Timbertops Indooroopilly [2007] QBCCMCmr 76 (13 February 2007)

Last Updated: 27 February 2007

REFERENCE: 0962-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22599
Name of Scheme:	Timbertops Indooroopilly
Address of Scheme:	82 Russell Terrace INDOOROOPILLY QLD 4068

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

The Body Corporateof Timbertops Indooroopilly

I hereby order and declare as follows: • the application for reimbursement to the Body Corporate from the Owner of Lot 7 for repair carried out to that lot’s water meter, is dismissed; and • where water meters are located outside the boundaries of a lot, the Body Corporate is responsible for maintenance of the water meter servicing each lot in the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0962-2006

"Timbertops Indooroopilly" CTS 22599

Application

The Body Corporate for Timbertops Indooroopilly CTS 2599 (the applicant) has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") for –

1.	The Body Corporate is seeking reimbursement from the Lot 7 Owner for repair carried out to that lot’s water meter (copy of paid tax invoice attached).
2.	Ruling on the responsibility of individual water meters servicing single lots, and located on Common Property.

The Scheme

Timbertops Indooroopilly CTS 22599 is a 24 lot scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997.

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)).

Grounds

The applicant’s grounds are quoted as follows:

1. The Body Corporate is seeking an order for the owner of Lot 7 to reimburse the Body Corporate in the amount of $598.60 inclusive of GSR for repair/replacement work carried out to that lot’s water meter.

2. An event with reference to the lot owner and a plumbing failure to the water meter associated with that owner’s lot was debated at a committee meeting held on 29 March 2005. Clarification is requested as to who is responsible in regards to water service to each residence. It was resolved that as the scheme is registered as a standard format plan, each owner is charged with the maintenance and rectification of water supply to their respective lots, the Body Corporate’s obligation is when a utility service is provided to one or mote lots and is therefore common.

A second incident occurred to the meter of Lot 7 where the plumbing failed at the water meter associated with that lot on 23 March 2006. The Body Corporate engaged a plumber in the first instance to stop overflow of water and carry out repair/replacement to that water meter. The Body Corporate now seeks to obtain financial reimbursement from the lot owner.

Now, the owner of Lot 7 has refused to reimburse the Body Corporate, he believes that the individual water meter is not in use as the council does the reading from a single meter main and equally divides the usage amongst the 24 residences. The complex’s individual water meters for each unit are anywhere between 20 cm to 40 cm from the boundary of each lot, and therefore located on the common property. The owner of lot 7 believes that because the individual water meter is situated on the common property, that the responsibility automatically rests with the Body Corporate.

The Body Corporate now requests a ruling as o who is responsible in regards to maintaining and repairing the individual water meters.

Submissions

Three submissions were received from lot owners, including the owner of Lot 7. All agree that the Body Corporate should be responsible for the water meters. In addition to the reasons that Body Corporate puts forward in relation to lot 7’s position, there are also submissions to the effect that it is more time and money efficient for the Body Corporate to centrally manage this issue.

The respondent cannot understand how he could be authorised to dig up a portion of road on the Body Corporate, if he sees a problem with water.

Determination

Schedule 6 of the Act provides that water reticulation or supply is a utility service. Further, Schedule 6 says:

Utility infrastructure means –

(a)	cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services; and

(b)	a device for measuring the reticulation or supply of a utility service.

Therefore, the water meter is captured within the meaning of utility infrastructure.

Section 21 of the Act specifies the conditions that must exist for utility infrastructure to be included as common property. Section 21(1) provides:

"Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, except utility infrastructure--
(a) solely related to supplying utility services to a lot; and
(b) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and
(c) located other than within a boundary structure for the lot."

Utility infrastructure is treated as common property only if at least one of the exceptions specified in section 21(1)(a)(b) and (c) is not satisfied.

Section 120(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) is relevant. Section 120(4) provides:

"The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.

To assist in understanding the above provisions, following is an extract of a web page titled "Maintenance" that is produced by this office^[1]

Standard Format Plan

A standard format plan (previously known as a Group Titles Plan, (GTP)) is a subdivision of land with references to marks on the ground or a structural element (for example, survey pegs in the ground or the corner of a building). As an example, a standard format plan may include a townhouse complex, where the individual lots would comprise a building and land (front and/ or back courtyards).

Maintenance
The body corporate is usually responsible for:

•	The common property, including roads, gardens and lawns on common property.
•	Some elements of utility infrastructure.

The lot owner is usually responsible for:

•	Their lot, including all lawns and gardens within the boundary.
•	Maintenance of the building also rests with the owner, this would include the exterior walls, doors, windows and roof with the exception of some elements of utility infrastructure.

The diagram below represents a Standard Format Plan or a Group Titles Plan showing some elements of utility infrastructure.

Utility Infrastructure
The body corporate is usually responsible for:

•	The water pipes or cables shown as ----------- on the utility infrastructure plan above, as these supply the service to more than one lot (refer to the definition of utility infrastructure above).
•	The guttering, and associated downpipes which span 2 lots (1 and 2 and 3 and 4), supplying a service to more than one lot.
•	Any television antenna that services 2 or more lots.

The lot owner is usually responsible for:

•	The water pipes or cables shown as ::::::::::::::, as they are located within the lot boundary and service 1 lot only.
•	The guttering, and associated downpipes shown in Lot 7.

Section 109 of the Standard Module states:

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

(2) .....................................

(3) Despite anything in subsections (1) and (2)--

(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--

(i) relates only to supplying utility services to a particular lot; and
(ii) is 1 of the following types--

• hot-water systems

• washing machines

• clothes dryers

• 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.

In this matter then, the water meters are in the first instance assumed to be part of the common property. The only reason they would not be considered to be common property to be maintained by the Body Corporate is if:

•	It is a device such as a hot water system, air-conditioner or the like, solely related to providing utility services to a lot; and
•	within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and
•	located other than within a boundary structure for the lot.

In this matter, while the meter is in relation to measuring utility services solely to lot 7, the meter is neither within the boundaries of the lot, nor does it actually provide any service - it merely measures a service. It is therefore the responsibility of the Body Corporate to maintain. Likewise, for every lot where the meter is located outside the lot, it will be the Body Corporate’s responsibility to maintain.

I will make orders accordingly.

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^[1] http://www.dtftwid.qld.gov.au/Dispute+Resolution/BCCM/CP_Maintenance