Ashbee v The Owners - Strata Plan No 11761

Procedural

1. In the application, the applicant also sought orders under s 232 and 106(5) of the SSMA. During the hearing the parties reached agreement to settle that part of the application and consent orders were made by the Tribunal.
2. The only issue for determination is the application for orders in respect of the applicant's proposed air conditioning installation.

Evidence

1. The applicant relies on: 1. The bundle of documents filed and served on the respondent on 26 April 2018 and 3 May 2018 with the Tribunal and admitted without objection as Exhibit A1; 2. The bundle of documents filed and served on the respondent on 6 June 2018 with the Tribunal in reply to the respondents documents and admitted without objections as Exhibit A2.
2. The respondent relies on: 1. The bundle of documents filed and served on the respondent on 23 May 2018 with the Tribunal and admitted without objection as Exhibit R1.

Facts and findings

1. On 16 May 2016 the applicant sought approval of the strata committee for the scheme to install a reverse cycle air conditioner in her lot.
2. On 18 May 2016 the then secretary of the owners' corporation requested further information about the installation of the proposed air conditioning.
3. On 22 May 2016 the applicant amended her application for consent to install an air conditioner in her lot.
4. The applicant withdrew her application for consent to install the air conditioner.
5. On or about 20 May 2017 the applicant renewed her application for consent to install an air conditioner. On 1 June 2017 the strata committee the application and the minutes of the meeting record: "The owner responded to questions from the Committee about her options recommended by and diagrams drawn by the installer; advised that the bylaws allow either option; understood responsibilities under the bylaws about common property; that applications are on a case by case" and "The Strata Committee advised the owner to investigate further options for the installation of the reverse cycle air-conditioning system to avoid the use of common property and table at the next strata committee meeting for discussion. Motion deferred until further information is relayed to the committee to advise if approval is given."
6. On 29 June 2017 further considered the renewed application and the minutes of the meeting record: "It was noted that an owner cannot alter or add to common property nor can the Strata Committee authorise this action. The owner was advised to alter the location of the external unit of the air conditioning unit within their lot space for the Committee to consider the application, or submit the current application to the Owners' Corporation at the next General Meeting for consideration by special resolution as per s 108 do the Strata Schemes Management Act 2015".
7. The applicant put forward a motion before a general meeting of the owners' corporation which was considered at a meeting on 16 November 2017 for consent to install a reverse cycle split system air conditioner. The owners corporation refused the application.
8. The motion was supported by an explanatory note which included the applicant's statement that:

• Installation would be by Jaicrest Air, in accordance with its quotation of 19 May 2017 (option 1) and plan attached to the application to the owners' corporation. That is, the air conditioning condenser was proposed to be placed on a pre-cast slab and feet or brackets and positioned on anti-vibration mounts on the external side boundary wall of Lot 141;
• The system to be installed is "the most quiet domestic system currently supplied by Jaicrest Air" and that it was rated at 48dBA and operate at 45dBA when programmed;
• The external condenser unit and cable were proposed to be in keeping with the rest of the strata scheme and other air-conditioning units in the scheme and colour matched to the external walls of the scheme to reduce the visibility of the condenser;
• The impact on penetration to the common property walls would be minimal with minor fixings to the wall and the applicant accepting responsibility for any damage to the common property;
• The installation works would be carried out by experienced contractor who had previously installed air conditioners for other lot owners in the scheme, only taking a day for installation with work to be undertaken between 9am and 4pm on a Monday to Friday;
• The applicant agreed to adhere to existing special by-law 5 (air conditioning) to the extent that it does not conflict with the SSMA;
• The applicant proposed that she would be responsible for the repairs and maintenance of all parts of the air conditioning system including those parts on common property.

1. The evidence of the Rachel Keech, a member of the owners' corporation committee and previously the secretary of the strata committee, in her statutory declaration made 23 May 2018 is that she has considered "a number of applications for the installation of air-conditioning units in lots". Without providing particulars of those units Ms Keech makes a bold statement that " all of those units have had external units and all pipework, ducting and cabling installed in the cubic space of the lot". Ms Keech then gives evidence of some particular lots where air conditioning has been installed which she has visited on 4 and 6 May 2018.
2. There is no evidence as to the reasons adduced in evidence as to why the general meeting of the owners refused to consent to the applicant installing her air conditioning including locating it on the common property adjacent to the external wall.
3. Although on 27 January 2018 Mr Halpin, Chairperson of the Strata Scheme, to the applicant's solicitor expressed a view that consent ought to be given to the applicants proposal including the use of common property at the front of the building, these reasons for supporting the application suffer from the same difficulty that Ms Keech's submission opposing the application. Neither were the reasons given at the General Meeting in refusing the application and both post-date the meeting.

Determination

1. The applicant seeks a declaration by the Tribunal that the works for the installation of the air conditioner are minor renovations for the purposes of reg 28(d) and s 110(3)(f).
2. If the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to minor renovations it may order the owners corporation to consent to the work proposed.
3. The respondent submits that the proposed works are not minor works because: 1. The Tribunal must consider s 110(7)(c) that if the proposed works change the external appearance of a lot then they are excluded from the definition of minor alterations. 2. If so, then the applicant will need to obtain an exclusive use by-law to allow for the installation of the air-conditioning condenser on common property and a special resolution of the owners' corporation will need to be considered such a by-law.
4. The applicant argues that the proposed location of the condenser will be shielded by vegetation from street view and that the colour of the condenser and piping is intended to be colour coordinated with the building colour to camouflage to minimise visual impact.
5. Ross Halpin, the Chairperson in his email of 27 January 2018 confirms that "the vegetation covers the unit [condenser] if it is placed on the outside wall and plants can be added…with the 20mm conduit running to the power source in the courtyard would not be noticeable".
6. The Tribunal is satisfied that the installation of the condenser unit on the common property would not change the external appearance of the lot. The vegetation already exists and proposed location of the condenser is hidden by the vegetation, confirmed by Mr Halpin.
7. The Tribunal declares that the installation of the air-conditioning unit for Lot 141 is a minor renovation for the purpose of s 110 of the SSMA.

Owners Corporation unreasonableness in refusing its consent to allow minor works to be carried out

1. In the absence of a definition of unreasonableness in the SSMA the Tribunal is guided by David J in Curragh Coal Sales Co Pty Ltd v Wilcox (1984) FCR 46, that the term should be given its everyday meaning.
2. The Tribunal has already noted that the respondent did not record any reason in any of the minutes for refusing the application.
3. It is reasonable and, indeed would be procedurally fair, for the reasons for refusal by the other lot owners to be recorded so that the applicant had knowledge of the reasons for refusal.
4. The applicant's explanatory note given by her before the general meeting on 16 November 2017 to the owners corporation in support of her application for approval satisfies the criteria required by s 110(4) and (5).
5. S 110(2) provides that the approval could not be unreasonably withheld by the owners corporation. The applicant has sought permission to obtain approval firstly in 2016, cooperated with the owners corporation, providing further information requested by the Secretary, then withdrawing the application, to have a renewed application on 20 May 2017 deferred at a meeting on 1 June 2017 and then no decision made but a request was made that the applicant to explore alternative locations for the condenser. Ultimately, on a further application refused on or about 16 November 2017, without the meeting recording reasons for refusal. On any consideration of how the owners corporation has dealt with the applications made by the applicant the only finding that can be made is that the respondent acted unreasonably in considering the applications. The purpose and intent of the provision of the SSMA for minor alterations was to facilitate the type of application made by the applicant. The respondent obstructed the application in contravention of the SSMA and has failed to properly articulate its reasons for doing so. The respondent has acted unreasonably and the applicant is entitled to the orders she seeks.

Orders

1. The Tribunal: 1. Pursuant to s 127 of the SSMA declares that the applicant, Kimberley-Ann Ashton Ashbee's proposed air-conditioning installation for Lot 141 Strata Plan 11761 is a minor renovation for the purposes of s 110 of the SSMA; 2. Pursuant to s 126(1) of the SSMA orders that on or before 22 December 2018, The Owners- Strata Plan No 11761 consent to the air-conditioning installation for Lot 141 work proposed by the applicant, Kimberley-Ann Ashton Ashbee, in her motion put to the general meeting of the owners corporation on 16 November 2017, including the minor renovations to the common property directly affecting the owner's Lot 141 on the terms set out in the explanatory note prepared by the applicant. 3. Pursuant to s 126(5) of the SSMA orders that the applicant, Kimberley-Ann Ashton Ashbee, is to be responsible for the ongoing repair and maintenance of the additional property arising from the minor renovation approved under these orders.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2019