Windward Passage [2001] QBCCMCmr 73 (12 February 2001)

P G DanielsREFERENCE: 0334-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17618
Name of Scheme:	Windward Passage Body Corporate
Address of Scheme:	35 Landsborough Parade CALOUNDRA QLD 4551

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

Gordon Wallace Gilmour a co-owner of lot 23



P G DanielsI hereby order that the Body Corporate for Windward Passage community titles scheme 17618 must within three months of the date of this order remove an awning covering on the balcony to the north and west of lot 23 and replace it with a flexible awning covering that is waterproof and of the same quality and endurance as the current awning covering when it was originally installed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0334-2000

“Windward Passage Body Corporate” CTS 17618

The applicant, Gordon Wallace Gilmour, a co-owner of lot 23, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

That the Body Corporate be ordered to replace the existing weathered soil awnings in or about the Windward Passage Complex with materials other than shade cloth and that such materials be of equal quality and standard as those sail awnings erected on the complex at the time of construction, and further that the said material be waterproof.

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)).

This application relates to the replacement of a weathered sail awning on a balcony of lot 23. The background is as follows.

There is a sail awning on the northern and western side of a balcony of lot 23. It provides protection from rain to a dining and living area underneath it.

I inspected the awnings for lots 23 and 25 on 6 February 2001. These are the only lots in the building that have awnings on their balconies.

The Body Corporate resolved at its annual general meeting on 3 March 2000 to accept a quote from Cobbs Canvas World to replace both awnings at a cost of $7555.

The awning for lot 25 has been replaced with a shade cloth awning. The shade cloth awning is not waterproof.

The applicant objected to the use of shade cloth for lot 23 on the basis that it is not waterproof. The awning for lot 23 has not been replaced. I had previously made an interim order that prevented its replacement. The matter can now be properly considered.

I should initially state that during my inspection I observed that the awning for lot 23 is in need of replacement. There are holes in it and it is somewhat unsightly due to significant discolouration.

The awning was part of the original construction of the building. The awning is consequently about six years old.

It is clear that the Body Corporate is under a duty to maintain the awning. Maintenance includes replacement where that is necessary. In my view, replacement is necessary in this case. That duty is imposed by section 108(2)(b)(ii) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997. I will set out section 108(1) and (2) in full:

108.(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 awning operates as a roof for part of lot 23.

The Body Corporate cannot discharge its maintenance obligation by replacing the current awning with something of lesser quality. In my view, the shade cloth is of lesser quality. It will not provide protection from the rain.

Prior to giving consideration to the orders that should be made, I should state that I have considered that a flexible waterproof awning can flap and create annoying noise. The matter has been raised with me during the course of the investigation. However, no submissions have been received from owners complaining about the noise from the current awning.

As there has been no submission from an owner(s) about noise, I will make an order that the awning cover be replaced with a new flexible cover that is waterproof and of the same quality that was originally installed.

I suggest that the Body Corporate specifically raise with any contractor it contacts and perhaps even make it a term of any contact entered into that the awning cover must be secured in such a way and be made of such materials to minimise the potential for excessive noise.

I will give the Body Corporate three months to comply with my order. I take into account that the Body Corporate may have to approve the expenditure in general meeting. Three months will allow a meeting to be called and appropriate Body Corporate authority obtained. I should state that if the Body Corporate declines to grant approval for the expenditure, then the applicant would be at liberty to apply for an order appointing an administrator in respect of the work to be done.

I have limited my order to the awning on the balcony of lot 23. There is no evidence before me that the Body Corporate intends to replace other sail awnings on scheme land.