Beachwalk Mooloolaba [2004] QBCCMCmr 319 (22 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0706-2003

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), as the owner of Lot 1,

I hereby order that the application for the following order – "Abolish watering & sweeping down of unit balconies above Unit 1", is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0706-2003

"Beachwalk Mooloolaba" CTS 18233

The applicant, Armando Zanco of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"Abolish watering & sweeping down of unit balconies above Unit 1."


JURISDICTION:
This is a dispute between an owner (the applicant) and other owners (the first respondent being John Walter and Caroline Anne GREY, the co-owners of Lot 6; and the second respondent Edwin John CURAN and Diane BRYANT, the co-owners of Lot 8) concerning the habit of the respondent owners in hosing clean their respective balconies resulting in dirty water falling onto the applicant’s balcony and garage apron. This is a matter of the maintenance of a lot that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

General powers of an Adjudicator in making an order:

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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the body corporate committee, the respondents and to all other owners, with an invitation to each to respond to the matter of dispute raised in the application. Submissions were received from the respondent committee opposing the application and from the following owners: I&P Chandler of Lot 5; the respondents J&C Grey of Lot 6; and the respondent E Curan of Lot 8, all opposing the application. The applicant did not view the submission in order to make a reply to them (see sections 244 and 246 of the Act).

The brief facts of the matters are as follows.

The applicant claims that the occupiers of the top floor Units 6 and 8 use hosing as a means of cleaning their balconies with the result that dirty water spills over the balcony edge onto the applicant’s balcony and garage area. This matter was discussed at the annual general meeting held on 13 October 2003 when a discussion resulted in an arrangement for owners to give 7 days written notice to other occupiers when they propose to wash their balconies. It was the applicant who raised the matter under "General Discussion" at the meeting when both respondents were present.

He did not agree with the outcome at the time, and now suggests that the cleaning of upper balconies should be controlled by mopping rather than hosing so there is no spillage onto his balcony.

The Greys state that they only clean their balcony 3-4 times a year and have always notified the occupiers of the lot beneath, Lot 2, when they were going to do so. They state that the location of the scheme near a main road results in a build up of vehicle fuel deposits and dust that requires detergent cleaning followed by a hosing off. The design of the building means that, as with rainwater from the roof, some hosed water reaches the balcony below.

Curan submits that only the balcony of Lot 5 is so located such that hosed water may spill down onto Zanco’s balcony; his Lot 8 is furtherest away from the applicant’s lot. Despite this distance, he states that Zanco abused him and other occupants of Lot 8 when they hosed down their balcony, saying the practice was "illegal". He also points out that though Zanco maintains that his balcony is cleaned with a mop and bucket and no water falls on the common property below, there was water staining on his balcony facing – that staining is evidenced in a photograph taken before all facings were painted a dark blue.


DETERMINATION:
"Beachwalk Mooloolaba" was registered as a building units plan (now termed a building format plan) on 26 July 1994 and comprises eight residential lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

In determining this application, I note that a similar application was lodged by Zanco in mid-February this year. That other application was determined by Order 99-2004 issued on 31 March 2004 by a fellow Adjudicator, PJ Hanly. As both applications concern the related issues of the hosing of the upper balconies and the arrangement for owners to give prior notice to other occupiers of balcony cleaning/hosing, the second application should properly have been refused. However it wasn’t and I therefore must proceed to determine this application though I will do so with reference to the previous decision.

I agree with the finding of my colleague that the "washing down of balconies, windows and fascias is necessary to properly maintain the building."

That is, owners of lots have a duty to maintain their lots, including their balconies, under section 120 of the Standard Module and in this instance the scheme location demands that a vigorous cleaning is necessary and owners have a right to carry that out by detergent cleaning and hosing off. The balconies do not feature a perimeter upstand, which is not unusual, and therefore rainwater, and hosed water, can only cascade down the building as the owner of Lot 8 has described in his submission. That was the state of the building when each owner purchased their lot, including the applicant.

As this manner of cleaning only takes place every 3 months or less, Zanco should accept it as a slight and passing inconvenience and as one of a number of concessions persons have to endure when choosing to live in a community titles scheme.

I might also mention that the 7-day notice was not a formal decision of the body corporate in general meeting arising out of a motion, but an arrangement in the nature of a "gentlemen’s agreement" amongst those persons present, though subsequently complied with by others. There is nothing wrong with such an arrangement, sufficient for such a relatively unimportant matter, but it remains just that.

For the foregoing reasons I have dismissed the application.