Casuarina [2001] QBCCMCmr 76 (13 February 2001)

RA MeekREFERENCE: 0445-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12767
Name of Scheme:	Casuarina
Address of Scheme:	111 Rio Vista Boulevard BROADBEACH WATERS QLD 4218

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

Barry John Feltus, the co-owner of lot 7



I hereby order that the body corporate shall bear the costs associated with the repair or replacement of, whether with the same or similar fittings or with fittings performing the same function as, the planter boxes forming the parapet in lot 15 above the applicant’s lot 7.


















STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0445-2000

“Casuarina” CTS 12767

The applicant Barry John Feltus, the co-owner of lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The body corporate bear the costs associated with the repair of or replacement of, whether with the same or similar fittings or with fittings performing the same function as, the troughs forming the parapet in the first floor unit (Unit 21, lot 15) above the ground floor unit (unit 19, lot 7) of the applicants.

Or alternatively:

The owner of unit 21, lot 15 attend to the repairs or replacement at the owner’s cost.

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 the building unit plan was registered on 23 December 1976, and comprises of 24 residential lots. The applicant further states that the upper floor units have a parapet, which is formed by a trough (essentially a planter box which runs the full width of the balcony). The applicant seeks a declaratory order as to whose responsibility it is to repair/replace the troughs. The applicant makes the point that the trough on the lot immediately above his lot has cracked, and allows water to leak onto his lot, thereby causing damage to the roof of his lot. The applicant is also concerned that the condition of the trough is dangerous, in that it could disintegrate at any time, thereby causing personal and property damage to other owners and occupiers.

The body corporate committee and the owner of the lot immediately above the applicant’s lot were invited to respond to the application. A response was received from the owner of the lot immediately above the applicant’s lot. That owner stated that when he purchased his lot he was advised by the body corporate that the planter boxes were installed by the developer and therefore were the responsibility of the body corporate.

I inspected the scheme on 7 February 2001. I noted that the trough to which the applicant refers (which I consider is more correctly described as a planter box), is constructed of fibreglass, and forms a parapet on the outer edge of the balcony of lot 15, as it does on all upper level balconies throughout the scheme. I also noted that the planter box is in a significant state of disrepair. I consider that the repair/replacement of the planter box is therefore the responsibility of the body corporate, under section 109(2)(a)(i) of the Standard Module.

I note that in a report dated 5 September 2000 from Hi Rise & Home, reference is made to the fact that the planter boxes cannot be repaired and, further, that they do not now conform with building regulations in that they are only 800mm in height. The public liability implications of this comment should be considered by the body corporate in the course of arranging for the replacement of the planter boxes. It was certainly evident to me during the course of the inspection that it would be very easy for a child to climb into the planter box, and then fall onto the lot below. n