8th Avenue Plaza [2004] QBCCMCmr 39 (21 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0481-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7714
Name of Scheme:	8th Avenue Plaza
Address of Scheme:	1176 Gold Coast Highway PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for 8th Avenue Plaza

I hereby order that under the provisions of section 20 of the Act, and section 109 of the Standard Module, the body corporate of 8th Avenue Plaza is responsible to maintain the vent servicing lot 1 since the vent is utility infrastructure located on common property of the parcel, which does not fall within any of the exceptions to body corporate responsibility contained in section 20 of the Act.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0481-2003

"8th Avenue Plaza" CTS 7714

The applicant, the body corporate for 8^th Avenue Plaza has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

An order declaring that the dispute between the owners of lots 1 and 46 over noise / vibrations emulating from an air vent is a private matter to be resolved between the two owners and is not a matter for the body corporate.

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)).

The scheme

8^th Avenue Plaza is a 46 lot scheme, recorded under a building unit plan (now a building format plan) of subdivision.

The Application

There is no dispute concerning the facts of the matter. The body corporate is seeking a declaration that it is not responsible for maintenance of an vent servicing lot 1 and located in a common property void area adjoining (on three sides) lot 46. I conclude that the body corporate has already had its answer to the question posed by the application. In correspondence to the secretary of the body corporate of 16 December 2002, Attwood Marshall Lawyers concluded that –

... and as the exhaust vent forms part of the common property, the body corporate is responsible for maintaining the exhaust vent (and) ensuring that it does not adversely affect the workplace of lot 46.

I agree with this conclusion, and the reasons for it, as set out in the letter to the secretary, subject to one clarification. Section 20 (formerly 21) of the Act provides –

20 Utility infrastructure as common property
(1) Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, except utility infrastructure--
(a) solely related to supplying utility services to a lot; and
(b) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and
(c) located other than within a boundary structure for the lot.
(2) However, common property does not include utility infrastructure positioned within common property if--
(a) its positioning is the subject of an agreement to which the original owner or the body corporate is a party; and
(b) under the agreement, ownership of the utility infrastructure does not pass to the original owner or body corporate.
Example of utility infrastructure for subsection (2)--
Cable television wires positioned in the service shaft of a multistorey building that is scheme land for a community titles scheme, if the wires remain in the ownership of a cable television provider.
(3) In this section--
"boundary structure", for a lot included in a community titles scheme, means a floor, wall or ceiling, other than a false ceiling, in which is located the boundary of the lot with another lot or common property.

As the conditions in section 20(1) are not satisfied, then as the vent is utility infrastructure forming part of scheme land (ie. Common property), the body corporate is responsible to maintain it under section 109 of the Act. The only other possible exception to this rule is that set out in section 20(2);
common property does not include utility infrastructure positioned within common property if--
(a) its positioning is the subject of an agreement to which the original owner or the body corporate is a party; and
(b) under the agreement, ownership of the utility infrastructure does not pass to the original owner or body corporate.

If at the time the vent was built, its positioning was the subject of an agreement with the original owner or the body corporate, whereby ownership of the utility infrastructure did not pass, then responsibility for maintenance of the vent would remain with the owner of lot 1.

I understand that the scheme was not subdivided as a building format plan immediately. Given this, then the body corporate will not be liable to maintain the vent if it can establish that the original owner entered an agreement with the owner of lot 1 regarding future ownership (and presumably maintenance) of the vent. There is no evidence to this effect, and it seems unlikely. Given this then the earlier conclusion of body corporate responsibility for maintenance stands.

Submissions have been received from the owners of lots 1 and 46 concerning the application. The owner of lot 1 states that they have "done more that could reasonably have been expected of us in light of the Engineers early report in a conscientious attempt to resolve this issue". The submission details the endeavours made by them. Apparently though these endeavours have not been to the satisfaction of the owner of lot 46.

The owner of lot 46 has sought a number of orders or outcomes to the application including quiet enjoyment of lot 46, and more specifically, to compel the body corporate and the owner of lot 1 to "comply with body corporate by-laws to fix the problem of vibration and noise emanating from the exhaust vent servicing lot 1 and situated on body corporate property".
I do not intend to investigate nor propose to make orders regarding such matters. The application concerned the question of the responsibility of the body corporate to maintain the vent. It did not extend to ordering any party to maintain or undertake repairs, except to find that the responsibility to maintain the vent is the responsibility of the body corporate. The owner of lot 46 should now approach the body corporate seeking a response. If a satisfactory response is not forthcoming within a reasonable time, then the owner of lot 46 might approach this office for appropriate orders.

However, I suggest to the owner of lot 46 that in any such application, she will need to support or evidence any allegations of noise or vibration with technical evidence to this effect (eg. a report of an acoustic engineer or other suitable appropriately qualified expert), and not simply allegations that noise or vibration exists.