Westlake Villas [2000] QBCCMCmr 525 (17 October 2000)

PJ HanlyREFERENCE: 0318-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23115
Name of Scheme:	Westlake Villas
Address of Scheme:	241 Horizon Drive WESTLAKE QLD 4074

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

Lothar Wilhelm DEICHSEL and Erna Maria DEICHSEL, the co-owners of Lot 12



I hereby order that the application by Lothar Wilhelm DEICHSEL and Erna Maria DEICHSEL for an order that the body corporate correct the flooding problem resulting from an unconnected drainage line, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0318-2000

“Westlake Villas” CTS 23115

The applicants, Lothar Wilhelm Deichsel and Erna Maria Deichsel, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Correction of flooding problem resulting from un-connected drainage line

Section 223(1) of the Act 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)).

In the supporting grounds, the applicants state that they have experienced drainage problems since the purchase of Lot 12 in 1995. They state that Lot 12 forms part of a block of four lots, the other lots being numbered 9, 10 and 11. The applicants contend that as the other lots slope towards Lot 12, all storm water is channelled onto their lot. The applicants maintain that all water is flowing from Lot 11, and in particular from a spring which exists in a garden bed on Lot 11. It is contended that during heavy rain, water gushes out of the spring onto Lot 12. The applicants argue that a drainage problem exists which the body corporate is responsible to rectify.

A copy of the application was forwarded to the secretary for distribution to all members of the committee. A response to the application has been made by Nicol Robinson Halletts, solicitors acting for the body corporate (“the body corporate”).

In an attempt to locate the source of the water flow, the applicants have engaged a number of qualified persons to inspect Lot 12 and report on the source of the drainage problem. The applicants have provided a copy of the subsequent reports and a number of other supporting documents with their application. The body corporate has referred to this documentation in its submission. As the parties to the dispute have had disclosure of the relevant documents, I will only refer to those parts of these documents, which I consider to be relevant to my determination of this matter.

The applicants obtained reports from Moreton Geotechnical Services Pty Ltd (dated 22 June 1998), Edmiston & Taylor, Consulting Engineers, Project Managers & Licensed Building Contractors (dated 28 June 1999 and 25 January 2000), and Ray Griffiths, Building and Homebuyer Services (dated 19 May 2000). The findings of these reports can be summarised as:

•	The subsidence in Lot 12 is the result of excess water running across and through the filled material on its way down to the lake (Ray Griffiths).
•	The storm water system to Lot 12 has been tested and found to be sound (Ray Griffiths). It would be reasonable to assume that all rear downpipes of Lots 9 to 12 are correctly connected (Edmiston & Taylor).
•	A 150mm diameter stormwater line appears to terminate at the rear of Lot 11 about one metre from the common fence with Lot 12. This line appears to run from the allotments to the rear of Lot 12 and should have been connected to the drainage system of this scheme. A perusal of Council drainage plans indicates that the line terminates somewhere in the vicinity of the rear corner of an adjoining parcel of land which is about the same point where the “blow hole” is located. While the area of the “blow hole” has not been excavated, I believe this to be the most probable cause of the problem (Ray Griffiths). The “blow hole” would make a significant contribution to the surface water flow. Brisbane City Council tests showed that the water in the “blow hole” was not sewerage (Edmiston & Taylor). It appears that a council sewerage drain passes under the rear right hand corner of Lot 12 (Ray Griffiths).
•	A short section of agricultural pipe on the adjoining parcel of land adjacent to Lot 11 has dislodged and water escaping from this pipe would contribute to flow past Lot 12. It is difficult to pinpoint exactly all sources of seepage without extensive geotechnical investigations (Edmiston & Taylor).
•	Minimal fall has been provided to the courtyards. It would appear that insufficient attention was paid to effectively drain the individually fenced courtyards during construction. The sensible approach would be to construct a drainage line and field pits servicing Lots 10 to 12. A significant drainage problem exists for Lots 10 to 12 and Lot 12 suffers the most as it is at the downstream end of the drainage area (Edmiston & Taylor).

In its submission, the body corporate contends that the reports are ambiguous about the location of the source of the water drainage into Lot 12. The body corporate also makes the valid comment that, in regards to the “blow hole”, the findings were not based on excavations, but on visual inspections and perusal of Council plans. The body corporate submits that while its own excavations of the “blow hole” area revealed some piping on the rear boundary of Lot 11, the actual nature or source of the piping could not be determined. The body corporate submits that it has not established that the pipe crosses the boundary of Lot 11. The body corporate concludes that the applicants have not established a link between common property and the drainage problem, and therefore the body corporate is not responsible to rectify this problem.

“Westlake Villas” was registered as a group titles plan on 4 August 1995. With the commencement of this Act on 13 July 1997, a group titles plan is now referred to as a standard format plan of subdivision. The boundaries of a lot in a standard format plan are defined by the plan of survey using a horizontal plane and references to marks on the ground (section 48B Land Title Act 1994). A standard format plan is a subdivision of land and therefore owners, although they are tenants in common of the scheme’s common property, have individual title to their lots as defined by the relevant boundaries shown on the scheme’s registered plan. That is, each owner owns the building on their lot, the land on which it is sited and the land lying between the external walls of the building and their lot boundary. The plan of survey shows that Lots 9 to 12 are located on the eastern side of the scheme land, and that the eastern boundary of these lots also form part of the boundary of scheme land.

Section 120(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) provides that the “owner of a lot included in the scheme must maintain the lot in good condition”. A lot owner’s obligation to maintain the lot is subject to the provisions of section 120(3) and (4) of the Standard Module which provide:

“(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.

(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.”

Section 109(1) of the Standard Module imposes on the body corporate the duty to maintain the common property. Section 21 of the Act includes certain utility infrastructure as part of the common property. Some, if not all of the storm water and sewerage lines on lots 9 to 12 could be classified as common property under section 21. However, the findings of the various reports obtained by the applicants indicate that the storm water and sewerage lines are sound, and are not a cause of the drainage problem. Certainly, the applicants have not made any claims contrary to these reports. Therefore, the body corporate cannot be held responsible under section 109 of the Standard Module in this regard.

The report of Ray Griffiths makes findings concerning the stormwater line, which appears to terminate at the rear of Lot 11, and the possible connection with the “blow hole” on Lot 11. This line extends through property outside the scheme land, and is possibly not connected to the scheme’s drainage system. However, these findings have not been based on an excavation of the area to locate the line. While claims have been made in respect of this line and its relation to the drainage problem on Lot 12, I am not satisfied that the existence of the pipe places an obligation on the body corporate. It would seem that water being drained through this pipe is not sourced from scheme land, but from another parcel of land unrelated to the scheme. Therefore, the body corporate cannot be held responsible for the maintenance of this pipe.

The Edmiston & Taylor reports also make reference to an agricultural pipe on the adjoining parcel of land and insufficient attention being paid to effectively drain the individually fenced courtyards during construction. Such causes of drainage problems are not the responsibility of the body corporate to rectify. Obviously, the defective agricultural pipe is the responsibility of the owner of the adjoining land. The inadequately drained courtyards are the responsibility of the owners of the respective lots.

While it is acknowledged that the applicants have a problem with the inadequate drainage of water, I am not satisfied that the cause of the problem can be attributed to the body corporate. For these reasons, I have dismissed the application. I suggest that the applicants and the other owners of lots in the same building block as Lot 12 seek appropriate advice as to the location of, and responsibility for, the possibly unconnected stormwater drain on the adjoining parcel of land, the defective agricultural pipe on adjoining land, and any other source of defective drainage from outside scheme land. The owners of these lots should also give consideration to their responsibility for appropriate and adequate drainage of storm water from their respective lots.

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