Forrest Court [2009] QBCCMCmr 285 (10 August 2009)

Last Updated: 17 September 2009

REFERENCE: 0267-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13198
Name of Scheme:	Forrest Court
Address of Scheme:	22 Phillip Avenue BROADBEACH QLD 4218

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

Kay Nixon, the Owner of lot 4

I hereby order that within 60 days of the date of this order the body corporate shall, at its own expense, engage a suitably qualified tradesman to inspect the roofing structure for this building to ascertain the cause of water penetration to lot 4. The tradesman shall determine what repairs are required in order to prevent the leakage of rainwater into lot 4 and what action (if any) needs to be taken to prevent the release of asbestos fibres from the asbestos cement roofing material. I further order that within 60 days of such inspection, the body corporate is to engage a suitably qualified contractor to undertake whatever remedial work is recommended to ensure that the roofing structure is watertight and that any identified danger posed by the asbestos cement sheeting is minimized. I further order that within 60 days of the date of this order the body corporate shall, at its own expense, engage a suitably qualified tradesman or tradesmen to inspect the interior of unit 4 and ascertain what damage has been caused to the internal walls and ceiling by the leakage of rainwater from the roofing structure, and undertake such repairs, including cleaning and repainting of water stained areas, as are necessary. I further order that when tradesmen need to access lot 4 to conduct an inspection or carry out work referred to above, the body corporate shall give at least seven days’ notice to the owner of lot 4. The owner of lot 4 must make all reasonable efforts to ensure that authorised persons have access to lot 4 in the manner requested pursuant to a valid notice requesting access under section 163.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0267-2009

“Forrest Court” CTS 13198

Application

Forrest Court Community Titles Scheme is a 7 lot scheme regulated by the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation (Standard Module). It is an older style block of units located at Broadbeach, constructed with clay bricks and asbestos cement sheeting. The roof is low pitched and constructed with corrugated asbestos cement sheeting.

This application is made by the owner of lot 4 seeking the following orders against the body corporate:

• To overturn voting regarding the removal of the asbestos roof on Forrest Court at 22-24 Philip Avenue Broadbeach as it is leaking badly as well as being a health hazard. This was Motion (2) and (3) in the minutes of meeting held on 23 January 2009;
• that the body corporate is responsible for any damage to the inside of her unit, including mildew and asbestos particles on the ceilings and walls, caused “through a lack of maintenance and care” by the body corporate.
  

At an extraordinary general meeting for this scheme on 23 January 2009, the following motions, submitted by the owners of lots 2, 4 & 7 were considered by members of the body corporate:

2. Replacement of the complete damaged and leaking asbestos roof. – Ordinary Resolution
That the body corporate agree to the urgent replacement of the complete damaged and leaking asbestos roof of the Forrest Court unit block as it poses a serious health threat to occupants and visitors.

3. Authorisation for the BCM to obtain two quotes from roofing firms qualified for large scale asbestos removal. – Ordinary Resolution
The body corporate manager be authorised to obtain two quotes from roofing firms qualified for large scale asbestos removal (e.g. ERC Constructions and ROOFS R US who submitted quotes in August 2008. That these quotes be submitted to owners at an urgent general meeting.

4. Special Levy to be raised to cover cost of replacement
To cover the full cost of this urgent replacement (approximately $35,000) that a special levy be raised for payment of the chosen quote (approximately $5,000 per unit.)

The above motions were defeated as in each instance, there were 2 votes in favour of the motion and 3 votes against. However, the applicant states that the body corporate is nevertheless obliged to take this action as the asbestos–cement roof is leaking badly and constitutes a health hazard because asbestos is leaching out of the roofing material. In particular, the applicant states that:

• rainwater has been running down the walls inside her unit;
• rainwater has also been running down the wall of her upstairs balcony and through the light fitting, thus creating a fire hazard;
• mould is present on her internal ceilings and walls;
• an environmental health officer employed by Queensland Health has conducted an inspection of her unit, confirmed that damage has occurred to internal walls in two bedrooms and near the bathroom and confirmed that dust samples taken from inside the unit contain the asbestos type chrysotile (confirmed by a copy of a letter from Queensland Health dated 2 December 2008.
  

Submissions

Pursuant to section 243 of the Act, each lot owner other than the applicant, and the body corporate committee, were invited to make submissions regarding the application.

Mr Chapman, the Chairman and Secretary of the body corporate committee made the following submissions:

• he has twice been refused entry to the applicant’s unit when he sought to investigate the source of the alleged leak in unit 4;
• two roofing specialists have failed to find evidence of the roof leaking into unit 4 and he does not believe that there is a leak into the unit;
• rather, he suggests that the applicant has an unreasonable fear that the asbestos cement roof will release asbestos fibres and wants to have a new roof installed to allay her fears;
• in his opinion an asbestos–cement roof does not present any health dangers provided it is not disturbed;
• the committee has previously requested the body corporate manager to engage a suitably qualified roofing contractor to provide an independent report regarding the applicant’s claims. On 3 December 2008 the body corporate manager engaged Robina Roofing , a company with at least 20 years roofing but the applicant refused access to the contractor;
• while, the applicant states that she has already obtained a free quote for the replacement of the roof from Roofs R Us and that is sufficient, the Chairman states that this is not evidence that the roof needs to be replaced;
• in light of the applicant’s claims regarding the presence of asbestos within her unit, the committee sought to have unit 4 inspected by a company known as QBM for the purpose of conducting an Asbestos Audit . However, the applicant refused to provide access to her unit, and therefore the committee has no evidence of asbestos entering her unit;
• consequently the committee has been unable to organise an in-depth non-biased report on damage to the interior of unit 4 to enable the body corporate to make a more informed decision as to whether the roof should be repaired, replaced or left alone.
  

The following submissions were received from the owners of lot 5:

• The committee has engaged independent consultants to assess the roof and to ascertain whether deterioration of the roof is responsible for the leakage of rainwater into the applicant’s unit;
• They believe that the build up of mould within unit 4 may be attributable to moisture from the bathroom and lack of ventilation;
  • They believe that unit owners should be responsible for internal maintenance such as painting and that the body corporate should not be responsible for such work.
    

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)).

Decision

The applicant claims that the fibre-cement roof for the scheme has deteriorated to such an extent that rainwater had been seeping into her unit, bringing with it traces of asbestos and causing damage to internal walls. In support of her claim the applicant has provided the following:

• A report dated 2 December 2008 from an environmental health officer employed by Queensland Health who conducted an inspection of her unit and confirmed that damage has occurred to internal walls in two bedrooms and near the bathroom from rainwater leakage. The report also confirms that dust samples taken from inside unit 4 contain the asbestos type chrysotile.
• Photographs of water damaged walls;
• Photographs of the asbestos-cement roof including close up photographs of fibre cement sheeting, screws and washers.
  

It is evident to me that the roof has probably been in place for in excess of 30 years, is unpainted, or if was painted at some time, traces of paint are no longer evident. The surface of the asbestos cement sheeting is eroded, and the erosion process has probably been hastened by the dark mould/ lichen growth covering most of the sheeting and ridge-capping. It is also obvious from the photographs that screws and washers, which were most probably galvanised when installed, are showing significant signs of corrosion. It is evident that at some point in time the screws and washers were covered with some form of sealant, but the sealant has also weathered significantly leaving the screws and washers exposed and corroded. Having regard to the above material, and particularly the report from Queensland Health, I believe it is probable that rainwater is leaking into the applicant’s ceiling and from there, the rainwater is making its way down internal walls, possibly bringing traces of asbestos with it.

A body corporate is subject to numerous obligations under the Act and Standard Module including an obligation to maintain all common property (including roofing structures and membranes) in a sound condition (see Standard Module section 159).

Further, section 281 of the Act provides as follows:

Order to repair damage or reimburse amount paid for carrying out repairs

(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention—
(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.
Example—
A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak
results from a failure on the part of the body corporate to maintain it in good order and condition. The adjudicator could order the body corporate to have the damage repaired or to pay an appropriate amount
as reimbursement for amounts incurred by the owner in repairing the property.

(2) The order can not be made if—
(a) for an order under subsection (1)(a) the cost of carrying out the repairs is more than $75000; or
(b) for an order made under subsection (1)(b)—the amount fixed by the adjudicator would be more than $10000..

In my experience detection of the actual source of the leakage can be difficult and therefore the location of the leak(s) and determination of what remedial action is necessary can only be properly undertaken by a suitably experienced tradesman. Consequently, any order that I make in this regard would be subject to the requirement that the applicant is to give access to a suitably qualified tradesman to the inside of her lot, and if practicable, to the ceiling of her lot in order to ascertain the source of the leakage and the remedial action required to ensure that there is no further leakage of rainwater into the unit.

While the applicant seeks complete removal of the asbestos roof, I do not believe that the obligation of the body corporate to maintain the roof in good condition would necessarily involve replacement, although this decision should be made by an independent, appropriately qualified tradesman. I note from the Queensland Health booklet provided by the applicant, titled “Asbestos – a home renovator’s Guide”, that depending on the condition of the asbestos cement sheeting, there may be alternatives to removal and replacement, such as painting or encapsulation and removal of any dust from the ceiling. On the other hand however, it is possible that the roofing material is in such a poor state that removal and replacement is preferable – but this is a matter for an appropriately qualified tradesman to comment upon.

Obviously, this will not be possible unless the applicant allows tradesman authorised by the body corporate access to her lot for the purposes of detecting the source of the rainwater leakage and determining how the roof should be repaired. It is clear that under the Act, a person authorised by the body corporate is empowered to enter a lot, to conduct an inspection and to carry out work the body corporate is authorised or required to do.

The relevant provision is section 163 of the Act and provides as follows:

Power to enter lot

(1) A person (an “authorised person”) authorised by the body

corporate for a community titles scheme may enter a lot included in the

scheme, or common property the subject of an exclusive use by-law, and

remain on the lot or common property while it is reasonably necessary—

(a) to inspect the lot or common property and find out whether work

the body corporate is authorised or required to carry out is

necessary; or

(b) to carry out work the body corporate is authorised or required to

carry out.

(2) The power of entry may be exercised—

(a) in an emergency—at any time; and

(b) in other cases—

(i) for entry to the lot mentioned in subsection (1)—at a

reasonable time after at least 7 days notice of the intended
entry has been given to—

(A) the owner of the lot; or

(B) if the owner is not in occupation of the lot—the

occupier of the lot; and
(ii) for entry to the common property mentioned in
subsection (1)—at a reasonable time after at least 7 days
notice of the intended entry has been given to—

(A) the owner of the lot to which the exclusive use by-law

attaches; or

(B) if the owner of the lot mentioned in

sub-subparagraph (A) is not in occupation of the

common property—the occupier of the common

property; and

(iii) in compliance with the security or other arrangements or

requirements ordinarily applying for persons entering the

lot or the common property.

(3) If the scheme is other than a basic scheme, the power of entry to a lot

or common property the subject of an exclusive use by-law conferred

under this section includes power to enter the scheme land for a community

titles scheme (the “subsidiary scheme”) that is a lot included in the scheme.

(4) If subsection (3) applies, notice of intended entry must be given to—

(a) the body corporate for the subsidiary scheme; and

(b) if scheme land to be entered is a lot that is not itself a community

titles scheme—

(i) the owner of the lot; or

(ii) if the owner is not in occupation of the lot—the occupier of

the lot; and

(c) if scheme land to be entered is common property the subject of

an exclusive use by-law for the subsidiary scheme—

(i) the owner of the lot to which the exclusive use by-law

attaches; or

(ii) if the owner of the lot mentioned in subparagraph (i) is not

in occupation of the common property—the occupier of the

common property.

(5) A person must not obstruct an authorised person who is exercising or

attempting to exercise powers under this section.

Maximum penalty for subsection (5)—20 penalty units.

The Court of Appeal has considered the above provision and found that if the work proposed is work that the body corporate is required to carry out, then a person authorised by the body corporate “is plainly entitled to enter ” on a privately owned lot pursuant to section 163.[1]
In these circumstances a person authorized by the body corporate is entitled to access in order to investigate the water penetration (Act, 163). Obviously it is open for the parties to agree on terms of access but if no agreement is reached then the body corporate is entitled to exercise its rights of access pursuant to the legislation. The respondent cannot stop that access simply because access on different terms might seem more reasonable. Rather, the respondent can only stop access that is, in itself, "unreasonable" (Act, 94(2)).

For the above reasons I propose to make the following orders:

1. that within 60 days of the date of this order the body corporate shall, at its own expense, engage a suitably qualified tradesman to inspect the roofing structure for this building to ascertain what repairs need to be undertaken in order to prevent the leakage of rainwater through the roofing structure.
2. within 60 days of such inspection, the body corporate is to engage a suitably qualified contractor to undertake whatever remedial work is recommended to ensure that the roofing structure is watertight and that appropriate precautions are taken to prevent the release of asbestos fibres.
3. that within 60 days of the date of this order the body corporate shall, at its own expense, engage a suitably qualified tradesmen or tradesmen to inspect the inside of unit 4 and ascertain what damage has been caused to the internal walls and ceiling by the leakage of rainwater from the roofing structure and undertake such repairs, including cleaning and repainting of water stained areas, as are necessary.
4. When tradesmen need to access lot 4 to carry out the above work, The body corporate should give at least seven days’ notice to the owner of lot 4 and identify all authorised persons by means of their name or a trade name under which they operate and the applicant must make all reasonable efforts to ensure that authorised persons to have access to their lot in the manner requested pursuant to a valid notice requesting access under section 163.
   

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[1] Oceana on Broadbeach CTS 24163 v. Searle and Ors [2003] QCA 283, at paragraph 19.