Torelliana [2006] QBCCMCmr 26 (19 January 2006)

Number of Scheme:	22061
Name of Scheme:	Torelliana
Address of Scheme:	Miami Village - 170 Bardon Avenue MIAMI Q 4220

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

I hereby order that the application by Michael Stockdale for an order that the body corporate "re-install the original ‘approved by Council’ storm water drainage system for Lots 19,20,21 and 22. The removal of the GCCC noted ‘in breach’ stormwater pipe secured to Lot 15’s garage walls. The reinstatement and/or repair of Lot 15’s structurally damaged garage walls by a registered builder to GCCC Building Compliance Regulations and Australian Building Standard to the body corporate’s cost." is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0611-2005

"Torelliana" CTS 22061

THE APPLICATION

This is an application dated 20^th August 2005 and amended on 15^th September 2005 by Michael Stockdale (the applicant) co-owner of Lot 15, against the body corporate for the scheme (the body corporate) for an order as follows :-

On 14^th September 2005, the applicant having severed the pipe towards the roof gutter end, the body corporate removed the pipe from the garage wall. The applicant says that "the body corporate now proposes to install downpipes on Lots 19 and 20" but he is not certain that this will be done in accordance with local authority or Australian building standards. His application remains unchanged despite the removal of the pipe and works done by the body corporate.

JURISDICTION

"Torelliana" Community Titles Scheme is a scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). There are 30 lots in the scheme created under a Group Title Plan of subdivision.

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

(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)).

SUBMISSIONS
The applicant claims that the body corporate unlawfully modified its stormwater drainage system after installation and approval by the local authority. He believes the modifications were made " to benefit and relieve the existing stormwater sumps outside Lots 19 and 22, and the water catchment of Lots 19 and 20 roofs."

The large diameter pipe carried stormwater from the roof gutter of Lot 19, adjacent to Lot 15’s garage, collected from the roofs of both Lot 19 and Lot 20. The pipe was attached diagonally across the end and side wall of the applicant’s garage. The applicant says that the illegally placed pipe has caused a stepped crack to appear in the wall of his garage and for the garage wall abutting Lot 19 to "shear", that is, the brickwork mortar is split away from the abutting wall.

He claims that the cost to reinforce his garage wall to " a safe temporary condition" will be about "$1163.00."

He first became aware of the cracks on 3^rd July 2005. He believes that "the walls were weakened over a period of time and more so on the 30.6.05" when there was the highest recorded daily rainfall for June of 250mm.

On 7^th August 2005 he wrote to the Secretary reporting that the rear wall of his garage was in an unstable condition because of the illegally attached pipe. He asked the body corporate to remove this pipe and repair the wall. The secretary did not respond. Again at the annual general meeting held on 11^th August 2005, the applicant raised his concerns with the Chairperson who is the owner of Lot 19, and also with the owner of Lot 20. Both the chairperson and the owner of Lot 20 refused to discuss the problem.

On 17^th August 2005, the Gold Coast City Council Plumbing Inspector wrote to the applicant in response to his letter of the same date, advising –

During the very high rainfall event, the applicant alleges that the "lower region of scheme land was severely flooded." He says that the placement of the stormwater pipe diverted "thousands of litres of surface water down to Units 18,17,16,15,14,11,10,9 and 7" as well as down pathways.

Mrs Wanda Harris, owner of Unit 5 says that the applicant purchased his lot about three and a half years ago, when the stormwater pipe was already secured to his garage wall. She says there is no evidence that the crack in the garage wall was caused by the attachment of the pipe.

Mrs Mavis McMaster owner of Unit 30, says that the matter is causing ill-feeling in the complex; Gwendoline Mason, owner of Unit 18 says she has lived in the complex for 12 years and has never suffered any ingress of water, despite the applicant’s remarks about flooding. She says that the heavy rain was on 30^th June and the water had drained away by the following morning. Owners of Unit 14, Rex and Barbara Stewart ( who say that the heavy rain occurred in July) also say that they were in no danger of becoming victims of flooding and the applicant’s complaint is greatly exaggerated. They say they that ground movement would be more than likely to have caused the cracking to the applicant’s wall, as the clips and joint fittings holding the pipe were intact after the rain event in July.

Lindsay Taite, (Mr Taite) Secretary for the scheme, on behalf of the body corporate, says that in 1984 the then owner of Lot 15 "allowed the body corporate to run the downpipe along the back wall and down the side of the garage to reach the roadway so that excess water could travel to the council drains." He says that following the letter dated 7^th August 2005 from the applicant, the body corporate intended to take action and that the applicant was advised of this, but on 30^th August 2005, the applicant told the Chairperson (the owner of lot 19) that he would cut the downpipe, and did so on 7^th September 2005. The body corporate relocated the pipe to prevent flooding to unit 19 and therefore the first part of the dispute is resolved.

There remains in issue the question of repair to the garage wall of Lot 15. The body corporate denies that the pipe was responsible for the cracking, stating that there are many settlement cracks in buildings located in the scheme. Further, under a Group Title Plan, an owner is responsible for the maintenance of his own lot. The body corporate has sought a report from a construction company experienced in underpinning. The company, Mehrtens Holdings Pty Ltd (Mehrtens) states that there are two fractures, one a " stepped fracture to the brick mortar" in the western wall and the other, a " fracture line" at the corner of the south facing wall as it abuts unit 19. The report attributes the "fracture line" crack to "a control joint" which needs to be "tidied up." The body corporate provides a quotation from Mehrtens for cleaning out the mortar joints at the cracked brick joint area, and repointing the brickwork and control joint for $897.60 inclusive of GST.

The writer of the Mehrtens report thinks it "unlikely" that the weight of the downpipe as previously placed caused the cracking to the western wall because if so –

"the bracket screws would have pulled out of the plastic plugs in the wall which the brackets were mounted by before collapsing any concrete footing."
I understand this to mean that if the weight of the pipe and water contained within it, was such that it could cause damage to the fabric of the building, then it would, before damaging the wall, have pulled out the brackets holding the pipe to the wall, and there was no sign of such strain to the brackets. The writer rates the damage category of the stepped fracture as level 2 on a scale of 0 – 4.

In reply, the applicant says that the pipe (which would not have been seen by Mehrtens) was not a small pipe but was 115mm in diameter, and that by his calculations, even 4 inches of rain falling on the catchment area roofs would weigh three tons. The way in which it was positioned diagonally would have added to the pressure and weight at particular parts of the pipe, putting stress on the wall.

The applicant adds that if his garage wall is not repaired there could be further structural damage to the garages of Lots 14,13 and 12, and there is a concern that the wall might collapse on a common area pathway used by the public.

I asked the applicant to provide a report from a qualified engineer as to the likely cause of the cracks, the remedial work recommended, and a time period in which work should be performed, ie. If the remedial work was urgent. On 16^th January 2006, he provided a quotation for remedial work from Trevor J. Boyle Bricklaying for the mortar joints to be cut out and re-pointed with a non-shrink grout; the vertical slip joint to be cleaned out and the joint to have abby flex ( or similar) placed in the joint, sealed with silicon bead and covered with a powder-coated aluminium angle approx 40mm x 12mm externally, for the sum of $615 inclusive of GST.

The engineer’s report was provided by the applicant who is a retired engineer and former employee of the Queensland Electricity Generating Board with experience in design, construction and maintenance of power stations. Not surprisingly, the applicant repeats the view held in his application, that since the roof catchment area ( over Lots 19 and 20) of the formerly placed downpipe was 67.5 m2 , the rainfall on one day on 30^th June 2005 would have been nearly 17 tonnes in weight, taking 1000 litres of water as weighing 1000kgs. He calculates the weight of the 115mm diameter pipe being full of water as weighing 92kgs. He says the " total shear area of the pipe bracket screws/bolts was seen as adequate" which I understand to mean that the brackets affixing the pipe to the wall were able to support the weight of a pipe full of water. However, such water pressure " is equal in all directions,,, and when two forces are applied about a given point they will produce a greater resultant force and/or pulse reaction." The elbow bend in the pipe would have " absorbed a number of reactions." He concludes that :" it was totally irresponsible of the body corporate to affix an active stormwater pipe to a known flexible structural component..." and "It was inevitable that the cause of the cracks was due to a loaded continuous section of pipe whose contents on 30^th June 2005 alone would have generated a substantial resultant pulse or force into the brickwork."

DETERMINATION

Despite the statement by the applicant that he is concerned about the placement of the new downpipes, he has provided no evidence that the new downpipes have been improperly or illegally placed. The only question remaining to be resolved is in my view, is whether the common property pipe, as placed, caused damage to the applicant’s garage wall.

I sought further information from the applicant and the body corporate. Mr Taite says that there are no body corporate records available showing the agreement with the former owner of Lot 15, for the pipe to be relocated against the garage wall of unit 15. There is a mention in committee meeting minutes of 4^th May 1983 of ongoing "drainage correction work... in the area of Unit 19" (which is the lot adjacent to Lot 15’s garage), but record keeping was not sophisticated at that time.

The body corporate was first aware of the cracks when the applicant wrote to the body corporate on 7^th August 2005.

Mr Taite has provided a plan of the complex showing all downpipes and "shared" guttering. There is no dispute that the continuous roof guttering for Lots 19 and 20 is common property and the responsibility of the body corporate, and that the diagonally placed downpipe which was attached to the applicant’s garage was also common property. The applicant derived no benefit from the pipe, which did not take water from the roof of his garage.

Section 281 of the Act states as follows –

(1) If the adjudicator is satisfied that the applicant has suffered damage

A waterproofing membrane in the roof of a building in the scheme leaks and there is

damage to wallpaper and carpets in a lot included in the scheme. The membrane is part

of the common property and the leak results from a failure on the part of the body

corporate to maintain it in good order and condition, the adjudicator could, on

application of the lot’s owner, order the body corporate to have the damage repaired or

to pay an appropriate amount as reimbursement for amounts incurred by the owner in

(my underlining)

The issue is twofold : firstly whether the applicant has suffered damage to his property because of something done by the body corporate, and secondly whether what was done was a contravention of the Act or the community management statement.

The dispute is technical in nature. It is a principle of law that the person making a claim must be able to support that claim with evidence, to a standard of proof which is "on the balance of probability."

Despite the applicant’s obvious engineering ability, I am not satisfied that the report provided by him was sufficiently independent, nor am I convinced by his rather vague combination of scientific assertions (which may well be correct) that the placement of the pipe has, on the balance of probability, over time caused the cracks to appear: eg. that "water pressure is equal in all directions... and when two forces are applied about a given point they will produce a greater resultant force and/or pulse reaction"; and that the elbow joint "because of its fixed position, would absorb a number of reactions."

His calculations do not appear to take into consideration the downpipes positioned outside Lot 20 and to the rear of Lot 19, which would certainly also have taken some weight of water falling on the catchment roof area of Lots 19 and 20. It might have been helpful to have been able to exclude these downpipes from the investigation.

Even if I was so satisfied, I would then have to look at the second limb of the subsection, which requires that in causing the damage to property, the body corporate has contravened the Act or the community management statement. The maintenance of the guttering or the pipe or the wall fixings is not in dispute. It is the placement itself, which the applicant says was " totally irresponsible." Yet this placement was clearly agreed to by the original owner, and has been acquiesced in by subsequent owners, including the applicant, for a number of years.

Even with his own considerable engineering experience, on discovering the cracks, the applicant did not alert the body corporate to the damage alleged to have been done by its pipe for over a month. There has been no contravention of the Act by the body corporate.

This application is therefore dismissed.

The law in relation to utility infrastructure
The response from the body corporate shows some concern about what is and what is not common property, and I hope that the following general comments will assist the parties in this matter.

Section 109 of the Standard Module concerns the body corporate’s duty to maintain common property. All common property must be maintained by the body corporate and this includes some ‘utility infrastructure’ which by virtue of section 20 of the Act is considered to be common property.

Section 20 states -,

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

located the boundary of the lot with another lot or common property.

‘Utility infrastructure’ is defined in the Act as meaning, cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services. ‘Utility services’ include sewerage and drainage systems.

As well as being obliged to maintain the common property, section 109(2) Standard Module, puts additional responsibilities on the body corporate for certain privately owned property in a building created under a Building Format Plan, (previously called a Building Unit Plan or BUP). Section 109(2) is not relevant to this scheme because the buildings in this scheme are not created under a Building Format Plan. They are created under a Standard Format Plan, (formerly called a Group Title Plan or GTP) and as such, each lot owner is responsible for his or her own property, in the normal way of a freehold owner.

However, where drainage (guttering or downpipes) service more than one lot, even in a Group Title Plan, that drainage is ‘common property’ and the responsibility of the body corporate unless the guttering or a downpipe falls under the exception stated at section 20(1) Act, and therefore remains the responsibility of the lot owner.

A Standard Format Plan of subdivision should not be confused with the Standard Module regulation, which is the part of the legislation which the scheme has chosen as most suitable for its own self-government. The plans of subdivision (SFP and BFP) show the manner in which the land or building was first subdivided by the developer and the local authority, and the scheme is subsequently registered in the Land Titles Registry as having that classification.

`o`	that the body corporate re-install the original stormwater drainage system for Lots 19,20 21 and 22;
`o`	that the body corporate remove the storm water pipe secured to Lot 15’s garage walls;
`o`	that the body corporate immediately engage a registered builder to reinstate and/or repair structural damage to the walls of the garage of Lot 15 in accordance with local authority and Australian standards

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Torelliana [2006] QBCCMCmr 26 (19 January 2006)