Mahana [2009] QBCCMCmr 343 (10 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0188-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9971
Name of Scheme:	Mahana
Address of Scheme:	164 The Esplanade BURLEIGH HEADS QLD 4220

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

Rani Silver, Ruth Wood and John Kirwan, the Owners of various lots in the Mahana Community title scheme

I hereby order that within 30 days of the date of this order the owners of lot 9 are to provide the body corporate with a copy of the advice which they received from “Showers Engineering” dated16 March 2009. I further order that upon being provided with reasonable notice, the owners of lot 9 are to allow a representative from Ken Brown and Associates or another professional engineer nominated by the Body Corporate Committee, access to their lot for the purposes of inspecting the work which has been undertaken within their lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0188-2009

“Mahana” CTS 9971

APPLICATION

The applicants are owners of various lots in the scheme and also members of the body corporate committee. The final outcomes sought are as follows:

That the owners of Unit No.9, “Mahana” should:-
1. Submit proper plans detailing all building works;
2. obtain an independent Engineer’s report to certify all building works;

3. obtain professional certification that the reinforcing rods exposed by removing part of the load bearing wall, and the holes drilled into the ceiling of the outside balcony, have been properly treated to prevent concrete cancer.
4. Provide adequate insurance cover from a reputable underwriter to cover any problems arising from their building works.
   

On 25 March 2009 I made a temporary order that pending the making of final orders, the owners of lot 9 were not to carry out any further work of a structural nature which could impact on the structural integrity of the building.

SCHEME DETAILS

Mahana consists of 12 lots and was registered as a building units plan (now described as a building format plan) under the provisions of the Building Units and Group Titles Act 1980 (BUGTA). It is now regulated by the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

BACKGROUND

The applicants are seeking orders against the owners of lot 9 who began certain internal renovations in January 2009 involving certain structural alterations including removal of part of a load bearing wall. The applicants were therefore concerned that such work could potentially impact upon the structural integrity of the building and that body corporate approval should have been obtained before the renovations began.

The applicants states that they acted with the objective of ensuring the interests of all owners are protected, including compliance with by-laws and legislation. As at the date of the application no plans had been supplied by the owners of lot 9, body corporate approval had not been sought and the body corporate believed that no engineer had inspected the building works. The applicants claimed that they did not know what work was being undertaken other than extensive building works and structural changes i.e. removal of part of a load bearing wall.

In reply the respondents stated “We intend on proceeding with the work to our unit and we will not enter into any further discussions based on unfounded allegations or demands that we gain approvals when none are required”. The respondents went on to state that they had received legal advice that they were entitled to undertake the work and had obtained an engineer’s report stating that it was safe to remove part of the load bearing wall. The respondents provided the committee with a certificate from “Showers Engineering” dated 23 November 2007 which included the following:

“Kitchen wall ok to remove section 600 wide to allow for passage way being set up by moving non load bearing wall to bedroom”...

The applicants also attached the following documents to the application:

• Letters dated 20 & 23 January 2009 from respondents to body corporate manager in which respondents state that they do not require body corporate permission for renovations;
• Letter dated 1 February 2009 from committee member to body corporate manager requesting advice;
• Email communications between committee members and body corporate manager;
• Minutes of committee meeting held on 14 February;
• Letter to respondents from body corporate dated 14 February 2009.
  

SUBMISSIONS

In their initial submission, the respondents stated that on 15 January 2009 they put a notice in the elevator apologising for building noise and on 16 January a contractor cut away a 600mm section of a load bearing wall. A number of conversations with other lot owners ensued, during which the respondents were made aware of their concerns regarding structural alterations to lot 9. A number of lot owners requested the respondents to provide a copy of the engineer’s certificate and a committee member requested one of the respondents to make an application to the committee for permission to undertake the work.

On 14 February the respondents received a letter from the body corporate committee advising that they had obtained advice from another engineer, Ken Brown & Associates and again reiterated their request for a copy of the certificate from Showers Engineers. On 21 February a committee member contacted the respondents again and stated that they did not believe the “Showers” certificate was sufficiently detailed.

The respondents believe that this matter has been blown out of proportion because the committee has little knowledge of building, approval and licence requirements. They believe that the work is “self- assessable” and therefore, body corporate or Council approval is not required. Further, they are not aware of any legislative requirement for them to have insurance coverage apart from the insurance held by licensed tradesmen. The respondents also advise that:

• The section removed from the wall was only some 600mm wide;
• the 4 reinforcing rods in the ceiling, exposed by removal of the wall, will be concealed behind a bulkhead and do not require any particular treatment as they are internal to the building. However the respondents sprayed the rods with a cold galvanising substance as a precaution;
• two years ago they drilled two holes and inserted 2 stainless steel “dyna bolts” into the ceiling of the outside balcony for the purposes of hanging “swing type canvas chairs”.
  

Attached to the submission was a letter from “Showers Engineering” dated16 March 2009 which read as follows:-

“We have previously inspected this unit to certify that a small section of load bearing wall to the kitchen could be removed. Following removal of this part of the wall we inspected this on 14 March 2009 and found the work to be carried out correctly and the wall remains structurally sound. The section of wall removed is about 600mm at the end of a wall of 3 metres long.
This represents a minor part of the wall and the structure of the area about the wall and given that there are only three floors over the area concerned will not be influenced by such a small removal of this long wall. The bolts to the ceiling of the outside balcony are structurally adequate and are ably to safely sustain loads from seating. There is no risk or evidence of corrosion to the slab or the bolt fixing.”

Prior to making final orders all lot owners and the body corporate committee were given an opportunity to make submissions pursuant to section 243 of the Act. A number of lot owners made submissions which included the following:

• although the body corporate requested plans and an engineer’s report, the respondents have only provided a short letter from an engineer;
• irrespective of the size of the wall section removed the respondents have interfered with an easement of support;
• the respondents have moved a washing machine and water heater from one room to another and they question where the hot water “runoff pipe” is now located;
• there are 3 floors above the respondents’ unit and there are concerns about the impact of their renovations on the floors above;
  

The respondents made the following final submissions:

• the only structural work carried out was removal of a 600mm wall section and this work was approved by a structural engineer;
• the removal was carried out by a concrete cutting contractor who was licensed and insured;
• after removal of the 600mm wall section, the wall was inspected again by the licensed engineer;
• the respondents believe that body corporate approval did not need to be obtained for internal renovations unless the renovations interfere with “the statutory easement for support”;
• they believe that other owners have carried out extensive renovations without obtaining body corporate permission and without being requested to provide plans detailing the building work; independent engineer’s report; or insurance to cover any problems arising from the building work;
• the report from Showers Engineering dated 16 March states that removal of the 600mm section involves a minor part of the wall and will not impact upon the floors above the;
• the applicants’ engineer, Mr Ken Brown has confirmed the advice obtained from Showers Engineering and the respondents are happy for Mr. Brown to inspect ;
• due to its minor nature, no particular Council approval was required for the plumbing work undertaken by a licensed plumber;
• the respondents were not advised of the committee meetings held on 14 February 2009 and 21 February 2009 but were advised by the owner of lot 6, and the owner of lot 8, that the meeting resolved that the body corporate would accept a more detailed engineers report and the respondents have done this ;
• the respondents have not responded to the committee’s letter dated 21 February 2009 because they believed that the matter had been resolved.
  

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and another owner of a lot included in the scheme (section 227(1)(a) of the Act).

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)).

DETERMINATION

The applicants are members of the body corporate and are concerned that renovation work has been carried out in lot 9 without firstly informing the body corporate of the scope of the works and without obtaining body corporate approval. They therefore seek the following orders:

That the owners of Unit No.9, “Mahana” should:-
1. Submit proper plans detailing all building works;
2. obtain an independent Engineer’s report to certify all building works;

3. obtain professional certification that the reinforcing rods exposed by removing part of the load bearing wall, and the holes drilled into the ceiling of the outside balcony, have been properly treated to prevent concrete cancer.
4. Provide adequate insurance cover from a reputable underwriter to cover any problems arising from their building works.
   

This application was submitted after the owners of lot 9 commenced internal renovations to their unit involving removal of small part of a load bearing wall. I have been provided with a copy of the scheme by-laws and note that the by-laws do not require a lot owner to obtain permission from the body corporate before commencement of internal renovations. Nevertheless, other lot owners have been understandably concerned about the potential impact upon the structural integrity of the building. They refer to section 115N of the Land Title Act 1994 and section 165 of the Body Corporate and Community Management Act 1997 which are applicable to structural alterations within a community title scheme. are of relevance to the circumstances.

Section 115N of the Land Title Act 1994 provides as follows:

115N Easements for support

(1) An easement of lateral or subjacent support exists—

(a) in favour of a lot against another lot capable of supplying lateral or subjacent support; and

(b) in favour of a lot against common property capable of supplying lateral or subjacent support; and

(c) in favour of common property against a lot capable of supplying lateral or subjacent support; and

(d) in favour of common property against other common property capable of supplying lateral or subjacent support.

(2) An easement for support under subsection (1)—

(a) entitles the owner of a lot (“lot X”) to enter a lot or common property supplying support to lot X under the easement to maintain or replace any support; and

(b) entitles the body corporate to enter a lot or common property supplying support to common property under the easement to maintain or replace any support.

(3) An easement for support under subsection (1) subsists until the scheme no longer exists.

Section 165 of the Body Corporate and Community Management Act 1997 provides:

Interference with easements of support or shelter

The occupier of a lot included in a community titles scheme must not

interfere, or permit interference, with support or shelter provided by the lot

for another lot included in, or the common property for, the scheme.

Maximum penalty—100 penalty units.

Although the concerns raised by other lot owners regarding the possible impact upon the structural integrity of the building are understandable, it would appear that the renovations were not as extensive as first thought. I have been provided with a copy of a “Structural Inspection Certificate” obtained from a qualified structural engineer on 23 November 2007, prior to commencement of the work, stating “Kitchen Wall – OK to remove section 600 mm wide to allow for passage way being set up by moving non load bearing wall to bedroom.

I have also been provided with a copy of a report dated prepared by the same engineer after the section of the wall had been removed. This report is dated16 March 2009 and reads as follows:-

“We have previously inspected this unit to certify that a small section of load bearing wall to the kitchen could be removed. Following removal of this part of the wall we inspected this on 14 March 2009 and found the work to be carried out correctly and the wall remains structurally sound. The section of wall removed is about 600mm at the end of a wall of 3 metres long.
This represents a minor part of the wall and the structure of the area about the wall and given that there are only three floors over the area concerned will not be influenced by such a small removal of this long wall. The bolts to the ceiling of the outside balcony are structurally adequate and are ably to safely sustain loads from seating. There is no risk or evidence of corrosion to the slab or the bolt fixing.”

Apart from removing part of the kitchen wall, the internal renovations to the unit are relatively minor. I see no reason to disbelieve the submissions from the respondents and their solicitors to the effect that the work will change the floor area or height of the building or adversely affect the structural integrity of the building and that therefore the work is self-assessable under the Building Act 1975. The respondents have engaged a professional engineer who has inspected their unit and provided a report confirming that removal of the 600mm section of wall will not jeopardise the structural integrity of the building. Further, the respondents have expressed their willingness to allow an Engineer nominated by the body corporate Engineer to inspect the subject work. Accordingly, there is little more that can be usefully done by the respondents to allay the concerns raised by the applicants.

Having regard to the above I propose to make the following orders:

(1) within 30 days of the date of this order the respondents are to provide the body corporate with a copy of the advice which they received from “Showers Engineering” dated16 March 2009;
(2) upon being provided with reasonable notice, the respondents are to allow a representative from Ken Brown and Associates or another professional engineer nominated by the Body Corporate Committee, access to their lot for the purposes of inspecting the work which they have undertaken within their lot.