Gayundah Gardens [2007] QBCCMCmr 161 (8 January 2007)

Last Updated: 27 March 2007

REFERENCE: 0567-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15452
Name of Scheme:	Gayundah Gardens
Address of Scheme:	38 Gayundah Esplanade

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

Brian and Lesleigh Dobson , the Owners of lot 6

I hereby order that the application for an order That the Body Corporate of Gayundah Gardens be responsible for the reinstatement of astro turf on the roof deck area of lot 6 where a new waterproofing membrane has been applied. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0567-2006

"Gayundah Gardens" CTS 15452

THE SCHEME

Gayundah Gardens is a subdivision of 6 lots on a Building Format Pan (previously known as a Building Unit Plan. The regulation module applying to the scheme is the Accommodation Regulation Module.

APPLICATION

By application received by this Office the applicant sought the following order:

That the Body Corporate of Gayundah Gardens be responsible for the reinstatement of astro turf on the roof deck area of lot 6 where a new waterproofing membrane has been applied.

BACKGROUND

Gayundah Gardens consists of 6 units including lots 5 and 6 which have exclusive use of the roof-top common property areas. The original waterproofing membrane and outdoor carpet (artificial grass) covering the roof-top area was installed by the builder prior to completion in 1996. Although units 5 & 6 have exclusive use of the roof top areas it is considered that the body corporate maintains responsibility for maintenance and repair of the waterproofing membrane as the roof provides protection to all of the lots.

The applicants state that they purchased their unit in June 2003 and soon after, they became aware of water leakage from the roof-top into their unit. In 2004 the body corporate resolved to engage a company trading under the business name Olympic Waterproofing to apply a new waterproofing membrane. A new multi-coat acrylic membrane was subsequently applied by Olympic Waterproofing , and the outdoor carpet was not replaced.

At the last AGM on 19 April 2006, the applicants submitted a motion for consideration regarding replacement of the artificial grass by the body corporate. Although the majority of lot owners voted against the motion, the applicants believe that the body corporate is responsible for replacement of the outdoor carpet.

SUBMISSIONS

Pursuant to section 243 of the Act submissions were invited from the body corporate and all other owners.

The owner of the other roof-top lot advised that the area had previously been covered with poor quality outdoor carpet which had deteriorated significantly since it was laid in 1996. He believes that while the body corporate is responsible for repairs to the roofing membrane, lot owners are responsible for any improvements to their exclusive use area.

Another lot owner stated that applicants previously stated that they would pay for the outdoor carpet but had since changed their mind. In any event they object to paying for improvements which are for the applicants’ exclusive use, particularly when the body corporate has already spent some $16,000 applying a new roofing membrane which effectively benefits only lots 5 and 6.

A third lot owner expressed a similar opinion, pointing out that the area was previously covered with a cheap outdoor carpet referred to as "gabba grass" which was in poor condition after some seven and a half years of use and exposure to the elements.

The waterproofing membrane is effective but some minor blistering has been noted. This matter has been referred to the BSA and has no bearing on the subject matter of this application.

Similar comments were made in a fourth submission.

In reply the applicants state that they believed the outdoor carpet was in a reasonable condition and also believe that this was the only form of waterproofing on the roof slab area. The applicants believe that the outdoor carpet should be replaced by the body corporate as it "was removed through no fault of their own".

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)).

DETERMINATION

The applicants are seeking an order that the Body Corporate of Gayundah Gardens be responsible for the reinstatement of astro turf on the roof deck area of lot 6 where a new waterproofing membrane has been applied. Unfortunately however, the applicants have provided little argument as to why they are entitled to such an order.

Although lots 5 and 6 have exclusive use of the common property roof area, the body corporate has an obligation to repair the water proofing membrane where it is faulty.

In this regard section 108 of the Accommodation Module Regulation provides as follows:

108 Duties of body corporate about common property
(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must--
(a) maintain in good condition--
(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the
boundary of a lot and common property; and
(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and
(iii) roofing membranes that are not common property but that provide protection for lots or common property; and
(b) maintain the following elements of scheme land that are not common property in a structurally sound condition--
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including load-bearing walls.
(3) Despite anything in subsections (1) and (2)--
(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and
(b) the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure--
(i) relates only to supplying utility services to a particular lot; and
(ii) is 1 of the following types--
• hot-water systems
• washing machines
• clothes dryers
• another device providing a utility service to a lot; and
Examples for subsection (3)(b)--
1 An airconditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the airconditioning equipment.
2 A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and associated pipes and wiring.
(c) the owner of the lot is responsible for maintaining the tray of a shower that services the lot, whether or not the tray forms part of the lot.
(4) To avoid doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate may recover the prescribed costs, as a debt, from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.
(5) In this section-- prescribed costs means the proportion of the reasonable cost to the body corporate of carrying out the maintenance that can, in the body corporate’s reasonable opinion, be fairly attributed to the person’s actions.

The evidentiary material provided to me indicates that the applicants raised no objection to the removal of the outdoor carpet and the engagement of a contractor to apply a new waterproof covering to the roof area. Indeed it was not possible to apply a new membrane without removing the outdoor carpet which had been bonded to the concrete slab roof with adhesive and the applicants state, was the only form of waterproofing on the roof slab area.

I am of the view that under section 108 of the Accommodation Module Regulation, the body corporate is obliged to ensure that the roof is in good condition, waterproof and structurally sound. I do not believe that the statutory obligations of the body corporate extend to engaging a contractor to install artificial grass carpeting. I believe that the body corporate has fulfilled its statutory obligations, and having regard to the problems previously experienced with the use of outdoor carpet as a waterproofing membrane, the body corporate acted reasonably in engaging a contractor to apply a multi-coat acrylic membrane rather than laying outdoor carpet as a waterproofing barrier.

In any event, the evidence indicates that the outdoor carpet was over seven years old and given its exposure to the elements, I see no reason to dispute the statement by the owner of lot 5 that the carpet had deteriorated badly and that there was no way of saving it.

For these reasons I do not believe there is any basis upon which I am entitled to order that the body corporate meet the cost of laying new outdoor carpet (artificial grass) on the common property roof area to which lot 6 has been granted exclusive use.