Gracemere Waters North [2009] QBCCMCmr 309 (21 August 2009)

Name of Plan:	Gracemere Waters North
Number of Building or Parcel:	GTP 107068
Address of Parcel:	Beaufort Way HOPE ISLAND QLD 4212

I hereby order that an application “that the Owners of 2134 (Lot 2 on GTP 107068) carry out maintenance to the driveway at 2134(Lot 2) as requested of them by the Gracemere Waters North Body Corporate on a number of occasions.”

is dismissed

This is an application dated 9th June 2009 by Gracemere Waters North body corporate (the body corporate) against Bridgette O’Connor and Craig McKeough (the Respondents) co-owners of Unit 2134 (Lot 2) in the scheme, for an order that the Respondents carry out maintenance to their driveway.

“Gracemere Waters North” GTP 107068 is a plan for the Integrated Resort Development Act 1987 (IRDA). The scheme is a subsidiary scheme in Hope Island Principal Body Corporate. There are 43 lots in the scheme.

The Building Units and Group Titles Act 1980 (BUGTA) applies for the operation of IRDA (section 5A, BUGTA) and continues to apply to a group titles plan subject to IRDA (section 328, Body Corporate and Community Management Act 1997). Section 179A IRDA provides –

“Unless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5”.

Part 5 of BUGTA concerns disputes. Part 5, division 3 makes provision for orders by a referee. Within division 3, section 77(1) provides a general power for a referee, on application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier to “make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel”.

Given section 179A of IRDA, the body corporate may make an application against a proprietor in the scheme seeking an order under section 77(1) of BUGTA.

The body corporate says that the Respondents have failed to maintain their driveway despite issuing a “Notice of Continuing Contravention” of a by-law on 18th February 2009, and letters from the secretary and/or the body corporate manager written on 20th August 2008, 1st October 2008, 8th December 2008 and 31st March 2009.

The contravention notice sent on a BCCM Form 10 quoted “By-law 5 Repair and Maintenance” as follows –
“Every proprietor or Occupier of a Lot will:

The body corporate provides two colour photographs of the Respondents’ driveway, and says that the stamped concrete driveway has “deteriorated since... initial installation in that the coloured surface has peeled/rubbed away in patches leaving base concrete visible in an unsightly manner.”

It says that “the appearance of individual lots plays an important part in ensuring that Hope Island Resort remains one of Australia’s premier residential communities,” and that the failure to repair the driveway is a contravention of By-law 5.

In accordance with section 73(1)(d) BUGTA, submissions were invited from the Respondents and all lot owners, being persons who in the referee’s opinion, would be affected if the order sought was made.

The Respondents made a submission that the driveway started to peel from about mid to end of 2008 and the house was new in 2003. They contacted the concreting company which had applied the surface coating but on inspection, they were told that the fault lay with the “initial driveway” and that even if the top-coating was stripped and re-stamped the same thing would happen again but in a shorter time. They were advised that the concrete has to be ground back and re-done. Quotations to rectify the fault with a coloured concrete have been given to them as $13,706 and they advised the body corporate of this in December 2008, and that they could not afford to have the work done. They also sought the return of a $3,500 bond from the body corporate but were unsuccessful in obtaining this. They say the problem is superficial and not a health and safety hazard, and that their home is otherwise well maintained. They intend to fix the drive when finances allow.

I sought a copy of the relevant by-laws from the body corporate manager on 20th August 2009.

In this matter, the body corporate seeks to enforce its own By-law 5 as quoted above. The by-law requires that driveways and walkways are maintained “in good condition and repair.”

The body corporate manager sent to the Respondents a notice of contravention of by-law using the process required under the Body Corporate and Community Management Act 1997, and making reference to that legislation. Since this scheme is governed by IRDA with reference to BUGTA for dispute resolution, I find that this contravention notice was meaningless as a contravention notice, but was merely further correspondence to the Respondents.

There is no dispute between the parties that the Respondents have been made aware by the body corporate since at latest 20th August 2008, that the body corporate was of the view that the driveway of Lot 2 required attention and was in breach of By-law 5. A letter sent to the Respondents on that date, now a year ago, says -“We thank you for your assistance in ensuring the continued high level presentation of the Hope Island Resort community.”

There is no general duty to maintain a lot in IRDA. Section 51(2) BUGTA requires a proprietor to maintain and repair his or her lot and keep the same in a state of good repair, reasonable wear and tear excepted.

The driveway of Lot 2 has deteriorated in that the surface coating has in places peeled away leaving shallow indentations of bare concrete, resulting in a patchy effect of uneven colouring. However, from the photographs provided by the body corporate I have some difficulty in finding that the driveway itself is not being maintained in “good condition and repair”. The driveway remains serviceable as an even, terraced approach to the house, and it is only the colouring of the driveway which is uneven, and gives a mottled effect. The body corporate describes this as “unsightly.”

I appreciate that Hope Island would like to see a high level of presentation, that is, an “as new” look, but the by-laws and the legislation only require a standard which is “good” or even “good, reasonable wear and tear excepted.”
There were no submissions from the other 42 lots in the scheme about the Respondents’ driveway, and clearly the mottled effect does not so distress other owners that they find it a detriment to their visual amenity, and “unsightly”, or more to the point of By-law 5, to be evidence of a failure to maintain a driveway in good repair.

The Applicants say that the effect is caused by an original contractor’s fault and that to correct it will cost $13,706 as quoted in 2008. An inability to afford to maintain is no excuse for failing to maintain in accordance with the legislation and the by-laws of the scheme. This issue may be further explored with the body corporate and/or insurers, since the driveway was new in 2003.

It may be that the driveway will deteriorate further and there may come a time when this driveway is no longer in “good condition and repair.” The Respondents should consider rectifying the driveway before the quotation increases, and the driveway does fall into disrepair. However, at present, I am not satisfied that the standard of “good condition and repair” has been breached, even if the driveway is “unsightly” and no longer in perfect condition, as preferred by the body corporate.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Gracemere Waters North [2009] QBCCMCmr 309 (21 August 2009)