Oasis [2001] QBCCMCmr 12 (11 January 2001)

RA MeekREFERENCE: 0546-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue GOLD COAST QLD 4216

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

Robert Mitchell and Merline Myrtle Mitchell, the owners of lot 13



RA MeekI hereby order that the application by Robert Mitchell and Merline Myrtle Mitchell, the owners of lot 13, for orders that

1. Prevent water from draining from the common property into their property;

2. Remove the common property gardens and palm trees that adjoin their lot; and

3. Repair and pay for the damage caused by water penetration and termites;

is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0546-2000

“Oasis ” CTS 20870

The applicants Robert Mitchell and Merline Myrtle Mitchell, the owners of lot 13, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking an order to instruct the body corporate to :-

1. Prevent water from draining from the common property into our property;

2. To remove the common property gardens and palm trees that adjoin our lot and are a source of white ant invasion.

3. To repair and pay for the damage caused by water penetration and termites.

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)).

I undertook an inspection of the applicant’s lot and surrounding common property areas on Wednesday 10 January 2000. That inspection was conducted in the presence of the applicants, their building expert, members of the body corporate committee and the body corporate manager.

In the supporting grounds, the applicant states, in respect of the issue of water penetration, that water is draining from the common property into lot 13 and we believe that there should be a barrier or drain built to prevent this happening.

The applicants state that water from the common property is penetrating the west wall of their lot. The applicants believe that the body corporate has an obligation to rectify this on the basis that under common law and the GCCC by-laws it is illegal for an owner ... to allow water from their property to drain into a neighbouring lot. The applicants seek that the body corporate be ordered to install a barrier or drain to prevent this happening.

The applicant’s lot is one of a small number of lots in this scheme that has as part of the lot a subterranean garage and general purpose area. This garage and area is connected to the upper levels of the lot by a set of stairs. The western wall of the applicants lot which is below ground level abuts common property. A garden is located in the common property which abuts the applicants lot.

The plan of subdivision for this scheme was a group title plan (now a standard format plan). As I noted at the inspection, the fact of being a standard format plan is significant in determining responsibility for repair. In contrast to a building format plan, which is the subdivision of a building, and where the body corporate retains significant maintenance responsibilities due to the existence of significant areas of common property, a standard format plan is the subdivision of land. As a subdivision of land, it is usually the case that only limited areas of common property are created by registration of the plan. These areas are normally gardens, common walkways and facilities (eg. pools etc). Common property in a standard format plan does not usually include parts of buildings containing lots.

Section 109 of the standard module provides for the body corporate’s duty to maintain common property. Section 109 relevantly provides -

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Duties of body corporate about common property—Act, s 114

109.(1) 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.

(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must—

(a) maintain in good condition—

(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not common property in a structurally sound condition—

(i) foundation structures;

(ii) roofing or other covering structures providing protection;

(iii) essential supporting framework, including load-bearing walls.

The distinction to be drawn in section 109 is clear. In section 109(1), the body corporate is required to maintain common property. This applies to common property in every body corporate. Section 109(2) goes on to extend the responsibility of the body corporate to a number of very specific areas. However, section 109(2) is limited to schemes created under a building format plan of subdivision.

In the context of this body corporate, created under a standard format plan of subdivision, the responsibility of the body corporate under section 109 is limited to the maintenance of common property under section 109(1). In contrast to a building format plan, where the boundary of a lot with common property is usually the centre of the floor, wall or ceiling, in the case of a standard format plan, there is no such boundary line. Theoretically, the owner of a lot in a standard format plan, subject to the overriding law, owns to the centre of the earth under the lot, and to the heavens above.

In the case of vertical side boundaries of the lot, where the lot adjoins another lot, then the boundary is the centre of the dividing structure. However in the case of a boundary with common property, then the boundary of the lot is as specified on the plan, and in the case where a wall or other dividing structure is the boundary line, then the boundary is the exterior or external surface of that wall or other dividing structure.

Specifically this body corporate is not responsible for the maintenance, repair or renewal of any part of the block wall of any lot which is located below ground level. As to responsibility for the prevention of water ingress through walls of lots in a standard format plan, and any repairs which are required, each individual lot owner is responsible for both the on-going maintenance of the walls, and the repair of any damage consequent upon water ingress.

In my view, the only limited area of potential body corporate liability which I foresee is if the body corporate has taken any action, or alternatively has failed to take any action, which has resulted in a greater problem or damage being created to the affected lot, then would otherwise have been the case. For example, if the body corporate had caused excessive water to lie about the common property. I do not consider that this is the case here. I am advised, and it was not challenged by the applicants at the time of the inspection, that the body corporate has actually caused (for a considerable period now) the automatic watering system located in the common property garden bed to be turned off. The garden now receives water only from natural rainfall or manual hosing. Secondly, I noticed that the garden had been constructed in such a way as to slope away from the lot, rather than towards it. Consequently I suggest that any surface water would be directed away from the lot rather than towards it. Finally I noted a large storm water drainage grate located on common property adjacent to the garden.

I consider that the body corporate has not taken any action which has contributed to any excess water being applied to the common property garden adjacent to the applicant’s lot. Whilst it is by no means certain, I suggest that it is quite possible that much of the water which finds it way into lot 13 is actually ground seepage from the tidal canal located nearby. I was informed by parties present at the inspection that a pump had in fact been installed by the developer to remove excess water from the garage level of the lot. I suggest that this fact clearly acknowledges a long term problem of water penetration to the lot, which I consider is contributed to by the fact that part of the lot is below ground level.

If there was to be any liability for the fact of water penetration to the applicant’s lot, then in my view it lies with the original developer who seemingly failed to adequately waterproof the block wall of the applicant’s lot located on the western side. However, the failure of the developer in this regard does not become the responsibility of the body corporate.

If a lot owner decides to effect repairs to the exterior surface of the lot which is located below ground level, and where this external surface is adjacent to a common property garden, the question arises whether the body corporate would be required to remove the common property soil / garden so as to allow the lot owner to externally water proof the wall. I do not consider that it is automatic that the owner of a lot would be able to require this of a body corporate. I consider the better approach is to differentiate two possible scenarios –

1. If the embankment is part of the natural lie or formation of the land, and the lot has been constructed by way of excavation of part of the adjacent soil structure, then the owner should not be entitled to require the body corporate to excavate an area adjacent to the lot, and the owner should be restricted to internal repairs to prevent further water ingress;

2. If the embankment is man made, or artificially built up so as to create gardens and the like, then I consider that the owner of an adjacent lot might reasonably require the body corporate to excavate an area adjacent to the lot, so as to allow the owner to affect external repairs to prevent water ingress.

However, the views expressed on this particular aspect are simply my thoughts on the question, and should not be considered authoritative or binding, but merely a guide. It is open to another adjudicator, if confronted by this specific question, to come to a different conclusion. Perhaps if the owners of the lot were agreeable to reinstating the garden and common property generally following the waterproofing of the exterior surface of the wall, then perhaps the body corporate should reasonably be required to allow the garden to be removed for this purpose.

The second matter which the applicant’s raise is the issue of termites. The applicants state that –

The body corporate have been advised in at least three expert reports that not only must the common area be chemically treated but also the gardens and palms that are the food source for the termite colonies should be removed where these are touching the buildings.

The applicants mentioned in their grounds that they considered that the body corporate had acted in respect of termites affecting other lots, and had expended funds on the removal of gardens. When questioned on this aspect at the inspection however, no further confirmation of this allegation was forthcoming. It seems that at most, the body corporate had removed some pine bark or chips at the rear of garden beds and installed a border of small rocks or stones between the garden and the adjacent lot. Further, the body corporate explained at the inspection that the reason this had not been done in the case of the applicant’s lot and the adjacent garden bed was the fact that a cement strip of approximately 30 – 40 centimetres had already been installed in the garden bed adjacent to the applicant’s lot.

The body corporate committee members indicated that the body corporate had conducted regular inspections of all common property garden beds throughout the scheme on a regular basis, and of the last 12-18 months, such inspections had been increased to every six months. Further, that when termites were found to be active in a garden bed, action was taken to eradicate the nest.

I consider that this is all the body corporate can reasonable be expected to do. Many of my comments set out above relating to responsibility for water penetration to the applicant’s lot apply equally to the issue of termite infestations. Provided the body corporate takes reasonable and prudent action to remove possible aspects which would attract termites, and thereafter, does not do anything that will actually assist termites to enter a lot, then I consider that the responsibility to prevent termite infestation to a lot is with the owner of the lot.

In the circumstances, I consider the body corporate has acted reasonably by –

• Removing all timber sleepers from garden beds;

• Replacing pine or bark chips with stone in some areas;

• Reducing (to zero) the level of automatic watering of the common property garden bed adjacent to lot 13;

• Conducting regular inspections of common property gardens for termite activity, and eradicating termites where they are found to be active.

I consider that the body corporate is not responsible to do any more. It would be unreasonable to require the body corporate to remove all garden beds which are located adjacent to lots. In the case of this scheme, it would have the effect of dramatically (and detrimentally) changing the aesthetics of the scheme, and would result in significant areas of bare concrete or paving. Presumably, residents have chosen to reside in the scheme precisely for the reason of the lush tropical appearance.

The other aspect of the termite infestation to the lot is the evidentiary one. The applicants have provided a report from a Kaldoe Building Inspections, whose representative was available at the inspection. In addition, the applicants have provided several photographs of what they allege to be termite nests or activity in the garden. I suggest that there is no clear evidence that the termites were present in the garden, and then turned their attention to the applicants adjacent lot. The Kaldoe Report states at page 3 –

Subterranean Termites

Evidence of termites was located at the time of the inspection.

The termites were active (live insects were present) at the time of the inspection. ... .

A termite nest was not found.

Visible evidence of subterranean termites and / or workings and / or damage was found mainly, but not limited to, Base of stairs in garage along north wall, smooth edge in lounge room and in roof trusses.

In my view, the report in no way establishes that the adjacent garden is the originating point of the termite infestation. I suggest that given that –

• the western wall of the applicant’s lot is located below ground level,

• there is acknowledged water penetration problem or general dampness,

• the termites in question are stated to be “subterranean”

then that it is just as likely that the termites were attracted to the footings of the applicant’s lot in the first instance, and thereafter made their way to the adjacent garden bed, and not vice versa, as is alleged.

In the circumstances, whilst I empathise with the applicant’s situation, the prevention of both water and termite penetration to their lot is their own responsibility, and not that of the body corporate. Accordingly, I must dismiss this application. n