Balgownie [2000] QBCCMCmr 193 (14 April 2000)

RA MeekREFERENCE: 0733-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5995
Name of Scheme:	Balgownie
Address of Scheme:	131 Cotlew Street ASHMORE QLD 4214

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Philip Anthony and Yvonne Esmae Waddington, the owners of lot 2

RA MeekI hereby order that the application by the owners of lot 2, Philip Anthony Morgan and Yvonne Esmae Waddington, for an order are seeking a decision that interprets the exclusive use by-law to the effect that:

a) The drains running across each exclusive use area which carry storm water are the responsibility of the body corporate;

b) The existing situation whereby excess water flows from the drain into unit 1 through a pipe to a drain in unit 2 ceases;

c) The seepage of water into the dividing wall between the two exclusive use areas ceases and that the dividing wall will be restored to a sound condition

is dismissed. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0733-1999

“Balgownie” CTS 5995

The applicants Philip Anthony and Yvonne Esmae Waddington, the owners of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking a decision that interprets the by-law registered on 27 March 1990 to the effect that:

a) The drains running across each exclusive use area which carry storm water are the responsibility of the body corporate;

b) The existing situation whereby excess water flows from the drain into unit 1 through a pipe to a drain in unit 2 ceases;

c) The seepage of water into the dividing wall between the two exclusive use areas ceases and that the dividing wall will be restored to a sound condition.

Although we believe these are ordinarily the responsibilities of a body corporate, in this instance, because the owner of unit 1 landscaped her exclusive use area causing the flow and seepage referred to, the owner of unit 1 should be responsible for remedying them.

d) There should be no possible emergence discharge into the exclusive use area of unit 2 from unit 1as this is contrary to the notion of “exclusive use” and could result in injury to the tenant in unit 2. Removal of the drain outlet and frog flap should be dealt with by the owner of unit 1.

e) There is clarification of the body corporate’s powers and responsibilities with respect to landscaping or other minor works which may be undertaken within the exclusive use areas.

f) It is clear that the body corporate delegates responsibility for the maintenance of portions of the common property, where the body corporate can then rely on the judgement of the individual owners to retain a reasonable standard.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

As part of my investigation of this matter, I undertook an inspection of the parcel on Friday 7 April 2000 where I inspected the exclusive use areas attaching to both lots. All parties should note that I did not take substantive evidence from the parties at this inspection, but rather inspected the matters in issue with the view to acquainting myself with the physical aspects of the matters in dispute.

I do not intend to restate the applicant’s grounds in any detail, since these are known to the other party via the submission process. However as to the alleged non-disclosure of the contents of the by-laws, this is an issue for the applicants and not the owner of lot 1, Lois Elizabeth Coonan (the respondent). A purchaser, prior to purchase of a lot has the opportunity to obtain copies of all recorded by-laws from this department. The vendor is under no obligation to disclose by-laws to an intending purchaser.

Secondly, in my view, there is no disadvantage to the applicants in the “owner of unit 1 holding a pre-determined interpretation of the by-law”. This dispute will be resolved in accordance with the applicable law, and not based on anyone’s interpretation of a by-law (unless coincidently that interpretation happens to be correct).

The by-law in issue is a simple exclusive use by-law allocating exclusive use of common property located at the rear and side of each lot to the owner of the respective adjacent lot, with the only requirement specified in the by-law being that the respective owner shall be responsible “for the care and maintenance of the garden area so allocated to his unit”.

The applicants have three areas of complaint. The first is the alleged “excess runoff of water flowing into the diving wall (between the two exclusive use areas) which is now in a poor condition”. The respondent states that recently work was done on her lot which directed water away from unit 2 and around unit 1 and then through a pipe out towards the street. The respondent acknowledges that a small section of the drainage on her exclusive use area continued to drain into the exclusive use area for lot 2. Formerly I assume a considerable amount had drained this way. In addition, the respondent states that further repairs have been effected so that “no water can drain into unit 2’s drain from this point”. The respondent states –

The point of entry has been completely blocked and the subsequent altering of water flow has no additional detrimental effect on drainage from unit 2.

At the inspection, the occupant of the applicant’s lot indicated that whilst the flow of water from lot 2 had reduced substantially, it still occurred.

At the time of the inspection, there was no water flowing from lot 1 to lot 2 via either drain. I am satisfied that the tiled area in the exclusive use area of lot 1 has been contoured in such a way as to direct water away from lot 2. I noted that the timber retaining wall was darker / discoloured around the area of the drains, however I expect that this was largely a consequence of water having formerly flowed this way. Additionally I noted that the drains servicing both lots are directly adjacent to a large embankment / retaining wall. I consider that rain water falling on this area would seep through and enter the drains of both lots. I suspect that at least some of the water draining into the drain of lot 2 comes from this source.

I consider that the respondent has taken all reasonable steps to drain water from her exclusive use area and to prevent water entering the exclusive use area of lot 2. In the circumstances, I intend to make no order regarding any further or additional work to be undertaken by the respondent. I am satisfied that very little, if any, water still flows or seeps from lot 1 to lot 2, and even if it does, that this level can cause no damage or nuisance to lot 2.

The applicant’s second issue is that excess water flows through a pipe from unit 1 into a drain which runs the width of unit 2’s exclusive use area. This pipe has been disconnected, and alterations made to the drainage of lot 1 to change the direction of the flow of water. This issue is related to that above and my comments are again relevant. I intend to make no order regarding this issue.

The applicant’s third issue relates to “a drain outlet with a frog flap which has been routed underneath the landscaped area of unit 1 to discharge inside the exclusive area of unit 2, just outside the back door of this unit”. The respondent states in her submission that –

... this frog flap was approved by the GCCC as part of the original building approvals. The frog flap in question was connected to the floor waste in my laundry and there has never been an occasion when water was discharged from this. ... It is apparently no longer a requirement of the GCCC to have a floor waste from a laundry. Thus, in order to resolve this matter, the floor waste has now been made redundant. The frog flap in question is no longer connected and therefore unable to discharge any water. Thus it could be left as is, or for aesthetic reasons only, cut off / or removed, if the body corporate so decides.

At the inspection, I noted the fact of the frog flap located in the retaining wall separating the lots. Obviously, any escape of water from lot 1 via the laundry would through lot 2. However I also noted that the frog flap laundry drainage for lot 2, located on an adjacent wall, also drained to virtually the same area. I consider that the applicants can hardly complain of danger to their tenant when their own emergency laundry waste drains to the same area of common property, and would create the same level of danger (if any) to the tenant of lot 2 if it were to operate.

In any event, I am informed and accept that the emergency laundry waste drain from lot 1 has been disconnected and is no longer operational. I would not have ordered its removal in any event, and this decision is only further confirmed by the fact that it is no longer operational.

As to the applicant’s suggestion that it is contrary to the notion of exclusive use, I reject this suggestion. If this was accepted, then pipes and other services would need to be dug up or re-diverted in every situation where exclusive use had been created. This consequence would be absurd. This drain in no way interferes with the use or enjoyment of the applicant’s exclusive use area. Moreover, it is probable that this drain was in place before the exclusive use area was created. If the applicants are seeking removal of this pipe for this reason, then this is refused.

I now turn to the applicants listed matters for resolution.

Firstly the applicants refer to the “repair and maintenance of the interconnected drains carrying runoff”. The applicants can only be referring to repair and maintenance of the drain on their exclusive use area, since the drain on the respondent’s exclusive use area appears to be in good repair, presumably because of the recent works. The drain on the applicant’s lot is damaged, and is in need of repair. In particular, where it commences, this area is lower than at other points along the drain, which have become raised over time. Basically, from a visual inspection, it appears the drain needs to be dug out and replaced. I now turn to the question of responsibility for this.

Given that it is common property, then ordinarily it would be the responsibility of the body corporate. However the allocation of exclusive of this area may alter this responsibility. Section 123 of the standard module provides –

ú
Conditions and obligations under exclusive use by-law—Act, s 136
123.(1) If the owner of a lot included in the scheme to whom rights are in the first instance given under an exclusive use by-law agrees in writing, the by-law may impose conditions (which may include conditions requiring the owner to make a payment or periodic payments to the scheme’s body corporate or the owners of lots included in the scheme, or both).


(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies. Examples of operating cost for part of common property—
Cost of providing lighting to the part of common property.
ú

Essentially, when an exclusive use by-law is silent on the question of responsibility for maintenance, then the owner of the lot benefited by the exclusive use is responsible for maintenance. In the circumstances, I consider the relevant by-law is silent on the question of responsibility for maintenance, and consequently this becomes the responsibility of each owner.

The owners of lot 2 (the applicants) are responsible for the repair and future maintenance of the drain, as well as all other aspects of the common property, of which they have exclusive use under the by-law. Similarly, the respondent is solely responsible for the repair and maintenance of the exclusive use common property in lot 1.

I consider that I have already dealt with the next three issues raised by the applicants, namely –

a) Prevention of flow of runoff water;

b) Prevention of further water seepage; and

c) Removal of the drain outlet

and do not propose to comment further.

The applicants next seek clarification on the right to erect any pergola, awning or any such structure or replacement of paving within the two exclusive use areas. Section 124 of the standard module provides that -

Improvements—Act, s 136
124.(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.
(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.
(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.
(4) However, if the value of the improvement mentioned in subsection (3) is more than $200, the making of the improvement must be authorised by a special resolution of the body corporate.

I consider that section 124(3) clarifies the point raised by the applicants. If the by-law does not authorise improvements, then these must be approved by the body corporate in accordance with the requirements of the standard module. Most improvements to common property for the benefit of an owner require a special resolution. In the case of this body corporate, with only two owners, both owners would need to vote in favour of the proposal for it to succeed.

However, all owners should note that if a proposed improvement is refused by the other owner then the proposing owner would have the right to make application to this office to overturn the negative vote of the other owner on the basis that such negative vote was unreasonable. The applicant would need to establish why the negative vote was considered unreasonable.

The only qualification I wish to make in respect of the above comments is the question of replacement. In my view, this is a question of degree. If an awning is already in place, and was initially approved, and the owner wishes to erect a new awning, then reasonably, a further approval should not be required. However, if what is proposed is substantially different, or larger, or otherwise might adversely impact on the adjoining owner, then approval should be sought.

I now turn to the final question of responsibility for maintenance of common property which is not part of any exclusive use area. Section 109 of the standard module provides that the body corporate must maintain common property in good condition including to the extent that common property is structural in nature, in a structurally sound condition. In the case of a duplex as here, then it is the responsibility of both owners to jointly maintain the common property. How this maintenance is actually arranged or undertaken is for the owners to determine by mutual agreement.

I consider that this clarifies all the issues raised by the applicants. For the reasons explained, I do not intend to make any order regarding any aspect. The application is therefore dismissed for the reason that no positive order, though sought by the applicants, is to be made. n