me to be consistent with the respondents claim that the dish has been lowered further. The recent photographs provided by the Body Corporate show the dish to be in a lower position that the August photograph and that only a small portion of the dish visible above the fence and shrubbery.
I do not consider that the mere visibility of the dish or any part thereof automatically means that the existence of the dish amounts to an unreasonable interference with the use or enjoyment of, or an adverse impact on the amenity of, the common property or any lots. Similarly, I do not consider that the comparative size of the dish of itself means that the dish is unreasonably interfering with other users of the scheme.
While the dish is large, it is not a solid structure but rather appears to be opaque. As such it is less likely to block light, create any significant shadow or reflection. Furthermore, the photographs provided seem to me to indicate that there is only one place on unallocated common property that the dish is visible from visual impact seems limited to me, and that while visible, the sight of the dish is not significant or offensive.
The Body Corporate has not presented any evidence that any other owner or occupier is concerned about visual impact of the satellite dish in its current location. The Body Corporate does not refute the respondent’s claim that the neighbours of Lot 48 have no objection to the dish. No submissions have been made indicating that the dish adversely impacts on any other lot owner. The only submission received simply indicates agreement with application without giving reasons. I note that the submission is from owners who are located well away from Lot 48.
The Body Corporate suggests that a decision should not be made without considering the wishes of the majority of owners, and that they are responsible to all 110 owners and not just the neighbours of Lot 48. However it is not apparent that the Body Corporate has made any attempt to elicit the views of owners themselves.
I am particularly concerned that the Body Corporate Committee has appeared to see the process of an adjudication application as a means to obtain feedback from other owners. To the extent that the views of other owners and occupiers were relevant to their decision on the dish, the Committee should have undertaken such consultation themselves before making a decision. The dispute resolution processes of the Commissioner’s Office should be the last step in a dispute resolution process and is should not be used as a consultative exercise. That said, the submissions process has not revealed significant concerns regarding the visual impact of the dish.
The Body Corporate has referred to the need to maintain the aesthetic integrity of the scheme. Ultimately, I am simply not satisfied they have demonstrated that the dish in its current location presents a notable impact on the amenity of the scheme or any lot in the scheme. I do not comment on whether any previous locations of the dish would have caused any unreasonably impact or interference.
The Body Corporate also comments that other lots do not have appropriate space in their backyards for a satellite dish of this size. While I appreciate that the Committee may be concerned about setting precedents, I do not consider that the availability of adequate space for similar installations in other lots to be a relevant consideration in this case. Decisions involving the exercise of discretion must be made through the objective assessment of the circumstances at hand. The question in this case is whether there is adequate space for this particular dish and the visual impact of this particular dish, not the hypothetical future proposals. There is no indication that other lots are seeking similar installations. However, if such proposals arose, they should be considered on their merit. If other owners propose a dish in a space for which they do not have room, there may be grounds for the Committee to object to their proposals on that basis.
Conclusion
The respondents installed a satellite dish first on the common property roof of Lot 48, and then on the common property exclusive use courtyard, without Body Corporate approval. Moreover, the respondents did not act promptly in responding to the Body Corporate’s concerns when this error was alerted to them. Notwithstanding that, the absence of prior approval for an improvement does not necessarily mean that approval cannot be granted retrospectively.
A body corporate must act reasonably in considering any decision pursuant to section 172 of the Accommodation Module of By-law 9, and the failure to obtain prior approval is not a reasonable justification for refusing something which it would otherwise be reasonable to approve. I am not satisfied that the Body Corporate has demonstrated that the satellite dish, in its current location, has an adverse visual impact on other lots and common property. As such I consider that it would be unreasonable in the circumstances for the Committee to refuse permission for the satellite dish installed in the exclusive use courtyard of Lot 48.
More fundamentally, however, I find that the satellite dish is utility infrastructure installed for the purposes of providing a utility service. Accordingly a statutory easement exists in favour of Lot 48 and against the common property. The statutory easement is subject only to the requirement that the exercise of rights under the statutory easement does not interfere unreasonably with the use of enjoyment of lots or the common property. I am not satisfied that the current location of the dish amounts to an unreasonable interference with common property or other lots. Accordingly I consider that it is just and equitable in the circumstances to order that the respondents are entitled to retain the dish.
I have made an order to this affect, along with orders establishing conditions for the retention of the satellite dish.
I emphasise that this decision was made having regard to the particular circumstances of this case and does not automatically entitle other owners or occupiers to install their own satellite dishes. All owners should have regard to the principles outlined above. Any owner wishing to install anything on common property should first contact the Body Corporate in regard to whether approval may be necessary for that particular item. Owners may also wish to contact the Information Service provided by the Office for the Commissioner for Body Corporate and Community Management on freecall 1800 060 119 for general information about the legislation.
[1] Application
reference
0775-2010
[2] See
sections 246 and 244 of the Act
respectively
[3]
Pursuant to my investigative powers under section 271 of the
Act
[4] See
sections 227, 228, 276 and Schedule 5 of the
Act
[5] Section
276(2) of the
Act
[6] Section
284(1) of the
Act
[7] Sections
48C and 49C(4) of the Land Title Act
1994
[8]
Section 180(1) of the Act
[9] Pursuant to sections 92(4) and 100(5) of the Act, a body corporate and committee must act reasonably in making or not making a decision.
[10] The definition of “improvement” in Schedule 6 of the Act includes a structural or non-structural change.
[11] As the dish is not in fact within the lot it is assumed that the Body Corporate’s objection is to the dish being visible from outside the exclusive use courtyard.
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