Trustees of Maplewood on 10th Body Corporate v Adrian Denver Moodley

The applicant, the Trustees of Maplewood on 10th Body Corporate, brought a dispute-resolution application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondent, Adrian Denver Moodley, the registered owner of unit 20 in the scheme. The complaint concerned the respondent's installation of an air-conditioning system on the outside wall of unit 19 rather than on his own unit. The applicant alleged that the air-conditioner caused a noise nuisance and that its piping had been installed on unit 19 without the consent of that unit's owner and without the body corporate's written consent. The owner of unit 19 had complained, and the applicant sought an order compelling the respondent to remove the air-conditioner and pipes from unit 19 and reinstall the unit on the balcony of his own section. The respondent denied that he had refused to cooperate, disputed that the noise amounted to a nuisance, contended that no consent from the owner of unit 19 was legally required because the external wall was common property, and argued that the complaint about unsightly piping was new. The matter was adjudicated on the papers.

• Whether the respondent's installation of an air-conditioner and associated piping on the outside wall of unit 19 was unlawful for lack of the trustees' written consent under Prescribed Conduct Rule 5(1) of the STSMA.
• Whether the air-conditioner constituted a noise nuisance justifying relief under section 39(2)(a) of the CSOS Act.
• Whether the placement of the air-conditioner and piping on common property justified a removal order under section 39(2)(d) of the CSOS Act.
• Whether the applicant had proved its case on a balance of probabilities.

The application was granted. The respondent was ordered to remove the air-conditioner and its piping from the outside wall of unit 19 and install it on the balcony of his own unit within 14 days of receipt of the order. If the respondent failed to comply, the applicant was authorised to remove the air-conditioner and piping from unit 19 and recover the costs from the respondent. There was no order as to costs.

In a sectional title scheme, the installation of an air-conditioner and piping on an external wall that forms part of common property constitutes a change affecting the external appearance of the scheme and may not lawfully be undertaken without the trustees' written consent in terms of Prescribed Conduct Rule 5(1) of the STSMA. Where such installation is unauthorised and the evidence shows that it causes or is admitted to cause a noise nuisance, the body corporate is entitled to relief under section 39(2)(a) and (d) of the CSOS Act, including an order compelling removal and relocation.

The adjudicator made general observations that only relevant evidence should be considered and that relevance is determined by the issues in dispute, and restated that the standard of proof is on a balance of probabilities. The order also recorded the parties' statutory right of appeal to the High Court on a question of law under section 57 of the CSOS Act. No substantial broader obiter beyond these procedural remarks appears in the judgment.

The decision is significant in community schemes and sectional title governance because it affirms that alterations affecting the external appearance of sections or common property require compliance with the STSMA Prescribed Conduct Rules and the body corporate's written consent. It also illustrates the CSOS adjudicative approach to nuisance and unauthorised installations in sectional title schemes, confirming that relief under section 39(2) may include mandatory removal and authorisation for the body corporate to act if an owner does not comply.