Royal Palm [2007] QBCCMCmr 66 (8 February 2007)

Last Updated: 20 February 2007

REFERENCE: 0986-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9098
Name of Scheme:	Royal Palm
Address of Scheme:	973 Gold Coast Highway, Palm Beach q 4221

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

the body corporate

I hereby order that, due to a medical condition, Maureen Schoch, owner of lots 80 and 81 (respondent) is to be allowed three months to: 1. Provide the body corporate with notification in writing from the Queensland Fire and Rescue Authority (QFRA) either confirming the QFRA is satisfied that the existing fire signal is audible throughout the whole of her units 13C and 13D or confirming that the respondent has taken necessary action to have work performed to satisfy this requirement; 2. Provide the body corporate with notification in writing from BAT Industries Pty Ltd (BAT) either confirming that no work is needed on the balcony railings of units 13C and 13D or confirming that the respondent has taken necessary action to have BAT or some other person adequately complete the work that BAT had been contracted to perform. I further declare that, if the respondent does not provide the above documentation to the body corporate within three months of the date of this order then the body corporate is entitled to authorise representatives of Advance Fire Technology (AFT) and BAT Industries Pty Ltd to enter lots 80 and 81 (Units 13C and 13D) to install an additional fire alarm speaker and perform maintenance on the balcony railings. This is subject to the body corporate providing the respondent with at least 14 days written notice specifying the names of the authorised representatives and a maximum of one four hour period during normal working hours for which access must be provided. If provided with this notice the respondent may wish to provide a key to a friend or representative and arrange for that person to supervise the access by the authorised representatives.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0986-2006

"Royal Palm" CTS 9098

Application

Royal Palm Community Titles Scheme (Royal Palm) is a 154 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes and lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by the body corporate for Royal Palm (applicant) seeking orders against Maureen Schoch, owner of lots 80 and 81 (respondent). The body corporate is seeking orders that it be given access to loss 80 and 81 for the purpose of installing fire alarms and rectifying balcony defects.

Submissions

The body corporate’s main submissions were to the effect that:

• In 2002 the Queensland Fire and Safety Authority (QFRA) inspected the fire alarms at the scheme and advised that a fire alarm speaker would need to be installed in each unit to meet the sound level requirements of the Australian Standard;
• In 2003 Advance Fire Technology (AFT) installed additional fire alarm speakers in most units but was refused entry to the respondent’s units;
• The body corporate has made other requests to obtain entry but has been refused entry;
• Due to the respondent’s repeated refusal of the body corporate’s requests for access the body corporate is in breach of Part 9A of the Fire and Rescue Service Act and has not been able to obtain a compliance certificate;
• The respondent is also refusing body corporate requests to enter her unit for the purpose of rectifying defects with the balcony railings;
• In June 2003 a number of defects were discovered in respect of many balconies including top hand rails not being secured, wall nuts missing, stanchions showing corrosion and pop rivets missing or showing signs of oxidisation;
• In August 2004 the body corporate resolved that BAT Industries Pty Ltd (BAT) should carry out maintenance on the balconies; and
• The respondent has refused access to lots 80 and 81 which has prevented maintenance on her balcony railings.

The respondent provided submissions to the effect that:

• The engineering report shows that all balcony railings that were tested passed design load requirements. Therefore there is no evidence to show work on the balconies is important or necessary and the body corporate has no right of access;
• The Queensland Fire and Rescue Authority Notice does not say the fire alarm has to be inside the unit. It says that the signal must be clearly audible throughout the premises. There are fire alarms directly outside the doors of both lots 80 and 81 that are clearly audible anywhere in the units. An officer has told her that the alarm itself does not have to be inside the unit;
• She has a post traumatic stress disorder from previously confronting a burglar and other medical problems and granting access to the body corporate is a serious risk to her health, safety and security. Letters from the respondent’s doctor are attached with statements to the effect that she does not cope will with stress due to an anxiety disorder, severe depression and post traumatic stress, has a strong fear of strangers entering her unit, and has a serious risk of a heart attack if her current stress level continues;
• She has inherited valuable and heavy antiques and artworks which are hanging on the walls and she fears they would be damaged by any drilling or cable access for installation of fire alarms;
• She wants to be left in peace, privacy and security as is her constitutional and human right.

Applicable law

The legislation includes provisions to the effect that:

• A person authorised by the body corporate may enter a lot and remain on the lot while it is reasonably necessary to inspect the lot and find out whether work the body corporate is authorised or required to carry out is necessary or to carry out work the body corporate is authorised or required to carry out. Except in an emergency this power of entry must be at a reasonable time after at least 7 days notice to the occupier of the lot (Act, 163); and
• The body corporate must maintain common property in good condition and must maintain in good condition any balcony railings that are for practical purposes on the boundary of lot registered under a building format plan (Accommodation Module, 108).

Fire safety issues

The body corporate has provided letters from the Queensland Fire and Rescue Authority (QFRA) that satisfy me that fire alarms were not clearly audible from all units within the scheme and that the QFRA is of the opinion that the building does not comply with the Fire Safety Regulations.

However, the respondent has said that there are fire alarms directly outside the doors of both lots 80 and 81 and the alarms are clearly audible anywhere in the units.

The fire alarm system will form part of the common property utility infrastructure of the scheme and the body corporate has maintenance responsibilities in this respect (Act 20, Accommodation Module 108). I accept the respondent’s submissions to the effect that it may not prove necessary to install fire alarm speakers in her lot. However, the body corporate has a responsibility to determine if the existing speakers on the common property are satisfactory and some access by a qualified person to the respondent’s lots will be necessary for this purpose. In these circumstances, the minimum access required will be for a member of the QFRA or other appropriate person to enter the lots and confirm to the satisfaction of QFRA that the fire alarms are audible throughout the units. If this cannot be confirmed then access will also be necessary in order to install the additional fire alarm speakers.

Balcony railings

The body corporate must maintain the balcony railings in good condition (Accommodation Module, 108(2)(a)(i)). The body corporate has provided a copy of a report that highlights a number of defects with balcony railings in the building. The body corporate has also provided copies of minutes of meeting showing the body corporate has resolved to engage BAT Industries to carry out maintenance on the balcony railings.

I am satisfied that access by BAT Industries is reasonably necessary to determine if any maintenance work on the balcony railings is necessary and, if so, to perform the work.

Special circumstances of the respondent

The respondent has made detailed submissions citing special circumstances entitling her to refuse access to her unit. These include statements to the effect that she has a post traumatic stress disorder from previously confronting a burglar and has other medical problems. It is submitted that granting access to the body corporate (some of the committee members alleged to have already caused her to suffer considerable stress and harassment), is a serious risk to her health, safety and security. Letters from the respondent’s doctor are attached with statements to the effect that she does not cope will with stress due to an anxiety disorder, severe depression and post traumatic stress, has a strong fear of strangers entering her unit, and has a serious risk of a heart attack if her current stress level continues.

I take these concerns and medical letters seriously. In the circumstances, it seems possible to avoid giving the body corporate or any committee members access to the respondent’s units provided the respondent herself makes arrangements to allow appropriate persons from the QFRS and BAT Industries to assess whether any work needs to be performed.
If no work is necessary then the body corporate should be satisfied with a letter from those persons stating no work is necessary. Similarly, even if work is necessary then the body corporate should be satisfied with a letter from QFRS confirming any necessary work has been performed.

I understand that the respondent has previously contacted the QFRS. I would encourage her to contact the QFRS again, provide them with a copy of this order, and make arrangements for an appropriate person to make the necessary inspection. Similarly, I would encourage the respondent to contact BAT Industries to make arrangements for an appropriate person to inspect the balcony railings and perform any necessary work. I would also encourage the respondent to ask a friend, representative or her doctor to either arrange for entry by QFRS or Bat Industries at the appropriate time or to be present at the time along with the respondent.

The material provided with the application indicates that the QFRS can be contacted by telephone on 5583 7575 and BAT Industries can be contacted by telephone on 5528 5831. I would encourage the respondent to act quickly in making appropriate arrangements or in engaging a representative to make arrangements on her behalf. However, given the length of time this dispute has already been running I am willing to provide the respondent a period of three months to provide the necessary documentation to the body corporate.

If the respondent does not provide the body corporate with written confirmation from the QFRS and BAT Industries confirming that the work is either unnecessary or completed then the body corporate should be entitled to force access to the respondent’s lots to perform the necessary work. This is on the basis that the body corporate is entitled to access under section 163 of the Act and is of particular importance given the safety implications of failing to perform the work. Given the particular circumstances of the respondent I will, however, make access subject to the body corporate providing the respondent with at least 14 days written notice specifying the names of the authorised representatives and a maximum of one four hour period during normal working hours for which access must be provided. Again, if the respondent has not arranged for the necessary inspections herself and the body corporate requires access then I would encourage the respondent to provide a friend or representative with the key to facilitate access. If no key is provided and the body corporate arranges for the services of a locksmith to gain entry then this may result in the body corporate seeking extra costs from the respondent.

Order

For these reasons, I make the order above.