Our QLD readers are wondering about the installation of air conditioning units on balconies or external walls. Chris Irons and Frank Higginson, Hynes Legal provide the following responses.
Jump directly to the QUESTION you are after:
- QUESTION: Lot owners are seeking approval to install split system air conditioning on their external wall. What should the Committee be considering when making the decision?
- QUESTION: Is there legislation which requires owners to cage their air conditioning units on balconies? Our Strata Manager has instructed us to have this done at our cost.
- QUESTION: The body corporate has introduced a by-law which makes it almost impossible to install air conditioning units on balconies. How can we get around the unreasonable by-law?
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Question: Some lot owners are seeking approval to install split system air conditioning on their external walls. What should the Committee be considering when making the decision?
Part of our complex comprises two apartment blocks each of three stories with basement car parks. Each apartment has split system air conditioning installed as part of the initial construction. Some owners have sought approval to install additional split system air conditioning to better serve rooms not adequately served by the existing, original system.
The new air con units proposed will need to be attached to the external walls of the building as there are no alternative locations. This raises a number of questions.
First, holes will need to be cut through the external walls for plumbing and electrical services for the new air conditioning units. Even assuming diligent attempts to properly reseal the walls our Committee is concerned about the possibility of water penetration into the building. Can we ask for an applicant wanting to do this work to indemnify the Body Corporate? How enforceable would such an indemnity be? Could we jeopardise our insurance cover?
Second, the Committee is concerned about the effect of potentially numerous air conditioning units being installed on the facade where previously there were none. We have considered requiring the systems to be covered but concerns over the change to the external appearance of the building remain. Is that element of our dilemma, involving essentially a change to Common Property, one that can only be resolved by resolution at an AGM?
Third, if the maximum existing capacity of the electricity supply to the building was reached but further applications were received to install additional air conditioners, who would have to pay for the upgrade to meet the additional demand for electricity, the applicants or the Body Corporate? Or could the Body Corporate simply say, “too bad, you’ve missed the boat. No more extra air con!”
Our Committee discussions seem to be going in circles over this. Can you give us a circuit breaker?
Answer: Section 164 of the Standard Module deals with improvements to common property by an owner and this section sets out the approval requirements.
Perhaps the reason the committee is going around in circles on this is because you’ve posed a very detailed set of queries traversing several legislative issues. If you want an equally detailed answer and one which addresses these specific concerns you will need to seek legal advice. For now, you should be aware that section 164: Improvements to common property by an owner of a lot—Act of the Standard Module deals with improvements to common property by an owner and this section sets out the approval requirements – committee can approve depending on circumstances – as well as the obligations on the owner.
In relation to insurance, you might want to also take a look at section 183: Improvements affecting premium of the Standard Module, dealing with improvements and their impact on premiums. Queries about your overall insurance cover should be directed to your broker.
Finally and probably most importantly, bodies corporate have a legislated obligation to act reasonably. ‘Acting reasonably’ is always dependent on the particular circumstances at play. ‘Too bad, you’ve missed the boat. No more extra air con!’ is, to be frank, not acting reasonably. Each instance must be deal with on a case-by-case basis.
I can sense your frustration on this issue, although I can’t tell if it is from the perspective of an owner wanting to install, another owner watching on with irritation or a committee member being unsure of what to do. If it is the latter, then the committee cannot indefinitely discuss, workshop, muse or defer this matter. At some point they need to make an informed decision through the proper body corporate decision-making processes. If you happen to be a frustrated owner then you may have already reached the point where the lack of a decision on this matter warrants seeking out dispute resolution options. Moreover, it’s going to be summer in a few short months and a Queensland summer without air-conditioning doesn’t bear thinking about, so now is the time to do something.
Chris Irons
E: [email protected]
This post appears in Strata News #353.
Question: Is there legislation which requires owners to cage their air conditioning units on balconies? Our Strata Manager has instructed us to have this done at our cost.
Is there legislation which requires owners to cage their air conditioning units on balconies?
We are being told from the Strata manager that we are going to have to pay roughly $2000 to have covers put around our air conditioners on balconies because they are climb hazards for children. But we have chairs that would be easily moved around to access the same height anyway.
The strata manager sent us this industry alert (from the Victorian Building Authority – which we thought was strange) and now says that we must all cage our air conditioners as a part of upcoming balustrade repairs.
Answer: If it is considered a hazard, section 167 of the Act (and probably the by-laws) would require it to be dealt with.
There might be some building standards that require covers around air conditioning units on balconies (which I am not familiar with) but from a purely body corporate perspective, if the committee included that as a condition of their approval of the air conditioner or it was required to avoid a hazard under section 167 then the extra work would be required.
I would suggest putting it back on the committee and requesting details of where the obligation arises. If it is considered a hazard, section 167 of the Act (and probably the by-laws) would require it to be dealt with.
Frank Higginson
E: [email protected]
This post appears in Strata News #243.
Question: The body corporate has introduced a by-law which makes it almost impossible to install air conditioning units on balconies. How can we get around the unreasonable by-law?
I am a resident manager in Qld. The Body corporate committee has bylaws which make it difficult to replace old air conditioning units on balconies.
Please see the relevant Bylaw:
The air conditioning equipment is to be installed in accordance with the specifications and conditions set down by the Committee from time to time, which may include (without limitation):
that any external air conditioning plant be placed on the balcony or courtyard of the lot as close as reasonably practicable to the wall separating the interior of the lot from the balcony or courtyard and in any event at least 900mm from any balustrade of the balcony or courtyard of the lot;
Our balconies are small and the only place 900mm from the balcony rail is a position that restricts the view and is partially blocking a sliding door. Also, this relocation means extra cost in installing a pump for drainage.
I have owners upset with this. How can we get around this bylaw?
Answer: The clause is only a suggested condition and does not have to always be imposed.
That clause is only a suggested condition for the committee and does not have to be imposed each and every time.
What I would suggest is that an owner who wants to seek approval under the by-law does so with additional detail around why the committee should depart from the suggested condition.
The committee can then consider the request and make a decision. If the decision is unreasonable (i.e. it imposes the condition without a good reason) that decision can then be challenged.
This post appears in Strata News #185.
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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An owner has installed his air conditioning compressor and piping on common property without authority. Is there any circumstances where a Qld Body Corporate can be held to be responsible for those unauthorised installations eg repair, maintenance
REGISTER OF AUTHORISATIONS: Regarding the installation of an aircon by an owner on common property for the benefit of the owner. Once approval is given, bodies corporate are required under s.197 of the Accommodation Module (or s.199 of the Standard Module). to record these authorisations, along with details of the conditions, in an Authorisations Register. Few do. Establishing and maintaining ‘corporate memory’ systems is not a strong suit for most bodies corporate, who tend to live for the moment.
We are a 2 storey Apartment block. The Gold Coast City Council have specific day and night noise level requirements. The Body Corp requires that all Owners apply to the B/Corp Committee for approval of their individual A/c. There are 1,2,and 3bedroom Apartments. How does the Body Corp carry out these individual approvals?
Hi Anthony
The following response has been provided by Chris Irons, Hynes Legal:
We need to be clear what you are referring to here. The usual way of things is that the committee would have power to approve installation of the air-conditioner. The committee must act reasonably and acting reasonably varies from case to case. The committee needs to consider things such as what work might be needed to install and what impact it has on common property. Does the installation also mean needing access to another lot? Will it cause noise for a period of time?
The committee can’t unreasonably withhold approval. Again, that varies from case to case but might mean, for example, that the committee refuses on the grounds that it ‘doesn’t look nice’.
If you’re an owner seeking to install you’d make the request in writing and with some information such as plans or a description of the work – in other words, enough information to enable a reasonable decision to be made.
Question. Replacement of underground car park gate? Common area. Should we seek Body Corporate approval if the design/look change considerably? Open mesh style has been requested? I am concerned if open restricts privacy – airflow – birds flying in and nesting? Other is colour of gate. Should all this need BC or just committee?
Thanks
Hi Ron
This response from Frank Higginson:
If you are ‘improving’ something you need general meeting approval. To me, those changes are of a nature to constitute an improvement.
What if it is below the ordinary resolution improvement range?
Don’t replace, repair the external unit is only a part get a new one and shortly after attend to the interior part.
Air conditioning can cause many problems and some of these problems are cause by a/c contractors trying to take the easy way out for the installation. In the complex of town houses in which I reside we have a by-law that stipulates that a/c units must be mounted at the back of the town house so it is not viewable from the street and only at floor level. On many occasions the A/c contractor tried to avoid this requirement but fortunately the caretaker/manager was technically minded and showed how the installation could be done. The body corporate did go to the conmissioner on one occasion and did win the case although because the A/c had already been installed the owner was advised to build a trellis around the a/c unit to cover I in such a way that the view from the street was acceptable-all installations requested now are monitored to such an extent that installers have been advised on Occassion to change their Neto’s of installation to meet by-law requirements including painting any conduit to match the colour of the building. We also check to ensure any damage to sarking is repaired