Whitecrests by the Sea [2003] QBCCMCmr 21 (16 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0766-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26046
Name of Scheme:	Whitecrests by the Sea
Address of Scheme:	292 The Esplanade, MIAMI QLD 4220

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

the Body Corporate for Whitecrests by the Sea


I hereby order that in the case of the body corporate of Whitecrests by the Sea, the body corporate is responsible for the maintenance of all shutters and vergolas in the scheme, excepting those which are located within the boundaries of lots 1 and 5 as detailed in the accompanying Statement of Adjudicator’s Reasons for Decision.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0766-2002

"Whitecrests by the Sea" CTS 26046

The applicant, the body corporate for Whitecrests by the Sea, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

... to make a ruling as to who is responsible for maintenance of:-
The electrical vergola’s servicing lots 5 and 6 only (vertical louvres);
The shutters servicing all units (horizontal louvres). ...

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

(c) a claimed or anticipated contractual matter about-

(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)).

In the application, it is stated that lots in the complex have surrounding patio’s included on title. The applicant suggested that an inspection of the scheme "due to the complexity of the style of building" may be beneficial. I inspected the scheme, including the patios of several of the lots, and met with several of the owners on Tuesday 8 July 2003. The relevant section of the standard module is section 109, quote –

109 Duties of body corporate about common property--Act, s 114
(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.

The scheme is recorded under a building format plan of subdivision. The provisions of section 109 (in particular, section 109(2)) apply to such a scheme. I have been asked to determine who (the body corporate or individual owners) is responsible for maintenance of certain vergolas and shutters servicing all lots. The shutters are located on the balconies of all lots, whereas, the vergolas are located only on lots 5 and 6.

It is important to note several matters relating to the design and location or placement of the vergolas and shutters, including –

• The vergolas are located on the upper or second level of lots 5 and 6 respectively. In all instances, the vergolas are located in the boundary wall separating the lots from common property. The vergolas are electrically operated from inside the respective lot, and open vertically to admit light and air into the upper level of a void space above a patio type area located on the north east corner of lots 5 and 6.
• The shutters are located in all lots, in each instance enclosing a patio type area located on the north east corner. In the case of lots 5 and 6, the shutters are located on the lower levels of these two lots.
• The shutters are not in all instances located in a boundary wall. In the case of lots 1 and 5, the shutters are located internal to the lots. In the case of lot 1, the shutters located on the east side facing the ocean and north side facing the adjacent property are internal to the lot. Only the shutters on the south side of the patio are located in a boundary wall. In the case of lot 5, the shutters on the north side facing the adjoining property are internal to the lot. The shutters on the east and south side are located in a boundary wall. In these two instances the shutters located not in a boundary wall are clearly the responsibility of the individual owners of lots 1 and 5 to maintain.
• All shutters and vergolas were installed by the original developer at the time of construction of the building.
• Where the shutters are installed in a boundary wall, it should be noted that they have been installed on the outer edge of the relevant wall, and not behind the balustrade railing.

The question is whether the shutters and vergolas which are located in a boundary wall are the responsibility of the body corporate or individual owners to maintain. The relevant wording to be considered is section 109(2)(a)(ii) which provides that the body corporate is responsible to maintain doors, windows and associated fittings situated in a boundary wall separating a lot from common property. The question is whether the vergolas and shutters can be described as "doors, windows and associated fittings situated in a boundary wall separating a lot from common property".

The situation is unusual in that doors and windows located in boundary walls are usually easily identifiable. The situation here though is that the shutters and vergolas are located over large openings in what has been described on the plan as "balcony". It has been indicated to me that the areas in question are better described as verandahs or patios and not balconies, as the areas are currently described on the plan. The following definitions from the Registrar’s Directions for the Registration of Plans are relevant to this conclusion.

9.1 Definitions for Building Format Plans:
For this section, the following definitions shall apply:
Balcony:
means a part of a lot being an addition to the face of a building, whether covered or uncovered, that immediately adjoins its parent lot, is accessible from that lot and is above ground level. ...

Structural Elements:
See Direction 9.6.1.
Verandah:
means a part of a lot within the same structure and immediately adjoining another part of the same lot. A verandah is defined by floors and ceilings and partly by walls and partly by balustrades or other structural elements. Included in this definition are patios and porches, which terms may be used if appropriate.
Void:
means a part of a lot on a higher level than the lowest level on which another part of the same lot is defined, that is not bounded by a floor. A void is not given an area. (See Direction 9.5.5).
Where it is desired to use other terms to describe areas on a plan, prior approval of the Registrar must be sought for their use.

A balcony is defined as "an addition to the face of a building". In contrast, verandah (which includes patios and porches) means "part of a lot within the same structure ... defined by floors and ceilings and partly by walls and partly by balustrades or other structural elements". In the current scenario, these external rooms are contained within the structure of the building and are defined partly by walls and partly by balustrades. In particular, these rooms are not "an addition to the face of a building" as might be said of the balconies on the opposite front side of lots 2, 3 and 4.

In The New Shorter Oxford English Dictionary (Thumb Index Edition), "door" is relevantly defined as –

A hinged or sliding barrier of wood, metal, etc serving to open or close the entrance to a building, room, cupboard, vehicle or other enclosure. ... An opening that can be closed by a door, a doorway. ...

I conclude that the shutters and vergolas are not a "door" in that they do not serve to open or close the entrance to the rooms which they surround in the current scenario.

"Window" is relevantly described as –

An opening in a wall or roof of a building, vehicle etc, now usually fitted with glass in a fixed, hinged or sliding frame to admit light or air and provide a view of what is outside or inside. ...

On this definition, I cannot satisfy myself that the vergolas and shutters can be described as "windows". I conclude that such improvements or covering are not within the contemplation of the section. This conclusion suggests that individual owners and not the body corporate are responsible for the maintenance of the shutters and vergolas.

I now turn to consider a further basis; that the vergolas physically form part of the "boundary of the building", and are therefore part of the body corporate responsibility to maintain. This raises the question of the location of the vergolas and shutters in relation to the design of the building and the boundaries of the lots with common property.

In determining the specific boundary location of each lot with common property, I consulted with plan examiners and a senior surveyor with the Department of Natural Resources and Mines. The surveyor referred me to the relevant provisions of the Registrar Directions for the Preparation of Plans; in particular the location and delineation of boundaries in a building format plan. Section 9.6 provides as follows -

9.6 Boundary Definition:
9.6.1 Structural Elements:
The following are acceptable structural elements for the purposes of this Direction:

•	Floors or ceilings, centre;
•	Walls, full height, centre;
•	Walls, not full height, centre;
•	Doors or windows, centre, other than where incorporated into a wall, when the boundary would be collinear with the centre of the wall;
•	Balustrades or railings, outer face;
•	Edge of a floor or a concrete base not abutting a wall, outer edge;
•	Corners within a building or structure defined by the centres of posts which are structurally required for the building or a wall.

Other structural elements similar in nature to the above may be used with the approval of the Registrar.

9.6.2 Where the horizontal boundaries of lots or part lots in or on building or structure are:

•	defined by structural elements as specified in Direction 9.6.1, the boundary need be delineated only;
•	not defined by structural elements as specified in Direction 9.6.1 or the boundary is located in other than the position specified in or on the structural element specified in that Direction:

o	the boundary must be dimensioned;
o	the boundary must be unambiguously located with reference to structural elements identified on the plan, or by connection to the boundaries of the base parcel, and
o	each corner shall be marked by an approved survey mark, or referenced to occupation.

To avoid ambiguity, it is directed that it is only those boundaries that are not defined by structural elements as defined in Direction 9.6.1 that must be dimensioned.
 
9.6.3 Where the vertical boundaries of lots or part lots in a building or structure are:

•	defined by structural elements as defined in Direction 9.6.1, no additional definition is required;
•	not defined by structural elements as noted in Direction 9.6.1, and on a roof, the vertical dimension shall be:
o	where there is an adjoining lot, or part lot lot, defined vertically by structural elements, on the same level as the lot or part lot, the upper boundary of the lot or part lot shall be the horizontal extension of the upper boundary of the adjoining lot;
o	where there is no adjoining lot, the upper boundary shall be defined by a vertical distance above the roof. This vertical distance shall be determined by the mean of the vertical distances between the upper and lower limits of lots within the building and shall be noted on the diagram for that level.

 
From these directions, one can conclude that in the case where the patios are defined by structural elements of supporting columns and half walls (of full height and others, half walls) then the boundary of the lot with common property is the centre of the wall as per 9.6.1. My recollection from the inspection, and confirmed in the photographs provided with the application, is that the shutters and vergolas are located towards the outer edge of the surrounding walls or half walls. From the centre out is common property whereas from the centre in is part of the lot. I conclude that on this basis the shutters and vergolas form part of the common property of the building in that they are located in that outer part of the building which is common property and which the body coprorate is required to maintain under section 109(1) of the standard module.

For practical purposes, this conclusion seems preferable, as the contrary conclusion would lead to a somewhat odd result. In particular, the body corpoate is required to maintain the balustrade railings on the patios pursuant to section 109(2)(a)(i). If the shutters and vergolas were considered the responsibility of individual owners to maintain, then the situation would arise that the body corporate was responsible to the balustrading, but not the shutters and vergola, when the balustrading is more internal to individual lots then the shutters and vergolas. I conclude that the better view is that the body corporate should be responsible for the shutters and vergolas, given their location. This conclusion would be different in my view if the shutters had been located behind the line of the balustrading as is the case with the nearby building, Indigo Blue. However, I am not creating a general rule in respect of shutters etc. In each case it will depend on the circumstances and location of their installation.