Broadwater Tower [2007] QBCCMCmr 209 (16 April 2007)

Number of Scheme:	9041
Name of Scheme:	Broadwater Tower
Address of Scheme:	17 Bayview Street RUNAWAY BAY QLD 4216

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

I hereby order that contractors engaged by the body corporate to effect certain repairs to the building, involving removal of balustrades on the rooftop area of lot 131, are not to access that area by entering through the lower floor of lot 131.

This order is to have effect until a final order is made unless the application is withdrawn before that time.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0243-2007

"Broadwater Tower" CTS 9041

The Broadwater Tower community titles scheme consists of 132 lots and common property and the community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources Mines & Water records show the scheme is registered on a Building Format Plan (previously known as a Building Unit Plan).

APPLICATION

The applicant is the owner of lot 131 who seeks an order in the following final outcome:

An alternative access to common property from common property where toilet and power supply exist for contractors working on the upper exterior.

The applicant goes on to state that the design of such a means is has been submitted but the committee has been unable to address the issue due to a lack of communication with the ordinary members who have expressed sympathy and support for the project.

The applicant also seeks the following interim order:

A stay on progress by the contractor carrying out work on lot 131 prior to alternative access being provided. Work has commenced on apartment 132 due to the urgency required to clear the area quickly, however they have indicated their agreement to have the same access.

BACKGROUND

The applicant is the owner of lot 131 and states that lots 131 and 132 are two storey penthouses each of which have an upper level enclosed by an aluminium and glass balustrade which requires removal and repair. The applicant states that that part of the framing is severely corroded and urgent remedial action is required to preserve the structural integrity of the building. Workmen engaged by the body corporate require access to the roof top area to effect these repairs.

Currently the only access to the site for repair and painting of the building is through the lower floor of the lot, up a set of stairs through further living areas to an exit. The applicant states that previously, workmen accessing the concrete slab roof, caused damage to lot 131. The applicant has submitted to the body corporate committee an alternative means of accessing the roof area by means of retractable gangways.

Under section 243 of the Act, it was proposed that a copy of the application would be provided to the body corporate and all owners with an invitation to respond to the matters raised in the application. However by letter dated 27 March 2007, the Body Corporate Manager advised this Office as follows:

With reference to your Notice of application dated 31/3/07 which was received on 23/3/07 the committee has instructed us to make the following submission on its behalf:
The Body Corporate is at the moment in the process of dealing with an EGM concerning unrelated issues which will be held later this week and the committee does not wish to burden owners with further complication and unnecessary additional cost at this particular time.

Since the body corporate has no immediate intention of entering the applicant’s lot, it is considered the interim order is not prejudicial to either party’s position with regard to the final outcome of the application. Accordingly, and without prejudice or admission, the committee wishes to consent to the making of the interim order sought to avoid the necessity of a distribution of material to owners at this particular time.

Given the lack of urgency regarding the issue of access to lot 131, I believe it is a commonsense decision for the body corporate to consent to the making of the interim order sought.

However, I would point out to the parties that section 163 of the Act provides as follows:

Power to enter lot

(1) A person (an authorised person) authorised by the body corporate for a community titles scheme may enter a lot included in the scheme, or common property the subject of an exclusive use by-law, and remain on the lot or common property while it is reasonably necessary--

(a) to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or
(b) to carry out work the body corporate is authorised or required to carry out.
(2) The power of entry may be exercised--

(i) for entry to the lot mentioned in subsection (1)--at a reasonable time after at least 7 days notice of the intended entry has been given to--

(B) if the owner is not in occupation of the lot--the occupier of the lot; and

(ii) for entry to the common property mentioned in subsection (1)--at a reasonable time after at least 7 days notice of the intended entry has been given to--

(B) if the owner of the lot mentioned in subsubparagraph (A) is not in occupation of the common property--the occupier of the common property; and

(iii) in compliance with the security or other arrangements or requirements ordinarily applying

(3) If the scheme is other than a basic scheme, the power of entry to a lot or common property the subject of an exclusive use by-law conferred under this section includes power to enter

the scheme land for a community titles scheme (the subsidiary scheme) that is a lot included in the scheme.
(4) If subsection (3) applies, notice of intended entry must be given to--

(b) if scheme land to be entered is a lot that is not itself a community titles scheme--

(ii) if the owner is not in occupation of the lot--the occupier of the lot; and

(c) if scheme land to be entered is common property the subject of an exclusive use by-law for the subsidiary scheme--

(i) is not in occupation of the common property--the occupier of the common property.

(5) A person must not obstruct an authorised person who is exercising or attempting to exercise powers under this section.

Maximum penalty for subsection (5)--20 penalty units.

However, I would point out that this provision does not specifically entitle a person authorised by the body corporate to use the toilet facilities of a lot owner or to source electricity (however negligible) from within a lot.

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:

(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

Given the lack of urgency regarding the issue of access to lot 131, I believe it is a commonsense decision for the body corporate to consent to the making of an interim order staying the progress of work on the upper level of lot 131.

It should be noted that an Interim Order is of a temporary nature and is usually made because
of the nature or urgency of the circumstances to which the application relates. An interim order has effect for a period (not longer than 1 year) stated in the order and if it does not lapse earlier, lapses when the application is withdrawn or a final order is made by an adjudicator.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Broadwater Tower [2007] QBCCMCmr 209 (16 April 2007)