Beachwalk Mooloolaba [2004] QBCCMCmr 179 (31 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0099-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18233
Name of Scheme:	Beachwalk Mooloolaba
Address of Scheme:	43 Buderim Avenue, MOOLOOLABA QLD 4557

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Armando Zanco, (shown on the certificate of title as Amanda Zanco) the owner of lot 1

I hereby order that the application for an order that owners adopt alternative methods of cleaning balconies for example mopping as opposed to hosing, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0099-2004

"Beachwalk Mooloolaba" CTS 18233

The applicant, Armando Zanco, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

The outcome sought is to adopt alternative methods of cleaning balconies for example mopping as opposed to hosing.

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)).

On 20 February 2004, I dismissed the application for an interim order that the hosing and sweeping down of balconies cease until a final determination was made. In order to provide the background to that decision, I have set out below my statement of reasons for that decision:

The applicant stated in his supporting grounds that:

•	The occupiers of lots 6 and 8 clean their balconies with a high pressure hose and detergent
•	Dirty water is thereby deposited on the applicant’s balcony and outdoor furniture
•	He has on occasions been splashed by dirty water when going to his garage
•	The matter was raised at the annual general meeting held on 13 October 2003
•	It was agreed that owners wishing to clean their balconies give 7 days’ notice to owners below to enable them to move furniture
•	He disagreed with this solution, and was advised to lodge a dispute application
•	He has lodged a dispute application (0706-2003) which has not yet been determined
•	He has received notice that lots 6 and 8 intend to hose down their balconies on February 21 and 22 and again on March 5 and 8, 2004

I note that the submission period in application 0706-2004 expires on 19 February 2004, and that the applicant has until 4 March 2004 to reply to the submissions.

I have perused the minutes of the annual general meeting held on 13 October 2003, and note that the applicant objected to the hosing of balconies, which prompted another owner to observe that this was a matter of maintenance. I further note that after discussion amongst the four owners present (including the applicant and the owners of lots 6 and 8) it was decided that "all owners/occupiers are to give all other owners/occupiers seven (7) days written notice stating date and an approximate time, of their intent to clean their balcony with a hose therefore alerting all occupiers to the possibility of water coming over the balcony." I further note the applicant’s objection.

Sections 120(1) and (2) of the Standard Module, by which this scheme is regulated, provide as follows:

120 Obligations of owners and occupiers--Act, s 160

(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) ...

I do not intend to prevent owners from carrying out their obligations to keep their lots clean. I consider that sufficient safeguards have been put in place to ensure that owners of the lower lots can remove their furniture and other items during the cleaning process. I cannot see how any cleaning carried out by the owner of lot 8 could impact upon the applicant’s lot, given that it is at the other end of the building.

I shall make a final determination in this matter in due course after owners have had the opportunity to lodge a submission in relation to the final order sought.

Since making the interim order, submissions have been sought from all owners. Submissions were received from three owners of two lots, all of whom opposed the order sought by the applicant. Both submissions referred to the painting contractor’s suggestion that salt spray, dirt and grime should be removed from the building by regular washing down.

The applicant did not reply to the submissions.

I note that on 12 February 2004 Mr Bob Burchall, the Sunshine Coast manager of T.A Taylor (Qld) Pty Ltd, advised the body corporate chairperson of the recommended maintenance procedures to assist in the short, medium and long term protection of the recently painted scheme building. That recommendation included regular washing down of external surfaces to remove salt deposits and road grime.

I am satisfied that the washing down of balconies, windows and fascias is necessary to properly maintain the building. I am further satisfied that the body corporate has taken appropriate steps to minimise inconvenience to owners when owners of higher lots wish to wash down their balconies and/or windows, by requiring that 7 days’ notice be given to other owners.

I have dismissed the application.