Ocean Sands [2006] QBCCMCmr 587 (13 November 2006)

Last Updated: 19 December 2006

REFERENCE: 0534-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15879
Name of Scheme:	Ocean Sands
Address of Scheme:	140 Bundall Road, BUNDALL QLD 9726

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

Astonridge Pty Ltd, the owner of lots 34 and 36

I hereby declare that the body corporate is responsible for maintaining the fire detection system (including the smoke detectors located within each lot) in good condition. However, on the basis that it is just and equitable to do so, the body corporate is not prevented from recovering the reasonable cost of carrying out that maintenance from a person whose actions cause or contribute to damage or deterioration of the equipment.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0534-2006

"Ocean Sands" CTS 15879

Scheme

"Ocean Sands" community titles scheme 15879 was registered as a building unit (now known as building format) plan of subdivision on 18 July 1996 comprising 85 lots and common property. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Application

This application is brought by the owner of lots 34 and 36, Astonridge Pty Ltd (the applicant), through its Director and Chief Executive Officer, Mr John Whiting, against the body corporate, seeking a declaratory order as to whose responsibility it is to maintain the smoke detectors installed in each apartment.

In the grounds to the application, the applicant states as follows.

On 4 January 2006, tradesmen installing air-conditioning in lot 34 were responsible for setting off a smoke alarm which automatically resulted in the fire brigade being called. This led to the fire brigade attending lot 34 on 4 January 2006 and switching off the smoke detector at the main panel. When the building manager tried to reset the detector at the main board it would not reset. The building manager, after trying several things to reset the smoke alarm, called a Wormalds technician. A Wormalds technician attended on 4 January 2006 and replaced a smoke detector in the bedroom of lot 34. Wormald charged the body corporate $511.50 for the out of hours call out. The body corporate then passed this account on to the owner of lot 34.

The applicant further states that:

•	The smoke detector was found to be faulty;
•	These detectors have a high failure rate, both at "Ocean Sands" and surrounding buildings;
•	The detector is part of a closed loop circuit fully integrated system maintained by Wormalds on a contract basis with the body corporate. Wormalds carry out six monthly checks on all the detectors and intercom systems that are installed in every apartment of the building.
•	The body corporate maintains and insures the whole of the fire protection system and smoke detectors. This being the case, the responsibility for detectors is with the body corporate and it should accept and pay the invoice from Wormalds for the call out and submit an insurance claim.
•	The applicant is unable to make an insurance claim as it is unable to insure the smoke detectors alone against malfunction.

The applicant maintains that the responsibility for the smoke detectors should be with the body corporate, and, if not, then owners should be permitted to install their own.

At a committee meeting held on or about 23 May 2006, the committee passed the following resolution:

3.7	From Astonridge Pty Ltd – Faulty Smoke Detectors (11/05/06)

Correspondence was tabled and the Committee discussed the matter with the owner of Lot 34 in relation to the charging for the replacement of a faulty smoke detector at a cost of $511.50.

Resolved the cost of replacement of faulty smoke detectors inside individual lots is the responsibility of Lot owners.

VOTE: YES: 7 NO: NIL ABSTAIN: NIL

Submissions

Submissions in response to the application were sought from all owners (excluding the applicant) and the committee). Two submissions were received; one from an individual owner and one from the body corporate, through its legal representatives.

The body corporate submits as follows:

•	The applicant has provided insufficient evidence to show that the smoke detector was faulty.
•	The applicant has provided no evidence to prove that there is a high failure rate of fire detectors in the complex and surrounding buildings.
•	The body corporate is required to enter into a monitoring agreement with the Queensland Fire and Rescue Service ("QFRS") and has no control over the callouts and charges for false alarms.
•	It is impractical for the owners of the complex to control and insure their own fire systems.
•	The applicant is responsible for payment of the QFRS call out fee and the Wormald’s repair fee.

The body corporate further submits that the application should be dismissed under s.270(1)(c) of the Act as it was brought in the absence of any evidence to prove that the smoke detectors were faulty. Nor did the application, they state, provide any good reason as to why the body corporate should be responsible for the account. They also seek costs under s.270(3), but have not quantified their claim.

The applicant inspected the submissions made and submitted a reply. In his reply, the applicant disputes the body corporate’s assertion that there is no evidence to prove that the smoke detector in question was faulty. He refers to a letter issued to all owners recommending replacement of the smoke detectors due to large numbers of failures which required QFRS to attend on occasions. He states that the information would be in the minutes of body corporate meetings and the building manager or Wormalds would be aware of the number of detectors replaced. However, no copy of the letter referred to was provided, nor were copies of any minutes of body corporate meetings.

The applicant re-iterates his view that because the smoke detector was faulty, the body corporate should be responsible for the Wormalds invoice.

Jurisdiction

This is a dispute between an owner and the body corporate and falls within the dispute resolution provisions of the Act.^[1]

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)).

Decision

Buildings such as Ocean Sands must install a compliant fire detection system as part of the development and thereafter must enter into a monitoring agreement with QFRS or another entity for monitoring of the building. The compulsory nature of these matters is outlined in the Queensland Building Act 1975, the Queensland Fire and Rescue Service Act 1990 and the Building Fire Safety Regulation 1991.

It appears from the information submitted by both parties to this dispute that the fire detection system in place at Ocean Sands is in the nature of a closed-loop circuit, fully integrated system that was hard-wired into the building at the time of construction. It consists of many "special fire services" within the definition of that term in Schedule 2 of the Building Act 1975. The body corporate has entered into a standard monitoring agreement with QFRS in respect of this system.

I am satisfied that fire detection is a "utility service" within the definition of that term in Schedule 6 of the Act and, based on the nature of the fire detection system installed at Ocean Sands, that the cables, wires, plant and equipment (including the smoke detectors located within individual lots) supplying that service fall within the definition of "utility infrastructure" in Schedule 6 of the Act. I am further satisfied that this utility infrastructure (including the smoke detectors located within individual lots) is common property, by virtue of s.20 of the Act. In coming to this conclusion I have formed the view that smoke detectors, although they may be located within the boundaries of a lot and not within a boundary structure, are not "solely related to supplying utility services to a lot". If a fire occurs within one lot and a smoke detector is activated, I am of the view that all lots are serviced in having that fire detected and responded to. Further, if there is a fault with one smoke detector in one lot, there are consequences for the entire building as the main alarm panel will not re-set and the entire building is without fire protection. It follows that the body corporate is responsible for maintaining the fire detection system (including the smoke detectors located within each lot) in good condition.^[2] However, on the basis that it is just and equitable to do so, the body corporate is not prevented from recovering the reasonable cost to it of carrying out that maintenance from a person whose actions cause or contribute to damage or deterioration of the equipment.

In order to determine whether the body corporate has fulfilled its legislative maintenance obligations with respect to the fire detection system (in particular the smoke detectors), I consider it helpful to consider the body corporate’s obligations under the Building Fire Safety Regulation 1991. Section 15 of the Building Fire Safety Regulation 1991 is relevant and provides as follows:

15 Testing of special fire services
(1) The occupier^[3] of a building must ensure that each prescribed
fire safety installation in the building that is a special fire
service is tested from time to time by a competent person--
(a) if there is an Australian Standard that relates to the
testing of the special fire service--in compliance with
the Australian Standard; and
(b) in any other case--at intervals and in a way that the
competent person considers sufficient in the interests of
safety.
Maximum penalty--30 penalty units.
(2) The occupier must--
(a) record in a certificate of maintenance the details
mentioned in subsection (3) of each test of a special fire
service; and
(b) lodge the certificate with the chief commissioner within
12 months of the day of the earliest test recorded in it;
and
(c) for a budget accommodation building--keep a copy of
the certificate of maintenance with the fire safety
management plan for the building.
Maximum penalty--5 penalty units.
(3) The details to be recorded in a certificate of maintenance for
each test are--
(a) the date of the test; and
(b) whether or not the special fire service was found by the
competent person to be properly maintained; and
(c) the details of any repairs or maintenance undertaken.
(4) An occupier who is required to keep a certificate of
maintenance, or a copy of the certificate, under this section
must produce it, on demand, to an authorised fire officer.
Maximum penalty--5 penalty units.

In order to fulfil its legislative obligation to ensure that all fire safety installations are correctly operating, the body corporate engages Wormalds to service and maintain the system. Regular periodic testing is performed on all fire safety equipment, including fire extinguishers & blankets, fire hose reels, fire hydrant outlets, the automatic fire sprinkler system, the stair pressurisation system, fire resistant doorsets, the automatic fire alarm system, the emergency warning & intercommunication system and emergency & exit lighting.

In relation to smoke detectors located within individual lots at Ocean Sands, a Wormald representative advised me that testing is performed every two years, with half of the lots tested each time, once a year. The even numbered lots are tested in even numbered years and the odd numbered lots are tested in odd numbered years. He informed me that even numbered lots were last inspected on 28 August 2006 and prior to that, on 19 July 2004. However, he could not guarantee that lot 34 was inspected, as not all unit owners provided access to their units for the purposes of the testing. The building manager, Mr Malcolm Urry, confirmed by telephone on 9 November 2006 that access was gained to lot 34 on each occasion. The body corporate has submitted a copy of a "Certificate of Maintenance – Annual Declaration" for the period from 1 January 2005 to 31 December 2005 indicating that the fire detection and alarm system, amongst other things, was maintained to a standard of safety and reliability in the event of fire. The certificate is dated 25 May 2006. However, Mr Urry advised me that there is some time delay between Wormald completing its testing and issuing the certificate, which Mr Urry signs upon his receipt of it.

Based on the above information, I am satisfied that the body corporate has fulfilled its legislative obligation under the Act to maintain the common property utility infrastructure in good condition. Regular, periodic testing is performed on all fire safety equipment.

The applicant alleges that the smoke detector in the bedroom of lot 34 was faulty, but provides no substantiation for the allegation. The material submitted by the body corporate and information from Wormald refutes this. A Wormald representative advised me that it is not uncommon for smoke detectors to be replaced after activation. They are not necessarily faulty. They can be effected by the environment. It is noted that Ocean Sands is located within close proximity to the sand and surf.

The applicant concedes that the smoke alarm within lot 34 was activated by tradesmen he engaged when installing air-conditioning within the lot. The contractors, by the applicant’s own admission, did not isolate the control panel prior to commencing the installation. The fire brigade attended lot 34. The applicant paid the fire brigade’s call-out fee and sought to recover this from the tradesmen. It appears to me that the smoke detector within lot 34 would not have had to be replaced if it had not been activated by the tradesmen in the applicant’s lot. In these circumstances, I consider that the applicant’s actions (albeit indirectly, through tradesmen engaged by him) caused or contributed to the body corporate having to incur expense in fulfilling its maintenance obligation. On this basis, I do not believe it would be just and equitable for the body corporate to bear this expense. I believe the body corporate acted reasonably in passing on the Wormald account to the applicant and the applicant is liable to pay it.

The body corporate requested me to dismiss this application under s.270(1)(c) of the Act. I have declined to do this and instead issued a declaratory order to give effect to the above. It is therefore not necessary to consider an order as to costs, which were not quantified in any event.

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^[1] See ss.226, 227 & 228
^[2] See s.109(1) Standard Module My finding that a smoke detector provides a service to more than one lot precludes an owner having responsibility under s.109(3)(b)
^[3] The "occupier" is the body corporate for the purposes of s.15 – see Admiralty Towers 0116-2004