Eastern Court [2000] QBCCMCmr 195 (17 April 2000)

P G DanielsREFERENCE: 0701-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21520
Name of Scheme:	Eastern Court
Address of Scheme:	46 Wildey Street RACEVIEW IPSWICH QLD 4305

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

Robert Edward Harris a co-owner of lot 6

1. P G DanielsI hereby order, that the Body Corporate must undertake work or have work undertaken so that water does not drain from the common property onto lot 1 so that it pools on the cement slab on the eastern side of the lot.

2.	I further order that the work detailed in Order 1 must be performed within three (3) months of the sunken cement slab on the eastern side of lot 1 under the pergola roof being raised to a height of at least the remainder of the slab under the roof.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0701-1999

“Eastern Court” CTS 21520

The applicant, Robert Edward Harris, a co-owner of lot 6, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1. What is the minimum notice of a general meeting that all members are entitled to receive under the rules;

2. Is the resolution passed on 15 August 1999 that approved the motion regarding a quote for alleviation of the water problem from the common property to lot 1 still valid;

3. Is the Body Corporate responsible for payment of a drainage system to remove water from the enclosed area of lot 1.

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)).

The Eastern Court scheme comprises 8 lots in a standard format plan (previously referred to as a group titles plan). The 8 lots surround an area of common property that is a driveway to the various garages of the lots. It is a large cement slab in the shape of a reverse “L” looking at the plan for the scheme in a northerly direction.

The owners of lot 1, Mr Steven Podlich and Ms Janelle Podlich, have experienced a water penetration problem from the common property cement slab. The matter has been considered at a number of general meetings. The background is as follows.

The Podlichs have experienced the problem for some years. The water pools on the cement slab on the eastern side of the building, on the pergola. The slab leads to a door of the building. The water reaches a reasonable depth as a part of the slab has sunk into the ground. The sunken part of the slab was poured when the pergola on the lot was erected.

The Podlichs decided to take action about the matter in March 1999. At that time tenants who resided on their lot complained about damage to their property from the water penetration.

It seems that they received a verbal report from a firm of plumbers named Gas Sparks Plumbing Service that the water was running off the common property slab into their lot.

At this stage they took two steps. Firstly, they extended a drain from the pergola at the eastern side of their lot so that the water would be directed onto the common property. The applicant complained about this action in a letter to Mr Podlich dated 29 March 1999 as he stated that the water would run from the drain to common property in front of his lot and pool. Secondly, the Podlichs wrote a detailed two page report about the problem and potential solutions.

The matter was initially considered at a general meeting of the Body Corporate on 8 May 1999. No decisions were made at that meeting. It seems the Podlichs were to obtain a report about the matter for further consideration by the Body Corporate.

The Podlichs obtained a report from Redbank Plains Plumbing dated 4 July 1999. It recommended that a spoon drain be constructed in the location of an old cemented in drain. That drain had been cemented in four years previously.

The matter was considered at a general meeting of the Body Corporate on 15 August 1999. Minutes of the meeting record the following:

“It was moved S. Podlich, seconded E. Way that the quote for alleviation of water drainage from the common area onto Lot 1 be accepted in principle subject to investigation of additional drainage from common area near Lots 6 and 7 and subject to confirmation by the Dept. of Natural Resources of the liability of the Body Corporate – carried.

E. Way and R. Harris were asked to obtain quotes for alleviation of the drainage problem near Lots 6 and 7.”

A quote to rectify the drainage problem on the common property near lots 6 and 7 was obtained. It is in the sum of $980 and is dated 18 August 1999. It involved the supply of a gully pit drain.

The drainage problem experienced by lot 1 and on the common property near lots 6 and 7 was again considered at the Body Corporate’s annual general meeting on 26 October 1999.

The quote to rectify the problem on common property near lots 6 and 7 was rejected. It seems owners did not think it was worthwhile to spend the amount of money involved given the extent of the problem. The quote to construct a spoon drain for the benefit of lot 1 was also rejected.

It was decided that another report would be obtained in respect of lot 1. It would be considered at a future meeting. The next general meeting occurred on 9 November 1999. There was no further report. Once again, it was suggested that the spoon drain proposal be accepted. The Body Corporate did not approve the quote.

Some time after this meeting, a further quote was obtained that involved the construction of a drain from the sunken cement area on lot 1 to Wildey Street. This quote is from Mr JR Heaton in the sum of $1,000 and is dated 25 November 1999. As I understand it this quote has not been considered at general meeting.

I will now consider the various issues raised by the applicant.

1. What is the minimum notice of a general meeting that all members are entitled to receive under the rules?

The answer is 21 days: section 43 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation). It seems that in this case the notice given was considerably smaller in respect of the 15 August 1999 meeting. However, there is no complaint from any owner about his/her being unable to attend the meeting or cast a vote. Additionally, the main matter addressed at the meeting, ie the construction of the spoon drain was overtaken by later events.

I refrain from making an order that the minimum time is 21 days as the matter is very clearly stated in the Regulation.

2. Is the resolution passed on 15 August 1999 that approved the motion regarding a quote for alleviation of the water problem from the common property to lot 1 still valid?

This is the quote for the construction of the spoon drain where the cemented in drain is located.

It is quite clear that the resolution is no longer valid. It was rejected at the AGM on 26 October 1999 and was certainly not accepted at the meeting on 9 November 1999.

3. Is the Body Corporate responsible for payment of a drainage system to remove water from the enclosed area of lot 1.

It is quite clear that water is draining off the common property cement slab into lot 1 and it pools in an area of cement leading to a door on the eastern side of the building.

The question that needs to be addressed is what work needs to be done to stop the water pooling.

There are various suggestions. They are as follows:

1. Spoon drain in the location of the previous cemented in drain;

2. Elevate the level of the pergola area on lot 1 through laying down of tiles;

3. Constructing a cement knob at the boundary to repel water;

4. A drain from lot 1 where the water pools to Wildey Street;

5. Raise the level of the sunken cement.

Some owners have suggested a combination of the above.

I inspected the common property and the problem area of lot 1 on 11 April 2000.

It certainly seemed to me from a visual inspection that the cement slab on the common property had moved. It is likely that this movement has affected proper drainage.

The Body Corporate is responsible for maintaining the common property in good condition: section 109 of the Regulation. In my view the Body Corporate is failing in this duty where water is draining from the common property slab onto lot 1.

In my view the Body Corporate must take action to prevent this from occurring.

Ultimately, it is up to the Body Corporate to determine what action it will take.

However, in my view it would be appropriate for the Body Corporate to initially address the problem by the most cost-effective way. This would be as follows. The Podlichs, at their cost, raise the level of the sunken cement slab where the water pools. I suggest the slab have a slight incline to the common property. Secondly, slightly raise the level of the cement in a line parallel to the latticework to the entrance to the lot. This will act as a barrier to the water. This could be achieved by a cement dome or a gradual increase in the level of the cement. I imagine the cost of this work would be minimal. However, I am of the view that the cost should be borne by the Body Corporate. I wish to stress that I am only making a suggestion that can be accepted or rejected by the Body Corporate. As I have stated above, it is for the Body Corporate to decide what action it will take.

If the above work is done, it will then be a matter of waiting to see if this work addresses the problem.

If this option does not work, it would seem to me that the Body Corporate would have to consider the installation of a drain. Whilst I am not an engineer nor do I have any building qualifications, it seems to me that the Body Corporate may ultimately have to accept that some drainage works need to be done. The common property cement slab has a large area. There is no drain servicing a large part of the slab. Additionally, it seems to be widely accepted that the slab has slightly moved and will continue to move as years progress. In these circumstances drainage requirements may also change and need to be monitored.

If ultimately a drain is installed, I suggest the Body Corporate consult with the Council in respect of any requirements it may have. This was suggested by Penelope and Johnny Feather in their submission.

I also wish to make comment in respect of the water pooling on common property in front of lots 6 and 7. I see this as a different sort of problem to that experienced by the Podlichs. The Podlichs lot itself is being partially flooded and this has on at least one occasion caused damage to property. Whilst the pooling of the water on common property may be annoying, it does not involve the flooding of a lot nor damage to personal property.

I have decided to make an order that the Body Corporate is liable to take action to stop water draining from the common property cement slab into lot 1 such that it pools on the eastern side of the building on the cement slab near the door. I will make this order conditional on the Podlichs raising the level of the sunken cement slab on their lot. In my view that needs to be done regardless of other work that is undertaken. I will give the Body Corporate 3 months to comply with the order after the sunken slab is raised. It is my intention that the Body Corporate must act quickly in addressing this problem, after the cement slab is raised. If one way of addressing the problem doesn’t work, then another way must be attempted until the drainage problem ceases.