Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS - whether the respondent installed an air conditioner in contravention of the by-laws; whether he must remove it unless the body corporate permits it to remain.

Act, ss 94(2), 100(5); Standard Module, ss 187, 212; Land Title Act 1994, s 49C(4).

1. Mr MacDonald breached by-laws 6 and 12 by installing an air conditioner without applying for body corporate approval.
2. Mr MacDonald must remove his air conditioner and reinstate the common property to its former condition within four weeks of the body corporate resolving not to permit it to remain.
3. The application is otherwise dismissed.

• [1] In February 2025, Mr MacDonald installed an air conditioner in his lot and on adjacent common property at the rear of lot 4 without body corporate approval. The body corporate committee wrote to him and advised that he needed to seek approval pursuant to by-laws 6 and 12, and asked him for a copy of an invoice for the air conditioner's installation.
• [2] When no application or invoice was received, the committee issued a by-law contravention notice to Mr MacDonald on 29 February 2025. It then attempted conciliation, but Mr MacDonald did not reply to the conciliator's correspondence.
• [3] The body corporate now seeks orders in the following terms:
  1. For a declaration that the respondent breached by-laws 6 and 12 by attaching an air conditioning unit to the back wall of lot 4 without the written consent of the body corporate committee.
  2. Within seven (7) days of the date of the making of this order, the respondent must apply in writing to the body corporate committee seeking approval for the air conditioning unit that has been attached on the back wall of lot 4.
  3. The respondent to provide any documents or information requested by the committee to assist it in deciding whether to approve the respondent's application for approval.
  4. If the respondent does not seek approval within seven (7) days, the respondent must remove the unauthorised air conditioning unit and reinstate the common property to the condition that it was in prior to the installation within four (4) weeks of the date of the order.
  5. If the respondent does not remove the air conditioning unit with the stipulated time frame, that the body corporate committee is permitted to carry out the removal of the air conditioning unit and recover the cost of the removal from the respondent.

(1) An owner or occupier of a lot must not, without the body corporate's prior written approval, mark, paint, drive nails, screw of other objects into, or otherwise damage or deface a structure that forms part of the common property.

(2) An owner or occupier must not attach any fitting or fixtures to the common property without the prior written approval of the body corporate.

Permission is granted to all owners or occupiers to install air conditioning in their unit subject to the following provisions:

(a) That an application is made in writing to the body corporate for that installation;

(b) That the installer of the air conditioning unit(s) has the appropriate qualification to undertake such work;

(c) That any water overflow from the air conditioning unit(s) is to be directed away from the walls of the lot and the concreted area in front and behind the lot; and

(d) Where an air conditioning unit is removed or replaced, the owner or occupier may be required to rectify any damage to common property caused by the owner or occupier as a result of use of common property pursuant to this by-law.

• [5] Mr MacDonald acknowledges that he had not applied to the body corporate pursuant to by-law 12(a) when he installed the air conditioner, though he has applied since. Nevertheless, at the time the air conditioner was installed, it was done in breach of by-law 12.
• [6] Mr MacDonald argues that by-law 6 does not apply to the installation of air conditioning, as "by-law 12 has specific application to air conditioning and provides for an exhaustive list of pre-conditions" and by-law 6 "would counter or otherwise render redundant the general permission given". The committee responds that by-law 12 applies to the installation of air conditioning within the lot, while by-law 6 concerns damage to common property.
• [7] While it is true that by-law 12 only speaks of granting permission "to install air conditioning in their unit", it also contemplates at paragraph (d) that there may be a "use of common property pursuant to this by-law". The by-law is unclear in that respect.
• [8] But irrespective of whether by-law 12 is taken to regulate the installation of air conditioning within the lot only, or also upon common property, I do not see any conflict with by-law 6. By-law 6 applies in addition to by-law 12 if the installation involves marking, painting, driving nails, screws, or other objects into, or attaching any fixtures or fittings to, the common property. If the air conditioner can be installed without doing any of those things, then it might be done pursuant to by-law 12 alone. Otherwise, body corporate permission is required for the changes to the common property.
• [9] Mr MacDonald's air conditioning condenser is fixed to an external wall of the building with bolts. As these walls separate the lots from surrounding common property, their exterior halves are common property.[1] Mr MacDonald required the prior written approval of the body corporate pursuant to by-law 6 to drive bolts into the common property and attach a fixture to it.
• [10] I will declare that he breached by-laws 6 and 12.

Must Mr MacDonald apply for body corporate approval for his new air conditioner?

• [11] While Mr MacDonald had not applied for body corporate approval at the time he installed the air conditioner, his legal representative wrote to the committee on 23 May 2025 after the present application was lodged, supplied the requested invoice, and requested confirmation that the air conditioner was approved.
• [12] The committee does not recognise this letter as a request for permission, describing it as a demand and an attempt to intimidate the committee, without the words "request" or "ask" appearing anywhere in it. The committee also seems to suggest that multiple applications for approval should have been lodged in relation to different aspects of the by-laws, such as a request to drive bolts into the common property under by-law 6(a), and a separate request to attach a fixture to the common property pursuant to by-law 6(b).
• [13] I do not accept these arguments. The by-laws do not require an application to be made in any specific form. The letter of 23 May clearly sought the committee's approval for the air conditioner as installed, which obviously included the condenser being mounted to the external wall behind lot 4.

Whether Mr MacDonald must provide further documents or information

• [14] Mr MacDonald does not believe the committee is entitled to any further information now that he has supplied the requested invoice. That view seems to be based on his understanding that only by-law 12 applies to his air conditioner and it provides an exhaustive list of the conditions he must satisfy.
• [15] As just discussed, by-law 6 also applies. By-law 6 does not restrict the matters the committee might take into account when considering a request to fix something to the common property. The Standard Module also allows the body corporate to approve an owner's request to make an improvement to the common property subject to "conditions the body corporate considers appropriate", and it requires the owner to "comply with conditions of the authority".[2]
• [16] The committee must act reasonably when making a decision, which gives it a broad remit to consider further information relevant to the issue before it.[3]
• [17] Nevertheless, Mr MacDonald is not subject to a legal imperative to provide any further information the committee might request, so I will not order it. But the committee might reasonably withhold approval for his air conditioner if he does not.

Whether Mr MacDonald must remove his air conditioner

• [18] I will not order Mr MacDonald to remove his air conditioner if he fails to seek body corporate approval, as he has already sought approval. He will only be required to remove the air conditioner if approval is withheld.
• [19] In lieu of order 4, I will order Mr MacDonald to remove his air conditioner within four weeks of the body corporate resolving not to approve it. That affords the committee an unlimited time to consider the application, request any further information it requires, and contemplate reasonable conditions of approval. The four week timeframe will only commence if the committee resolves to refuse Mr MacDonald's application.

Whether the committee may remove the air conditioner at Mr MacDonald's cost

• [20] There is no need for an order in these terms. It is already covered by section 212 of the Standard Module.

[1] Building units plan 102004; Land Title Act 1994, s 49C(4).

[2] S 187.

[3] Act, ss 94(2) & 100(5).