Moor and Store [2007] QBCCMCmr 29 (19 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0980-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29793
Name of Scheme:	Moor and Store
Address of Scheme:	QUEENSLAND

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

The Body Corporate,

I hereby order that within 30 days of the date of this order the owners of lot 32 are to submit to the body corporate copies of the plans and specifications for their docking mechanism.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0980-2006

"Moor and Store" CTS 29793

THE SCHEME

Moor and Store is a subdivision of 64 lots on a Building Format Plan and a further 64 lots on a Standard Format Plan. The regulation module applying to the scheme is the Standard Regulation Module.

APPLICATION

By application received by this Office on 27 November 2006 the applicant body corporate sought the following Interim Order:

That the proprietors of lot 32 cease using the docking system installed within their lot pending the making of a final order with respect to this application.

The applicant body corporate also sought the following Final Outcomes:

(a) That the proprietors of lot 32 be required to remove the docking system installed within the lot which was installed without the consent in writing of the body corporate committee as required by by-laws 20 and 21.
(b) That the proprietors of lot 32 be required to rectify damage caused to the common property by installation of the docking system referred to in sub-paragraph (a) hereof to the satisfaction of the body corporate.

BACKGROUND

Moor and Store is a subdivision of 64 lots on Building Format Plan 141006 (metal clad garages) and a further corresponding 64 lots on Standard Format Plan 141007. At a meeting of the body corporate committee convened on 25 September 2006, it was reported that the owners of lot 32 had installed a large "air dock" system (i.e. a system used for lifting and supporting boats out of water) without first obtaining the permission of the body corporate. It was reported that use of the system had resulted in damage to the common property pontoon to which the air dock system is attached. At that meeting the committee resolved to require the proprietors of lot 32 to remove the docking system and repair the damage to the common property.

The applicant states that on or about Monday 6 November 2006 it was noted that the system was deflating on one side causing the boat on top to lean toward an adjacent boat so that the adjacent boat and marina were in danger of suffering significant damage. The applicant states that the docking system is "homemade", and at the date of the application the boat in the adjoining lot had sustained damage on three occasions. Further, the docking system encroaches on the neighbouring lot and the owner of the neighbouring lot has been prevented from moving his vessel without suffering further damage.

On 7 November 2006 a letter was delivered to the owners of lot 32 with a notice of continuing contravention.

The applicant states that as the docking system remains in use, an interim order is required to stop the owner of lot 32 from using the docking system so as to avoid any potential damage.

A final order is also sought that the docking system be removed and that all damage to caused to the common property by the installation, use or removal, be repaired by a firm named Bellinghams and the owner of lot 32 be ordered to pay the cost of such repairs.


SUBMISSIONS

Pursuant to section 243 of the Act, submissions were invited from all other owners including the owners of lot 32. In response, 12 submissions were received and these are summarised below.

Submission 1:

• These lot owners have been advised that lot 32 has installed an air dock system including hydraulic controls and that the system was attached to the pontoon by two brackets with rollers that ride up and down resulting in damage to the pontoon;
• The situation is regarded as urgent owing to the danger presented to surrounding vessels and equipment;
• They believe that the owners of lot 32 should remove the docking system installed without the consent of the body corporate and rectify any damage caused to common property.

Submission 2:

• The lot owners are concerned by the presence of a privately built docking craft at Berth E32;
• In particular, they are concerned that people on nearby vessels could be injured or killed if the vessel were to slip off the docking system on which it appears to be precariously perched;
• They have already observed one occasion where the vessel was tilting to one side and others have advised that this instability has occurred on more than one occasion resulting in damage to the vessel in the adjoining berth on three occasions;
• The common property pontoon area servicing Berth E32 has also been damaged;
• The owners have contravened by-laws 20 and 21 by attaching the docking unit to common property without body corporate consent.

Submission 3:

• The lot owners recently observed an apparatus attached to berth 32 for the purpose of lifting the vessel in that berth above the waterline;
• They have observed the lift listing to one side and the vessel appearing to be unstable.
• They are concern to them that if the vessel falls to one side the adjacent vessel would be at risk of severe damage as would all the other vessels in the marina owing to a possible domino effect;
• The adjacent vessel has already been damaged and is restricted in its movement out of the marina;
• While they do not have specific qualifications in marine construction, just using their perceptive common sense the structure appears unwieldy and not of a professionally built nature;

Submission 4:

• The lot owner objects to the installation of the device without approval and engineering consultation and supports an order for its removal and an order that the owners of lot 32 meet all repair costs;
• It is of paramount importance that there is no risk of damage to property or persons and this can occur when owners make such installations without body corporate approval.

Submission 5:

• The owner of the adjoining lot is extremely concerned by the possibility that he could be injured or his boat severely damaged if the vessel were to roll off the system onto his berth;
• The body corporate has diligently pursued the matter to no avail and seeks an order from this Office to ensure compliance with the by-laws;

Submission 6:

• The lot owner strongly objects to the "air dock" installed in lot 32 and attached to common property without body corporate approval;
• The system encroaches on lot 33 and if it were allowed to stay this would set an adverse precedent for the scheme;
• The control panel for the system is set up on an area used by the owner of berth 31;
• In November 2006 the lot owner observed that as the vessel was being lowered, the vessel listed to one side and the yacht in lot 33 was damaged;
• The "air dock" is unstable and is a "disaster waiting to happen";

Submission 7:

• This submission was received from a couple who own a number of lots in the scheme including lot 16, and who are directors of a company which builds various marine systems including hydro lift systems. The author of the document has 33 years experience in engineering design work;
• They currently use a lifting system in lot 16 and have installed guide rollers in lot 17 which they also own;
• Very few keeled vessels are stored on hydro lifts as such vessels become too high and unstable sideways if not on an extremely wide base;
• This system is not suited to the vessel in question as it is too narrow – the centre of the tanks are barely the beam of the boat and as a result the configuration is top-heavy and unstable;
• Secondly, the cylinders/ floats are too short for the length of the vessel which would impact on fore and aft control;
• The damaged floating pontoon is common property and the system is now held in place with mooring lines and fenders. Operating this size and weight device in a totally restricted site, using only mooring lines is very dangerous;
• Allowing for wind and tide and allowing clearance for operation, the structure infringes into the next lot;
• Should the vessel lunge severe injury could be caused to persons in the adjacent lot or on common property;
• The lift itself provides no access to the vessel and access stairs infringe on common property – in this regard the question arises as to whether the body corporate would bear liability;
• The question also arises as to whether the owner of lot 32 has taken out public liability insurance for damage or injury caused by use of the structure as this would not be covered by the boat insurance;
• The hydro lift in lot 16 is a commercially produced structure built by Superior Jetties and is a registered non motorised vessel with its own public liability insurance;
• No body corporate committee was in place at the time that their hydro lift system was installed in lot 16.

Attached to the submission was a letter from Superior Jetties which included the following information:

• In building their lifts they assess the total mass of the vessel including all liquids (presumably stored fuel and water) to arrive at a "wet" weight rather than the manufacturers "dry" specifications;
• To support this weight and allow for movement due to wakes, waves or other uncontrollable occurrences, the company allows for the lifting tanks to be spaced wider and longer than the actual hull to cradle the load – thus overcoming the tendency for the elevated load to pitch forward or sideways;
• Tanks that are shorter or narrower than the hull would not be stable and could cause the structure to pitch over.

Submission 8:

• The owner of lot 32 is using the system to raise a large (around 12 metres) flybridge cruiser above the waterline so that the keel is almost level with the existing pontoon deck;
• The lot owners are concerned by the presence of a "backyard built" docking system at berth 32 without reference to the body corporate or submission of any professional engineering assessment as to whether the existing marina structure is capable of safely accepting such a large and heavy structure;
• On the first day of operation, the system with the steel boat attached was too heavy for the guide rails mounted on the pontoon and subsequently broke free of the rails and damaged the pontoon. It is now moored with lines and has caused damage to a neighbouring boat;
• The lot owners are concerned that given the height of the structure out of the water, a heavy wind could blow the configuration over or otherwise cause it to break free thus presenting a danger to other vessels and the marina complex;
• They are also concerned that the owner of the system pressure washes the boat when it is out of the water, in breach of the by-laws and Environmental Protection Act has been othe y are concerned that people on nearby vessels could be injured or killed if the vessel were to slip off the docking system on which it appears to be precariously perched;
• They have already observed one occasion where the vessel was tilting to one side and others have advised that this instability has occurred on more than one occasion resulting in damage to the vessel in the adjoining berth on three occasions;
• The common property pontoon area servicing Berth E32 has also been damaged;
• The owners have contravened by-laws by attaching the docking unit to common property without body corporate consent.

Submissions 9 & 10:
Support the application for interim and final orders.

Submission 11:

• The lot owner opposes the application as he believes the system appears to be professionally installed;
• The control panel is situated on the dock but does not create problems for other users;
• There is another lifting system installed in the marina;
• If there is an issue with the installation this is a matter between the owner and the installer and damage to other vessels is a matter between the owners

Submission 12:
Submissions made on behalf of the owners of lot 32 included the following:

• The notice of continuing contravention served on or about 7 November 2006 is defective as it fails to comply with section 182(4) because it does not state the period within which the affected person is required to comply with the notice;
• Before purchasing the lot they made inquiries with the manager of the marina who was acting as the vendor’s agent, whether it would be possible to install an elevating system (the system). He was advised that this would not present a problem.
• when first brought to the marina the lift did not function properly so it has been tied to bollards installed on the pontoon like any other vessel;
• they deny that the configuration leans to one side and has caused damage to other vessels on three occasions;
• they deny that the system encroaches onto the neighbouring lot as the aggregate width of the system and the vessel is less than or equal to the size of their lot entitlement;
• the occasion that one side of the structure deflated was due to interference by a third party rather than a design or mechanical problem;
• a similar system is being used on another lot in the scheme;
• the system is safe and can withstand winds of more than 60 knots,
• it is submitted that there is no urgency to justify the granting of an interim order;

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

This scheme is unusual in that it involves a building format plan (SP 141006) in which some 9 metal clad waterfront buildings, referred to as buildings A to I, are divided into 64 lots and also a standard format plan (SP 141007) over the adjoining land, divided into 64 lots which are used as marina berths.
The "system" referred to above is a type of pontoon used in lot 32 for lifting and supporting a vessel out of water. Typically such lifting systems consist of two large float tanks with a cradle structure between the float tanks to support a vessel. The system is partly submerged to fit under the vessel by filling the tanks with water. Water in the tanks is displaced with air to lift the vessel out of the water.

The applicant states that the docking system is "homemade", and at the date of the application the boat in the adjoining lot had sustained damage on three occasions as the system encroaches on the neighbouring lot and the owner of the neighbouring lot has been prevented from moving his vessel without being damaged. Originally the system was attached to the "common property" by way of brackets and rollers running up and down guide rails mounted on the pontoon. I am advised that the system subsequently broke free of the rails and damaged the pontoon. It is now moored with ropes to the common property. The applicant states that in November 2006 the system was deflating on one side causing the boat on top to lean toward an adjacent boat so that the adjacent boat and marina were in danger of suffering significant damage.

The body corporate has sought to have the system removed by issuing a notice of continuing contravention to the owners of lot 32 with alleging breaches of the following by-laws:

20. Structural Alterations to the Interior of Lots.
The manner and sale of any structural fit out, or structural alteration to the fit out of the lot must have the prior written approval of the body corporate committee. The body corporate committee shall be entitled to request copies of such plans and specifications as it might consider necessary to enable it to grant its approval and the owner of a lot shall comply with all requests.

21. Alteration to the Exterior of Lots
An owner or occupier of a lot shall not paint or repaint or carry out any work or alter the appearance of any lot without the consent in writing of the body corporate committee. Any work, alteration improvement or structure carried out or erected in breach of this by-law may be forthwith removed with or without notice by the body corporate or the manager and each of their respective employees, agents and contractors.

The body corporate is responsible for enforcing its by-laws and Sections 182, 183 and 184 of the Act (read together) provide that subject to certain exceptions outlined below, contravention notices must be issued before any formal enforcement action is taken. A continuing contravention notice may be issued by the body where it reasonably believes that a person is contravening a by-law, and it is likely that the contravention will continue. The purpose of this notice is to require the person to remedy the contravention. Section 182(4) of the Act specifies the details that must be included in the notice.

The owners of lot 32 claim that the notice of continuing contravention served on or about 7 November 2006 is defective as it fails to comply with section 182(4) because it does not state the period within which the affected person is required to comply with the notice and that consequently the matter should not go to adjudication. However it should be noted that a body corporate or lot owner may lodge an application without giving a preliminary notice if "special circumstances" justify the dispute being resolved urgently (Section 186 of the Act). "Special circumstances" include contraventions which:
a. are likely to cause injury to persons or serious damage to property; or
b. are a risk to the health or safety of persons; or
c. are causing a serious nuisance to persons; or
d. for another reason, gives rise to an emergency.

I note that other lot owners have very real concerns regarding the risk of injury to persons or serious damage to property because:

• Very few keeled vessels are stored on hydro lifts as such vessels become too high and unstable sideways if not on an extremely wide base;
• This system is not suited to the vessel in question as the centre of the tanks are barely the beam of the boat and as a result the configuration is top-heavy and unstable;
• the cylinders/ floats are too short for the length of the vessel which would impact on fore and aft control;
• Operating this size and weight device in a totally restricted site, using only mooring lines is very dangerous;
• Allowing for wind and tide and allowing clearance for operation, the structure infringes into the next lot;
• Should the vessel lunge, severe injury could be caused to persons in the adjacent lot or on common property;
• The question also arises as to whether the owner of lot 32 has taken out public liability insurance for damage or injury caused by use of the structure and indeed, whether such cover would be obtainable.

Consequently, I believe that special circumstances exist and the alleged defect in the notice of continuing contravention would not invalidate the application. However I am concerned that at this stage the body corporate does not have access to the plans and specifications for the system in order to make a more definitive assessment of the system.

The next argument raised by the affected persons is that as the system is now attached by ropes, there is no particular need to obtain permission from the body corporate. However, having regard to the manner in which the system was originally attached to the common property, I do believe that by-law 6 regarding damage to common property without the consent of the body corporate, has some application to the circumstances. I believe that before the system was originally installed, the owners of lot 32 should have sought permission from the body corporate, and in order for the body corporate to be able to make an informed decision should have submitted all relevant details and specifications.

Further, based on the submissions received to date I believe that there is a possibility that section 167 of the Act may have some application to the circumstances at hand. Section 167 of the Act provides as follows:

167 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

As I have outlined above, lot owners are concerned about the design of the lifting system and that the system is not seaworthy and dangerous when used to accommodate the vessel in question.
Having regard to submissions regarding the suitability of the system to the vessel docked in lot 32, I also believe that questions arise regarding compliance with by-law 13 which concerns Insurance Risk.

Nevertheless, after considering all submissions including submissions from the affected party which claims that the system is safe and has so far withstood winds of up to 60 knots, I believe it would be premature for me to make an order that the owners of lot 32 cease using the docking system installed within their lot.

For the purposes of making final orders it would be useful if the applicant could review the plans and specifications for the system before making final submissions. Similarly, it would be useful if the affected party could address the various matters outlined above in their final submissions. Accordingly, at this point in time, I propose to order that the owners of lot 32 submit to the body corporate within 30 days of the date of this order, copies of plans and specifications relating to the system to enable the body corporate to make an informed decision as to whether the owners of lot 32 needs to obtain their approval and to otherwise ascertain whether there are inherent deficiencies in the design of the system.

Unless the parties reach some form of agreement in the meantime, final submissions will then be sought from the parties prior to the making of final orders.