Teneriffe Hill Apartments [2005] QBCCMCmr 636 (15 November 2005)

Number of Scheme:	24567
Name of Scheme:	Teneriffe Hill Apartments
Address of Scheme:	29 - 43 Florence Street TENERIFFE QLD 4006

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

I hereby order that the application for an order

That the notice of Continuing Contravention of Body Corporate By-law be declared invalid under sections 182(6) and 182(4) of the Body Corporate and Community Management Act 1997.

Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0502-2005

"Teneriffe Hill Apartments" CTS 24567

"Teneriffe Hill Apartments" is a subdivision of 68 lots in a Building Format Plan. The regulation module applying to the scheme is the Accommodation Module.

APPLICATION

By application dated 15 July 2005 the applicants seek the following order:

That the notice of Continuing Contravention of Body Corporate By-law be declared invalid under sections 182(6) and 182(4) of the Body Corporate and Community Management Act 1997.

BACKGROUND

On 5 April 2005 Teneriffe Hill Apartments received notification of a contravention of the Fire and Rescue Services Act 1990 and Building Fire Safety Regulation 1991 which reads as follows:

"At the time of inspection it was noted that a false ceiling had been put in place on the ground level of the building. On further inspection it was noted that none of the Special Fire Services or Fire Safety Installations attached to the original ceiling had been brought down to the new ceiling.

(1) This is an offence-

A person commits an offence against the Act if the person does or as the case may be, fails to do any of the following acts-

(d) wilfully and unlawfully destroys, damages, removes, covers or otherwise interferes with an alarm or other apparatus for the warning of fire or any apparatus for the prevention of fire or for the use in the event of fire.
(2) A person who fails to comply with any provision of this Act commits an offence against this Act.

You are required to take the following action-
1. To have all Special Fire Services and Fire Safety Installations installed correctly to the correct Australian standard, and so that they are in appropriate positions.

2. Maintain and test all Special Fire Services and Fire Safety Installations at regular intervals according to Australian Standards.

Failure to rectify these faults is an offence under the Fire and Rescue Services Act 1990 and Building Fire Safety Regulation 1991. This department will re-inspect in 28 days from the date of this correspondence."

It would appear that this notice related to lots 1, 2 & 3 which are commercial lots owned by Yates Nominees Pty. Ltd. The body corporate subsequently issued to the applicant a "Notice of Continuing Contravention of a Body Corporate by-law" stating that it had reasonable grounds to believe the applicant was contravening the following by-law-

46(a) The Commercial Lots must comply with all statutes and regulations, regulating noise and governing the behaviour of invitees and licensees.

The applicants state that the required work was completed in lot 2 by Chubb Fire Safety as requested. However, as lot 1 was leased, the applicant sought advice from the Department of Emergency Services as to what action was required. In reply, by letter dated 7 June 2005, the Department advised that compliance with the fire safety regulation was the responsibility of the occupier.

The applicants submit that they have rectified contraventions in areas which are accessible to them, occupiers of the leased lots were notified of their obligations and they undertook to rectify any outstanding requirements as soon as possible. For example, lot 3 was tenanted until September 2005 and the applicant undertook to rectify the contravention when it regained vacant possession.

SUBMISSIONS

The body corporate committee submits that remedial action needs to be taken to ensure the safety of occupants of the residential lots which are located above the commercial lots.
Following the inspection of the building in April 2005, the applicants were aware that that lots 1 & 2 did not comply with the Fire and Rescue Services Act 1990 and Building Fire Safety Regulation 1991.

The body corporate engaged a contractor named Billdon Fire Services to carry out an inspection of the building. The contractor provided the applicant with a list of defects as well as a quotation to fix the defects and provide a certificate of compliance. It is submitted that this request was ignored and that while the applicants have engaged Chubb Fire protection Services to carry out some rectification work, no certificate of compliance has ever been obtained.

It is claimed that smoke detectors are still located within the ceiling cavity, the fire control panel has not been connected correctly and no certificate of compliance has been issued. It is also claimed that the applicants have sought to pass on this responsibility to his tenants who rented the non-compliant premises from the applicants.

Finally, the body corporate committee submits that unless the applicants produce compliance certificates within 14 days, then OZfire Protection Pty. Ltd. the company currently contracted by the body corporate to ensure the building complies with all fire regulations, should be required to carry out the necessary compliance work and provide invoices to Yates Nominees.

JURISDICTION

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)).

Section 276(3) provides that an adjudicator may make an order mentioned in Schedule 5.

DETERMINATION

The applicant claims that the Notice of Continuing Contravention should be declared invalid on the grounds that
(i) the period within which remedial action was required was unreasonable, and

(ii) compliance with the Fire and Rescue Services Act 1990 and Building Fire Safety Regulation 1991 is the responsibility of tenants rather than the owner of the commercial lots.

It is extremely concerning that in a predominantly residential development, fire safety installations such as smoke detectors are still located within the ceiling cavity of the ground floor commercial lots. The body corporate is of the view that the purpose of by-law 46(a) is to oblige both the proprietor and occupier of a commercial lot to ensure compliance with all statutory requirements applicable to the lot. In the absence of any dispute as to the meaning or interpretation of by-law 46(a) I am inclined to accept this interpretation and consequently dismiss the application.

I would also point out to the applicant that irrespective of this by-law or whether it is the responsibility of the owner or occupier under the Fire and Rescue Services Act 1990 to ensure installation of Special Fire Services and Fire Safety Installations, section 120 of the Body Corporate and Community Management (Accommodation Module) Regulation would be applicable and provides as follows:

120 Body corporate may carry out work required of owners and occupiers-- Act, s 161

(1) This section applies if the owner or occupier of a lot included in the scheme does not carry out work that the owner or occupier has an obligation to carry out under--

(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme; or

(2) The body corporate may carry out the work, and may recover the reasonable cost of carrying out work from the owner of the lot as a debt.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Teneriffe Hill Apartments [2005] QBCCMCmr 636 (15 November 2005)