Westwater [2007] QBCCMCmr 171 (22 March 2007)

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

I hereby order that the application for an order

"that the building be made watertight and proper construction of the roof/exterior membranes of the building, and improvements, so as to achieve a performance consistent with: a) the Building Code of Australia
b) a cessation to flood and water damage to the internal finishings and surfaces and improvements in Lot 52
c) payment of sums due to the applicant for work completed," is dismissed.

In lieu I order as follows

1. that the body corporate within 14 days of the date of this order provide to the Applicants, on payment of the requisite fee, a copy of documents requested by the Applicants last by fax on 9^th January 2007 or confirm to the Applicants that such documents do not exist.
2. that the body corporate examine the terms of the contract between Remedial Building Services (Remedial), Burchills Partners Pty Limited Engineers (Burchills) and the body corporate in 2004 and explore with Remedial, Burchills and the Applicants, the allegation by the Applicants that the new membrane was not tested before being covered up, and that manufacturer’s recommendations were not followed;
3. that if Remedial is unwilling or unable to effect repairs under the warranty given by Remedial on 12^th May 2005, or any other warranty or guarantee supplied by Remedial or Burchills following installation of the membrane in December 2004, or if the required works are outside the warranty(ies), the body corporate must, whether or not it also chooses to pursue any other remedies it may have against Remedial or Burchills, within 3 months of the date of this order instruct an independent suitably qualified engineer, as further described in the reasons hereto, and acceptable to the Applicants, to report on the reasons for water ingress, and the method by which those defects should be rectified;
4. within one month from the receipt of the report by the independent engineer, the body corporate is to provide at least two quotations for the rectification work recommended by the engineer, for which the body corporate is responsible in accordance with the reasons given herein, and put the quotations as a motion to a general meeting of the body corporate, as a motion in the alternative;

5. that the body corporate shall recall the relevant contractors and/or arrange replacement of the damaged floor tile in the Applicants’ unit which tile was damaged during the repairs in August 2005, and also arrange to match the grout with the existing tile grout.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0462-2006

"Westwater" CTS 6750

APPLICATION

This is an application dated 16^th June 2006 and amended on 12^th July 2006 by William Butler and Robin Butler, (the Applicants) co-owners of Lot 52, against the body corporate for the scheme (the body corporate), for an order as follows –

Since the filing of this Application, the Applicants confirm that they have now been paid for repairs for internal rectification of damage prior to the pool terrace membrane being replaced. On 10^th April 2006, the Applicants sent a statement of account to the body corporate seeking payment of invoices dated December 2004 and November 2005, with accrued interest totalling, $2853.94. On 10^th August 2006, the body corporate paid for works done but has not paid the accrued interest charged on the accounts. I am not therefore making an order in respect of item (c) above.

JURISDICTION

"Westwater" Community Titles Scheme 6750 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 52 lots in the scheme created under Building Unit 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 Applicants’ case is that they purchased their lot, a penthouse apartment, with a roof-top pool and spa, in April 1996. At the time of purchase they noticed water entering around the vent duct to the kitchen and that some of the internal panels to the kitchen cupboards had started to delaminate. The water coming through the vent duct also continued down into Lot 50 (the sub-penthouse) below Lot 52. This leak is now numbered as Leak 7 in the list prepared by the Applicants.

The Applicants also noted water damage to the electrical/hot water unit cupboard which abuts a mechanical ventilation duct shaft. This is now numbered as leak number 4. There was also water damage in the lobby adjacent to the ventilation duct which had caused damage to Lot 50 below. They were "assured at (the) time of purchase that leaks would be attended to by the body corporate and that that internal damage was covered by insurance."

Lot 52 has suffered from roof leaks "over a number of years." In all, there are 11 leaks to the interior of the Applicants’ lot. The Applicants say that despite long-running discussion about the leaks with the body corporate, and some remedial treatment as described below, the body corporate has failed to stop or cease water ingress into the building or to take any remedial steps to prevent continuing or further water damage or repair the water damage that has occurred.

The 11 leaks are positioned as follows –

8. and 9. lounge under windows and doors to pool mezzanine area – (repairs now made.)

The Applicants have noted that all leaks are occurring at junctions with floors and vertical surfaces of parapets, walls, solid handrails, ducts and the pool.

In summary they put the leaks down to a poor hydraulic design for the roof, lack of construction detailing at junctions, non-compliance with the Building Code of Australia 2004 and relevant Australian Standards, body corporate contractors for remedial works not adopting the membrane manufacturers’ recommendations, the contractors’ failure to abide by the contract conditions in relation to water-testing of the membrane prior to covering it up, and no inspection of the membrane by the manufacturers’ representative.

In 2004, the body corporate arranged for Remedial Building Services Australia Pty Ltd (Remedial) to replace part of the roof/pool terrace membrane. The work was overseen by Burchill Partners, Consulting Engineers, (Burchills) and the Applicants say that Burchills certified that the work was "complete and free from defect" on 1^st December 2004, and that the membrane was guaranteed for "15 years from the date of installation."

On 5^th December 2004, however, they noticed a leak after light rain at leak points 8 and 9. On 9^th December 2004 they sent a fax to the body corporate manager stating that various works had not been completed in accordance with the contract, amongst other things that that the tiling was incomplete and "sealant under window and door frames not installed." The Applicants were "speechless" as to why no examination and testing had been carried out of the membrane in accordance with Clause 11 of the contract, and why the topping and tiles had been put on prior to testing. This was a "critical part of the work" and the rain on 5^th December 2004 caused damage to the newly repaired plaster and paint, which had been paid for by the body corporate insurers. The membrane turn-up had not been sealed to the underside of the sill. The Applicants advised:
"rectification of this new damage will be charged to the body corporate" and that the body corporate should not pay the contractor.

At Easter 2005, the Applicants noticed a new leak, Leak no. 6. On 30^th June 2005 after the first heavy rain since the repairs were done, Lot 52 again suffered water damage. Since that date, water damage has re-occurred after rainfall.

In August 2005, the body corporate organised for the removal and reinstallation of the sliding doors to the pool area mezzanine. The work was overseen by Strata Project Management Service, (Strata) a division of Burchills. The body corporate disputes that all or some of the leaks are caused by rainwater, or says that certain areas are the responsibility of the Applicants. The body corporate suggests to the Applicants that it is the pool and/or the spa which is leaking, and that the remedial work done in 2004 was sufficient and properly undertaken.

The Applicants have noted that the leaks only occur after heavy rain and the pool does not otherwise leak even though it is always full. The Applicants have had the pool ‘dye tested’ "returning no discernable leak." The body corporate says that it has also tested the water coming through the slab and that the presence of salts proves that it is poolwater. The Applicants say that the salts are consistent with "leachate salts contained within the concrete" of the slab. The Applicants meanwhile have continually sought scientific explanations for the leaks.

On 7^th November 2005, the Applicants obtained a report from the "Leak Detective," Dan Davidson. (Leak detective report) The leak detective report found that there were "no leaks in pipes and filter equipment" for the swimming pool or spa. It also reported –
"A hose test against outside wall under pool decking proved water to be leaking past the waterproofing membrane and water drips appearing on window casements in room below. A further wet spot appears directly under pool in room below after heavy rain, however this spot dries out in dry weather. A hairline crack has appeared in spa end of pool and an evaporation test being carried out over the next week. If there is no rain will prove if the leak is coming from the pool or spa..."

On 20^th November 2005, the Leak Detective further reported that a dye test had also been done, and an evaporation test over 4 days. The pool evaporated slightly more than spa, but that was acceptable considering high winds and the surface area. He reported that -
"a hairline crack in spa does not show on the outside pool shell and did not prove to leak at the evaporation test. In the time I have been there water has showed in lower rooms after rain, and after 2 days of fine weather dried."

He also did a hose test on the topping slab under the pool deck between the spa and the southern external wall and this caused a leak in bedroom 2, which proved to him that "the waterproof membrane has failed."

On 7^th February 2006 the Applicants received a report from hydraulic engineers, Deluca Design Hydraulic Engineering Consultants Pty Ltd (Deluca) following an examination by Deluca on 25^th January 2006. Deluca examined the roof drainage of the eastern podium of Lot 52 and conducted flow analysis tests by modelling in relation to 6 of the 7 water drainage outlets on the roof. It found that an overflow channel on the northern façade had been "plugged." It also found that the primary drainage system was allowing for water "overtopping" adjacent to the glass sliding door entry to the podium roof, and that a minimum freeboard of 50mm above the estimated water level should be adopted by reviewing and modifying the waterproofing membrane and/or glazing systems.

Deluca also found that there was no provision for secondary or overflow drainage which is a "fundamental part of a roof drainage system." It recommended a "full failure overflow system be installed to provide a level of protection form overtopping." Deluca did not inspect or evaluate any weatherproofing membranes.

The Applicant, Mr Butler who is a plumber licensed in New South Wales, inspected all the areas of damage on 11^th April 2006, following a previous study by him on 30^th December 2005. His findings contain 19 coloured photographs of several areas of water-damaged ceilings and moisture affected décor, as well as water dripping on bedroom and bathroom balcony edges.

He says that on the 11^th April 2006 there had been no rain for three days. All leaks were dry except leaks numbered 10 and 11 which were still dripping. The body corporate did further repairs to the door sill in August 2005 at Leak 8 by removing and re-installing the doors, and whilst Leak 8 might now have been fixed, the repair work was not well executed in that the tiling grout used on the tiled step below the door does not match and a floor tile was cracked in the process.

The Applicants say that they believe that the roof membrane is not installed in accordance with the manufacturers’ instructions. It should have a cove or fillet installed between the floor and the wall surfaces to prevent a sharp right angle risking damage or splits in the membrane. This is possibly what has happened but the Applicants cannot investigate the membrane without causing damage to their property above the membrane (eg. the tiles and paving), and the membrane is the body corporate’s property, and the work commissioned by the body corporate and they cannot interfere. They have sought confirmation from the body corporate about the materials and the ‘Ardex system’ used and have asked to see the specification and the warranty, which at the date of the application had not been supplied to them. Further they say that the tiles and topping as placed, do not allow for any freeboard between the upturn of the membrane and the height that can be achieved by stormwater.

The Applicants also allege that the membrane was not tested after installation and before the tiles were placed on top of it as per the manufacturer’s specification. The Applicants further say that the window installation does not meet required Australian Standards or the Building Code of Australia in that there is no proper sealing or external coating.

The capacity to rent out Lot 52 has been considerably reduced since bedroom 2 is "uninhabitable" because a cornice and blinds cannot at present be installed because of the continual leaks. It was renting for $1400 per week. Following the new membrane installation and paving completed in December 2004, the Applicants spent in excess of $60,000 upgrading their pool decks. If the membrane has to be uncovered again, much of the upgrade work will now be lost.

In accordance with section 243(2)(b) Act submissions were sought from all lot owners.

John and Julie McDonald (Mr and Mrs McDonald) of Lot 51 also a penthouse property adjoining the Applicants’ lot, state that "eventually the roof membrane to (their) unit will need to be replaced.." They say that "there is obviously a fundamental fault " if water is leaking in 11 different places and the body corporate has a legal and moral obligation to make good the defects.

John and Amy Disley, co-owners of Lot 12 support the body corporate in any decision it makes in relation to this dispute. David and Barbara Noakes of Lot 11 also support the body corporate, and Daisy Cameron of Lot 26 supports the actions of the committee.

Betty Mitchell of Lot 46, objects to the body corporate having to pay for Lot 52’s building maintenance. She says that the building is 18 years old and the Applicants are not the original owners, and the onus is on them to maintain what they have purchased.

Jeanette Avery of Lot 38 wants the issues resolved and asks that independent experts be commissioned to give their findings as to where the leaks are coming from and where the responsibility lies. She is chairman of the body corporate and is concerned that the body corporate may already have done remedial works to Lot 52 for which it was not responsible.

TF and NL Stanley of Lot 42 say the Applicants purchased in 1996 when the lot was 8 yrs old and that they have been told by a committee member that so far the body corporate has spent "over $100,000 " on this lot from the sinking fund. The Applicants should have searched body corporate records before settlement for "previous records with water leakage."

Terry and Lyn Toomey. co-owners of Lot 48, say that the failure of the body corporate to waterproof the building affects everyone not just the penthouses. The building is receiving bad publicity. Waterproofing of the entire roof needs to be carried out, and " no short cuts or partial repairs" should be undertaken. They " strongly suggest the body corporate takes immediate steps to rectify the current situation mainly affecting apartment 52, but no doubt also apartment 51 and all those floors below." The responsibility for the work and the cost can be resolved later but the remedial work should be done immediately to a standard approved by a design engineer.

Rex and Joan Flowers, co-owners of Lot 8, say that the problem has "been with the building for an extremely long time" and cost all owners a lot of money. They are concerned about the lack of accountability between "the two lots of engineers and contractors who have been engaged to rectify this ongoing water leaking problem." They have been told that $50,000 should fix the problem once and for all, and that the areas of responsibility have been identified.

Trevor Simes (Mr Simes) of Lot 36 says he and his wife purchased in 2000 and they were at that time aware of "ongoing problems" with the penthouse roofs. He got on the committee in 2001. In 2002-2003 they carried out repairs on two occasions to the Eastern Patio of Unit 52 in an attempt to stop water leaks. They replaced the roofing membrane of the Eastern Patio and Burchills were employed to make sure the work was done properly and to help the body corporate select the right tenderer. The refurbishment tender did not include replacing the membrane under the Applicants’ pool.

He has been personally involved with the remedial works and says that during the course of repairs " it was found that the Pool ...was leaking." Since the Applicants’ pool is built on top of the membrane, the Applicants on 8th November 2004 wrote to Burchills and said they accepted that to remove and replace the pool would be prohibitive to the body corporate, but that attention should be given to sealing the new membrane to the existing membrane under the pool before any turn up around the pool is undertaken. On 19^th November 2004, in a letter to the body corporate, the Applicants acknowledged that they were aware of defects in the pool walls and said they intended to repair them prior to reinstatement of the deck.

The body corporate says that the Applicants have carried out repairs to pool on three occasions, the last being in August 2005. Mr Simes says-
" Heavy rain .. at the end of June 2005 caused leaks to reappear where they have existed for a number of years."

Engineers employed by the body corporate said the water "could be coming from above the new membrane and leaks could have penetrated the membrane under the pool."

In August 2005, the body corporate attempted to address the leaks and had the southern window checked and re-sealed and the wall on the exterior sealed and painted. It also removed the sliding doors and windows that lead onto the pool patio and found that four extra holes had been drilled into sub-sill and that water could have entered through these holes. The sub-sill was replaced and windows and doors resealed. This should have fixed the leak but as at the date of the submission there had been no heavy rain since.

I asked the body corporate for a copy of the engineers’ report referred to by Mr Simes. Burchills responded that there was no actual report prepared. However memos dated 18^th August 2005 from P.R Bell (Mr Bell), director of Strata, to the body corporate were provided, detailing meetings about the remedial works to be carried out to the sill and the sliding door. It was decided at a meeting on 17^th August 2005 to remove the sliding door and glazing frame between the upper level of Unit 52 and the pool deck after removal of the sill tiles had been inconclusive as to the fixing of the subsill. It was suggested that Opat, a Gold Coast painting and maintenance firm (Opat) check and provide "an approved waterproofing detail to the existing hob", and any other work that Opat thought necessary.

A report dated 29^th August 2005 prepared by Mr Bell was sent to the body corporate, with seven photographs attached, and he advised that on 23^rd August 2006, a glazier had removed the complete frame which revealed as follows -
1. the membrane as placed had been taken above the level of the concrete hob and sealed to the sub sill frame.
2. the void between face of kerb and lip of the sub-sill had been completely filled with sealant
3. extra holes, other than those needed for fixing, had been drilled in sub sill.

The glazier found that slots for the drainage of water collecting in the subsill and bottom glazing rail had been covered up. These were re-opened prior to and during the remedial works and had been filled with silicone again by others. Opat was to be engaged to do further waterproofing to the hob and the glazier would then fit a new sub-sill which will again be sealed to the membrane.

In response to further information sought by me, on 1^st February 2007, Burchills advised the body corporate that the extra holes drilled in the sub-sill discovered by the glazier " were a direct result of incorrect drilling during the original construction phase ( approx 1988)."

The report of 29^th August 2005 also mentions that there was "free water" on the underside of the window head to the bedroom and also bubbling was evident to the patch in the kitchen ceiling. At that time rainfall had been at a minimum, and the writer concluded that it was "possible that a leak may still exist from the spa". He suggested that the spa be emptied and checked, and then the pool be emptied and checked.

Mr Simes says that now Lot 51 is experiencing " some of the same leak problems." The body corporate continues to work with Burchills and have discussed making a complaint to the Building Services Authority, but will first notify Remedial of the body corporate’s intention and give them 14 days to respond to a specific complaint about the integrity of the membrane. However they may have to wait for a wet day for this. He says "I am of the opinion that some of the water leaking in the repeating areas is above the membrane area."

Challenge Strata Management (the body corporate manager) sent in the submission from the committee. With regard to the three separate outcomes sought, it says that the Applicants do not specify how the building, roof, exterior membranes or improvements do not meet Australian Standards. The building was constructed in 1988 and met all applicable standards at that time.

The committee is aware that there was evidence of water penetration into Lot 52 " some years ago." On investigation in 2003 – 2004, the body corporate spent more than $125,000 over two years in replacing the roofing membrane and carrying out remedial works. The further water penetration which occurred in June 2005 followed torrential rain which was a record "1 in 1,000 year event" and caused extensive damage throughout SE Queensland. The issue flowing from the June 2005 rainfall event is that the stormwater system is not adequately designed in the event of "significant flood events", to which it says that there is no evidence that the drainage system itself is defective, only that in the Applicants’ view, it may not be adequate for an event that may never occur.

With regard to the glass panels and sliding doors, the body corporate points out that these are entirely within the Applicants’ lot, and is therefore not an aperture between a lot and common property and it is the responsibility of the owner to maintain those doors and windows.

The body corporate has commissioned a report from Opat in respect of this application in an attempt to satisfy itself about whether the leak could be wholly from or contributed to by the pool. Opat carried out tests on 5^th and 6^th October 2006, doing " minor water tests to the main deck area." They also tested the sliding doors and windows by sandbagging them and filling the area with water for an hour at a time. They carried out similar tests under the pool area and above the entry door. Opat’s report dated 16^th October 2006 detected no leaks from these tests. Opat believes that the leaks " manifest after wind driven and continuous rain," but proposed to undertake further tests flooding specific areas for longer periods.

Opat says ; "It also appears that water leaks to the kitchen ceiling is from the swimming pool" and that some areas of the pool walls are showing signs of leaks. These were to be tested on the next visits on 31^st October 2006 and 3^rd November 2006. The body corporate points out that maintenance of the suspended pool is the responsibility of the Applicants, and they have not provided any evidence that the waterproofing membrane of the roof is defective. It says that the Applicants’ conclusions are hypothetical and uninformed as they themselves admit. The body corporate took pains to make sure the work was done properly by engaging an independent consulting engineer to oversee the work.

The body corporate provides a copy of the specifications and warranty in respect of Remedial’s work. Remedial provide a 10 year product and installation warranty, and on 12^th May 2005 by letter to the body corporate noted that the warranty only included up to and around the existing pool structure, and "the existing pool structure was leaking and was still leaking prior to our completion of the project."

It says that the committee continues to address every issue raised by the Applicants and will not resile from its duty to maintain those parts of the building for which it is responsible. It denies that the Applicants have sufficiently demonstrated in what way the body corporate has failed in its responsibilities.

The Applicants exercised their right of Reply through their solicitors. They say that the tender document supplied by Burchills in 2004 stated that the repair to the membrane was to be in compliance with "any standard or Code" current 14 days before the submission of the tender, ie in 2004 and not 1988. They supplied an extract from the tender document citing clause 5. They say that non-compliance with building codes is evident from the Deluca report.

Water penetration points were assessed by BSW Pty Ltd (BSW) at the direction of the body corporate, in respect of Lots 51 and 52 in February 2004, prior to the membrane work being undertaken. The Applicants in Reply provide a report dated 4^th February from BSW. BSW noted that the "external deck is higher than the internal finished floor level" and that the primary source of entry "appears to be through the hob." BSW also believed that the "perimeter upstand details are defective," for both lots and that in respect of Lot 52, there was also "pipe penetration to..(the) kitchen."

The Applicants say that the BSW report demonstrated that the window hobs were leaking before the extreme rainfall event in June 2005. They also say that the rainfall event in June 2005, was described by www.australiaweathernews.com as a 1 in 10, to 1 in 30 year flood level and not a one in 1,000 year event, and that the Building Code of Australia requires designs to be able to cope with a 1 in 100 year event level, citing part F1 "Damp and Weatherproofing" from page 311 Australian Building Codes Board BCA 2004 Volume 1. They say that the fact that such an amount of water enters shows that " the design and/or workmanship does not cope with torrential rain... with an average recurrence of 1 in 10 to 1 in 30 years." It certainly could not cope with the higher criterion for the 1 in 100 years and "therefore has not been designed and installed to BCA requirements."

They say that original roof terraced areas were designed and built with minimal stormwater drainage. During storms and when using the pool, water used to run down the outside of the building much to the annoyance of residents below. The body corporate commissioned a contractor to install stormwater drainage to Lots 51 and 52 "and to seal up slots in the parapets as a solution..." The Applicants have never disputed the original system or design for stormwater drainage but only this work done by the body corporate. The Deluca Report shows that the pipe on the eastern elevation has ‘no grade’ which reduces its ability to remove water, and the efficiency of the outlets was further reduced by Remedial overtopping the membrane . Deluca also found that a bigger freeboard was required to cope with a 1 in 100 year rainstorm.

Further, they say that Remedial, Burchills and Opat are not independent as they do a lot of work for the body corporate. An independent hydraulic engineer should assess the problem and report on compliance with Australian Standards and not a structural engineer. They would like to see the manufacturer’s membrane specification from Burchills, and they refer to Clause 4 of Burchills tender which says that manufacturers’ specifications will be complied with, and materials will be suitable for the job.

They point out that they have always remained responsible for the pool and any substructure on the membrane but the membrane was "originally integral under the pool" but because of the prohibitive cost the body corporate decided not to remove the pool and just replace part of the membrane. There were originally no leaks under the pool area, but now one has occurred which they believe is due to faulty workmanship in the joining of the new membrane to the remaining membrane. The pool water is present all the time whilst water penetration only occurs after rain. The leak under the pool is only one leak, and does not explain the others. A hose test can make the leak over the window in Bedroom 2 active, as demonstrated by the Leak Detective report.

They still have not got the information which they have requested for the body corporate about the contract. They believe that the membrane is still under BSA statutory warranty and the 10 year guarantee given by Remedial. They cannot tamper with it to see if it is installed to specification or if faulty work exists. They are just assuming that the workmanship is faulty somehow or the leaks would not be there. No owners should have paid out for faulty workmanship.

In response to Mr Simes’ overview, which they found ‘honest and accurate’, they say that the pool walls did have a number of minor leaks found when they removed the substructure but that there was no evidence of water penetrating through the membrane under the pool. They fixed the leaks and spent $60,000 on refurbishment in December 2004. They also had the pool and equipment tested for leaks (see Leak Detective report). There is now a new and very minor leak which has reappeared in the pool wall adjacent to the stairs causing only cosmetic deterioration to the pool wall. There is no evidence that it is contributing to the leak under the pool. Regardless of leaks from the pool, the membrane under the pool should not allow water penetration. They point out again that water penetration under the pool only occurs after rain.

They accept that Remedial could not guarantee the membrane under the pool since they did not install it but it is the Applicants’ belief that Remedial "made little or no attempt to ensure a satisfactory join between the old and new membrane" and it is "hard to understand the reluctance of the body corporate committee.. in contacting Remedial," since the leaks have been going on since the work was done by Remedial and 16 months has elapsed.

With regard to the water penetrating between the membrane and the door and window frames, the Applicants say that seal between the doors and glazing components and frames should be the lot owner’s responsibility, but the membrane should extend to the inside face of window and door frame and the seal between membrane and frame should be responsibility of body corporate.

Further information
By letters dated 1^st December 2006, I sought further information from both the Applicants and the body corporate, and in particular from the body corporate, the finalised report from Opat. I also asked Mr and Mrs McDonald, the neighbours of the Applicants in Lot 51 for further information. The information was to be provided by 18^th December 2006. All parties sought an extension of time in which to respond, which was given until 8^th January 2007.

The Applicants responded on 6^th January 2007. Mr and Mrs McDonald responded on 6^th December 2006 but their fax did not reach this Office until 6^th February 2007.

On 20^th December 2006, the body corporate advised by fax that since the body corporate had elected a new chairman at its November AGM, the information requested had not been collated and that it would be dealt with as a priority early in the new year. On 5^th January 2007, a further fax was received by this Office from the body corporate manager saying that Opat’s office was closed over the holiday season until 15^th January 2007 and that Opat were carrying out further tests which would start after 15^th January 2007, subject to weather conditions and access to Unit 52. This further report would then be sent to this Office.

Following a response from this Office that I required existing reports, this Office was advised by fax on 11^th January 2007, that " the committee is still endeavouring to collate all of the information requested." On 30^th January 2007, this Office again chased a response from the body corporate, repeating the content of the letter of 1^st December 2006. A response was received on 2^nd February 2007, and forwarded to the Applicants to make any further comment.

From the response from the body corporate, which came from Burchills, it appears that as at the date of this order, there has been no final report from Opat carried out. The Opat tests of 16^th October 2006 therefore remain inconclusive. The body corporate says that Lot 52 has not been accessible as it has been rented out, but that Opat are awaiting the next dry period to undertake further tests before 23^rd February 2007 and the next letting. The Applicants deny that their lot has been inaccessible or that they have been contacted about finalising the Opat report.

The body corporate provided a memo dated 19^th July 2006 from Rendell Digby, (Mr Digby) manager of Strata, to Mr Simes and Ian Coldwell headed "Building Defects- Unit 52" saying that the Deluca report may be "theoretical (sic) correct but not a practical solution to the condition that existed." He finds that comments about the height of the membrane are incorrect, "as was proven when the subsill was replaced." Mr Digby refers to hearsay statements from the tenant about the smell of chlorine in the kitchen and states that the "salts evident on the kitchen ceiling were sodium based (crystals), whilst salts emitted from concrete are usually calcium based (coating as formed on balcony outlet.)" Mr Digby says there is no proof that the waterproof membrane has failed.

The Applicants on 6^th January 2007 provided an update on the leaks as at 27^th December 2006. They say there has been very little rain since 11^th April 2006, but that after light rain on 26^th and 27^th December 2006 all leaks were dry except leak no.10 which was dripping. However, internal damage had increased at leaks 1,2,6 and 9. The repairs done at the pool stairs wall seems to be working because there is no damp below. There is no water going down behind the new membrane upturn. The pool remains full of water and number 6 leak below the pool is dry. This leads the Applicants to believe that the ongoing leaks are caused by "a capilliary action under the membrane ... occurring during rain events from a point unknown." Further that damage at Leak no. 2 indicated that leak was from above rather than from around the window. This leak is directly below the expansion joint installed by Remedial. Leaking appears to have ceased at Leak 8 since the new sill doors were fitted. Where the original sill to the windows exist ( leak no, 9), there is still leakage evident.

With regard to Strata’s letter of 18^th August 2005, they say that they believe from observation that Opat " continued a liquid membrane from the bituminous membrane installed by Remedial... to the inside face " in accordance with the detail required by the BCA figure 3.3.4.8 for window installation. However, they do not know whether the liquid coating is compatible with the bituminous membrane and that separation will not occur at this joint and whether the sealant was installed either side of the sill in case of any leaking of sill anchors.

With regard to Strata’s letter of 29^th August 2005, they comment on the five photographs provided by the body corporate. Photo 2 shows the membrane taken to the top of the hob but not continued to the inside face of the building. This allowed water to go over the top of the turn-up during the rain of June 2005. With regard to photos 4 and 5, they say at no stage have they ever sealed or opened up the slots in the windowsill flashings. That was done under instruction to contractors by the body corporate. With regard to the remark about the smell of chlorine in the unit, the Applicants say that the pool is a salt pool and gives off no smell of chlorine at all. The commentators might have smelt Exit Mould and liquid bleach which they use to clean down the mould. They do continually have to top up the spa, but this occurs through normal evaporation and use. The Applicants cannot emphasise enough that leaking only occurs after rain.

The Applicants have no knowledge of any chemical tests done on the salts apparent on the kitchen ceiling. The Applicants say that their own tests indicate that the salt from the drips in bedroom 2 contained "double the salt content of either the pool or the spa."

They agree that they cannot provide proof of failure of the membrane, because they can’t tamper with it. They continue to ask the body corporate for documentation to show what works were done, or whether they were done to specification and the body corporate has not provided these. They presume that the information requested does not exist.

I also sought further information from Mr and Mrs McDonald as to why they thought they would shortly suffer the same fate as the Applicants. They say that they purchased Lot 51 in September 1995, and that shortly after acquiring it, they "began to experience water penetration to the bedroom area, which in turn, caused damage to the ceilings and cornices." They approached the body corporate manager and the body corporate contractor " simply painted a large area of the ceramic tiles with white waterproofing compound, which prevented the leaking but which was visually unsightly." This was a stop-gap solution, because the McDonalds intended to modernise the roof. They think that the membrane under the tiles "had failed" at the time. Later there was further leaking around the internal chimney. They cannot recall suffering any damage on 30^th June 2005. They think they will have to ask the BC to replace the membrane "in the not too distant future," but they do not elaborate on why this should be.

DETERMINATION

In this matter it is not disputed that there are, or have been, 11 specified areas of water ingress into the Applicant’s unit at Lot 52. Clearly, these leaks are not acceptable to the Applicants and interfere with the quality of their enjoyment of their property. The matters in dispute concern the cause of the various leaks, and the responsibility for repairing or preventing those leaks, and this is complicated by the fact that the same leaks have been occurring to a greater or lesser degree since the time the Applicants purchased Lot 52, and possibly before that time.

It is accepted by the parties to the dispute that there were "on-going problems with the penthouse roofs" at least from 2000, and the Applicants noticed damp patches inside the kitchen of Lot 52 at the time of purchasing it in 1996.

In February 2004, Mark Anttilla (Mr Anttilla) of BSW Pty Ltd engaged by the body corporate carried out 6 tests on the roof of the Applicants’ lot. Mr Anttilla found that by flooding areas of the roof, he could make water appear on the interior of the Appellant’s lot at the lounge window, inside the tile joints inside the slider door by the pool, in the kitchen from the stink pipe, and in the bedroom from the BBQ area. He was unable to confirm penetration in other areas, although there were visual signs of water ingress. He also noted that the external deck was higher than the internal finished floor in both units 51 and 52, and that the primary source of water ingress appears to be through the hob. He believed that the upstand details were defective.

By April 2004, Burchills had been involved, and a contract drafted between a contractor, Burchills as superintendent and the body corporate as principal. Remedial tendered for the contract in August 2004. At some time between August and the end of November 2004, the body corporate made extensive repairs to the roof of Lot 52, following meetings with the Applicants and listing their complaints about water ingress.

The body corporate replaced the roofing membrane of the eastern part of the patio, but it was agreed with the Applicants that it would cost the body corporate too much to redo the whole roof which would require the removal of the Applicants’ swimming pool and replacement of the membrane under the pool. The Applicant William Butler is a builder and was aware that the join between the two membranes could be an area of future susceptibility. In a letter dated 8^th November 2004 to Burchill, he said :

"As the existing membrane extends under the pool (Pool built on top of membrane) we accept that the cost to remove and replace the Pool to allow membrane under to be replaced would be prohibitive. However, attention should be given to sealing new membrane under pool before any turn up around pool is undertaken."

Mr Symes, mentions this letter and says that "during the repairs" it was found that the pool was leaking, and that the Applicants acknowledged that there were defects in the pool walls and said they intended to repair them. This information was apparently in a letter dated 19^th November 2004 from the Applicants to the body corporate with which I have not been provided. Remedial refers to this incident in its warranty dated 12^th May 2005, which carries the rather ambiguous note -
"Prior to installation of the membrane we informed the body corporate that the existing pool structure was leaking and was still leaking prior to our completion of the project." (my underlining)

The Applicants, however, deny that there was ever any evidence of any water penetration through the membrane under the pool, even though with the removal of the substructure, a number of minor leaks were evident in the pool wall which were subsequently repaired and tested satisfactorily by them.

The body corporate also tackled the "primary source of water ingress" being the leaks around or through the fitting of the large glazed windows and the sliding door onto the roof. ( leaks 8 and 9).

The Applicants say Burchills certified that the work was "complete and free from defect" on 1^st December 2004. I have not seen those words in any document produced to me. In fact, the body corporate received a Practical Completion Certificate on 1^st December 2004 certified by the same Mr Bell who is a director of Strata. Mr Bell is a registered professional engineer and managing director of "belleng Pty Ltd" and certified the work as being " generally in accordance with our approved documentation and therefore acceptable to be classed as practically completed" with a defects liability period of 26 weeks ending on 1^st June 2005.

Strata is a division of Burchills, and on 1^st February 2007 in responding to my letter to the body corporate, Mr Bell signed as "Principal, Body Corporate Services" for Strata. Clearly, the Certificate of Practical Completion is not a document produced by an independent inspector, but is merely a formal note of the finalisation of the contract.

However, the Applicants fax to the body corporate manager on 9^th December 2004 make it clear that the contract had not in fact been competed. In addition, the membrane had not been tested, before tiles had been laid on top of it. The Applicants noticed a new leak below the pool area, appearing in the kitchen ceiling (leak 6) at Easter 2005, and then on 30^th June 2005, a torrential rainstorm caused leaks as detailed. Their complaints resulted in further remedial work being undertaken by the body corporate to the fitting and sealing of the sliding door and window in July and August 2005, and the Applicants engaging the Leak Detective and Deluca in respect of the cause of the leaks.

The outsiders brought into this matter by the Applicants to prepare reports have concluded that the water was "leaking past the waterproof membrane" and that that the waterproof membrane in this area had failed; (Leak Detective – November 2006); that the pool itself was not leaking ( Leak Detective – November 2006); that the outlets for water escaping from the roof were inadequate and blocked, and the design of the roof provided insufficient freeboard for floodwater (Deluca – February 2006).

Following the lodging of this application, the body corporate asked Opat to report in October 2006. Opat detected no leaks from their water testing on the roof but "it would appear that the leaks manifest after wind driven and continuous rain." Perhaps Opat is simply stating here what it had been told. However their testing and report was incomplete, and they were unable to test the theory that the leak in the kitchen ceiling was caused by poolwater.

The body corporate does not deny that the leaks continue to occur but says that those that occur within the Applicants’ lot must be addressed by the Applicants, and that the Applicants have not demonstrated that the body corporate has failed in its duties. I understand that talks between the body corporate and the Applicants, and other lot owners, continue as to the best way to resolve the problem. I also understand that Leak 8 has now possibly been fixed by remedial works done by the body corporate and the new flashing being affixed to the sill.

The Applicants have various theories as to why the leaks occur: that the new membrane was defective or not installed properly, in which case the parties can turn to the guarantees from Remedial; that the new membrane was never or incorrectly or insufficiently joined to the remaining membrane under the pool; or that rain and wind-driven water is overtopping the membrane which has an insufficient seal to door and window subsills.

The body corporate suspects that at least leak 6 is caused by the pool leaking and that therefore the leak is the responsibility of the Applicant owners. Its theories are that that the membrane under the pool is now leaking and allowing passage of rainwater; or that the membrane under the pool is leaking spilled poolwater from leaks in the walls of the pool or spa. It gives no explanation for the leaks at 8 and 9 (although I asked it to do so) but has detailed instead a history of the repairs undertaken. It has re-sealed the window and sliding door, painted a liquid membrane up to the edge of the bituminous one installed by Remedial in 2004 from the top of the hob into the inside face, and unsealed drain holes in the sill

All these theories concern the new or existing membrane.

I am of the view that even if the Applicants’ pool is leaking, I cannot see why the responsibility should be that of the Applicants’. Spilled pool water should not pass through either the existing membrane or the new membrane. Unless it can be shown that the Applicants have damaged the under-pool membrane or the new membrane, or tampered with the join between the two in some way, the responsibility for a roofing membrane does not shift from the body corporate.

Section 109 Standard Module states in full ( with my underlining) –
109 Duties of body corporate about common property--Act,
s 152

(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--

(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--

• 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 the 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 roofing membrane is not common property. It is within the Applicants’ lot as has been pointed out, but it is a roofing membrane that provides protection to lots, ultimately to all lots, as submitters Mr and Mrs Toomey point out, and comes squarely within section 109(2)(a)(iii) Standard Module.

I do not think that the body corporate denies that it is responsible for the maintenance and good condition of the membrane. This is why the repairs in 2004 were undertaken by the body corporate. However, there is some concern as to whether the membrane remains the responsibility of the body corporate when it joins seals around windows and doors within the owner’s lot, or passes over hobs within the owner’s lot. In my view it would be a nonsence if the body corporate was not responsible for the correct joining of the membrane to such point in the interior of a lot where sufficient protection is provided to lots or common property. The fact that water comes through a roofing membrane, at whatever point, so that lots receive ingress of water, will always be the responsibility of the body corporate ( in a building format plan) barring damage by another person. In that case, the body corporate must still repair the damage, but may recover costs from the person who has caused the damage. (Section 109(4) Standard Module.)

However, it is not agreed that the membrane is faulty. Water ingress may be caused by overtopping of the membrane, because the design of the roof is insufficient to cope with severe rain, or the design of the roof coupled with the height of the sills, the blocking of the overflow outlets, or the drilling of holes under the sub sill may all play a part. Section 109(2)(b)(ii) provides that the body corporate is responsible for maintaining roofing structures providing protection in good condition. As such, the overflow channels should be kept clear and serviceable, and any holes drilled by the original builders where they allow water to enter, should be sealed properly.

It may be that the body corporate is stuck with poor roof-top design from the original owner, or with a badly constructed building. I have no jurisdiction over this, and believe that civil action to remedy poor workmanship or design would now not be successful after 19 years. The body corporate remains responsible unfortunately, to maintain a poorly constructed or badly designed building, and the burden does not shift to the nearest or most affected lot owner.

It has not been suggested by the body corporate (or the Applicants) that any of the leaks occur because rainwater is simply blowing into a shaft or under an ill fitting door or window. All the theories and exploratory repairs have looked at the integrity of the membrane and the sealing of the edge of the membrane over the hob into the interior of the lot.

In respect of the leaks occurring near ventilator shafts ( leaks 4 and 7) I would add that if these shafts are "utility infrastructure" as defined at section 20 Act and the definition of "utility infrastructure" in Schedule 6 Act , that is, if they serve more than one lot, then they are common property even if they are within the boundary of an owner’s lot and therefore the responsibility of the body corporate to maintain by virtue of section 109 (1) as set out above. If however, they fall within the exception to section 20 Act, that is, they service only one lot (and are within an owner’s lot, and not within a boundary structure of an owner’s lot) then maintenance of such ventilator shafts would be the responsibility of the lot owner.

I am assuming that if the leaks at 4 and 7 were caused simply by rain blowing into a vent ( as opposed to rain seeping between a vent fitting and the roof which is a description given by the Applicants) then this matter would not have gone on for such a long time. The same applies to the leaks at 8 and 9. Where section 109 Standard Module does not apply, the lot owner would be responsible for maintenance within his own lot.

I cannot say what is causing the leaks any more than those involved seem to be able to do. However, in the scenarios which have been proposed, all of which concern the integrity of roof membranes or the structure of the building albeit within the Applicants’ lot, I cannot find a way in which the Applicants would be responsible for the leaks as described, bar deliberate damage.

Deliberate damage
Deluca found that a small overflow channel on the roof had been plugged. There is no evidence as to who may have done this, although the Applicants say that the body corporate sealed up slots in the parapet to stop water running down the outside of the building. I do not have information about when that was. There was also some evidence given by Strata that slots for the drainage of water in the subsill of the sliding door had been filled with silicone after being re-opened at the time the new membrane was laid in 2004. The Applicants deny that they have ever sealed or unsealed these slots. In any event, there is no evidence that this filling contributed to the ingress of water. Additional holes found under the subsill were also put forward as suspects for the ingress of water by Mr Simes, but Burchills say that these holes occurred during the original building in 1988, although they do not say how they know this.

Compliance with the BCA
Equally, there is no proof that the building was not constructed in accordance with building codes relevant in 1988, or that the BCA was breached in 2004 by Remedial. The Building Code of Australia states general objectives and makes functional statements which are to be used as an aid to interpretation of the BCA and not for determining compliance.^[1] The Applicants propose various Australian Standards which have been compromised or not complied with, but there is no independent evidence of such failures, and the Applicants acknowledge that they are surmising why their roof leaks as they have not been able to investigate fully.

The Applicants say that the Deluca report shows that the roof does not comply with certain Australian Standards as required by the BCA, (although they do not identify which Australian Standard or Standards those are). In my view, Deluca does not quite say this. It just says that the BCA requires that any roof design be able safely to convey discharge from a storm of ARI 100 magnitude and should have a freeboard of 30mm above the water design level, but that in the case of this roof, because of exposure to "extreme wind conditions" that a freeboard of 50mm be adopted.

Ongoing repairs
Leaks at points 8 and 9 have been occurring since at least 2003, and were part of the reason for the new membrane being fitted in 2004. These leaks have never been fixed ( although there is some hope for Leak 8 now apparently.) Leaks 2,4,5 and 7 were also "original leaks" and remain unresolved by the body corporate’s efforts in 2004. Leaks 1,6,10 and 11 are new leaks since the storm on 30^th June 2005 when the new membrane was already in place. There is insufficient information about Leak 3.

There is certainly room in my view for the body corporate to return to the terms of the contract with Remedial concerning the testing of the membrane prior to being covered up which the Applicants noted at the time was not done. The body corporate (and Remedial) also might like to explore the terms of the warranties for product and installation. These warranties were provided to the body corporate in May 2005. At that time the original leaks had still not been rectified and new leaks had appeared. The body corporate should immediately have notified Remedial that it was not satisfied with the work, and/or that further work was required. Burchills organised further repairs in August 2005, but told the body corporate they were not responsible for the new leaks appearing, and started to suggest other reason for the leaks. At this point, I find that the body corporate, having spent a lot of money on a disappointing outcome, failed to get a satisfactory response out of its contractor. It misguidedly looked instead at the fact that all the leaks were occurring within the Applicants’ lot, and were deflected by the idea that the Applicants’ pool or spa might be leaking, even though such leaks, if they existed, should not be able to penetrate a waterproof roof membrane for which the body corporate is responsible.

I also find that the body corporate has dragged its feet in this application and that the Applicants have not been provided with documents which they have requested.

Order
The body corporate is responsible for making sure that water from any source does not penetrate the Applicants’ lot through the roof membrane, or over the top of an existing roof membrane, or through the fabric of the roof structure. To this end it should immediately go through the terms of the contract with Burchills and Remedial. Points to be explored in the contract should include the allegation of the failure to watertest the membrane before it was covered; and whether the manufacturer’s recommendations were followed. I understand that the Building Services Authority may have a role in a complaint laid against Remedial, as suggested by Mr Simes.

If Remedial is not willing to act under the warranty, or cannot rectify the remaining leaks under the cover if the warranty, or cannot rectify the remaining leaks without changes being made to the design of the roof, the body corporate must within 3 months of the date of this order instruct an engineer, who is not part of the Burchills/Strata/Remedial group and who is properly qualified in the rectification of water ingress into buildings, and whose qualifications are acceptable to the Applicants, to report on the reasons for water ingress, and the method in which those defects should be rectified. Without casting any aspersions on the persons who have made reports which have been discussed in this application, none of them have given ( or I have not been provided with) their qualifications or their expertise variously in leak detection, salts analysis, hydraulic design, or construction detailing.

Within one month from the receipt of the report, the body corporate is to seek at least two quotations for the rectification work recommended by the engineer and put the quotations as a motion to a general meeting of the body corporate as a motion in the alternative. The body corporate has an obligation to maintain the membrane(s) and roofing structures in sound condition.

The chosen engineer may also report on Lot 51 at the same time if the body corporate so wishes, but I do not make that part of the order.

I have not been provided with any quotations but there is some suggestion by the submitters, that something of this nature has already been proposed. The figure of $50,000 has been mentioned but I do not know where this has come from. I find that all the submitters, and the Applicants have been honest and helpful in their presentation of a difficult problem, and trust that progress can now be made since the body corporate knows where its responsibilities lie.

The body corporate should also recall the relevant contractors to replace the damaged floor tile in the Applicants’ unit which was damaged during the repairs in August 2005, and to match the grout with the existing tile grout. In my view that repair should be done free of charge, but that is a matter for the body corporate to orchestrate. Meanwhile, the Applicants, on payment of the requisite fee for photocopying, and in accordance with Section 205 Act and Section 151 Standard Module, should be provided with all documents relating to the contract, and any correspondence on the body corporate records which they may wish to see.

Number of Scheme:	6750
Name of Scheme:	Westwater
Address of Scheme:	QUEENSLAND

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Westwater [2007] QBCCMCmr 171 (22 March 2007)