27 Aberleigh Road [2003] QBCCMCmr 1 (1 July 2003)

Number of Scheme:	30554
Name of Scheme:	27 Aberleigh Road
Address of Scheme:	27 Aberleigh Road, HERSTON QLD 4006

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jun Wang, the Owner of lot 1

I hereby order that the application for an order that the body corporate fence an area within the exclusive use area allocated to lot 1 to make it safe, is dismissed.

I further order that the body corporate shall, within 1 month of the date of this order and at its expense, attend to such rectification works as are necessary within the exclusive use area allocated to lot 1 to fill the area of subsidence around the storm water and other water pipes.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0012-2003

"27 Aberleigh Road" CTS 30554

The applicant, Jun Wang, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the body corporate fence a large excavation within the exclusive use area allocated to lot 1, to make it safe, and, further, that the body corporate request the developer to flatten the ground with soil within the same exclusive use area where subsidence has occurred.

Section 276(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 the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The applicant contends that an excavated area within the exclusive use area allocated to his lot is unsafe in its present state. He states that the excavation is about 670mm below the ground and is surrounded by vertical timbers. I note that the applicant purchased his lot in October 2002, shortly after the plan registered. He would therefore have been aware of the existence of the excavated area when he purchased. I would have thought that the time to make an objection to the area, if he considered it to be dangerous, would have been prior to the settlement of his contract. He also expresses concern that an area on the back and side of the building where water pipes were laid by the developer has now settled, leaving the ground surface 200mm or more lower than the rest of the ground. The applicant believes that ultimately the building might be at risk if further soil erosion occurs near the timber wall adjacent to the building.

The body corporate committee and the other two owners were invited to respond to the application. No submissions were received. However, a member of the Commissioner’s staff spoke with the body corporate manager shortly after the period for submissions had closed, and the body corporate manager stated that the other owners did not really understand the orders being sought by the applicant, and would leave the decision up to the adjudicator. The body corporate manager also stated that the applicant is the only one of the owners who attends body corporate meetings.

The by-laws for this scheme are contained in the community management statement recorded at the time of registration of the scheme, on 3 September 2002. By-law 12 provides that each lot has an exclusive use area allocated to it, and that each owner is responsible for the maintenance and operating costs for that exclusive use area.

The applicant believes that the fence, which he is seeking to have constructed around the excavated area, is an improvement to common property and not maintenance, so that it should fall within the body corporate’s responsibility for payment. The applicant is correct in identifying the fence as an improvement to the common property, however, as the applicant is the only person who has the use and enjoyment of the area (hence the exclusive use by-law), then he must bear the cost of any fence which he wishes to construct. In addition, prior to undertaking the construction, he must seek body corporate approval (section 114 of the Standard Module) by way of a special resolution at a general meeting, unless the fence falls within the category of a minor improvement and meets the other criteria in section 114(2). I do not propose to make the order sought by the applicant in respect of this area.

I have a different view in relation to the soil subsidence, however. The storm water and water pipes form part of the utility infrastructure, for which the body corporate is responsible, unless the exceptions in section 20(1) of the Act apply, which they do not in this instance. The applicant’s right to the use and enjoyment of the area does not, in my view, extend his obligation for maintenance and operating costs to include such issues. If the developer has failed to properly fill and compact the area where the pipes have been laid, and subsidence has occurred, then the body corporate should remedy the problem. It is then a matter for the body corporate to determine if it will, in turn pursue the developer. I have ordered accordingly.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

27 Aberleigh Road [2003] QBCCMCmr 1 (1 July 2003)