Panorama 22 [2009] QBCCMCmr 289 (11 August 2009)

Last Updated: 17 September 2009

REFERENCE: 0029-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10397
Name of Scheme:	Panorama 22
Address of Scheme:	22 Panorama Drive CURRUMBIN QLD 4223

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

Patricia Osborn, the Owner of lot 5

I hereby order that the body corporate for Panorama 22 is deemed to have passed an ordinary resolution in general meeting to appoint Skydome to replace the skylight above lot 5 in accordance with Quotation Number J3502, dated Tuesday, 11 August 2009 in the amount of $7,900.00. I further order that the body corporate for Panorama 22 must engage Skydome to undertake the work specified in Quotation Number J3502, within 30 days from the date of this order. I further order that, if there is no provision, or inadequate provision, in the budget/s to cover the expenditure authorised above, the body corporate is deemed to have passed an ordinary resolution in general meeting fixing a special contribution to be levied on the owner of each lot towards the liability. The contribution is to be paid in a single amount, on or before the date Skydome requires payment pursuant to Quotation Number J3502. I further order that, in all other respects, this application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0029-2009

“Panorama 22” CTS 10397

APPLICATION

This application is brought by the owner of lot 5, Patricia Anne Osborn, against the body corporate.

An outcome has been sought that the body corporate be ordered to proceed with a revised quote from Skydome dated 17 December 2008 for $7,950 plus GST, or any subsequent revised quote, to remove and replace the existing glazing on the entrance roof covering lot 5. Further outcomes have been sought that the body corporate attend, without delay, to the repair of the bathroom ceiling in lot 5 (should insurance be refused), the front door of lot 5 and a cedar pew within lot 5. The applicant claims that the existing skylight has been leaking since at least May 1998, but particularly since storms in October 2005 and that water penetration from the leaking skylight has caused damage to her bathroom ceiling, front door and cedar pew. The applicant further claims that the only way of preventing water from entering lot 5 through the skylight is to have it removed in its entirety and replaced.

JURISDICTION

“Panorama 22” was registered as a building units plan (now known as building format plan) of subdivision on 12 March 1982 comprising 5 lots and common property. It is regulated by the Body Corporate and Community Management Act (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module).

This is a dispute between an owner and the body corporate and comes within the dispute resolution provisions of the Act (ss.226, 227 & 228).

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the body corporate manager (BCM), Ms Steadman of Body Corporate Choice for distribution to all owners (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application. A total of 3 submissions were received.

The submissions were to the following effect:

• The quote to replace the existing skylight will not necessarily guarantee that the problem is fixed long term and alternative solutions should be sought.
• It is proposed that the existing skylight be removed and the roof tiled over with a smaller skydome fitted and sealed tightly. This smaller skydome would still allow light to come in, however, it would ensure that the hallway remains waterproofed.
• Would like to ensure that any money spent by the body corporate on replacement or repairs to the skylight ensures that the existing problem is resolved and no further damage can re-occur.
• The present skylight has the sun on it nearly every day of the year, and is nearly horizontal so there is bound to be movement between very hot sun, rain, and cold nights. The ribs holding the panes of glass are wood, which gives. The new ones will be aluminium, which does not.
• The skylight was last re-sealed over four years ago. Sealing only lasts about four years.
• The Applicant only asked tradesmen for a new skylight, instead of asking how to solve the leaks. The leaks are not necessarily coming from immediately above.
• For an immediate solution, we should obtain a qualified person to reseal the glass panels. Then we engage a building inspector to check for leaks, not just at the skylight but over the roof.
• The Applicant applied the tinting on the glass at her expense. It is her responsibility to replace it.
• Rejects that the body corporate is responsible for the damaged pew, front door and bathroom ceiling.
• It seems such an absurd price for the job in question and with construction companies so abundant in the local area surely there is a more economic solution. Two other comparative quotes should be obtained first.
  

Reply to the Submissions

The Applicant inspected the submissions made and replied to the following effect:

• The Applicant has tried unsuccessfully to obtain more quotes. Other companies have been contacted and none were willing to quote on the job.
• Other jobs which also need to be done have no bearing on this job.
• Skydome provide a seven year warranty on materials and installation; so there shouldn’t be concern that replacement of the skylight will not be a permanent solution. 7 years is as much of a guarantee as any company will give on a new installation.
• Any change to a smaller skydome would affect the commercial value of her property as the result of this proposal would be a vastly inferior product to that which is current, and her entry hall would be very dark.
• Her mandate from the committee was to obtain quotes for a skylight as re-sealing had been tried many times and did not work.
• Tradespeople have gone up on ladders to the roof to inspect. The Applicant uses a step ladder to wipe down the walls.
• In the Applicant’s time as owner, re-sealing was successful only until the next rain.
  

FURTHER INVESTIGATION

In a letter dated 11 June 2009, I explained my view that there was a lack of objective material to either support, or refute, the Applicant’s claims. In particular, I noted that there had not been any objective material supplied to establish that the water penetration into lot 5 and the resultant water damage within lot 5 has been caused by the leaking skylight. I noted that there was some suggestion in submissions that there are cracked tiles on the roof and that this could be another cause of water penetration into lot 5.

In these circumstances, I required the body corporate to obtain a report from a suitably qualified professional detailing the cause/s of water penetration into lot 5 and recommendations to remedy the problem/s and repair any resultant damage. I commented that I considered that this would be a reasonable way to assess responsibility for the damage and determine the extent of the required repairs as well as responsibility for those repairs.

A report from Building Survey Australia Pty Ltd (BSA) was provided by email from Wendy Steadman of Body Corporate Choice Pty Ltd on 10 July 2009, following an inspection which was undertaken on 9 July 2009. The inspection was carried out to the entry hall of lot 5 and, in particular, the roof skylight installation. This was done both internally and externally.

The report found that internally, there was no evidence of water penetration at the time of the inspection. The timber support frames appeared sound and unaffected by water penetration other than evidence of minor stains.

The following conclusions were reached:

The state of repair the roof skylight installation is poor in regards to maintenance, construction material and configuration.

1. The butt joints, aluminium frame joints and barge mortar bed joints in the cladding material are extremely poor and reliance on infill sealant to these joints is equally poor and prone to constant deterioration and extreme difficulty in maintenance. These joints are in a poor state of repair.
2. The overlap of roof tile cladding to the roof/skylight cladding is a major risk of water penetration and would be extremely difficult to maintain or service. It is this area that is the likely source of water penetration.
3. The tilt tile barge capping is a risk for water penetration and is considered to be a poor and an unusual building practice. Again, a likely source of water penetration.
4. The roof cladding to gutter configuration presents minimal clearance between the roof cladding perimeter edge and the gutter lip and it is the opinion of the inspector that the general gutter size is inadequate.
   

Notwithstanding there is no evidence of any adverse affect internal and/or external due to this configuration. However a re-work of the skylight may include consideration of gutter line in respect to the practicality of installation of any new materials etc, in this area.

It was recommended that the roof skylight requires attention to ensure water penetration does not occur. It was further recommended that a detailed solution and quotation should be obtained from a number of licensed roofing contractors and it was the opinion of the inspector that a full replacement would, in the long run, be the most cost effective solution.

Both parties to the dispute were given three weeks to review the report and make any comments they wished to in relation to it, by 4 August 2009.

The Applicant responded to the following effect:

• The distortion shown in photos of the glass is the result of deterioration of the sun/heat proof film placed there at least seven years ago and which was expected to last for four years.
• Whilst on the roof, the Building Inspector found a pane of glass broken, as shown in photograph BM20. The break in the glass has no bearing on the water falling into the entry area of the lot, as the break is over the patio outside the house.
• The Building Inspector notes that the adjacent dome skylight (toilet area) requires maintenance. He suggested that this might be where the damage to the bathroom ceiling has originated. The Applicant stated that this area also needs to be repaired and requested that it be included in any order made.
  

Ms Farmer responded to the following effect:

• Objected to not being notified of the time and date of the inspection.
• Notes that “there was no evidence of water penetration at the time of the inspection”.
• Suggests that the reason the skylight is poor in regards to maintenance is that the Applicant has not allowed anyone to go onto the roof to remove old seals and properly replace the seals. She has a locked gate to the common property, so dictates who enters it
• The skylight is an unusual configuration but the Applicant must have acknowledged that when buying.
• It is agreed that the skylight needs attention. It did years ago. It just needs resealing on all glass joins and around the edges linked to the solid roof. It is only the joins which leak. Solid glass cannot leak.
• Visually the skylight does not look good, because the tinting the Applicant had put on, at her expense some years ago, has cracked.
• The owners agree to reseal the glass.
• She cannot comment on the toilet skydome as she has not been shown it. However, the Applicant did show her the small section of peeling paint in the bathroom. This could easily be steam from hot showers, the Applicant, or from her young Chinese lodger she had for many months.
  

CONCILIATION

The Applicant and some individual owners making submission in response to this application have made reference to things said and done during a department conciliation session that was held prior to this adjudication application being lodged. Because evidence of this is inadmissible in this proceeding[1], I have disregarded it.

DETERMINATION

Applicable Law

• The body corporate must maintain common property in good condition (s.159(1) Standard Module)
• The owner of a lot must maintain the lot in good condition (s.170(2) Standard Module)
• The survey plan for a community titles scheme shows the boundaries of the common property and the lots in that scheme.
• A building format plan defines land using the structural elements of a building, including, for example, floors, walls and ceilings. Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary of the lot is the centre of the floor, wall or ceiling (sections 48C and 49C (4) of the Land Title Act 1994).
• The body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot (s.164(1) Standard Module). An owner who is so authorised must maintain the improvement in good condition, unless excused by the body corporate (s.164(4)(b) Standard Module).
• If a motion to be moved at a general meeting proposes the carrying out of work the cost of which exceeds the relevant limit for major spending for the community titles scheme, the owner of each lot must be given copies of at least 2 quotations for carrying out the work (s.152(1) & (2) Standard Module). If, for exceptional reasons, it is not practicable to obtain 2 quotations, a single quotation must be obtained and must accompany the notice of meeting (s.152(6) Standard Module).
  

Findings

Skylight

The roof and skylight in question are clearly the body corporate’s responsibility to maintain in good condition. The parties do not dispute this, nor the fact that the skylight is in need of maintenance. The dispute concerns whether the existing skylight can be repaired, or whether it needs to be replaced in order to prevent water penetration into lot 5.

The body corporate states that the skylight was last resealed well over four years ago and that resealing it now would solve the water penetration problem. In the event that it didn’t, then the body corporate could investigate a replacement. The Applicant asserts that resealing will not prevent water penetration.

The material submitted by the Applicant demonstrates that the body corporate has been grappling with this issue for a number of years now. The body corporate had approved a quotation from Euroglass in the amount of $5,483.50 to replace the skylight at its June 2008 AGM. Unfortunately, Euroglass then declined to do the work. A request to approve the quote for replacement of the skylight from Skydome, dated 8 October 2008 in the amount of $8,140 was defeated with one vote for and three against.

It is regrettable that the building inspector was not more specific in his recommendations in his report. He merely states that the roof skylight requires attention to ensure water penetration does not occur. He further recommended that a detailed solution and quotation should be obtained from a number of licensed roofing contractors. It was the opinion of the inspector that a full replacement would, in the long run, be the most cost effective solution.

To clarify, I telephoned Bruce Moore, the building inspector, on 6 August 2009 and asked him whether, in his opinion, it would be worth trying to re-seal the skylight before the entire skylight was replaced. He said that, to be a full seal, the glass would have to be completely removed and re-sealed. He noted that one panel was already broken, making this impossible for that panel. He said that re-sealing has to be done meticulously and regularly, to be effective. He concluded by suggesting that complete replacement of the skylight by a qualified roofing contractor, was warranted.

On the basis of this advice from the building inspector, I am satisfied that the replacement of the skylight is warranted. I accept the Applicant’s submissions that it has been difficult, if not impossible, to obtain comparative quotes for this. I note that the body corporate has not provided any quotations for either the repair or replacement of the skylight. Therefore, even though the amount of expenditure involved exceeds the body corporate’s relevant limit for major spending of $5,500, I am satisfied that it is not practicable to obtain two quotations. I have contacted Skydome and asked them to update their original quotation dated 8 October 2008. John Rayner, of Skydome, has provided a quotation (No. J3502) dated 11 August 2009 in the amount of $7,900. Mr Rayner advised me by phone that there was no additional cost for the tinting of the laminate. If there had been, I would have ordered the Applicant to bear this additional cost, as the tinting was an improvement previously made to the common property by her for the benefit of her lot. I will order the body corporate to engage Skydome to replace the skylight and proceed with quotation J3502.

Bathroom Ceiling, Front Door and Cedar Pew

I have viewed the photographs submitted by the Applicant, but am not satisfied, on the basis of the material before me, that the damage to the bathroom ceiling, front door and cedar pew was caused by water penetrating the lot through the skylight, which skylight the body corporate is responsible to maintain in good condition. In particular, I note the Building Inspection Report which found that there was no evidence of water penetration internally at the time of the inspection. Accordingly, I have dismissed the Applicant’s request for an order compelling the body corporate to repair damage to her bathroom ceiling, front door and cedar pew.

Dome Skylight above Toilet Area

The Applicant included, in her response to the Building Inspection Report, a claim that the body corporate be ordered to repair the dome skylight above the toilet area of lot 5. As this was not included with the original application and an Applicant may, with the Comissioner’s permission, change the application only at any time before the application is referred to departmental adjudication (section 245(1) Act), I decline to consider it as part of this application. In any event, all owners have not been given the opportunity to comment on this claim against the body corporate. The Applicant should raise her concerns in this regard with the body corporate in the first instance, before approaching this office.

ORDER

For these reasons, I make the orders above.

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[1] Section 252E(5)