Pintari [2004] QBCCMCmr 539 (9 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0184-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6231
Name of Scheme:	Pintari
Address of Scheme:	13 Cunningham Avenue MAIN BEACH QLD 4217

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

Ms L Brauns, the Owner(s) of lot 2

I hereby order that the body corporate is to pay $194.50 towards the cost of re-tiling the balcony of lot 2 within 30 days of being provided with an invoice or written notice that the tiling is complete. This amount is ten percent of the expected cost of re-tiling the balcony and represents the body corporate’s contribution to the repair of damage likely to have been contributed to by the body corporate’s delay in addressing the problem of tree roots coming onto the balcony from the common property. I further order that if, at any time within the next three months, water is ponding adjacent to the applicant’s balcony more than one hour after moderate rainfall or the use of sprinklers by the body corporate then the body corporate is to take reasonable steps to fix the problem by the addition of aggregate to improve drainage.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0184-2004

"Pintari" CTS 6231

Application

Pintari Community Titles Scheme (Pintari) is a 72 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard). The scheme is designed for residential purposes. Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Linda Brauns, the owner of lot 2 (applicant) seeking orders against the body corporate (respondent).

Background

The applicant is seeking orders requiring the body corporate to rectify damage to the tiling on her patio and carry out works on the common property to prevent further damage.

Submissions

The applicants’ main submissions were that:

• Tiles on her balcony have lifted due to roots invading from the common property and water coming under the tiles;
• She first wrote to the manager on 11 July 2003 seeking to have the problem rectified.
• The resident manager arranged for some repairs but this will only fix the problem temporarily;
• She met with the committee on 17 November 2003 to try to explain the problems, including inappropriate plantings on common property that have invasive roots and inappropriate draining leading to ponding of water. These problems have still not been fixed; and
• Inappropriate plantings on common property are likely to lead to root intrusions that damage the common property car parking area as well. These inappropriate plantings should be removed.

The applicant has provided a report from Kaldoe Building Inspections dated 4 February 2004. This report indicates that tiles on the patio may not have been laid in accordance with Australian Standards. It also indicates that the tiles may be affected by water ponding at the edge of the slab and from tree roots from nearby gardens.

The body corporate’s submissions are to the effect that only some of the loose tiles were due to plant root egress and others were loose as a result of poor adhesion between the base and the tiles. It is submitted that the committee has agreed to remove the offending plants and made reasonable offers to assist the applicant. However, it is also submitted that the balcony area is the responsibility of the owner to maintain and was in its present poor condition at the time the applicant purchased her lot.

Submissions from another owner show support for the removal of common property plantings that have aggressive root systems. However, this submission states that original tiles on upper level balconies are also lifting, even without root intrusion. It is submitted that the tiles are over fifteen years old and that it is the responsibility of an owner to replace their own tiles.

Decision

Prevention of further damage

I held a teleconference with the applicant and a member of the committee on 30 September 2004. At this teleconference it was confirmed that the fig trees near the applicant’s balcony have now been removed. This should prevent further invasion of roots onto the balcony. The applicant continued to express concern about ponding of water near her balcony. However, the committee representative said that this problem could be fixed by alterations to the direction of the sprinkler heads and the addition of some more aggregate.

The committee representative also said that all owners would shortly be considering a proposal to remove the fig trees near the car park and pave the area near the tennis court. He said that if this proposal was adopted it would address the applicants concern about the roots from the fig trees causing damage to the car park.

The body corporate has an obligation to maintain the common property gardens in good condition and can also make improvements to the common property gardens (Standard Module 109, 113). I am satisfied that the body corporate’s steps in removing the fig trees adjacent to the applicant’s balcony are sufficient to address any reasonable concerns of the applicant regarding roots from those trees lifting her balcony tiles. However, it appears that the body corporate should take reasonable steps to address the issue of any water ponding against the applicant’s balcony. In particular, while some ponding may occur after heavy rainfall, it would seem reasonable to expect that ponding not continue for more than an hour after normal irrigation or moderate rainfall. I will therefore make an order that if ponding occurs within the next three months then the body corporate is required to take reasonable steps to improve drainage through the addition of aggregate. If problems continue after that period then the applicant will need to seek that the body corporate take alternative reasonable steps to improve drainage.

The applicant has also expressed concern about fig roots damaging the common property car park. The body corporate has submitted that this issue is being considered as part of a proposal to make substantial improvements to the common property. I am not sure what exactly is proposed in this regard. However, the applicant has not established that it is necessary or appropriate for me to make an order at this stage. All owners, including the applicant, are entitled to formulate a proposal for alteration to the gardens. This proposal can then be submitted to the general meeting for consideration by all owners. If there is evidence subsequently that the body corporate is refusing to properly maintain the common property and the car park area is suffering from root damage then it may be appropriate to seek dispute resolution at that time.

Contribution to damage that has already occurred

The second question is whether the body corporate should contribute to the repair or replacement of the tiles on the applicant’s balcony. Owners are generally responsible for the maintenance of their own lot (Standard Module, 120(2)). However, if an owner can show that damage to their lot was caused by a failure of the body corporate to maintain the common property then the owner may have a basis for claiming compensation from the body corporate.

One difficulty for the applicant is showing that the extent of damage caused by the roots is significant. The applicant has provided photographs that show roots are present under some of the lifted tiles. However, there is also evidence that the tiles were not initially laid in accordance with Australian Standards, that there is poor adhesion between the base and the tiles, that the tiles are over fifteen years old, and that tiles are lifting on other balconies that are unaffected by tree roots.

Further, there is evidence that the balcony had lifting tiles at the time the applicant purchased the lot in April 2003. This indicates that the previous owner had failed to take adequate steps to have problems with the tiles addressed when they first became apparent. Even the previous owner would have limited ability to recover compensation from the body corporate given the potential other causes of lifting tiles and an expectation that the previous owner should have become aware of the tree root problem within a reasonable period of time and notified the body corporate before significant damage could occur. The applicant faces the additional difficulty that the poor condition of the tiles should have been reflected in the purchase price, making it difficult for the applicant to show that she has suffered loss.

On the other hand, the body corporate did delay several months after the applicant’s first complaint about the tree roots before taking action to remove the trees and roots. The building inspection report and photographs submitted by the applicant satisfy me that some additional damage to the applicant’s tiles was caused by the tree roots in that period. I consider it just and equitable that the body corporate contributes ten percent of the reasonable costs of retiling the applicant’s balcony to compensate her for damage caused by the tree roots. The applicant has provided a quotation for $1,945 and the body corporate has not objected to the amount of this quotation. I will therefore order that the body corporate contribute $194.50 to the costs of retiling.

Order

For these reasons, I make the order above.