What was the outcome of Tenancy Tribunal case 9054184?

The tribunal order states: Wendy Christine Dazeley must relocate her heat pump compressor

How much money was awarded in case 9054184?

Tern Wall To The Northern Wall Of He…: $396.75 awarded to landlord

What type of tenancy dispute was case 9054184?

The primary dispute was Healthy homes. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9054184?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11058246-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9054184?

The tribunal order states: Wendy Christine Dazeley must relocate her heat pump compressor

How much money was awarded in case 9054184?

Tern Wall To The Northern Wall Of He…: $396.75 awarded to landlord

What type of tenancy dispute was case 9054184?

The primary dispute was Healthy homes. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9054184?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11058246-Tribunal_Order.pdf.

Orewa, Orewa Tenancy Tribunal Case 9054184 — Healthy homes

Claims and awards in Tenancy Tribunal application 9054184. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
tern wall to the northern wall of her unit. 2. Upon completion of the relocation, Body Corporate 199010 must contribute	$396.75		tern wall to the northern wall of her unit. 2. Upon completion of the relocation, Body Corporate 199010 must contribute

Order

Wendy Christine Dazeley must relocate her heat pump compressor from the eastern wall to the northern wall of her unit.
Upon completion of the relocation, Body Corporate 199010 must contribute $396.75 towards Wendy Christine Dazeley’s expenses for the relocation.

Reasons

Sue Hay of Shay Strata Solutions attended the hearing for the body corporate. 1
Ms Dazeley attended for herself with support from Ms McFadyen, a former tenant at the premises.
The body corporate seek an order that Ms Dazeley move her heat pump’s outdoor compressor to the northern wall of her unit.
Ms Dazeley’s unit is on a body corporate development comprising brick and tile, single-story, terraced units. Each unit has lawned garden areas creating a village- like aesthetic. 1 I heard this matter on 22 November 2024. This is a reserved decision.
Ms Dazeley has owned the unit for many years and has rented it out all of that time.
In 2020, she had a heat pump installed for her unit as she was required to do as a landlord pursuant to the Healthy Homes Standards regulations.
The outdoor compressor for the heat pump was initially installed by the unit’s north-facing wall at the neighbour’s (unauthorised) direction. However, Ms Dazeley had the contractor move the compressor around the corner of the unit to her unit’s east-facing wall. In its current position, the compressor is perhaps three metres from the common eastern boundary fence and perhaps a further three metres form her neighbour’s unit’s lounge’s ranch sliders.
Since the compressor was moved, Ms Dazeley’s neighbour has complained bitterly about the compressor’s noise.
Ms Dazeley’s unit is on the market for sale. She wants to ensure the purchaser gets off to a positive fresh start with her aggrieved neighbour. The neighbour wants relief from the compressor’s noise.
The issues the Tribunal must decide are: a. Should the Tribunal order Ms Dazeley to move the compressor unit? b. If so, should the Tribunal order the body corporate to contribute to the cost of moving it.

Should the Tribunal order Ms Dazeley to move the compressor?

Ms Dazeley’s neighbour is a unit owner in the same development.
This neighbour has a right to quiet enjoyment under s 79(d) of the Unit Titles Act 2010 (UTA)(d), which provides that a unit owner: (d) is entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers, or the body corporate or its agents, except as authorised by this Act or the regulations:
Further under 3.6.1 and 3.6.2 of the Body Corporate Rules, owners, or occupiers must not disturb other owners or occupiers:
6.1 [Owners or occupiers shall] not use any Unit or permit it to be used in such a manner or for such purpose as to cause a nuisance or disturbance to any Occupier...
6.2 Not make undue noise in any Unit...or have in use any other machine at any time ...in such manner as to disturb, irritate or annoy an Occupier...
Different iterations of the Body Corporate Committee have come to different conclusions on whether the noise from the compressor breaches the rules. However, the Tribunal is required to make its own assessment of that.
Compressors do make noise, but the volume of the noise from about six metres away would probably not be objectively “loud”. If the neighbour was in her lounge with the sliding doors closed, the noise from the compressor would probably be perceptible. If the neighbour had the sliding doors open, or sat outside, the noise would be very noticeable.
While the noise from the compressor might not be objectively loud, it is quite conceivable that the noise could nonetheless disturb people who are sensitive to noise. Ms Hay says the neighbour is sensitive to noise for medical reasons. It is likely that psychological reasons are also a factor.
Ms Hay says the neighbour is genuinely disturbed by the noise from the compressor and it is having a significant detrimental impact on her. The neighbour has certainly complained about the noise from the outset and continues to do so.
On the evidence and submissions I have heard, I am satisfied that the compressor is a machine that when in use does “disturb, irritate, or annoy” the neighbour. That being so, I find that the current placement of the compressor results in breaches of the Rule 3.6.2.
Under s 171(3A)(a) of the Unit Titles Act 2010 (UTA) the Tribunal may: (a) order any party to do anything necessary to remedy a breach by that party of an obligation arising under this Act, the body corporate operational rules...
It is appropriate that the Tribunal makes an order that Ms Dazeley must move the compressor to the northern wall position that it occupied before it was relocated to the eastern wall position.

Should the body corporate contribute to the cost of moving the compressor?

Ms Hay submits Ms Dazeley breached the UTA by failing to obtain consent from the body corporate. She argues that if Ms Dazeley had sought consent, the body corporate would only have granted consent for the compressor to be placed at the northern wall location so as not to disturb the neighbour.
Section 80(i) of the UTA provides that unit owners: (i) must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the body corporate
Ms Dazeley admits she did not initially obtain consent for the heat pump from the body corporate but says the body corporate gave her consent retrospectively.
A relevant factor here is that s 80(i) is not particularly easy to interpret. It is not particularly clear whether it would capture heat pumps as “additions”. There is a good argument that the installation of the heat pump amounts to an “addition” under s 80(i), but that is not plain from reading the section. Nor can Ms Dazeley have been expected to be au fait with the UTA or to have had a Land Law text at hand to use to try and interpret s 80(i).
On the other hand, Ms Dazeley was aware of the Body Corporate Rules. She would have had a natural expectation that she would not have been in breach of her obligations so long as she complied with those. However, while the Rules required consent for various things such as clotheslines, aerials, and fences, they made no mention of heat pumps at the time (Ms Hay advised that a rule has since been added requiring heat pumps to be consented).
Consequently, it is quite understandable that Ms Dazeley was not aware that installing a heat pump would breach the UTA. Further, the body corporate retrospectively consented to the heat pump. Ms Dazeley was led to believe the heat pump was compliant. Now, a new Committee has revoked its consent.
In my view, the body corporate bears some responsibility for Ms Dazeley having to move the unit. The body corporate did not have appropriate rules in place to indicate that heat pumps would require consent. The body corporate has made compliance something of a moving target, by revoking its earlier approval.
Under s 85(2) of the Residential Tenancies Act 1986, the Tribunal is required to determine disputes according to the substantial merits and justice of the case: (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
I consider the merits and justice of the case call for the body corporate to contribute to Ms Dazeley’s costs to move the heat pump.
I had considered leaving the order open at 50 percent. However, certainty is required. Therefore, I order the body corporate to contribute $396.75 to the relocation costs. That is 50 percent of the amount Kiwi Air Conditioning quoted on 11 May 2024.

Claims and awards in Tenancy Tribunal application 9054184. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
tern wall to the northern wall of her unit. 2. Upon completion of the relocation, Body Corporate 199010 must contribute	$396.75		tern wall to the northern wall of her unit. 2. Upon completion of the relocation, Body Corporate 199010 must contribute

Order

Wendy Christine Dazeley must relocate her heat pump compressor from the eastern wall to the northern wall of her unit.
Upon completion of the relocation, Body Corporate 199010 must contribute $396.75 towards Wendy Christine Dazeley’s expenses for the relocation.

Reasons

Sue Hay of Shay Strata Solutions attended the hearing for the body corporate. 1
Ms Dazeley attended for herself with support from Ms McFadyen, a former tenant at the premises.
The body corporate seek an order that Ms Dazeley move her heat pump’s outdoor compressor to the northern wall of her unit.
Ms Dazeley’s unit is on a body corporate development comprising brick and tile, single-story, terraced units. Each unit has lawned garden areas creating a village- like aesthetic. 1 I heard this matter on 22 November 2024. This is a reserved decision.
Ms Dazeley has owned the unit for many years and has rented it out all of that time.
In 2020, she had a heat pump installed for her unit as she was required to do as a landlord pursuant to the Healthy Homes Standards regulations.
The outdoor compressor for the heat pump was initially installed by the unit’s north-facing wall at the neighbour’s (unauthorised) direction. However, Ms Dazeley had the contractor move the compressor around the corner of the unit to her unit’s east-facing wall. In its current position, the compressor is perhaps three metres from the common eastern boundary fence and perhaps a further three metres form her neighbour’s unit’s lounge’s ranch sliders.
Since the compressor was moved, Ms Dazeley’s neighbour has complained bitterly about the compressor’s noise.
Ms Dazeley’s unit is on the market for sale. She wants to ensure the purchaser gets off to a positive fresh start with her aggrieved neighbour. The neighbour wants relief from the compressor’s noise.
The issues the Tribunal must decide are: a. Should the Tribunal order Ms Dazeley to move the compressor unit? b. If so, should the Tribunal order the body corporate to contribute to the cost of moving it.

Should the Tribunal order Ms Dazeley to move the compressor?

Ms Dazeley’s neighbour is a unit owner in the same development.
This neighbour has a right to quiet enjoyment under s 79(d) of the Unit Titles Act 2010 (UTA)(d), which provides that a unit owner: (d) is entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers, or the body corporate or its agents, except as authorised by this Act or the regulations:
Further under 3.6.1 and 3.6.2 of the Body Corporate Rules, owners, or occupiers must not disturb other owners or occupiers:
6.1 [Owners or occupiers shall] not use any Unit or permit it to be used in such a manner or for such purpose as to cause a nuisance or disturbance to any Occupier...
6.2 Not make undue noise in any Unit...or have in use any other machine at any time ...in such manner as to disturb, irritate or annoy an Occupier...
Different iterations of the Body Corporate Committee have come to different conclusions on whether the noise from the compressor breaches the rules. However, the Tribunal is required to make its own assessment of that.
Compressors do make noise, but the volume of the noise from about six metres away would probably not be objectively “loud”. If the neighbour was in her lounge with the sliding doors closed, the noise from the compressor would probably be perceptible. If the neighbour had the sliding doors open, or sat outside, the noise would be very noticeable.
While the noise from the compressor might not be objectively loud, it is quite conceivable that the noise could nonetheless disturb people who are sensitive to noise. Ms Hay says the neighbour is sensitive to noise for medical reasons. It is likely that psychological reasons are also a factor.
Ms Hay says the neighbour is genuinely disturbed by the noise from the compressor and it is having a significant detrimental impact on her. The neighbour has certainly complained about the noise from the outset and continues to do so.
On the evidence and submissions I have heard, I am satisfied that the compressor is a machine that when in use does “disturb, irritate, or annoy” the neighbour. That being so, I find that the current placement of the compressor results in breaches of the Rule 3.6.2.
Under s 171(3A)(a) of the Unit Titles Act 2010 (UTA) the Tribunal may: (a) order any party to do anything necessary to remedy a breach by that party of an obligation arising under this Act, the body corporate operational rules...
It is appropriate that the Tribunal makes an order that Ms Dazeley must move the compressor to the northern wall position that it occupied before it was relocated to the eastern wall position.

Should the body corporate contribute to the cost of moving the compressor?

Ms Hay submits Ms Dazeley breached the UTA by failing to obtain consent from the body corporate. She argues that if Ms Dazeley had sought consent, the body corporate would only have granted consent for the compressor to be placed at the northern wall location so as not to disturb the neighbour.
Section 80(i) of the UTA provides that unit owners: (i) must not make any additions or structural alterations to the unit that materially affect the use, enjoyment, or ownership interest of any other unit or the common property without the written consent of the body corporate
Ms Dazeley admits she did not initially obtain consent for the heat pump from the body corporate but says the body corporate gave her consent retrospectively.
A relevant factor here is that s 80(i) is not particularly easy to interpret. It is not particularly clear whether it would capture heat pumps as “additions”. There is a good argument that the installation of the heat pump amounts to an “addition” under s 80(i), but that is not plain from reading the section. Nor can Ms Dazeley have been expected to be au fait with the UTA or to have had a Land Law text at hand to use to try and interpret s 80(i).
On the other hand, Ms Dazeley was aware of the Body Corporate Rules. She would have had a natural expectation that she would not have been in breach of her obligations so long as she complied with those. However, while the Rules required consent for various things such as clotheslines, aerials, and fences, they made no mention of heat pumps at the time (Ms Hay advised that a rule has since been added requiring heat pumps to be consented).
Consequently, it is quite understandable that Ms Dazeley was not aware that installing a heat pump would breach the UTA. Further, the body corporate retrospectively consented to the heat pump. Ms Dazeley was led to believe the heat pump was compliant. Now, a new Committee has revoked its consent.
In my view, the body corporate bears some responsibility for Ms Dazeley having to move the unit. The body corporate did not have appropriate rules in place to indicate that heat pumps would require consent. The body corporate has made compliance something of a moving target, by revoking its earlier approval.
Under s 85(2) of the Residential Tenancies Act 1986, the Tribunal is required to determine disputes according to the substantial merits and justice of the case: (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
I consider the merits and justice of the case call for the body corporate to contribute to Ms Dazeley’s costs to move the heat pump.
I had considered leaving the order open at 50 percent. However, certainty is required. Therefore, I order the body corporate to contribute $396.75 to the relocation costs. That is 50 percent of the amount Kiwi Air Conditioning quoted on 11 May 2024.

Tenancy Tribunal case 9054184 — Healthy homes in Orewa, Orewa

At a glance

Tenancy Tribunal case 9054184 — Healthy homes in Orewa, Orewa

At a glance

Claims & awards

Order

Reasons

Should the Tribunal order Ms Dazeley to move the compressor?

Should the body corporate contribute to the cost of moving the compressor?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the Tribunal order Ms Dazeley to move the compressor?

Should the body corporate contribute to the cost of moving the compressor?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions