Cloverlea [2001] QBCCMCmr 9 (10 January 2001)

P J HANLYREFERENCE: 0431-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19960
Name of Scheme:	Cloverlea
Address of Scheme:	1816 Mount Glorious Road MOUNT GLORIOUS QLD 4520

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Cloverlea

P J HANLYI hereby declare that the body corporate is required to maintain the existing stormwater drainage system, such that it does not cause a nuisance or damage to common property, a lot within the scheme, or to an adjoining property.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0431-2001

“Cloverlea” CTS 19960

The applicant, the Body Corporate for Cloverlea, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	An order stating if the body corporate is responsible for stormwater management on all lots in the scheme including the cost of stormwater management plan for lots and cost of construction on lots.
2.	If the body corporate is responsible for stormwater management on lots, does the $3500 already spent by the body corporate on stormwater management on lot 5 extinguish the body corporate’s responsibility in respect of lot 5.

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)).

The application reveals no real dispute as such. The essential question to be determined is the question of responsibility for “stormwater management” on all lots in the scheme.

Its appears to be agreed that the stormwater drainage infrastructure that currently exists was installed either prior to the plan being registered as a group title plan (now a standard format plan), or alternatively when the body corporate undertook some rectification work in 1998, which does not appear to have been a success. There is some difference of opinion as to how the 1998 came to be undertaken (ie. whether it was at the instigation of the body corporate, or at the instigation of the owners of lot 5, with the acquiescence of the body corporate, who agreed to pay the cost of the 1998 rectification work). I conclude that this aspect is not of real significance in determining this dispute.

There are two sections of the Act which I consider to be relevant. These are sections 21 and 114 which are as follows –

21 Utility infrastructure as common property
(1) Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, except utility infrastructure—
(a) solely related to supplying utility services to a lot; and
(b) within the boundaries of the lot (according to the way the
boundaries of the lot are defined in the plan of subdivision under which the lot is created); and
(c) located other than within a boundary structure for the lot. ...

114 Body corporate’s duties about common property etc.
(1) The body corporate for a community titles scheme must—
(a) administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners; and
(b) comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme. ...

In additional, section 109 of the standard module provides that the body corporate must maintain common property in good condition.

The short answer to the question posed by this application is that the body corporate is responsible to maintain the currently installed stormwater drainage infrastructure since it is common property within the extended definition of that term as set out in section 21. “Utility infrastructure” is defined to mean –

“cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services”.

“utility service” means—
(a) water reticulation or supply; or
(b) gas reticulation or supply; or
(c) electricity supply; or
(d) air conditioning; or
(e) a telephone service; or
(f) a computer data or television service; or
(g) a sewer system; or
(h) drainage; or
(i) a system for the removal or disposal of garbage or waste; or
(j) another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property.2n

Given these definitions, I conclude that the existing stormwater drainage systems are common property which the body corporate is required to maintain. Moreover, this maintenance would require, in the event that the existing drainage system was creating a nuisance, or causing damage to a lot or common property, or even an adjoining lot, then the body corporate is required to take such action as it considers necessary to prevent further nuisance or damage being caused or created. This duty arises in consequence of section 114 of the Act.

However this does not mean that the duty of the body corporate is unlimited. For example, the body corporate is under no duty to prevent damage which arises to a lot from stormwater which occurs naturally in consequence of the contour of the land, and which is not caused by the nature of the stormwater drainage system which has been installed. That is, if the damage is caused to a lot by naturally occurring run off, then it is for the individual lot owner to rectify. However, if the damage has been caused or contributed to by the installation of “utility infrastructure” on any part of scheme land, then the body corporate will be responsible to mitigate that damage in the future.

Further, the body corporate is under no duty to install additional drainage, unless this is the only method available to rectify the erosion problem created by the currently installed stormwater drainage system. If the erosion problem can be rectified without improvement or extension to the current system, then the body corporate is within its right to rectify the problem in this way.

Finally, the fact that the body corporate has previously expended monies on lot 5 in an effort to rectify the problem caused by the stormwater drainage does not exempt it from expending further monies on lot 5, if this is what is required to rectify the problem.