Mandalay [2007] QBCCMCmr 591 (15 October 2007)

Last Updated: 18 October 2007

REFERENCE: 0529-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9494
Name of Scheme:	Mandalay
Address of Scheme:	21 Ferris Street SUNSHINE BEACH QLD 4567

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

the Body Corporate for Mandalay

I hereby order that within 6 weeks of the date of this order the owner of lot 1 is to ensure that the channel drain between the lot 1 exclusive use courtyard area and the lot 2 exclusive use courtyard area is at least 5 millimetres below the finished ground level of the lot 2 courtyard. I further order that within 6 weeks of the date of this order, the owner of lot 1 is to either: • lift the 7 rows of pavers nearest to the side fence , consisting of some 49 full pavers and 7 cut pavers in the lot 1 courtyard area; • create a new step across the width of the courtyard, in line with the gatepost on the lot 2 courtyard; • excavate the area and re-lay the pavers at a level consistent with adjoining courtyards i.e. approximately 60mm lower on the unit 2 side and approximately 130mm lower on the unit 4 side; and • Install a drain within the lot 1 courtyard, as close as possible to the gateway between the lot 1 and lot 4 courtyards, to collect rainwater runoff from the lot 1 courtyard. Or alternatively, • remove the 2 full rows of pavers and the additional 5 pavers nearest to the side fence; • excavate that area to a level consistent with adjoining courtyards; • retain the remaining rows of pavers; • excavate that area to a level consistent with adjoining courtyards; and • place six feature pavers and pebbles or grass at the lower level. I further order that the owner of lot 1 is to ensure that the above work is completed in a workmanlike manner and is to make good any damage caused to the adjoining courtyard areas in the course of undertaking the above work. I further order that the owners of lots 2 and 4 are to provide reasonable access to the owner of lot 1 and any workmen engaged by her to allow them to perform the above work .

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0529-2007

"Mandalay" CTS 9494

THE SCHEME

Mandalay is a Community Titles scheme regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). It consists of 4 lots registered on a Building Unit Plan of subdivision.

APPLICATION

The Applicant Body Corporate is seeking orders that the owner of lot 1:

(i) lift all existing pavers in her courtyard ;

(ii) excavate the excess sand below the pavers so that when re-laid, the pavers are no higher than previous finished level with the same fall as previously;

(iii) pave the lowered land level in accordance with committee approved plan from 21-9-2006 by removing 2 rows of pavers nearest the boundary fence to 23 Ferris Street;

(iv) Lower drain between units 1 & 2 so that it is effective;

(v) Install new drain behind gate between units 1 & 4 to catch run-off of water from her courtyard (as requested by Mrs McPhee in April 2007.

BACKGROUND

The applicant states that prior to the paving of the unit 1 courtyard, the land now comprising the 3 courtyards for lots 2, 1 and 4 was almost level with a slight fall from the back to the front of the block in Ferris Street. In October 2006, posts were set in the ground in such a manner that fences between the three courtyard areas would have a height of 1.8M with allowance for 1750mm gates with a clearance of 50mm under the gate.

However, between Christmas and New Year 2007, the owner of lot 1 had an associate commence paving work in her courtyard, and Instead of firstly excavating the area they brought in additional sand to raise the level of her courtyard well above the levels of adjoining courtyards. The level of her courtyard was raised on both the unit 2 courtyard side and on the unit 4 courtyard side.

The owner of lot 1 did not attempt to contact the owner of lot 2 who was also landscaping his courtyard area, and when the owner of lot 2 inspected the site after the Christmas/ New Year period, he found that the lot 1 courtyard was now higher than his courtyard. The raised level prevented him from completing paving in his courtyard as planned, and he noted that increased height of the lot 1 courtyard area could lead to flooding in the lot 2 courtyard. If the original height and incline had been maintained, water would be able to flow down the block toward Ferris Street as it did previously.

At the AGM held on 16 February 2007, the owner of lot 1 agreed to a compromise involving installation of a drain on the lot 2 side to catch water banked up in the lot 2 courtyard, to lift pavers between gate posts to allow the gates to swing, and to pave in accordance with an approved plan with feature pavers and gravel at a lower level.

However it is submitted that none of the agreed compromise measures were done satisfactorily as:

• The drain was too high on the lot 2 courtyard side;

• Some pavers were lifted between the gate posts but the gate could not swing;

• No other pavers were removed.

In April 2007 paving work began in the lot 4 courtyard and the owner of lot 1 requested the tradesmen to construct an unapproved step at a height of 130mm which is directly in line with access between units 4 & 1.

Also, as a result of her actions, the owner of lot 2 has been unable to complete the paving work in his courtyard and therefore the tenant of lot 2 has been unable to use the courtyard.

It is proposed that the owner of lot 1 rectify the situation by doing the following:

• Lifting the pavers, removing excess sand and re-laying the pavers at a lower level with appropriate fall and drainage to allow run-off to be collected in drains without impacting on other courtyards; or

• Lifting 56 pavers (49 full pavers and 7 cut pavers along the drain and near the step, re-laying pavers at a lower level consistent with adjoining courtyards to create a new step across the width of the courtyard, in line with the gatepost on the unit 2 side and lowering the area for water to flow naturally to 7 pavers in length. All new paving would need to be approximately 60mm lower on the unit 2 side and approximately 130mm lower on the unit 4 side. The drain along the unit 2 fence would need to be retained and lowered;

• Installation of a sizeable and effective drain near the gate between units 1 & 4 and contained within the unit 1 courtyard to collect run-off from the courtyard.

It is also stated that during the paving of the courtyard, gravel was dumped on the courtyard and the front gate post inside the unit 4 courtyard was pushed out of alignment. Therefore the applicant also requests a direction that the work is to be carried out without damaging the finished courtyard, fencing and gates of unit 4.

Pursuant to section 243 of the Act submissions were sought from members of the body corporate and a number of submissions were received:

The owners of lot 4 made the following submissions:

• The owner of lot 1 changed the area closest to the boundary fence even further after her agreement in February;

• At the time of the AGM on 16 February, there were only two rows of pavers directly behind the gate ;

• However in April, when the contractors were working on the lot 4 courtyard, the owner of lot 1 paid them to concrete the area behind the gate into her courtyard and to construct an unapproved step of 130mm, and a further 5 pavers were embedded in concrete;

• Whereas there were previously 2 rows of pavers bedded in sand, there are now 2 rows of pavers, a new step and 5 additional pavers embedded in concrete, none of which were approved by the body corporate;

• They request that the 2 rows of pavers (mentioned in the agreement dated 16 February), the new step area and the extra 5 pavers be removed as approval was not obtained for these. Rather, in the plan dated 21 September 2006, the area behind the gate leading from lot 4 to lot 1 was supposed to consist of grass or pebbles with feature pavers;

• Given the artificially raised height of the lot 1 courtyard and the slope of the block, water runs off the lot 1 courtyard into the lot 4 courtyard as observed in June this year. On 7th June the owners of lot 4 observed a long dirt mark and leaves on the concrete side wall of the stairs just inside the gate from the unit 1 courtyard, showing that water had risen to a height of at least 8 cm. The steel frame on the bottom of the gate between lots 1 & 4 was also covered with dirt and leaves as a result of water flowing through into lot 4. For these reasons they ask for a drain to be installed to prevent water running into the lot 4 courtyard;

• Owing to the raised level of the lot 1 courtyard, the fence between lots 1 & 2 is no longer 1.8M high;

• To sum up they would like to see –

- proper workmanship;

- no present or future risk of flooding;

- no run-off into their courtyard;

- no "inconsistent workmanship due to unapproved variations";

- no step which impedes access.

The owners of lot 2 made the following submissions:

• They support the actions of the body corporate;

• They require the owner of lot 1 to lift and remove the 5 additional pavers set in concrete in the step area behind the gate leading from lot 4 to lot 1 as the extra pavers were not included in the approved plan and they do not comply with the agreement of 16 February 2007 in which the owner of lot 1 agreed to remove 2 rows of pavers nearest to the side fence and to leave 6 feature pavers in the centre as per the agreed plan for lot 1. However, instead of removing these 2 rows of pavers, the owner of lot 1 had an additional step constructed with 5 extra pavers set in concrete;

• They seek an order that the following be removed;

- the 2 rows of pavers;

- the 5 extra pavers; and

- the unapproved step.

The owner of lot 1 made the following submissions:

• she will only change lift the pavers after a surveyor or engineer has prepared a report on "required land levels" for the courtyards and assessed appropriate drainage;

• she is unwilling to remove the excess sand until such a report has been obtained;

• she wishes to retain the 2 rows of pavers nearest to the boundary fence because

- they do not cause disruption to other properties;

- she does not believe that they present a flood risk;

- units 2 & 4 have had changes to their original plans approved.

• that the height of the drain between lots 1 & 2 should be determined by an engineer;

• the type of drain required between lots 1 & 4 to catch run-off from the courtyard should also be determined by an engineer;

• an independent registered engineer/ surveyor should be employed to determine the "natural level of the land and drainage requirements for all courtyards;

• each lot owner should then be responsible for drainage of their own exclusive use area to comply with the report of the engineer/ surveyor;

• her pavers are porous and laid on sand;

• the owners should provide access to the owner of lot 1 and workmen engaged by her to allow them to perform work recommended by the engineer/ surveyor;

• the owners of lot 2 have been given permission to adjust their land level to the level of lot 1 but has declined to do so.

In reply, the body corporate advised as follows:

• at the AGM held on 16 February 2007 the body corporate established clear processes for dealing with unauthorised work ;

• the raising of the land level in the lot 1 courtyard has not been approved and is therefore "unauthorised work" and as such is to be dealt with in accordance with motions 15, 16 & 17 from the AGM on 16 February, 2007;

• it is indicative of the problem that the body corporate has with the owner of lot 1 that she continues to insist that the committee, and now the adjudicator, does not have the right to decide whether or not the work is allowable or acceptable i.e. she will only rectify the work on certain conditions that are unacceptable to the committee,

• every member of the body corporate has already approved motion 3 at the EGM on 8 June 2007 and every member of the body corporate approved motions 15, 16 & 17 from the AGM on 16 February 2007.

The body corporate also submits that an engineer’s report is not required for the following reasons:

• the height of the old concrete pavers was previously the highest point on the land as depicted in photographs "H" and "I" accordingly there is no need for an expert engineer or surveyor to now guess the previous level;

• gate posts were set in October 2006 at a height of 1.8M allowing for gates of 1750mm with a clearance of 50mm under the gate and this information was known to all lot owners. If the original height and incline had been maintained, water would be able to flow down the block toward Ferris Street as it did previously ;

• there is no need for an expert engineer or surveyor to look at "flood risks" as flooding has already occurred since the owner of lot 1 raised the level of her courtyard. On 15 February,

Ms Brownlow from lot 1, and Mr Tapps from lot 3, told the owners of lots 1 and 4 that water had pooled and caused flooding of the lot 2 courtyard. At the AGM the following day, the owner of lot 1 agreed to install a drain in her courtyard. However the drain was installed higher than agreed upon, and due to its current height, will not prevent flooding in the lot 2 courtyard. It is submitted that she did this in an attempt to avoid reducing the level of the lot 1 courtyard.

• Gates, posts and fences that are currently in place are sufficient to show previous land levels and the requests by the owner of lot 1 are regarded as delaying tactics. The submitted photographs of the old pathway and the gates, posts and fences currently in place, are sufficient to prove that the owner of lot 1 raised the level of her courtyard. This was done by bringing in bags of sand and emptying the contents in the courtyard and prevented installation of gates, as the top of the pavers were higher than the underside of the gates.

• Having regard to attachments "A" to "I", it is evident that the owner of lot 1 has raised the level of her courtyard and the committee does not require an expert engineer or surveyor to tell them this although the owner of lot 1 may engage such an expert at her own expense;

• Using the old style concrete pavers to establish the correct level, it is evident that the lot 1 courtyard has been raised as high as 100mm on the lot 2 side and as high as 130mm on the lot 4 side;

• It is easy to determine the previous ground level by reference to the old paving, the lot 3 courtyard, and the height of the gateposts;

• All owners have previously agreed upon a process for dealing with unauthorised work. The owner of lot 1 cannot provide evidence that the raising of her courtyard was ever approved.

• The body corporate has already incurred unnecessary costs due to the actions of Ms Brownlow. For example, the body corporate is already facing twice the costs originally quoted and the body corporate does not propose to pay the cost of engaging an engineer or surveyor.

• This case involves unapproved work with a potential for run off and flooding as already witnessed;

• The body corporate therefore wishes to continue with its application so that the following motions can be carried out:

Motion 15 from AGM on 16 February 2007

That should any owner’s development of their courtyard comprise unauthorised work then such work is to be submitted by the committee for approval within one (1) month of notice by the Body Corporate"

Motion 16 from AGM on 16 February 2007

That should the committee then not approve this unauthorised work it is to be remedied within one (1) month from notice by the Body Corporate for approval within one (1) month of notice by the Body Corporate"

• The owner of lot 1 has already been asked to rectify the unauthorised work within a specified period and advised that if she fails to do so the body corporate will engage a contractor to return the land to its original condition;

• The adjoining lot 2 has not paved to the same height as lot 1 because in doing so they would create a nuisance and adversely affect lot 3 by causing water run off and flooding.

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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. The examples included in the Act under section 279 are suggestive of the
circumstances where an interim order might be made i.e. an interim order is generally of a temporary nature to maintain the status quo.

DETERMINATION

As an adjudicator, it is my role to identify contentious issues arising from a dispute, ascertain how the legislation applies to the circumstances of the case, and formulate a workable solution that is just and equitable and in accordance with the legislation.

I have been provided with a substantial amount of evidentiary material including photographs taken both before and after the subject work was completed, diagrams, and minutes of meetings. I have also obtained a copy of the Community Management Statement which includes the following by-law:

By-Law 12 – Exclusive Use

The registered owners from time to time of each lot shall be entitled to exclusive use and enjoyment of those parts of the common property as allocated and for the purposes specified in Schedule E and identified in the attached sketch plans. The ongoing maintenance and upkeep of each respective exclusive use area is the responsibility of each owner....

The courtyard areas allocated for use of lots 1 & 2 each comprise 32 SQ. M. while the courtyard areas allocated for use of lots 3 & 4 each comprise 38 SQ. M.

As the exclusive use by-laws do not authorise lot owners to make improvements to the exclusive use areas^[1], any improvements must be made in accordance with section 159 of the Act and section 114 of the Standard Module which provides as follows:

(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless--

(a) the improvement is a minor improvement (i.e. worth $300 or less); and

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section--

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

There have been numerous references to drainage issues and indeed there is a considerable body of common law regarding the rights of landowners concerning rainwater run off^[2]. However, this case really revolves around the ability of the body corporate to impose conditions regarding improvements upon an exclusive use area. The land in question is not part of lot 1, but rather, it is common property over which the owner of lot 1 has been given exclusive use, and the body corporate is entitled to impose conditions upon what improvements may be made to that area. The body corporate has a wide discretion as to the conditions which it may impose and the authorisation may be given on conditions such as design, colour and standard of works to be carried out.^[3] The only real restriction upon the body corporate in this regard is that it is bound by section 94(2) of the Act to act reasonably in exercising its powers.

From the material at hand I note that a rough plan was prepared and signed by all lot owners including the owner of lot 1, Ms. Brownlow, on 21 September 2006. In this plan, the lot 1 exclusive use area was to be paved as far as the gateway to the lot 4 courtyard and the balance of the area was to be grassed or covered with decorative pebbles with 6 feature pavers or stepping stones.

In early 2007 it became apparent that the work had not been completed in accordance with the plan, and at the AGM held on 16 February 2007, the owner of lot 1 agreed to the following:

• installation of a 130mm drain on the lot 2 side, at the lot 2 courtyard ground level to catch water banked up in the courtyard,

• to lift the pavers between the gate posts (on the lot 4 side);

• to remove of 2 rows of pavers nearest to the side fence; and

• to place six feature pavers and pebbles at the lower level.

However, from the submissions and photographic evidence, I note that the pavers extend almost as far as the side fence i.e. there are approximately 17 rows of pavers, a 130 mm step down has been constructed adjacent to the lot 4 courtyard area to allow the gate to open, and the channel drain on the lot 2 courtyard side remains higher than the finished ground level of the lot 2 courtyard.

It would seem to me that apart from aesthetic integrity, the conditions imposed by the body corporate regarding the permitted improvements have concerned allowance for stormwater run-off in an area which previously consisted almost entirely of sand, was almost level, and had a slight fall from the back to the front of the block in Ferris Street.

The owner of lot 1 submits that her concrete pavers are porous and the bedding material below the pavers consists of sand which provides a degree of drainage. However, considerations taken into account by the body corporate in formulating their conditions have included not only potential flooding caused by a back-up of rainwater in the lot 2 & 3 courtyards, but also the potential for water and debris to wash from the lot 1 courtyard into the lot 4 courtyard.

The Body Corporate is seeking orders that the owner of lot 1:

• lift all existing pavers in her courtyard ;

• excavate the excess sand below the pavers so that when re-laid, the pavers are no higher than previous finished level with the same fall as previously;

• pave the lowered land level in accordance with committee approved plan from 21-9-2006 by removing 2 rows of pavers nearest the boundary fence to 23 Ferris Street;

• Lower drain between units 1 & 2 so that it is effective;

• Install new drain behind gate between units 1 & 4 to catch run-off of water from her courtyard.

On the other hand, a perusal of the minutes of the last AGM indicates that the concerns of the other owners would have been addressed if the owner of lot 1 did the following:

• installation of a 130mm drain on the lot 2 side, at the lot 2 courtyard ground level to catch water banked up in the courtyard,

• lifting pavers between the gate posts;

• removal of 2 rows of pavers nearest to the side fence; and

• placing six feature pavers and pebbles at the lower level.

A third alternative put by the body corporate in the attachment to this application was as follows

• Lifting 56 pavers (49 full pavers and 7 cut pavers along the drain and near the step, re-laying pavers at a lower level consistent with adjoining courtyards to create a new step across the width of the courtyard, in line with the gatepost on the unit 2 side and lowering the area for water to flow naturally to 7 pavers in length with the new paving approximately 60mm lower on the unit 2 side and approximately 130mm lower on the unit 4 side.

• Lowering of the drain along the unit 2 fence;

• Installation of a sizeable and effective drain near the gate between units 1 & 4 and contained within the unit 1 courtyard to collect run-off from the courtyard;

Given the raised level of the lot 1 courtyard, I do not believe it is unreasonable for the body corporate to require the owner of lot 1 to install a channel drain between the lot 1 and lot 2 and to ensure that it is below the finished ground level of the lot 2 courtyard so that it is effective. It is clear from photographic evidence that this drain is some 60 mm above the top of pavers in the lot 2 courtyard (i.e. previous ground level). I believe that in order to be effective, this drain should be at least 5 mm below the finished ground level of the lot 2 courtyard as stipulated by the relevant Australian Standard.^[4]

Given that the lot 2 courtyard currently consists of bare sand with a few pavers abutting the channel drain, I do not believe that much weight can be given to the assertions by the owner of lot 1 that the channel drain is not required to drain rainwater run off from the lot 2 courtyard. As a matter of common sense it is obvious that drainage will be required once the sand in the lot 2 courtyard has been covered with an impervious or semi-pervious pavement.

The question as to what is a reasonable requirement of the body corporate in respect of the paved area, is a little more difficult to determine. I note that various compromise positions have been offered by the body corporate since the beginning of the year.

In the circumstances, I believe it would be unreasonable to require the owner of lot 1 to now remove all existing pavers in her courtyard, to excavate the bedding material and base course, and re-lay the pavers at the previous finished ground level.

On the other hand however, I see nothing unreasonable with the following alternative options:

Option 1

• Lifting 56 pavers (49 full pavers and 7 cut pavers along the drain and near the step), re-laying pavers at a lower level consistent with adjoining courtyards to create a new step across the width of the courtyard in line with the gatepost on the unit 2 side and lowering the area, with the new paving approximately 60mm lower on the unit 2 side and approximately 130mm lower on the unit 4 side.

• Installation of a drain within the lot 1 courtyard, as close as possible to the gateway between the lot 1 and lot 4 courtyards, to collect rainwater runoff from the lot 1 courtyard.

(I note from the application and submissions by lot 4 that this is considered to be a necessary condition owing to a fall of approximately 70mm across approx. 4.5 metres of paved area.)

Or

Option 2, substantially as agreed upon on 16 February 2007, which would involve

• removal of the 2 full rows of pavers and the additional of 5 pavers nearest to the side fence;

• lowering that area to a lower level consistent with adjoining courtyards;

• retaining the remaining pavers and

• placement of six feature pavers and pebbles at the lower level.

(This option did not specifically involve a requirement for installation of drainage on the lot 4 side, presumably because there would be a significant unpaved area to provide drainage.)

ORDERS

I therefore propose to order that within 6 weeks the owner of lot 1 is to:

• ensure that the channel drain between the lot 1 courtyard and the lot 2 courtyard is at least 5 millimetres below the finished ground level of the lot 2 courtyard;

I also propose to order that within 6 weeks the owner of lot 1 is to either:

• lift the 7 rows of pavers nearest to the side fence , consisting of some 49 full pavers and 7 cut pavers in the lot 1 courtyard area;

• create a new step across the width of the courtyard, in line with the gatepost on the lot 2 courtyard;

• excavate the area and re-lay the pavers at a level consistent with adjoining courtyards i.e. approximately 60mm lower on the unit 2 side and approximately 130mm lower on the unit 4 side; and

• Install a drain within the lot 1 courtyard, as close as possible to the gateway between the lot 1 and lot 4 courtyards, to collect rainwater runoff from the lot 1 courtyard.

Or alternatively,

• remove the 2 full rows of pavers and the additional 5 pavers nearest to the side fence;

• excavate that area to a level consistent with adjoining courtyards;

• retain the remaining 15 rows of pavers;

• excavate that area to a level consistent with adjoining courtyards; and

• place six feature pavers and pebbles (or grass) at the lower level.

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^[1] See section 124 Standard Module
^[2] See for example Nolan v Warne [2001] QCA, Corbett v Pallas (1995) Aust Torts R., Gartner v Kidman (1962) 108 CLR.
^[3] See R. Janes "The BCCMA for everybody – A Practical guide to the Body Corporate and Community Management Act 1997 and regulation Modules" at p. 106.
^[4] See AS/NZ Standard 4455 Masonry Units and Segmental Pavers