Key Takeaways:
- Lot owners generally need owners corporation consent to install air conditioners on common property, or they risk removal orders and the cost of repairs.
- An implied easement argument will not override genuine concerns such as fire risk, insurance exposure or damage affecting other owners.
- VCAT may refuse approval where a suitable alternative location exists, which makes a documented agreement with the owners corporation essential.
- Since the 2021 reforms, an owners corporation cannot unreasonably prohibit sustainability items on the exterior of a lot, so the picture differs depending on whether the unit sits on common property or within the lot itself.
- Approval is not the end of the story: noise, ongoing maintenance and unauthorised installations are the issues that most often return to VCAT.
Legal arguments are not enough to get around the requirement to obtain your owners corporation’s consent before installing an air conditioner on common property.
In May 2013, VCAT ordered lot owners to remove an air conditioner and pay for repairs to common property after they installed it on common property without owners corporation approval. The lot owners argued they did not need approval because there was an implied easement allowing them to install the unit. VCAT rejected that argument. It accepted the owners corporation’s evidence that the installation placed a significant burden on other lot owners through increased fire risk and insurance implications, and held that any increase in fire risk was inconsistent with the reasonable use and enjoyment of the other lots and the common property. The installation had also damaged and defaced common property, which was a breach of the owners corporation’s rules.
Despite that decision, there are many situations where a lot owner will be permitted to install an air conditioner on common property, whether under an implied easement or, more commonly, through consent from the owners corporation together with a licence for the common property space.
Lot owners need to be careful, though. Just because it might suit a lot owner to place an air-conditioning condenser on common property does not mean it is the only option. In a 2018 VCAT case, a lot owner was denied the ability to place a condenser on common property because an acceptable alternative location existed.
Can you install an air conditioner on common property today?
The two cases above remain the leading authorities, but it is worth situating them against the current law. Both predate the owners corporations and Other Acts Amendment Act 2021, which commenced on 1 December 2021 and changed parts of the picture.
For an installation that touches common property, the position is largely unchanged. Consent from the owners corporation, usually paired with a licence over the common property space, remains the proper pathway, and the alternative-location test still applies.
What the 2021 reforms added is a protection for sustainability items, and the distinction it creates is the part to get right:
- On the exterior of a lot: under section 138B, an owners corporation cannot make rules that unreasonably prohibit sustainability items, and an aesthetic-only objection is treated as unreasonable. That protection is aimed at items like solar panels and rainwater tanks. A standard air conditioner consumes energy rather than reducing reliance on non-sustainable sources, so it generally sits outside this category.
- On common property: none of this displaces the need for consent. Section 138B limits the rules an owners corporation can make about a lot’s exterior. It does not give a lot owner any right to occupy common property, so wherever an installation reaches onto common property, the consent and licence requirements still apply.
The short answer, then, is yes, but only with the owners corporation’s consent. Installing an air conditioner on common property today still turns on the two questions the cases raised: whether the owners corporation has consented, usually through a licence over the space, and whether there is a reasonable alternative location within your own lot. The 2021 reforms refined the rules for a lot’s exterior, but they did not loosen the consent needed to use common property.
What an owners corporation should do when it receives a request
For a Committee, an air-conditioner request is best treated as a process rather than a single yes-or-no decision:
- Confirm where the lot boundary sits and whether common property is genuinely required, or whether a location within the lot would do the job.
- If common property is the only viable option, document the consent and pair it with a licence over the space.
- Attach clear terms, because this is where most future disputes are won or lost.
The terms are the part worth slowing down on. A well-drafted consent should address:
- insurance and fire compliance
- responsibility for ongoing repair and maintenance of the unit
- noise controls, including placement and any acoustic treatment
- the obligation to make good any damage and reinstate common property if the unit is later removed
Handled this way, most requests can be approved on sensible terms, and the owners corporation protects itself against the liability, repair and compliance problems that surface when consent is given casually or not at all.
Most of these disputes are avoidable. They rarely arise because an installation was unreasonable, but because consent, conditions and responsibility for the unit were never properly settled at the outset. Working those questions out before anything goes up is far less costly than unwinding it through VCAT afterwards, and it is the part owners corporations most often get wrong without support. If your owners corporation has a request like this in front of it, we can help you get the terms right from the start.
What happens when an air conditioner is noisy?
Approval does not settle the question of noise, which is the most common dispute to follow an installation. Two pathways can apply at the same time:
- The external framework. Under the Environment Protection Act 2017 and the Environment Protection Regulations 2021, residential noise must not be unreasonable, and there are prohibited times when a unit that can be heard inside a neighbouring home should not run overnight. Those prohibited times are relaxed during a declared heat health alert so people can stay safe. Local councils handle these complaints and can direct a unit to be relocated or switched off.
- The owners corporation’s own rules. A unit that disturbs other residents can also breach the rules against causing a nuisance or interfering with others’ quiet enjoyment, which gives the owners corporation a separate enforcement pathway.
Most noise complaints trace back to placement and upkeep rather than the unit itself, so the time to deal with them is at the consent stage:
- position the condenser away from neighbouring bedrooms and living areas
- require acoustic mounting or screening where needed
- make ongoing maintenance the lot owner’s responsibility, since rattles and worn parts are a frequent cause of complaints
What if a unit has already been installed without consent?
Where a unit has gone up on common property without approval, the owners corporation has a clear process under the OC Act 2006:
- A complaint is made to the owners corporation, which works through its internal dispute resolution process.
- If it decides to act, it issues a notice to rectify the breach under section 155, giving 28 days to fix it.
- If that is not complied with, it can issue a final notice under section 157, allowing a further 28 days.
- If the breach still is not rectified, it can apply to VCAT, which can order removal, reinstatement of the common property and costs, as it did in the May case.
Removal is not the only outcome, though, and often not the most sensible one. The owners corporation can instead regularise the installation by granting consent after the fact, paired with a licence and the same conditions it would have set at the outset. That keeps a working unit in place while still protecting the owners corporation on liability, maintenance and compliance.
Getting air-conditioner requests right
ir-conditioning requests sit in the grey area between an owner’s comfort and the owners corporation’s duty to protect common property, manage risk and treat every lot fairly. Handled well, most can be approved on sensible terms. Handled poorly, they turn into removal orders, insurance arguments and repair bills.
Strata Management Consultants helps owners corporations and Committees assess these requests, document consent and licence terms, and keep liability, maintenance and compliance clear from the start. See how we support owners corporations.
Case References
- Owners Corporation PS326519P v May (owners corporations) [2013] VCAT 933
- Braybon v owners corporation 317860 [2018] VCAT 1505
Legislation referenced: OC Act 2006, owners corporations and Other Acts Amendment Act 2021, Environment Protection Act 2017, Environment Protection Regulations 2021.
