Federation Row [2009] QBCCMCmr 239 (26 June 2009)

Number of Scheme:	20496
Name of Scheme:	Federation Row
Address of Scheme:	87 Herston Road KELVIN GROVE QLD 4059

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

I hereby declare that pursuant to the power given to me by section 151(1)(c) Body Corporate and Community Management (Standard Module) Regulation 2008, the committee may spend up to the sum of $6,215, a sum beyond the limit of its spending capacity, for the emergency repair of the broken sewer pipe and junctions, which will entail the excavation and replacement of the common property driveway.

This is an application dated 23rd June 2009 by the committee of the body corporate for Federation Row CTS 20496 (the committee) for a declaratory order for emergency expenditure beyond the spending limit of the committee.

“Federation Row” CTS 20496 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are seven lots in the scheme created under a Group Title Plan of subdivision.

Section 15(1)(c) Standard Module allows an adjudicator to authorise spending above the relevant limit of committee spending if satisfied that the spending is to meet an emergency. The application is one for emergency relief and foregoes the requirement of section 243(1) Act that written notice of the application must be given to each affected person who then must be invited to make submissions in accordance with section 243(2)(b) Act. An “affected person” is one who would be directly and materially affected by the outcome sought, for example, lot owners in the scheme.

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

(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)).

The committee says that there has been trouble with the scheme’s sewage pipes for several years, and the pipes have been cleared previously by using an “ electric eel.” However, cameras let into the pipes have now shown that two 100mm diameter pipes are broken and have been leaking sewage and waste into the ground. Sections of pipe have broken away. The committee has had some difficulty in obtaining quotations from plumbers who are a) able to do the job and b) prepared to quote without charging a fee for so doing. Two quotations both dated 15th June 2009 have now been obtained, one for $6,600 from the Property Maintenance Team; and one for $6,215 from QMate. Both quotations are inclusive of GST.

The plumbers each report a large hole in the sewer main at the bottom of the pipe allowing rubbish to get caught in that section. The break appears to be on a junction which links Units 4 and 5 to the main sewer. In order to repair the pipe, the plumber must jackhammer up the concrete and excavate the driveway. The concrete driveway will be replaced in a similar finish.

At a vote on a motion outside a committee meeting on 19th June 2009, the three members of the committee resolved to accept the quotation from QMate for $6,215 to “excavate and repair the two broken sewerage pipes...”; and to lodge this application seeking permission for emergency expenditure. The committee proposes to ratify the spending at the next general meeting of the body corporate, and advises that the sum is available in the sinking fund.

The relevant limit of committee spending is $200 x the number of lots in the scheme ($1,400) save in the case where the body corporate has at a former general meeting authorised a different amount by passing an ordinary resolution to that effect. There is no evidence that the committee is authorised to spend a different, or larger, sum.

Section 20(1)(b) Act states that all utility infrastructure, such as sewerage, is common property except for utility infrastructure which is solely related to supplying utility services to a lot; and within the boundaries of the lot; and located other than within a boundary structure for the lot.

I sought further information from Malcolm Burrows (Mr Burrows), treasurer, on the location of the broken pipes, and the lots serviced by the broken pipe. He responded by email dated 25th June 2009 with “X”s marked on the Group Title Plan 2438 where he believed the breaks to be, based on his attendance with a plumber when a camera and length of cable was put down into the access point which is about 6 inches inside the boundary of Lot 4, and pushed out towards the common property; the same approximate length of “electric eel” being put down on another occasion; and discussions with plumbers over the years. He is satisfied that the breaks occur on/under the common property since about 20 feet of cable/pipe was put down the access point before the break was viewed on the screen of the plumber’s camera.

Both “X”s are placed by Mr Burrows in the long driveway, one each outside the boundary of Lot 4 and Lot 5 respectively. He also provided me with a copy of the scheme drainage plan, although this was not clear and did not appear to show sewerage. However, I am satisfied that the pipes as described by Mr Burrows are situated in the common property, and do no service merely one lot, and are therefore the responsibility of the body corporate to repair.

I have no jurisdiction to make a declaratory order to authorise spending, that is, to make an order which does not require submissions to be sought from the body corporate, unless the matter is “an emergency.” It appears to be only recently that the body corporate has discovered that the troublesome pipes are not only blocking up, but are broken, and that there is sewage and waste water leaking into the ground, and no doubt into the pipe trench. To rectify it will need the concrete of the driveway to be broken up. Once such things are discovered, I am of the view that the body corporate has no option but to deal immediately with the broken pipes, for reasons of restricting environmental damage, damage to public health and possible liability under any insurance policies. This work should be done without delay. Whilst one cannot see what is happening under ground, I am of a view that the situation constitutes “an emergency” and that the committee might be criticised if it did not act straight away.

I therefore make the order sought. The committee may spend an amount up to the sum of $6,215 on repairing the broken sewer and junctions, and excavating and replacing the driveway.

Lot owners should be given as much notice as possible of the nature of the work to be done and of the disruption to the driveway whilst work is undertaken.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Federation Row [2009] QBCCMCmr 239 (26 June 2009)