Balmoral Green [2011] QBCCMCmr 54 (15 February 2011)

Last Updated: 18 March 2011

REFERENCE: 0961-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	37213
Name of Scheme:	Balmoral Green
Address of Scheme:	580 Blunder Road & Cnr King Avenue DURACK QLD 4077

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Balmoral Green

I hereby order that, within sixty (60) days of the date of this order and at her own expense, the Owner of Lot 63 Thi Ngoc Lan Vu shall make the following alterations to the air-conditioning units installed in Lot 63: Any air-conditioning compressor units fixed to the wall on the lower level of Lot 63 that are currently visible above the fence line shall be relocated so that they are no longer visible above the fence level. All conduits and pipes connected to and servicing the air-conditioning units installed in Lot 63 that are visible from outside Lot 63 shall be painted the same colour as the wall that the conduits or pipes are fixed to.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0961-2010

“Balmoral Green” CTS 37213

Balmoral Green community titles scheme 37213 (Balmoral Green) consists of 70 lots and common property. The community management statement (CMS) for Balmoral Green 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 197861.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Balmoral Green (applicant) on 18 October 2010. The application was authorised by a Committee resolution on 22 September 2010.

The applicant sought orders against Thi Ngoc Lan Vu, Owner of Lot 63 (respondent) in the following terms:

1. The air-conditioner compressors fixed to the wall on the lower level are relocated to the floor space so as not to be seen above the fence level.
2. The conduits servicing these air conditioners are to be painted the same colour as the wall that they are fixed to.
3. The conduits servicing the air conditioners on the upper floor are to be painted the same colour of the wall that they are fixed to.
4. The overflow pipe located next to the window that drains the water from the air conditioners is be painted the same colour as the wall that it is fixed to.
   

PROCEDURAL MATTERS

Originally the applicant lodged an application for conciliation on 9 October 2009[1]. The Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. On 26 November 2009 the Conciliator issued a certificate ending the conciliation on the basis that the respondent did not make a reasonable attempt to participate in conciliation.

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. Submissions were made by the respondent and five other owners. The applicant did not avail itself of the opportunity to inspect and respond to the submissions received.[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 an air conditioner on Lot 63. The Body Corporate says the air conditioning unit was installed without Body Corporate approval and that the installation did not comply with By-law 10.3. The circumstances of the dispute can be summarised as follows.

The Body Corporate says it has tried numerous avenues of communication to seek rectification of the matter, but to no avail. In particular:

­ On 25 March 2009 the Body Corporate wrote to the respondent indicating that it had been advised that two extra air-conditioners had been installed in the unit without prior Body Corporate approval. Reference was made to By-law 10.3. The letter asked that the respondent complete the attached form requesting approval of the installations for the consideration of the Committee.
­ On 30 June 2009 the Body Corporate issued a by-law contravention notice, noting that the air-conditioner had been installed without screening and without prior approval.
­ On 17 August 2009 the Body Corporate wrote again to the respondent. This referred to the previous correspondence and advised that for the air-conditioner to be compliant with the by-laws they would need to meet certain conditions. The conditions listed are those in the orders sought. The letter asked that these requirements be actioned immediately.
­ On 28 September 2009 the Committee approved the lodgement of a conciliation application.
­ On 22 September 2010 the Committee approved the lodgement of an adjudication application

It appears that the Body Corporate made no further attempts to communicate with the respondent after the unsuccessful conciliation attempt.

Five submissions were made by owners in support of the application. Comments included that:

­ The air-conditioner was installed without the written approval of the Committee.
­ The installation does not comply with the by-laws.
­ The owner has not rectified the installation, or responded to numerous communications.
­ Owners have an expectation that the complex will be maintained to a minimum standard of presentation.
­ The installation should be rectified at the respondent’s cost
­ Allowing an exception would create difficulties in future.

The respondent lodged a submission coversheet, but did not attach any written information with that coversheet by way of submission. A member of the Commissioner’s Office rang the respondent on 3 December 2010 to ask if she wished to make a written submission. The respondent appeared to decline to provide anything further, but the file note of the conversation indicates that some language difficulty was experienced.

The Commissioner’s Office then arranged a Vietnamese language interpreter and contacted the respondent again on 9 December 2010. The Officer’s file note of this conversation reported that the respondent said she had advised the Body Corporate that she was willing to have the air-conditioner removed.[3] However, she said she could not do so yet because the contractor who installed the air-conditioners, and who was going to move them, was not available at the time. The respondent indicated that she would make a written submission to this effect and including a copy of the correspondence advising the Body Corporate of this.

No submission was forthcoming. Accordingly, the Office rang again through an interpreter on 7 January 2011. The respondent said she had sent an email but the Officer advised that it had not been received. The respondent passed the call onto her daughter (Kym Mai) to confirm the correct email address.

After a further follow-up, an email was received on 21 January 2011. The email, written on behalf of the respondent and apparently originally written in December, referred to the “requirement to move the air-conditioning unit for the property to another location in line with the strata guidelines/regulations”. It said that the company that installed the unit was unable to relocate it to a suitable location until the new year but had advised that a technician would be sent out ‘early next year’ for the work to be carried out.

Having reviewed the application and submissions, I wrote to the respondent and her daughter on 25 January 2011 (mailed to the respondent’s address and emailed to the daughter). I reiterated the outcomes sought by the applicant. I requested advice as to when they expected the air-conditioner to be moved; contact details for the company relocating the air-conditioner; and, noting the apparent intention to relocate the air-conditioner, whether the respondent accepted the outcomes sought by the applicant. No response was received to this correspondence.

On 14 February 2011 a member of the Commissioner’s Office spoke to the respondent’s daughter. It appeared that the correspondence may not have been received. The daughter did not indicate a willingness to provide a written response to the queries contained in the letter but verbally advised:

1. The respondent did not know when the air-conditioner would be relocated.
2. They did not have the contact details for the air-conditioner company to hand.
3. The respondent did not object the outcomes sought by the Body Corporate.
   

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) a claimed or anticipated contravention of the Act or the CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) 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 issue here is whether the respondent should relocate any visible air-conditioning compressor units installed on the lower level of Lot 63, and paint any conduits and pipes servicing the lot’s air-conditioning units so that they match the colour of the wall that they are fixed to.

The CMS for Balmoral Green recorded on 8 August 2007 includes the following by-law:

10. Appearance of Lot. The owner of a lot must not, without the Body Corporate’s written approval, make change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

10.1 ...
10.2 ...
10.3 Externally mounted air-conditioning or mechanical plan installations are to be in accordance with the following requirements:-

• (a) No unscreened installations on the proposed development are to be visible from the surrounding sites; and
• (b) Any installations which are required to be located on roof, wall or garden areas are to be appropriately screened or shaped according to the acoustic requirements of this development package and so as to integrate in a complementary manner with the overall design of the roof, wall or garden area in which the installation is to be located.
  

It is apparently not contested that air-conditioning units have been installed in Lot 63 without Body Corporate approval, or that these installations affect the visual amenity of the scheme. It seems that at least one of the units is readily visible from above the fence bordering the lot, and that conduits and pipework associated with the units are also visible. While the Body Corporate does not seek the complete removal of the unapproved installations, they are seeking alterations to limit the visibility of the installations.

Although written information from the respondent is limited, representations have been made on behalf of the respondent confirming that she is willing to relocate the visible air-conditioning unit and has no objections to the outcomes sought in the application. In the circumstances, I am satisfied that there is no substantive dispute still existing and so it is not necessary to investigate the basis of the orders sought any further.

It is unfortunate that the resolution of this matter has been delayed so long. Although I appreciate that language barriers may well have been a constraint in this regard, it would have been preferable if the respondent had acted considerably more promptly in responding to the concerns raised by the applicant and to the conciliation and adjudication applications. However, by the same token, the Body Corporate took little or no action on the matter for some twelve months.

Although the respondent has indicated a willingness to now take the action sought by the applicant, she has not done so for an extended period of time and is unable to specify a date when this will occur. Therefore, I consider that orders are necessary to define the period within which this agreed work must be conducted.

Accordingly I shall make orders requiring the respondent to move the visible air-conditioning component to an alternative position so that it is no longer visible from outside the lot. In addition, I will order that the respondent must paint any pipework and conduits associated with the air-conditioners on Lot 63 and that are visible from outside the lot in a colour that matches the wall to which they are fixed.

I intend to require that this work be conducted within sixty days of the date of this order. I consider that this is a generous period given the timeframes which have already elapsed in this dispute, and since the respondent indicated that she would relocate the air-conditioner. However, I have had regard to the fact that last month’s flooding in Brisbane may affect the availability of contractors able to undertake the work.

I understand that the respondent may have experienced difficulties in engaging her preferred contractor to undertake the work. I would suggest that she consider engaging an alternative contractor if she is unable to secure a confirmed date for the work. She and her family should be aware that if they fail to comply with the order in the specified time, the Body Corporate will be entitled to take action to enforce the order in the Magistrates Court.

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[1] Application reference 0956-2009
[2] See sections 246 and 244 of the Act respectively
[3] The Body Corporate advised on 21 January 2011 that it had received no advice from the respondent.
[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