19th Avenue [2003] QBCCMCmr 326 (14 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0534-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6625
Name of Scheme:	19th Avenue
Address of Scheme:	2 - 10 19th Avenue PALM BEACH QLD 4221

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

Noel John Tanzer and Dorothy Rae Tanzer, the owners of lot 78



RA MeekI hereby order that the owners of lot 78, Noel John Tanzer and Dorothy Ray Tanzer are responsible to maintain the spa deck located in lot 78, in good condition, pursuant to section 120(2) of the Standard Module.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0534-2002

"19th Avenue" CTS 6625

The applicant Noel John Tanzer and Dorothy Rae Tanzer, the owners of lot 78, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking a ruling on whether the body corporate or the owners are responsible for maintaining in good condition the spa deck on Level S Building Units Plan No. 8670, for lot 78. If the ruling is that it is the owner’s responsibility, we further seek a ruling on whether the body corporate or the owners are responsible for maintaining and waterproofing the roof beneath the deck.

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)).

In the supporting grounds, the applicants state that –

Level S is the roof of the building. The spa deck of lot 78 is collapsing due to corrosion of bearers and joists supporting the deck. This is permitting rain to come through the deck to the floor beneath. Engineering advice is that the deck is designed to provide rainwater protection over the floor. This floor is not drained under the deck and engineering advice to us is that the floor is not waterproofed to Australian standard. Hence the protection for units beneath is in jeopardy.

I do not intend to restate the applicant’s grounds in any detail. These are known to the body corporate in consequence of the application processes. The body corporate has responded to the application in a limited submission, stating that it relies on its legal advice previously obtained from Short Punch & Greatorix, Solicitors (SPG).

In determining the application I have the benefit of several reports and legal advices, including those obtained by the body corporate (legal from SPG and engineering from David Shaw, Consulting Engineer (Shaw)) and those obtained by the applicants (legal from McCullough Robertson (MR) and engineering from CSF Consulting Engineers (CSF)). I note there is no real dispute concerning the facts in any of the material. The "dispute" essentially concerns the application of provisions of the legislation (in particular section 109 of the Standard module) to the facts in order to determine responsibility for the maintenance of the spa deck located on level S of the building, which forms part of lot 78, and is not common property.

It is noted that similar spa decks are located in lots 76 and 77, and whilst this application specifically concerns lot 78, this determination will have similar application to the maintenance of spa decks located in those lots.

Section 109(1 & 2) of the standard module provides as follows -

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.

Section 109 is to be contrasted with section 120, which provides for the "obligations of owners", quote –

120 Obligations of owners and occupiers--Act, s 122
(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition.
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.
(5) This section applies only to a lot that is not a community titles scheme.

The starting point for determining responsibility for maintenance of the spa deck is section 120. The spa deck forms part of the relevant lot. Prima facie therefore, the owner of the lot must maintain the spa deck in good condition. Maintain means to replace part of a lot, if the relevant part of the lot can only be maintained by replacement (ie. for whatever reason, it is beyond repair).

The owner of lot 78 will be responsible for maintenance of the spa deck unless the body corporate is responsible on the basis of provisions included in section 109(2). The body corporate is responsible to maintain "roofing membranes that are not common property but that provide protection for lots or common property" (see section 109(2)(a)(iii)).

The applicants seek to argue that "the decking is and was designed to provide protection to the roof and the units below". They argue this on the basis that the decking was "designed as part of the roof drainage system" and "that the floor under the decking is not waterproofed to the Australian Standard and that there is no drainage trap in the floor under the decking".

I do not agree that the spa deck is a "roofing membrane" for which the body corporate is responsible. This section was specifically included in the legislation with the intention of allocating responsibility for water proofing membranes located in many, if not most, high rise buildings. Such buildings usually have a flat concrete roof slab rather than an angled roof structure found in most low rise buildings. Many of these roof areas form part of a lot, either specifically under the plan of subdivision or by way of the grant of exclusive use of common property. It was felt that it was unfair for the particular owner affected to be responsible for the cost of maintaining a water proofing membrane, given that the membrane really serviced the whole of the building rather than simply the lot in which it was, by necessity, located. Hence the inclusion of section 109(2)(a)(iii) in the legislation.

"Membrane" is defined as "any thin extended sheetlike barrier of material" (see The New Shorter Oxford English Dictionary). There is no evidence before me that the spa deck includes a "membrane". The mere fact that the deck does provide drainage for this area does not in my view render it a membrane within the intended meaning of section 109(2)(a)(iii).

The second basis of possible responsibility of the body corporate for the spa deck is if the spa deck might, under section 109(2)(b)(ii), be considered a roofing or other covering structure providing protection. If it can be classified as such, then the body corporate is responsible to maintain it in a "structurally sound condition". MR, on behalf of the applicants, have stated –

... the spa decking does form part of the ground level of the roof (level S) and provides protection for the lots below. On this basis, the body corporate will be responsible for maintaining the spa decking.

I do not accept that the spa deck was constructed with the intention of providing a roofing structure for the building. Rather it was constructed for the purpose of supporting, and locating at floor level, a spa. The fact that the spa deck also provides a means of drainage for rain water off the spa deck to the level below where a drainage point is located, and has to date prevented rainwater from reaching the roof slab under the spa deck, is incidental in my view. Its primary or intended purpose is not to provide a roof or roofing structure for the lot, or the building generally. Rather, this is the purpose of the concrete slab located under the spa deck. This concrete slab is the roof of the building in my view, and not the spa deck which has been built over this roof solely for the purpose of supporting, and locating at floor level, a spa for the specific amenity of the lot.

I conclude that currently there is no basis under section 109 on which the body corporate is responsible to maintain the spa deck located in lot 78. Consequently, the owner of the lot is responsible of the basis of section 120.

Having come to this conclusion, I now wish to make certain other observations not strictly relevant to the issue of responsibility, but which I nevertheless consider to be relevant. In particular, I wish to respond to the third of the "key questions" posed by the applicants; namely if the body corporate is not responsible for the spa deck under section 109, is it "nevertheless responsible for providing and maintaining waterproofing protection to the roof, which is currently underneath the corroding deck" and if so, "is the body corporate responsible for the cost of removing the deck and its supporting structures to enable the floor under to be properly waterproofed to the Australian Standard".

Given that I have determined that section 109(2) has no application to the spa deck, then the obligation of the owner of the lot is to maintain the lot in good condition (section 120(2)). This obligation includes the spa deck. The obligation of the body corporate is to maintain the roof structure (ie. the concrete roof slab) in a structurally sound condition (section 109(2)(b)(ii)).

There is no evidence before me to suggest that the roof slab is currently in need of any form of maintenance in order to maintain it in a structurally sound condition. Rather it is only a possibility that "if the spa decks were removed allowing stormwater to fall directly and pond on the slab under, leakage could then occur into the units below". In contrast, it is the integrity of the spa deck which has failed and which has allowed some water to reach the concrete slab. In my view, it is the owners responsibility to undertake immediate maintenance of the spa deck, including replacement if necessary. This is so on the basis that the owner has a duty to maintain the lot under section 120.

If the owner fails to properly maintain the lot, which results in water reaching the concrete slab under the spa deck, then the owner may in fact be liable to the body corporate under the provisions of section 109(4) on the basis that the actions of the owner in failing to properly maintain the lot has caused damage to the slab, which the body corporate is responsible to maintain in a "structurally sound condition". In a sense, an owner who has caused deterioration of the slab by a failure to maintain the spa deck might be liable to indemnify the body corporate the future cost of maintenance of the slab in order to reinstate it to a structurally sound condition.

The only possible scenario in which I can envisage the body corporate being responsible to take immediate positive action in respect of the roof slab is if the owner of the lot were to decide to remove the spa deck. Given that the spa and spa deck is part of the lot and not common property, it seems to me that there is no legislative basis to prevent owners removing the spa and deck. I say this without reference to the by-laws which may or may not contain specific provision regarding the spa decks. In the case of removal of the spa and deck by an owner, the slab would then be exposed to the elements, in particular the rain, and given that there is currently no water proofing membrane protecting the slab, then it is foreseeable that sooner or later water lying on the slab would track through the slab to the lot below. In this scenario, the body corporate would be required to professionally water proof the slab. This is so, not on the basis that it must maintain roofing membranes since no such membrane currently exists, but rather on the basis that it must maintain the roofing or other covering structure (ie. the slab) in a structurally sound condition. Thereafter however, the body corporate must maintain the membrane it has caused to be laid on the slab. The body corporate is however not responsible to lay tiles over the membrane it has installed. This is an option for the owner of the lot. If the owner chooses to lay tiles or other form of covering, it should be careful to do so in such a way as not to cause damage to the membrane which the body corporate has installed.

Practically, I consider that the owners of the affected lots (76, 77 and 78) should advise the body corporate when they intend to do the required maintenance work on the spa decks. I say this so as to allow the body corporate the opportunity to arrange for a waterproofing membrane to be installed over the concrete slab roof under the spa decks in conjunction with the maintenance of the spa decks. Whilst it is not imperative in my view that this work be undertaken by the body corporate, I do consider it prudent for the body corporate to attend to this waterproofing at an opportune time rather than to wait for a future time when water which has escaped the spa deck starts to track through the slab concrete roof into the lots below, but when access to the affected area is much more difficult. There are benefits in this approach to owners of lots 76, 77 and 78 as it is their lots which will be affected if water does in fact escape the spa deck and track through the concrete slab roof.