Netanya Noosa [2001] QBCCMCmr 212 (9 April 2001)

P J HANLYREFERENCE: 0688-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17658
Name of Scheme:	Netanya Noosa
Address of Scheme:	Hastings Street NOOSA QLD 4567

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

Kenra Pty Ltd as trustee, the owner of lot 51



I hereby order that within 1 month of the date of this order the body corporate shall replace in lot 51 the pergola, which was dismantled during the recent work undertaken to repair the waterproof roof membrane.

I further order that the body corporate shall pay for 65% of the cost of the replacement pergola and that the owner of lot 51 shall pay 35% of the cost of the replacement pergola.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0688-2000

“Netanya Noosa” CTS 17658

The applicant, Kenra Pty Ltd as trustee, the owner of lot 51, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order that the body corporate reinstate the pergolas to lot 51 as set out in the building approval of the Noosa Shire Council.

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 at the time of construction of lot 51 a pergolas was installed in accordance with approved plans. The applicant further states that the body corporate has recently approved certain building works. The applicant further states that despite the plans showing the retention of the existing pergolas, they were demolished during the refurbishment, and the body corporate has now refused to reinstate them.

The body corporate committee was invited to respond to the application. A submission was received from solicitors instructed to act on behalf of the body corporate. The body corporate’s primary position was that the pergolas formed part of the lot, and were therefore the owner’s responsibility. In the alternative, the body corporate argued that, as the pergolas had not been approved by Council in the first place, it had no responsibility to reinstate them. In the further alternative, the body corporate argued that, if it were to be held responsible for reinstating the pergolas, then it would be prevented from doing so because of the lack of council approval, and would instead be limited to paying compensation, which should in turn be limited to $450.00 because of the poor condition of the pergolas which were removed.

The applicant replied to the body corporate’s submission. The applicant refuted that the pergolas were in poor condition, and stated that the body corporate’s consultants had inspected the pergola prior to demolition, and had recommended repainting in order to match the revised colour scheme. The applicant noted that there was a sum allowed in the consultant’s estimate of costs for such work. The applicant also refuted the body corporate’s assertion that the base of the pergola was contributing to the facilitation of water penetration through the roof of the lot. The applicant stated that the pergola was fixed into the top of the previously existing concrete block walls, which were 1600to1800mm above the slab. The applicant further stated that the concrete block walls were demolished at the chairperson’s direction, and that was the reason for the demolition of the pergola.

Under the investigative powers conferred on me by sections 220 and 221 of the Act, I have contacted several parties connected with the recent works undertaken by the body corporate at the scheme.

On 3 April 2001, I spoke by telephone with Mr Stephen Kidd, who confirmed that he was the building designer. Mr Kidd informed me that the pergolas were fixed to the block walls at the side, but that the centre steel upright was fixed directly to the slab. Mr Kidd further advised that speaking with Mr Graham Lukins, the project manager, and with Mr John Cobb, the builder, might assist me.

On 4 April 2001, I spoke by telephone with Mr Graham Lukins, who advised that the pergolas were in poor condition, as the steel uprights were rusted at the bottom, and the timber horizontal top was in a deteriorated state. Mr Lukins further advised that the pergolas could not be reinstated in the same position as previously, as the block walls have been reconfigured, but some form of pergola structure could be erected.

On 6 April 2001, I spoke by telephone with Mr John Cobb. Mr Cobb explained that the original roof membrane had failed and significant water penetration had occurred. Mr Cobb stated that a further waterproof membrane was applied over the top of the existing membrane and paving tiles. The second membrane was then overlaid by tiles. This had resulted in water ponding between the original tiles and the second layer of tiles, which in turn rusted the base of the steel uprights. Mr Cobb further confirmed that the rusted area of the steel upright was not observable until the second layer of tiles was removed. Mr Cobb further advised that although the top of the pergola was the original timber, it had been painted regularly judging by the thickness of the paint. Mr Cobb said that, to that extent, the timber had been reasonably maintained.

Sections 120(2) and (3) of the Standard Module, by which this scheme is regulated, provide as follows:
ú

Obligations of owners and occupiers—Act, s 122

120.(1) ...

(2) The owner of a lot included in the scheme must maintain the lot in

good condition.

(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.

The body corporate must, under the provisions of section 109(2)(a)(iii) of the Standard Module, maintain the roofing membrane in good condition. The consulting engineer’s report dated 11 June 1999 to the building manager confirmed that “to effectively waterproof the roof top terraces at Netanya Noosa all previous tiling, waterproof membrane and paving should be removed together with as much masonry as practically possible to enable a new membrane ... to be installed. Any masonry walls which remain should be totally encased in a membrane to ensure that no water penetration occurs.” It was for this reason that the recent work was undertaken, as the roofing membrane had failed and significant water penetration was occurring in many lots.

Stephen Kidd Design prepared the scope of works, which also included work related to the foyer, and the construction of a pavilion and entry forecourt. Although the scope of works provided for the timber tops of the pergolas to be repainted, this was not carried out once the true state of the pergolas was ascertained, namely that the bases of the steel uprights were rusted. I am however, satisfied that the applicant could not have known that the base was rusted, because the second layer of tiles was covering it.2n I am further satisfied that the applicant had taken steps to maintain the timber top of the pergola, given the layers of paint observed by Mr Cobb.


In view of this finding, I am satisfied that the applicant had discharged its obligation to properly maintain its lot. That being so, then it falls to the body corporate to replace the pergola to lot 51.

Two issues arise from this finding. Firstly, the body corporate has submitted that the pergola did not have Council approval, and that therefore the body corporate cannot be required to effectively perpetrate an unlawful act by replacing it. Secondly, the body corporate has submitted that, if it were to be found that the body corporate did have a responsibility to replace the pergola, then, because it is precluded from doing so, it should only have to compensate the applicant for a pergola in similar condition to that which was in place at the time.

I have made enquiries of the Noosa Council to determine whether the pergola was approved as part of the original construction. On 30 March 2001, I received a facsimile copy of a letter of the same date from Mr C W Anderson, Manager Building Services in the Noosa Council. Mr Anderson’s letter stated “that the pergolas erected on the roof gardens of Netanya Noosa were in fact approved by council on 14 April 1987 under Building Permit Number 758/86 as shown on drawing number WD 263.007 attached.” I am therefore satisfied that there is no impediment to the replacement of the pergola.

I accept the body corporate’s submission that it should not be required to pay for a new pergola, given that the pergola which was dismantled was several years old. Even though I have found that the applicant had maintained the existing pergola in reasonable condition, except for the base of the steel upright, which the applicant could not have been expected to know was rusted, it would be inequitable to order that the body corporate pay the whole cost of a new pergola. Otherwise, the applicant would be placed in a better position than it was in prior to the dismantling of the pergola. Clearly, I also cannot order that the old pergola be reinstated, as the steel uprights could not have been used and the timber tops are no longer available. I consider that the only equitable order for me to make is that the parties share the cost of replacement of the pergola. I have decided that the body corporate should pay 65% of the cost of replacement of the pergola, and that the applicant should pay 35% of the cost. I appreciate that the pergola will not be able to be replaced exactly as it was, because the block walls have been reconfigured. It will be necessary for the body corporate and the applicant to reach agreement in this regard, as I have not been provided with any material which would allow me to specifically order the method of replacement.

In its reply to the body corporate’s submission, the applicant has also sought an order for reimbursement of lost rent and all other (but unspecified) costs likely to be incurred for the duration of the reconstruction of the pergola. I do not propose to make such an order for two reasons; firstly, the order was not sought in the original application; secondly there is no evidence that the applicant will suffer a loss of rent and other unspecified costs.