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  • #9773
    bcr83
    Flatchatter

      Hi all,

      I am looking for a little assistance/suggestion on how to go forward with a rejected EC decision regarding AC outdoor unit position.

      Some details on the issue:

      1.By law states outdoor unit can not be visible from street or public areas bounding strata scheme.

      2. I want to position the AC on the outside wall of my unit and covered under louvers (colour bond) matching the existing external finish. This is not visible from the street.

      3. originally via correspondence to the SM, the EC had “concerns” it would be in other lots line of sight. As such I suggested a louver colorbond cover which lines up with existing window louvers. Reality is that the existing louvers cover 70% of the outdoor unit, I will add some more louvers to completely cover it.

      4. I supplied a photo of other units who have visible external AC ducting running along the walls and one split system outdoor unit on another units balcony which I can see from my balcony.

      5. EC then disregarded my note and “insist” that it is installed on the balcony “like other units” as they are worried it is setting a bad precedence. I find it unfair to make a ruling based on what others may think, additionally my balcony is significantly smaller which makes this difficult and my unit is the only one that has a vacant side wall allowing such an install. All Other apartments do not have a vacant side wall. I explained that running a back to back system is much cheaper for me and I would also have no ugly AC ducting running along the vacant wall.

      My issue is that firstly SM & EC were concerned about visibility, once I addressed visibility and pointed out I can see other units from my balcony chairs too, they changed their argument and insisted that it goes on the balcony to not set a bad precedence.

      The fact of the matter is from where my balcony is positioned the AC unit is in the same line of sight whether it is positioned on the balcony or on the wall (both north facing) and ;

      As far as I know,both these areas are parts common property and adhere to the by law, I am looking to understand why it is ok for me to have to see other units AC and ducting but not ok if they can see mine (even though it will be covered)

      Apologies for all the info attached however tried to provide some context.

      I would like to take this further and have done some reading, from what I can see mediation is first step. However my SM correspondence clearly says that EC insists on balcony install.

      Does that mean I should begin with OFT or NCAT?

      Could someone please list out a couple of basic steps to go through to have this matter investigated in more detail?

      Many thanks

    Viewing 13 replies - 1 through 13 (of 13 total)
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    • #22490
      Sir Humphrey
      Strataguru

        You could put a motion to a general meeting. General meeting decisions over-ride the EC. I would emphasise that the situation of your unit is unique – smaller balcony but access to the side wall, therefore your proposal could not be a precedent for others. Indeed, I would include it in the motion that this approval is not to be a precedent for others since they can use their balconies.

        I would sound people out to make sure you would have the numbers first.

        #22491
        bcr83
        Flatchatter
        Chat-starter

          @PeterC said:
          You could put a motion to a general meeting. General meeting decisions over-ride the EC. I would emphasise that the situation of your unit is unique – smaller balcony but access to the side wall, therefore your proposal could not be a precedent for others. Indeed, I would include it in the motion that this approval is not to be a precedent for others since they can use their balconies.

          I would sound people out to make sure you would have the numbers first.

          Many thanks for your reply Peter, since the AGM is in March I may have difficulty as I promised the tenants an AC over summer.

          I do know that  turnouts at the AGM are minimal and it may end up being proxy voted.

          Your point around the fact that it simply cannot be a precedent for others is what I intend to raise. 

          I put some thought into it over the weekend and I will put forward a request to my SM to take this matter to the Tribunal.

          Have you had any personal experience with going down this road? 

          #22492
          Sir Humphrey
          Strataguru

            @bcr83 said:

            I will put forward a request to my SM to take this matter to the Tribunal.

            Have you had any personal experience with going down this road? 

            I am in the ACT. I have experience with the ACT tribunal but only as an EC member. We have had several instances of seeking orders to ‘give effect’ to failed general meeting motions that had the support of large majorities but needed an ‘unopposed resolution’. We also had several instances of OC members taking the EC to the tribunal because they wanted us to do or not do something. (Eg. The EC declined when an owner wanted us to remove a rather magnificent tree from common property that arborists had advised was in good health etc. The owner took us to the tribunal, the tribunal said the owner should put it to a general meeting, the EC agreed to call a meeting, the owners motion did not pass, the owner took us back to the tribunal seeking orders to give effect to the failed motion on the grounds that it would be more reasonable for it to have passed, the tribunal dismissed the owners application to force us to remove the tree after hearing arguments for a full day.) In those instances the trend seems to be that the ACT tribunal sends us away to try to decide the issue via the democratic process of a general meeting and only return to the tribunal if parties are unhappy with the outcome of that process. 

            In the ACT you can search past decisions of the tribunal from their website. I suggest looking for A/C decisions if you want to go by this route. I don’t know how much help you would get from the SM. They would be a source of some advice. 

            #22493
            kiwipaul
            Flatchatter

              @bcr83 said:
               
              I put some thought into it over the weekend and I will put forward a request to my SM to take this matter to the Tribunal.

              Your SM won’t take this to NCAT it’s not their job UNLESS they are requested to do so via a motion at a General Meeting and then they can charge the Strata all costs (can easily run into thousands for the time they spend on it).

              Your only choice is to take it to NCAT yourself at a cost of approx $200 but a lot of your time.

              Your chances of winning are 50 50 IMHO, but you really need a vote at a GM as PeterC says because if you take action against the EC for refusing your request the NCAT might just rule you need to have the issue voted at a GM before they will make an order.

              #22494
              Whale
              Flatchatter

                bcr83 – the process of mediation in this case needs to be initiated by you (for $80), so if you’ve received a official NO to your request to install an air-conditioner in the manner and location that you prefer (and that’s an important point), then I’d suggest that you write to the Secretary of your Executive Committee and inform them that you intend to apply for mediation of the matter upon the expiry of 7 days from the date of your letter.

                Then complete THIS form to commence the process, including preparing the arguments both written and visual that you intend to put forward in support of your point of view, bearing in mind that based upon my reading of your posts, your Executive Committee (E/C) hasn’t refused consent for you to install an air-conditioner, but has rather granted that consent based upon their interpretation of your Plan’s Special By-Law, about which you disagree on the grounds that its been inconsistently applied to past proposals and unreasonably applied to yours (?).

                You may also find THIS information useful as an outline of what happens if mediation is unsuccessful, where as you’ll possibly conclude, your chances of having that air-conditioner installed at any location this year will be almost Nil; unless of course you decide to accept your E/C’s interpretation of that Special By-Law as an expedient means to fulfill your undertaking to your tenants.

                There are other equally convoluted options available to you, but on my reading and interpretation of your posts, the one I’ve suggested is the one most appropriate.

                #22498
                bcr83
                Flatchatter
                Chat-starter


                  @Whale
                  said:
                  bcr83 – the process of mediation in this case needs to be initiated by you (for $80), so if you’ve received a official NO to your request to install an air-conditioner in the manner and location that you prefer (and that’s an important point), then I’d suggest that you write to the Secretary of your Executive Committee and inform them that you intend to apply for mediation of the matter upon the expiry of 7 days from the date of your letter.

                  Then complete THIS form to commence the process, including preparing the arguments both written and visual that you intend to put forward in support of your point of view, bearing in mind that based upon my reading of your posts, your Executive Committee (E/C) hasn’t refused consent for you to install an air-conditioner, but has rather granted that consent based upon their interpretation of your Plan’s Special By-Law, about which you disagree on the grounds that its been inconsistently applied to past proposals and unreasonably applied to yours (?).

                  You may also find THIS information useful as an outline of what happens if mediation is unsuccessful, where as you’ll possibly conclude, your chances of having that air-conditioner installed at any location this year will be almost Nil; unless of course you decide to accept your E/C’s interpretation of that Special By-Law as an expedient means to fulfill your undertaking to your tenants.

                  There are other equally convoluted options available to you, but on my reading and interpretation of your posts, the one I’ve suggested is the one most appropriate.

                  Many thanks for the replies,

                  I’ve actually done some searching today an indeed come across the mediation details and the fact that it is a mandatory step within the process.

                  Thanks Whale, I have already informed my SM of my intent to go through a mediation process, would I need to take send anything else to advise?

                  You are correct in that they have not refused, only insisted it is placed on the balcony to avoid setting a dangerous precedence (originally it was because it was in line of sight of another lot) The inconsistency stems from their first issue with line of sight, I advised that I too can see a unit and ducting from my balcony on another lots balcony. 

                  The By law only states that it cannot be seen from the street or public areas bounding the strata scheme, I believe what I am requesting falls within the requirements of the by law.

                  As my unit has the only vacant internal facing wall in the building it is impossible for anyone else to install in such a position. Additionally if I install on the balcony the unit is visible as there are no louvers to cover and it is facing in the same direction.

                  I’ll do it by the book, if I can’t install the AC over the summer I may have to wear a rent reduction as it’s unfair on the tenants.

                  Plenty of good advice here, much appreciated. Currently in the process of putting the details together along with some images etc.

                  #22499
                  bcr83
                  Flatchatter
                  Chat-starter


                    @kiwipaul
                    said:


                    @bcr83
                    said:
                     
                    I put some thought into it over the weekend and I will put forward a request to my SM to take this matter to the Tribunal.

                    Your SM won’t take this to NCAT it’s not their job UNLESS they are requested to do so via a motion at a General Meeting and then they can charge the Strata all costs (can easily run into thousands for the time they spend on it).

                    Your only choice is to take it to NCAT yourself at a cost of approx $200 but a lot of your time.

                    Your chances of winning are 50 50 IMHO, but you really need a vote at a GM as PeterC says because if you take action against the EC for refusing your request the NCAT might just rule you need to have the issue voted at a GM before they will make an order.

                    As our AGM is in March, would it be wise to take the mediation step first?

                    In order to have this tabled at a GM do I just notify my SM? Would I do this post mediation/adjudicator result?

                    I may be wrong but in my mind I see  the mediation process as the required next step mainly as it’s to resolve a dispute between myself and the EC?

                    We have significant building rectification works requiring special levies coming up this year and next, I am assuming that none of the OC would be wanting to spend thousands over this case so hopefully it travels in the right direction.

                    Thanks for the help so far

                    #22500
                    Whale
                    Flatchatter

                      bcr83 said

                      1) I have already informed my SM of my intent to go through a mediation process, would I need to take send anything else to advise?

                      2) As our AGM is in March, would it be wise to take the mediation step first?

                      3) In order to have this tabled at a GM do I just notify my SM? Would I do this post mediation/adjudicator result?

                      In response to your further questions above:

                      1) NO, as Fair Trading will send a copy of your Application and supporting paperwork / photos to the Secretary of your Owners Corporation, but as your advice should be to the Secretary, just make sure that the Strata Manager is delegated that role, or if not that they do pass it on to the Secretary.

                      2) YES

                      3) Frankly I don’t know why you’d bother the raise the matter at a General Meeting as in this instance your Executive Committee is empowered to make decisions on behalf of the Owners Corporation, albethey in strict accordance with the provisions of its Special By-Law (SBL), and they’ve done that. However if you want to have that SBL amended, then I’d wait until after mediation, and if you still want to submit that argument as an Agenda Item to the next General Meeting (e.g. an AGM), then you can do that whenever you choose so long as it’s before the Agenda Papers for that Meeting are prepared and distributed.

                      #22501
                      bcr83
                      Flatchatter
                      Chat-starter

                        Thanks for clarifying Whale, appreciate the help.

                        #22675
                        bcr83
                        Flatchatter
                        Chat-starter

                          Thought I would update all on the issue,

                           

                          Mediation was setup however EC declined based on that they feel it is best decided by the OC at the AGM. 

                          SM is strongly pushing for it to be raised at AGM and continues to advise that EC are concerned I will be setting a precedence for others.

                          I have concerns with this as looking through previous minutes we have poor attendance, am I right to assume it would just be proxy voted with the 3 EC members that are in attendance??

                          #22682
                          Sir Humphrey
                          Strataguru

                            If the matter is to be decided at an AGM, don’t rely on the EC to do all the work for you. You are a member of the OC so you can propose a motion and word it how you like and provide whatever background information you like. Keep it brief so the OC does not have to provide many pages in the meeting papers.

                            It sounds like you can put a motion to the general meeting: ‘That installation of an air-condition be approved on the xxx wall for unit X noting that it would not be visible from the street in line with the bylaw X, that this is the most practical location for unit X, and that it would not provide a precedent for other units to install air-conditioners in locations other than on their balconies because unit X has a unique configuration – a smaller balcony and access to the xxx wall.’

                            Is it possible the EC members are not actually opposed to the proposal? Perhaps they are just being cautious to avoid making a decision that they worry might be contrary to the spirit of previous decisions on air conditioners? If so, they might be happy to support your motion at the general meeting. Regardless of that, if you can convince other owners that your proposal is fair and reasonable then you can carry proxies of your own or encourage them to attend the meeting. 

                            #22684
                            Whale
                            Flatchatter

                              I can see your point Peter, but as I understand the circumstances as described by bcr83 in his previous posts, his Executive Committee (E/C) hasn’t formally refused his application to fasten an airconditioning unit to the common property (wall) but has rather insisted, under a strict interpretation of one provision of a Special By-Law (SBL) covering the visibility of such units from other Lots etc, that he place that unit on his balcony, from where he claims it would be as visible as it would be if placed in his preferred location on the common wall, and be as visible as other owners’ balcony installed units are (whew).

                              I’m not a conspiratist but I can appreciate bcr83‘s concerns about a contrived outcome at the General Meeting, where the Members of his E/C who have themselves made a determination on his application (as they can within the terms of the SBL) may be the only attendees, who armed with sufficient proxies will merely give more credence to the earlier determination, and make bcr83‘s case even weaker should he choose to take it to adjudication.

                              The Owners Corporation declined the opportunity to attend Mediation and that won’t go well for them if bcr83 now takes his matter to Adjudication, and seeks Orders under Sect 138, or in my opinion more appropriately under Sect 140 as consent hasn’t been refused, just prescribed.

                              The worst possible outcome would be that the SBL is upheld, and bcr83′s airconditioner would need to installed on his balcony, so I’d be pushing that dispute settlement envelope and keeping the E/C’s preferred approach to an General Meeting in my back pocket.

                              #22688
                              bcr83
                              Flatchatter
                              Chat-starter

                                Thank you both for the detailed responses, 

                                 

                                I am absolutely trying to play it the right way and ultimately if my proposal is not approved I will wear it on the chin. 

                                Whales comment is correct in that EC has not refused install however they are ruling the location of install originally based on being visible from other lot owners, once that concern was able to be to put to bed the next case was simply that “it would set a precedent”

                                I personally believe the above is not a strong enough argument if I take the appropriate measures upon installation. As stated my apartment has several unique aspects within the block thus limiting any sort of “precedence setting”.

                                SM has advised quite clearly “EC insists you place AC on balcony”, As our AGM is some time away, the way I am seeing this pan out is at least I can attempt to go through NCAT and have the backup AGM in Q2 2015?

                                I imagine that the response from EC to NCAT will be along the lines of that they did not reject the install but want to raise within AGM for OC to make a decision.

                                My difficulty is delicately putting forward my concern to NCAT that I feel based on AGM attendance it will be proxy voted in favour of EC decision thus am seeking an Adjudicator decision to have my issue fairly reviewed. 

                                Hopefully this makes sense, 

                                 

                                Thanks again

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