Hill View Lodge [2001] QBCCMCmr 68 (9 February 2001)

RA MeekREFERENCE: 0572-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5414
Name of Scheme:	Hill View Lodge
Address of Scheme:	28 Mountain Street MOUNT GRAVATT QLD 4122

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

Rose Kromwyk, the owner of lot 1



RA MeekI hereby order within six (6) months of the date of this order, the body corporate shall investigated the cause of rust to the window sill located in the boundary wall adjoining the lounge room of lot 1, and effect necessary repairs so as to maintain the sill in good condition.

I further order that Rose Kromwyk, the owner of lot 1, is entitled, at her expense, to replace the light located on the wall adjacent to her front door with a movement activated security light, similar in design to those located on the rear wall of the building, if she so chooses.

I further order that the application by Rose Kromwyk is in all other respects dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0572-2000

“Hill View Lodge” CTS 5414

The applicant Rose Kromwyk, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the following repairs be undertaken as soon as possible:

1.	The reason for rust recurring on the window sill in unit 1 be investigated and action put in place to prevent the rust recurring.
2.	The reason for rust recurring on the back door frame in unit 1 be investigated and action put in place to prevent the rust recurring.
3.	The banging noise from internal plumbing to be investigated by a qualified tradesperson and action put in place to prevent it recurring.
4.	(deleted)
5.	A loose tile on the roof in the front of the unit to be secured.
6.	The owner of unit 1 to be given a key to access the building’s common area and to the fire extinguisher located there.
7.	The broken line on the unit 1 clothesline to be replaced.
8.	That the trellis be bolted to the brick wall which is behind my clothes line.

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 a physical inspection of the scheme on Monday 29 January 2001, and met with both the applicant and two members of the committee.

The provisions of section 109 of the standard module are relevant to this application, and I intend to set that section out here.

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.
(3) Despite anything in subsections (1) and (2)—
(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and
(b) the owner of the lot is responsible for maintaining utility infrastructure in good order and condition, to the extent that the utility infrastructure—
(i) relates only to supplying utility services to a particular lot;
and
(ii) is 1 of the following types—
 hot-water systems
 washing machines
 clothes dryers
 another device providing a utility service of a domestic nature to a lot.
Examples for subsection (3)(b)—
1. An airconditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the airconditioning equipment.
2. A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and the associated pipes and wiring.
(4) To avoid doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate is not prevented from recovering an amount of damages from a person (whether
or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.

I intend to deal with each of the orders sought by the applicant in turn.

The Window Sill

The applicant states that the window sill was looked at and repaired by the body corporate insurer, but that the rust has reappeared.

The body corporate states that the window sill was repaired as recently as two months ago, and suggests that the reappearance of the rust is due to the applicant leaving the window open, “which allows driving rain to enter”. The body corporate further states that the “surrounds of these windows were especially sealed to the brickwork some months ago to prevent moisture entry”.

I do not know the basis of the water entry. What is known is that it seems to be affecting the applicant’s lot only, and in fact only the lounge room window. The window in this same wall in the applicant’s back room does not appear to be affected, nor the windows in the lot on the level above.

It might even be that the rust is re-occurring simply because this is the nature of rust. That is, once it has occurred, then conditions might be such for it to re-occur. As well, it may be that the applicant has from time to time allowed water entry through an open window.

In any event, the body corporate is required to maintain the window sill under section 109(2)(a)(ii). I note that the body corporate has not sought to avoid this obligation in the past and I further note that at this stage, there is only minimal discolouration to the sill. I intend to order that within the next 6 months, the body corporate shall investigated the cause of rust to the window sill located in the boundary wall adjoining the lounge room of lot 1, and effect necessary repairs so as to maintain the sill in good condition. The applicant will need to provide reasonable access to the body corporate, its agents or contractors to allow this to be achieved.

The body corporate should note that if it is established that the cause of the damage to the sill is in any way the action of the applicant, as is alleged, then that the provisions of section 109(4) might be applicable. In this circumstance, and following the repair, the body corporate might seek to recover “an amount of damages from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot”.

Recurring rust on the back door frame

The applicant states that the back door frame was recently painted “but rust has since reappeared”.

The body corporate states that the door frames are steel and exposed to the weather, and are showing signs of rust in very small patches. At the AGM in February 2000, the body corporate determined that allowance be made in the sinking fund for this maintenance to be carried out on all affected door frames in the future. In the meantime, the level of deterioration would be monitored.

The applicant’s concern regarding this matter is not reasonably based. The level of rust is minimal. The door frame is otherwise in good condition. Moreover, other door frames are affected, and the applicant is not being singled out here in any way. I agree with the approach adopted by the body corporate regarding this aspect and intend to make no order.

Banging noise from internal plumbing

The applicant complains of noisy plumbing, suggesting that it is so loud at night that it continues to wake her at night.

The body corporate states that it has requested further substantiation of this matter from the applicant which has not be provided and that “without reliable data, little investigation can be undertaken”.

I consider that this matter has not been substantiated sufficiently for me to make any order. No other owner has acknowledged the problem, and I assume that at least one other owner or occupier, namely the lot above, would likely be affected by the noise.

In the circumstances, the applicant should provide some substantiation of the problem to the body corporate before it should be required to take any action in respect of this matter.

The external light

Initially the applicant stated that the bulb had blown, but subsequently deleted this request on the basis that the bulb had been replaced in the meantime. Nevertheless, at the inspection, the applicant complained that she only had a standard light, which went off automatically at around 10 pm, whereas other owners had the benefit of movement activated security lights on the back wall.

Whilst I note that this matter was withdrawn by the applicant, I see no detriment in ordering that the applicant is entitled, at her expense, to replace the light located on the wall adjacent to her front door with a movement activated security light, similar in nature to those located on the rear wall, if she so chooses. It should be at the applicant’s cost, as the light exists, and it is the applicant who desired the improvement. If the applicant chooses to replace the light, then it is not in addition to the current light, but rather in replacement of it.

Loose tile

Again, the applicant’s concern regarding this aspect is not reasonable. The body corporate should attend to refixing of the tile as part of it’s usual maintenance program.

Key to access building’s common area

The applicant states that she believes that as an owner, she has a right to access the common areas of the building. In addition, she states that the fire extinguisher is located in this area, and is inaccessible to her without a key.

The body corporate states that this request has been declined on several occasions. The body corporate states that the area is secured area, for which keys are issued on a restricted basis.

The area in question is to a common property foyer type area, which leads by a series of landings and stairs to the front door of lots 2 to 5. This area is accessed through one secured door, which is located on one side of the building. In contrast, the front entrance to the applicant’s is located on a different level, and on the opposite side of the building. I acknowledge that the area in question contained a fire extinguisher.

However, I do not consider that this is sufficient justification for the making of a key for this area available to the owner of lot 1. Yes, the area is common property, but there would be no reason for the applicant to access this area unless the applicant was intending on calling on an owner or occupier in one of the four lots. To do this, the applicant is able to seek access from that owner or occupier via the intercom system.

As for the availability of the fire extinguisher, I consider that the inability to access this is not a detriment to the applicant. The applicant’s lot is so differently located, and accessed in this building, to the four other lots, that I consider it would be very unlikely that the applicant seek the use of the extinguisher in an emergency situation. I suggest that if the applicant is genuinely concerned by this aspect, that she purchase a separate fire extinguisher for her lot, which could be located in the lot itself, or her adjacent garage. Access to an extinguisher in this location would be far more realistic to the applicant. I am not prepared to make any order in respect of this matter.

The broken line on the clothes line of lot 1

I am satisfied that this aspect has been attended to.

Trellis be bolted to the brick wall behind clothes line

The applicant provides no statement of grounds in respect of this aspect.

The body corporate has previously requested the applicant to remove the “unapproved/unauthorised structure from its current position on common property”. The body corporate states that –

... in an attempt to meet her needs as far as practical, the body corporate agreed that a limited sized screen could be attached to the brick retaining wall, provided its height was limited to the level stated in the letter but no action has been taken. It has been states that this unwieldy, unsightly, unstable existing structure has tumbled over several times in windy conditions and damaged the adjacent clothes line. ... It should be noted that the action in setting up this unauthorised structure was in direct defiance of a directed given to Ms Kromwyk by the body corporate at the AGM on 21 February 2000.

The order sought by the applicant seeks that the body corporate bolt the existing trellis to the brick wall. This expectation is unreasonable. The screen is an improvement for the benefit of the applicant to screen her clothes line from neighbours and conditions. At the very least, it is reasonable that the applicant arrange for installation of the screen herself.

However, this is not the end of the matter. The body corporate has not approved the current trellis. Rather, its has approved a trellis of smaller dimensions which it considers will be consistent with other aspects of the common property. The applicant appears to be totally ignoring this point. I suggest that the applicant comply with the body corporate’s requirements as to the size and dimensions of the trellis, and thereafter have the trellis installed herself. If the applicant is not prepared to comply with these conditions, then I consider she has no approval to install any trellis whatsoever. If the applicant proceeds with the installation of the current trellis in contravention of the conditions imposed by the body corporate, then the body corporate would be able to make application for its removal.