Brentford Villas [2003] QBCCMCmr 358 (30 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0580-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22161
Name of Scheme:	Brentford Villas
Address of Scheme:	99 - 103 Sunshine Boulevard MERMAID WATERS QLD 4218

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

Forbes West Blackhall and Shirley Phyllis Blackhall, the co-owners of lot 13



RA MeekI hereby order that the application by Forbes West Blackhall and Shirley Phyllis Blackhall, the co-owners of lot 13, for an order that the body corporate of Brentford Villas pay for removal and replacement of retaining walls on the canal side of unit 13 and part of unit 12, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0580-2002

"Brentford Villas" CTS 22161

The applicants, Forbes West Blackhall and Shirley Phyllis Blackhall, the co-owners of lot 13, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Brentford Villas B/C to pay for removal and replace retaining walls on canal side of unit 13 and part of unit 12.

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 for the reason that the retaining wall in question is located on common property, the body corporate should be responsible for its removal and replacement which is required due to white ant infestation, or at least "high risk" thereof. The applicants state –

... As the retaining wall is outside of unit 13 survey pegs and is on B/C common it is our understanding B/C pay for replacement wall.

A letter provided with the applicants grounds states that –

The committee advises that because the wall has infringed on common area property during construction by the builder or previous owner, that the body corporate will not make any payment toward replacement or repair of it.

The applicants rely on section 109 of the standard module as the basis of body corporate responsibility for maintenance of common property. Section 109 provides –

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.

This office sought submissions in respect of the application from the body corporate committee and all owners. The committee, and 9 of 12 owners, excepting the applicants, have responded to that notice inviting submissions. The committee, and all owners who responded, oppose the application, and consider that it is the responsibility of the applicants to replace the retaining wall in question.

Following the survey by the applicants, it appears not to be disputed that the retaining wall in question is located on common property. Given this, then prima facie, on the basis of section 109(1), the body corporate is responsible for maintenance.

The question which I must determine is whether, in all the circumstances, this outcome is "just and equitable" (see section 223 of the Act).

There is some evidence, which is not contradicted by the applicants, that the retaining wall in question has previously been replaced by the former owner of the applicant’s lot. One owner has submitted that –

Originally the retaining wall was located within lot 13 in a "V" shape pointing towards the canal. At the later time the owners of lot 13, and other lots, replacing the retaining wall so that it was parallel with the canal, to provide greater use of the backyard within the lot. However, the lot owner replaced the retaining wall so that it was erected on common property, not within the individual lot. The lot owner did not have body corporate approval to infringe upon the common property and therefore is not common property or the responsibility of the body corporate.

This writer then refers me to section 109(3) which states –

(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; ...

The writer concludes –

The relocation of the retaining wall the location which infringes upon body corporate common property is for the benefit of each individual unit owner. The lot owners obtain greater use of their backyard because of the re-location of the retaining wall.

The replacement of the retaining wall by a previous owner of the applicant’s lot was also acknowledged in the submission of the body corporate secretary.

The applicants have replied to this aspect as follows –

The B/C ... has stated that unit 13 retaining wall has infringed on B/C common ground and that wall was erected without B/C approval.

Unit 13 feels that they cannot be held responsible for the past mismanagement of B/V B/C common ground. Its up to the committee to make sure that anything erected has B/C approval. As the B/C will not pay to have survey done or B/Villas as a whole, problems will still be there. ...

Unit 13 feels they are being penalised unfairly because of the B/C mistakes from the past. It is unit 13 strong opinion that the B/C B/Villas are totally responsible to pay to remove and replace restraining wall in dispute, as current survey clearly shows wall is outside of unit 13 survey pegs.

I am not satisfied of the merits of the applicant’s argument. I do not consider it a reasonable position that simply because a previous owner mistakenly replaced a retaining wall on common property, and not within the boundaries of the lot, that thereafter the body corporate should be responsible for the maintenance, including replacement, of that retaining wall. Clearly the retaining walls throughout the complex are for the benefit of particular lots. Historical practice in the scheme has always been that when retaining walls were in need of replacement, that the owner of the lot which received the benefit of the retaining wall was responsible for that maintenance. This has been confirmed by most, if not all, owners who responded to the notice inviting submissions.

I do not agree with the applicant’s statement of past mismanagement of the common property by the committee. Given that the retaining walls were the responsibility of owners to replace, then it is not surprising to me that the position of the retaining wall varied somewhat when it was replaced by the previous owner. The applicants now seek to benefit from this seemingly inadvertent error by having the body corporate made responsible for the maintenance of the retaining wall.
I do not consider this a reasonable outcome, and I am not prepared to order to this effect. I conclude the body corporate practice of each owner being responsible for the maintenance of respective retaining walls servicing their lots is a reasonable one, and should be continued. It is certainly not fair to have the body corporate pay for the replacement of the applicants’ retaining wall, where it has not paid to maintain other retaining walls in the past. Accordingly, I have dismissed this application. y