Balnamara [2004] QBCCMCmr 503 (25 October 2004)

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

I hereby order that the body corporate shall, at its expense and within three months of the date of this order, undertake all necessary repairs to the Balcony of Lot 1 in order to repair structural damage caused by spalling concrete.

I further order that, within three months of the date of this order, the body corporate shall arrange for the purchase and laying of tiles for the entire surface area of the Balcony of Lot 1, provided that:

• The tiles are to be chosen by the Owner of Lot 1 at a cost not exceeding $30 per square metre; and
• The total cost of the purchasing and laying of the tiles is to be apportioned on the basis of the Owner of Lot 1 contributing 60% of the total cost and the body corporate contributing 40% of the total cost.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0505-2004

"Balnamara" CTS 14419

The Scheme

The Balnamara community titles scheme ("Balnamara") is registered as a building units plan (now known as a building format plan) of subdivision, comprising ten lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

The Application

This application is brought by the Owner of Lot 1, Barbara Nancy Jackson (the Applicant), against the Body Corporate, seeking an order that the Body Corporate retile her balcony. The Applicant claims that the retiling will be necessary after repairs to the balcony are undertaken by the body corporate. The repairs are stated to be necessary due to spalling concrete, or concrete cancer, as it is sometimes referred to. The Applicant claims that the damage is structural and, as such, the body corporate should be responsible for the repairs. Because matching tiles are not available, the Applicant believes the body corporate should retile the entire balcony.

Submissions

Submissions in response to the application were sought from all owners and the committee. The committee believes that the body corporate is responsible for structural repairs on the Northern end of the balcony and the replacement of the tiles which are removed to do those repairs. The choice of tiles, assuming that the original tiles could not be reused, would be a matter for agreement with the owner. They go on to state that they would not wish to remove any tiles on the front section unless there was clear evidence of structural damage.

Three owners also made submissions. The Owners of Lot 9 believe that if it can be shown that the tiles need to be removed because of structural damage, then the body corporate should be responsible for replacing those tiles only. The Owners of Lot 10 support the Applicant’s claim to have her balcony restored to its original condition. The Owner of Lot 8 states that he has inspected the damage in question and believes that it appears to be structural in nature. He believes that the body corporate should pay for all rectification engineering works to those parts of the balcony which are defective. Given that it will not be possible to relay the same tiles following the engineering works which are to be undertaken, the Owner of lot 10 suggests that the cost of replacement and laying of new tiles on the balcony should be apportioned between the Applicant and the Body Corporate on a 70% body corporate, 30% Applicant basis.

Determination

Balnamara was originally created under a building units plan of subdivision (now known as a building format plan of subdivision). This type of plan defines land using the structural elements of a building including walls, floors and ceilings, and the projections of those structural elements (see section 48C of the Land Title Act 1994). Generally, where a lot is separated from another lot, or common property by a floor, wall or ceiling, the boundary of the lot is the centre of the wall, floor and ceiling (see section 49C(4) of the Land Title Act 1994).

An examination of the registered building units plan reveals that the balcony in question is within the boundaries of Lot 1.

Section 120(2) of the Standard Module requires owners of lots included in a community titles scheme to maintain their lots in good condition. Section 109(1) of the Standard Module imposes an obligation on bodies corporate to maintain the common property for the scheme in good condition. In the case of a scheme created under a building format plan of subdivision, section 109(2) of the Standard Module imposes some additional obligations on the body corporate. Specifically, section 109(2) of the Standard Module provides the following (bolding my emphasis):

In most cases, any necessary maintenance and repair of floor tiles located on a balcony within the boundaries of a lot are the responsibility of the owner of the lot. However, in my view and in respect of schemes created under a building format plan of subdivision, if the balcony of a lot "provides protection" for other lots or common property in the scheme, then the body corporate has an obligation to maintain the balcony in a structurally sound condition in accordance with section 109(2)(b)(ii). The photo of the scheme supplied by the Applicant, along with the registered building format plan, shows that the balcony of Lot 1 sits above an area of common property car space and also a pedestrian entrance to the scheme. In my view, the balcony of Lot 1 therefore provides protection for common property and the body corporate is therefore obliged to maintain it in a structurally sound condition.

The Applicant supplied a copy of a report by Jeffrey Hills & Associates Pty Ltd, Remedial Building & Civil Services, dated 18 December 2003. That firm conducted an inspection of the balcony of Lot 1 and provided a quote for the necessary repairs. The report stated that repairs would be necessary to an area of approximately 10 lineal metres of bars on the balcony surface directly outside the North facing sliding balcony door. The report also mentioned that the retiling of the repaired area would be at an additional square metre cost to the price quoted. It went on to state that, due to the age of the original tiles, a match would be unlikely. I contacted Mr Adrian Dundas, author of the report, on 18 October 2004 in order to ascertain what proportion of balcony area required repair. Mr Dundas advised that approximately 1/5, or 20%, perhaps even less, of the balcony surface area required repair due to spalling concrete, which he considered to be structural in nature. He mentioned that there were other areas of the balcony that reveal drummy tiles, however, this was not necessarily due to spalling concrete. He advised that drummy tiles can be caused by building/physical movement through settlement or thermal movement. He also commented that insufficient expansion joints between the tiles, particularly in older mosaic tiles, contributed to drummy tiles. He stated that it was only the Northern end of the balcony of Lot 1 that required repair due to spalling concrete.

In my view, tile repairs that are necessary due to building/physical or thermal movement and do not compromise the structural integrity of the building, should be the responsibility of the owner, in accordance with their general maintenance obligation under section 120(2) of the Standard Module. However, the repairs that are necessary in relation to the spalling concrete are properly the responsibility of the body corporate under section 109(2)(b)(ii) of the Standard Module. Because it is necessary to lift the tiles on the section of the balcony which requires repair, in my view the body corporate should also be responsible for the cost of doing this, as well as re-tiling the affected area.

While I am convinced that approximately 20% of the Applicant’s balcony requires repair and retiling due to spalling concrete, which is a structural defect, and that the body corporate should be responsible for the cost of this work and the retiling of this area, I am not convinced that the body corporate should be responsible for the cost of retiling the entire balcony. At the same time, I do appreciate that the Applicant will be disadvantaged by having mis-matched tiles laid on the balcony and understand her desire to have a uniformly tiled balcony. However, the tiles in question are over 30 years old and there is evidence of damage to other areas of the balcony that do not appear to be the result of spalling concrete and for which the owner would be responsible. The balcony in question is of a large surface area and at this stage, the proportion of it which requires retiling due to concrete cancer is estimated to be no more than 20%. In these circumstances, I consider that apportioning the cost of the tiles and the re-tiling of the entire balcony between the Applicant and the body corporate is warranted. I conducted a teleconference with the Applicant and Mr Renton, on behalf of the body corporate committee, on Monday 25 October to assist me gain information in arriving at an apportionment that I consider to be just and equitable in the circumstances and one which also balances the competing interests of the Applicant and the body corporate. During that teleconference, the parties agreed to accept my suggested apportionment, based on all the factors mentioned above, on a 60% Applicant, 40% body corporate basis for the costs of obtaining and laying tiles over the entire balcony.

My order is that the body corporate, at its expense, undertake the repairs necessary in order to repair the concrete cancer within the balcony of Lot 1. The body corporate must also retile the entire balcony of Lot 1, with the tiles to be chosen by the Applicant (provided their cost does not exceed $30 per square metre) and with the Applicant contributing 60% of the cost of the tiles and the laying of them, and the body corporate contributing the remaining 40%.

If, in the course of the work being done, it becomes apparent that the concrete cancer is more extensive than thought at this point in time, the Applicant would be entitled to lodge a further application to resolve a dispute with the office, seeking reimbursement from the body corporate for a higher proportion of the cost of the tiles and the cost of laying them.

Number of Scheme:	14419
Name of Scheme:	Balnamara
Address of Scheme:	166 Esplanade BURLEIGH HEADS QLD 4220

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Balnamara [2004] QBCCMCmr 503 (25 October 2004)