Campari [2001] QBCCMCmr 246 (11 May 2001)

C G YOUNGREFERENCE: 0078-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5636
Name of Scheme:	Campari
Address of Scheme:	45 Galloway Drive ASHMORE QLD 4214

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

Lia DA SILVA, the owner of Lot 5,



C G YOUNGI hereby order that the owner of Lot 5, Lia Da Silva, can carry out such work on that area of common property over which she has exclusive use under By-law 16, as is reasonably necessary to provide for the drainage of rainwater which currently ponds on the path and lawn adjacent to her lot building, providing that the work is first approved by the body corporate committee and does not adversely affect any other lot owner. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0078-2001

“Campari” CTS 5636

The applicant, Lia Da Silva of Lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“That the Body Corporate Campari CTS 5636 be ordered to allow the owner of Lot 5, at her own expense, to:

1.	Remove all trees (palms inclusive) at door entrance and beside driveway;
2.	Remove existing garden, garden edging and mulch to “ground level”; and
3.	Raise existing concrete path sufficiently (approx 50mm) to allow water to run off onto grass.”

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 her supporting grounds, the applicant Da Silva states that there is a drainage problem in the landscaping outside of Lot 5. The raised garden and slope of the lawn result in rainwater draining onto the path and lawn in front of the lot. Da Silva has submitted a number of photographs of the garden bed, outlined with a concrete edge, and path, including two taken after rain which clearly show water ponding on the path and adjacent lawn. The result is that Da Silva has a wet and muddy area she has to contend with if she wishes to use the path.

A notice from this office went out to all owners inviting them to make a submission to the application. No adverse submission was received. A joint submission was lodged by four owners, Karen Hutchison (Lot 7), Paul Merton (Lot 9), Louise Harris (Lot 10) and Graham Rushton (Lot 11), in favour of the proposal by Da Silva. Attached to the submission is a letter from a representative of the Gold Coast TAFE College, Will Miller, advising that horticultural guidelines will be followed in any landscaping work done for Lot 5.

To assist in my understanding of the facts of the matter, I conducted a teleconference with the
“Campari” was registered as a building unit plan on 5 December 1989 and on 17 January 1990 By-law 16 was recorded, amongst others, granting the owner of Lot 5 the exclusive use of that area of common property adjacent to the lot, as marked out in sketchplan “A” attached to the by-law narrative forming part of the registered plan. The problem area appears to lie on the eastern side of Lot 5, between the lot building and the lattice fence defining the exclusive use area of Lot 6.

It seems to me that the work proposed does not constitute an improvement to the lot but is necessary remedial work to prevent the ponding of water which is both an inconvenience to Da Silva and perhaps a threat by way of penetration of water into the building’s brickwork and perhaps, in time, internally. I therefore regard the work as being of a maintenance nature and any part of it which may constitute an improvement would fall within the scope of a minor improvement under section 114 of the Standard Module.

Since the general meeting of 7 May 2001, the owners making the joint submission, namely Hutchison, Merton, Harris and Rushton, together with Da Silva herself, now constitute the body corporate committee. I am therefore satisfied that the committee has in effect approved of the proposal in principle. I consider it prudent however, for the proposal in detail to be considered for approval by the committee. Da Silva should put these details to the next committee meeting for its consideration and approval; I have included condition this as part of my order. I am assured by the parties that the work, including the raising of the height of the path, will not result in any backflow of rainwater to Lot 6 - the work will be designed so as to drain all of the water away from both lots.

For the above reasons I have made an order approving the applicant’s proposal subject to the approval of the committee.





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