Mission Development [2009] QBCCMCmr 329 (1 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0213-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18526
Name of Scheme:	Mission Development
Address of Scheme:	59 Mountain View Close MISSION BEACH QLD 4852

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

Michael Poole, the Owner of lot 1

I hereby order that the body corporate is responsible for re-establishing a power supply to the common property. I further order that in all other respects, this application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0213-2009

“Mission Development” CTS 18526

APPLICATION

This is an application by the owner of lot 1, Michael Poole, (the Applicant), against the Body Corporate for “Mission Development” (the Respondent), seeking an order to give effect to the following motion, which was declared defeated at the AGM of 12 February 2009 with two votes for and two against:

Ordinary Resolution – Electricity

It is resolved to put electricity board up, cost about $2,000 each lot. If not approved, seek permission to put my own 2 boards up at my cost & ask body corporate to put one meter up for common area water and lights.

The Applicant provides grounds to the following effect:

• The owners all agree already to run power to their individual lots from the main board at their own cost;
• The Applicant wishes to get power re-established to the common main power board and pole with Ergon approved metres, board and pole so that he is able to rent or lease the properties.
• Of the two dissenting voters, one (lot 4) does not want power connected as lot 4 is an investment property for the future and this is an unnecessary cost. The other lot owner (lot 5) disputes the need for a new pole and thus the cost of the motion and requested more time to consider the matter. The owners of lot 3 are not financial.
  

The Applicant attaches a quotation dated 5 February 2009 from Babinda Electrics for a new property pole and main switchboard in the amount of $12,980 (incl GST) and a quotation dated 9 December 2007 from Harle’s Electrical for the supply and installation of one industrial metering board in the amount of $6,226 (incl GST). A further quotation dated 23 February 2009 from Utility Asset Management to inspect the existing power pole in the amount of $579.69 was also submitted.

JURISDICTION

“Mission Development” was registered as a group title plan (now known as standard format plan) of subdivision on 10 September 1992 comprising 5 lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module).

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

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)).

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the body corporate manager, Archers Body Corporate Management, for distribution to all owners (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application.

The owner of lot 5 made submission to the following effect:

• He attended the last AGM and asked for more time to reconsider whether to vote YES to install a community electricity board.
• In this time, he researched a more cost effective option, that is, using the existing power pole structure rather than demolishing it and installing another.
• To this end, he sought other quotes. The Applicant was made aware of the “use the existing pole” option but so far, has not submitted a quote so as to retain the existing pole.
• His issue is not about the Applicant initiating the special levy (estimated by the Applicant as $2,000) but as to the Applicant and or other owners submitting a lower levy.
• His concern is that any levy raised to purchase a community board be spent effectively and minimise wastage.
  

The owner of lot 4 made submission to the following effect:

• He was surprised to receive notification of this dispute. At the recent meeting the matter was discussed and he thought an agreeable outcome had been reached.
• The property has five individual lots. All lots are vacant land. The common area is about 22 acres. Originally the power was, as in any sub-division, put to the boundary by the electricity provider, who is now Ergon Energy. A steel pole was originally installed with a street light atop, and a large meter box attached. The meter box contains two electricity meters, one for the original bore pump and one for the shed, which is on common property.
• Some time ago they discussed putting power to each lot. Doing the power for all lots at the same time would give them all a cost saving in that all machinery etc would be in the same place at the same time.
• At their recent meeting, the Applicant stated that he would like all of the owners to connect power to their lots as he wishes to build two small units that he can rent out.
• He told the meeting that he was no longer in favour of connecting power to his lot due to the current economic downturn. He said that he had no objection to the Applicant connecting power to his lot.
• The Applicant also tabled a quotation from an electrical company for an amount in the vicinity of $13,000. In his experience as a builder, this amount seems very high. The Applicant explained that he had told the electrical company to allow for a new pole, meter box and concrete apron. This price also included all costs to have individual power to each lot. This is not a body corporate cost but an individual cost as in any situation where someone wants to connect power to a house, office shed or other.
• Last year, he telephoned an electrician who lives in the area. After an inspection he telephoned him to say that it would cost $7,000 to $8,000 to do the work which includes putting power to each lot including an extra meter to each, for hot water.
• At the meeting he told the Applicant that he had no objection to him putting the power to his lot. He agreed and said that he would either run power from the existing pole to a pole and meter box on his property or to the units he is considering building. The Applicant said that he would contact Ergon in regard to the matter.
• He received a telephone call from the Applicant a week later saying that if Ergon were to come on site and inspect the pole and meter box he would be charged a fee of $600. The Applicant went on to say that at $600 for a pole inspection, well that won’t be happening.
• He notified the body corporate manager that he would look into the whole power issue with Ergon Energy. He spoke with Ergon’s representative in Cairns. The representative asked him to forward all information, including lot plans and property description to the representative. As yet, he has not received a reply.
• There are other issues which the Applicant is probably unaware of. The property is set in rainforest with the lots in a degree of a semicircle. It needs to be determined whether the power has to go underground to each lot or overhead – which means trees above or roots below. He is also not sure whose property the pole is currently on, either council, common property, or other. The main question of the Applicant’s is whether Ergon will allow a second meter box on the existing pole or whether he can go underground/overhead to a meter box on his own property as he stated he wants to do.
• Perhaps the Applicant wants power to his lot but wants the rest of the owners to share in the cost. If the pole does not have to be replaced (his electrician seemed to think not) and Ergon allows the Applicant to run power to a meter box on his lot, or put a second box on the pole then this is completely a decision and cost only for the Applicant.
  

The Applicant exercised his right to inspect the submissions, and replied to them to the following effect:

• He still seeks his original request to have power installed via a main board on the community pole on the common land. All lot owners can then pay to connect their own lot, above or below ground, at their own cost, as previously agreed to.
• He finds it unreasonable not to be allowed power.
• In reply to the owner of lot 5’s submission, he obtained the quotes required before the AGM while chairperson of the body corporate. He does not question qualified electricians on their judgement of a pole which if illegal, they lose their license. Mr Ceff agrees it is a community board, which one needs permission to fix or install a new board.
• In reply to the owner of lot 4’s submission:
  • he does not agree that the AGM decision was an agreeable outcome. Power is to be installed to the main common pole for all then individual owners pay to connect to their own lots as agreed, either above or below ground.
  • The old meter box destroyed by cyclone Larry had meters for the bore, the common shed, and power to lot 1, as the original owner was in the process of building a home.
  • Mr Mansfield is mistaken in relation to what the $13,000 quote is for. It is only to get power to the pole and power board, not to individual lots. If Mr Mansfield talked to an electrician last year, where is his quote for the stated $7,000 - $8,000 cost?
  • Mr Mansfield agrees in his submission that the electrical contractors determine if the pole is suitable to use or not as his two quotes seem to indicate.
• He wishes to see a community body corporate electricity board with power connected by Ergon to the common point as soon as feasibly possible; and for the monies required to do the job to be collected.
  

FURTHER INVESTIGATION

By letter dated 21 August 2009, I requested that the Applicant indicate on a plan of the scheme, the position of the electricity power pole and meter box that is the subject of the application. I also asked him to confirm that the electricity only services the common property at this stage; that the electricity power pole and meter box which supply electricity were installed prior to cyclone Larry and were functioning prior to that time, but damaged in the cyclone and has not worked since. The Applicant responded by letter dated 26 August 2009, received on 31 August 2009. The Applicant confirmed that the power was installed prior to Cyclone Larry as the previous owner lived in the shed on common property and had power to a water bore for his use. The electricity serviced lot 1 and the common property shed. The Applicant enclosed a plan of the scheme depicting the location of the power pole and meter box in question, along with several photographs of same. The Applicant also enclosed documentation which suggests that he is communicating with Ergon Energy for alternative methods to re-instate power to the common property.

DETERMINATION

Applicable Law

The body corporate must maintain common property in good condition (section 159, Standard Module Module). The common property for a community titles scheme includes all utility infrastructure except for utility infrastructure that (section 20, Act):

• supplies a utility service to only one lot

• is within the boundaries of the lot

• is not within a boundary structure for the lot.

Utility infrastructure means pipes, cables, wires, sewers, drains, ducts plant and equipment which supply lots or the common property with a utility service (e.g. water supply, gas or electricity supply, a telephone service, a sewer system or a system for the removal or disposal of garbage or waste) (definition of “utility infrastructure”, Act).

Findings

Based on the plans of the scheme and the photographs and sketches of the Applicant depicting the location of the power pole and meter box, I am satisfied that both items are common property utility infrastructure which the body corporate is required to maintain in good condition by virtue of section 20 of the Act and section 159 of the Standard Module. I am satisfied that the body corporate is obliged to restore a power supply to the common property. From the common property power supply, each owner would then be responsible for establishing and maintaining an individual power supply to their respective lot, if they so desire to have one, at their own cost.

Despite my findings however, I am not prepared to order in the terms sought by the Applicant. This is because the quotes upon which the motion he seeks to have implemented are based are now well out of date. Further, his correspondence of 26 August 2009 indicates he has been communicating with Ergon Energy about alternative methods to re-instate power to the common property. The submissions indicate that other owners also have alternative views on how the common property power supply could be re-established. In the circumstances, I consider it necessary for the body corporate to re-consider the issue at a further general meeting. To this end, all interested owners should seek their own quotes for re-establishing the power supply to the common property. These quotes could then be considered as a motion with alternatives at the next general meeting. I note the desire of the Applicant to re-establish a power supply to the common property, in the first instance, and then to lot 1, as a matter of some priority for him. I note that he is the owner of two of the five lots in the scheme and can therefore requisition an Extraordinary General Meeting for this purpose, if he does not wish to wait until the next Annual General Meeting.

ORDER

For these reasons I have made the order above.