Agea [2001] QBCCMCmr 165 (20 March 2001)

P J HANLYREFERENCE: 0084-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13034
Name of Scheme:	Agea
Address of Scheme:	201 Gladstone Road, Highgate Hill Qld 4101

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

Samuel James Aherne, the co-owner of lot 5



I hereby order that the application for an order that the plumbing associated with the en-suite bathroom of lot 8 passing through lot 5 be removed, is dismissed.

I further order that the owners of lot 5 shall allow reasonable access to their lot to enable such tradespersons or professionals as are necessary to complete remedial work to the plumbing associated with the en-suite bathroom of lot 8 in order to comply with Brisbane City Council requirements for approval of that plumbing work.

I further order that the owners of lot 5 shall provide the said access to their lot at times mutually convenient to themselves and to the tradespersons or professionals involved, but in any event not later than 1 month from the date of this order.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0084-2001

“Agea” CTS 13034

The applicant, Samuel James Aherne, the co-owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We wish to apply for the removal of plumbing which passes through our unit space in walk-in wardrobe, linen cupboard, hallway and bathroom of our unit.

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 applicant states that a previous owner, who at the time also owned lot 5, installed an en-suite bathroom in lot 8. The applicant further states that the en-suite was installed without body corporate approval and also without Brisbane City Council building approval. The applicant expresses concern that access to the pipes for maintenance would require dismantling the false ceiling in lot 5 and that any water leaks would cause significant damage to property in lot 5.

The owner of lot 8, Ms McGrath, and the body corporate committee were invited to respond to the application. Ms McGrath states that the plumbing associated with her en-suite bathroom was in place when the applicant purchased his lot. She further states that after the applicant’s complaint to Council, she and Mr Venuto, the former owner of her lot, have liaised with Council, and agreed upon the remedial works which are to be carried out in order to comply with Council’s requirements. She further states that the work can only be carried out with the applicant’s cooperation, as access is required to his lot.

The committee states that the necessary remedial work to comply with Council’s requirements cannot be carried out without the builder engaged to perform the work being granted access to the applicant’s lot. The committee further states that it has been advised that the plumbing for lot 8’s en-suite can be accessed from that lot when maintenance may be required in the future.



I note that, although Mr Venuto did not obtain body corporate approval for the installation of the en-suite bathroom at the time of the installation, the body corporate subsequently gave blanket consent to all owners to install en-suite bathrooms if they wished to do so, provided the Brisbane City Council approved and passed the work and the affected owners agreed to the work. Mr Venuto has stated that he was unaware that he required building approval for the installation of the en-suite bathroom, and therefore only obtained plumbing and drainage approval. Mr Venuto has further stated that he has had plans prepared in order to submit to Council, and now requires access to the applicant’s lot in order that certain remedial work be carried out prior to the lodgement of the plans. In view of the fact that one of the applicant’s concerns was that any water leak might destroy property in his lot, I am of the view that the remedial work planned by Mr Venuto should be allowed to proceed without further delay. I am also satisfied that the body corporate has authorised the installation of en-suite bathrooms, albeit that the authorisation was retrospective in the case of lot 8. I do not consider that it is reasonable for the applicant to seek the removal of the plumbing in his lot from the en-suite of lot 8 when that plumbing was in place when he bought his lot, and a proper search of the body corporate records would have revealed that body corporate authorisation had been given. It is reasonable for the applicant to expect that Council approval be obtained, as that was the condition upon which body corporate authorisation was given on 26 February 1998. However, in order for Council approval to be given, the applicant will have to allow access to his lot so that the remedial work can be completed prior to the lodgement of the building plans.

On 19 March 2001, I spoke with Mr Doug Lindenberg, an officer in the employ of the Brisbane City Council. Mr Lindenberg advised me that provided Mr Venuto had the remedial works carried out and lodged building plans as discussed, Council’s requirements would be satisfied and it would have no further interest in the matter.

In the circumstances, I propose to dismiss the application to remove the plumbing from lot 5. I further propose to order that the owners of lot 5 shall allow reasonable access to their lot to enable such tradespersons or professionals as are necessary to complete remedial work to the plumbing associated with the en-suite bathroom of lot 8 in order to comply with Brisbane City Council requirements for approval of that plumbing work. I further propose to order that the owners of lot 5 shall provide the said access to their lot at times mutually convenient to themselves and to the tradespersons or professionals involved, but in any event not later than 1 month from the date of this order.