Galleon Harbour [2009] QBCCMCmr 37 (6 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0913-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26463
Name of Scheme:	Galleon Harbour
Address of Scheme:	174 Galleon Way CURRUMBIN WATERS QLD 4223

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Valmai Fett, the owner of Lot 12

I hereby order that the body corporate for Galleon Harbour community titles scheme 26463 must within two months of the date of this order engage a person with appropriate qualifications or expertise to inspect and report on the adequacy of the drainage of storm water from common property adjacent to the front courtyard of Lot 12. I further order that if the report recommends work for which the Body Corporate has a duty to carry out under the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 2008, the Body Corporate must, as soon as practicable, engage an appropriate person to carry out the work.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0913-2008

“Galleon Harbour” CTS 26463

The scheme
“Galleon Harbour” community titles scheme 26463 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by Valmai Fett, the owner of Lot 12 (Applicant) against the Body Corporate seeking an outcome that suitable drainage be installed on common property to take the flow of water away from the front of the dwelling on the Lot.

The Applicant submits the water situation at the front of the dwelling has not been rectified since she brought it to the attention of the Body Corporate four years ago. The Applicant’s grounds on which the outcome is sought and the various other documents she included in the application provide the following background:

1. On 24 April 2004, the Applicant wrote to the committee stating (in part): “Drains needed as property floods. Water rises quickly with heavy rain, as it cannot get away. A temporary trench was dug, thus avoiding water entering the premises during the last downpour”.
2. On 1 October 2007, the secretary wrote to the Applicant stating the water problem was discussed at the committee meeting dated 28 September 2007 and that investigations are being carried out and that once the cause is identified, quotations will be obtained to fix the problem. The letter is noted that a plumber will attend the Lot on 18/6 or 19/6 re the water leaks.
3. On 4 February 2008, Queensland Plumbing Services (QPS) invoiced the Applicant for works described as “Clear blocked stormwater to LHS of dwelling. Poor subsoil drainage in the common area is the cause of the problem”.
4. On 5 February 2008, Suzy Weeks of QPS in an email to Active Body Corporate Management (Body Corporate Manager) referred to the work carried out on 4 February 2008 stating “The problem is the subsoil drainage in the common area. This requires urgent attention. A full detailed report is available ... The elderly tenant ... has paid for costs incurred by this ‘common-area’ drainage problem ... We believe this issue of flooding is of a potentially dangerous manner, particularly with the elderly of who are not physically apt to maintain and redirect the excess water caused by the continuous flooding. The entire area is also a slip hazard”.
5. An invoice dated 28 May 2008 from Craig McGauley Plumbing Service (CMPS) stated with respect to Lot 12: “Cut section of concrete at downpipe to cut into existing stormwater line, excavate in garden and run a 90mm pipe to a new pipe in garden near front door. Install an agg line in garden bed as well, back fill and re-concrete”.
6. On 24 June 2008, the Applicant wrote to the manager reporting water entering the garage after the storm on 20 June 2008 and stating if she didn’t take preventative action, “water would have again entered garage through the weepholes. The water built up surrounding ramp and was deep around door. Also the whole unit was surrounded as usual because the water came up from underground & flowed into all corners. I will admit the drain installed by my front door may have taken away some of the volume of water ... its my opinion the weepholes are too many, too wide, too low, that’s causing the water to enter garage and all grass area needs drains”.
7. By letter dated 15 July 2008 addressed to the Body Corporate Manager, the Applicant referred to the letter dated 24 April 2004, the committee resolution at the 1 October 2007 meeting and the QPS report. The Applicant stated the problem has still not been sufficiently addressed by the Body Corporate as water continues to invade the garage when it rains and the drains that have been installed do not address the problem adequately. The Applicant indicated an intention to make a dispute resolution application if the matter remains unresolved.
8. At its meeting dated 25 July 2008, the committee agreed “the Body Corporate has done as much as it can to assist the lot owner and cannot assist any further”.
9. On 20 August 2008, the Applicant wrote to the manager stating (in part) the drain at the front door does not stop the flow of water into the garage.
10. On 1 September 2008, the Applicant wrote to the manager stating the damage in the garage caused by flood water is the skirting board has become soft and decaying, as has the bottom of the wall.
11. On 20 October 2008, the Applicant wrote to the manager referring to work performed on common property between Lots 13 and 14 stating: “... It seems a lot more work was done at Unit 14, and the drains were put in common property, the same as where drainage is needed in my case, instead a drain was put in right at my front door”.
    

Submissions to the Commissioner
The Commissioner provided a copy of the application to the Body Corporate Manager for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

Six committee members signed a submission stating:

• That the only water flowing to the front of the dwelling on Lot 12 is rainwater falling onto the driveway which slopes towards her front door.
• The drainage system installed by the Body Corporate in June 2008 in the form of a storm water pit and extensive agricultural pipe drainage installed adjacent to the front door and in the front garden takes all the water flow from the driveway.
• Inspections during heavy rain show the drainage system is working. The committee referred to three instances of rain: 9 October 2008 (there was no water in evidence), 16 October 2008 (there was no lateral water near doorway or in the garden at the front of the lounge) and 5 November 2008 (no lateral water on or around unit 12).
• The common property adjacent to the Lot is below the level of the concrete and the drainage in the front garden takes away excess water which may build up in extreme conditions.
• In response to background 7 – The water entering the garage is coming from the driveway which slopes towards the garage and the front door.
• In response to background 12 - A garden built between Lots 13 and 14 in 2005/2006 stopped water from flowing into a drain in the driveway causing the backyards of Lots 12 to 14 being inundated with water. Two storm water pits were sunk into the downpipe drainage system adjacent to Lots 13 and 14 and grated drains were installed in each of the lots and connected to the downpipe drainage. The work has been successful as it was necessary to alleviate water build up around the buildings of Lots 12 to 14. The drain was placed adjacent to the front door of the unit as this is where the water flows to and ponds.
  

Susan Gogolka of Lot 9 submitted that works should proceed as soon as possible to change the fall levels at the front of Lot 12 so that rain water runs away from her front door area. The owner outlined the water runoff problems she has experienced. The owner of Lot 40 also supported the application reporting drainage problems in this Lot.

In her reply to submissions, the Applicant stated she has repeatedly requested a licensed tradesman to deal with the problem. She said the drain in the garden does not take all the flow of water, especially during heavy and continual rain, and questions the stated inspections during rain which she says falls mainly at night. The Applicant disputes the committee statement that the height of adjacent common property saying the grassed area is above the cement slab.

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Investigation
The scheme was established on 11 January 1999 when the registrar of titles, Department of Natural Resources and Water registered Survey Plan 106267 and recorded the first community management statement (s 24, Act). Lot 12 was created by the registration of Survey Plan 106268, which is a building format plan of survey. The Plan shows that part of the Lot is situated in BLDG.D, a building which also houses part of Lot 13. Lot 12 also includes two courtyard areas — one at the front of the Lot and the other to the side and back of the Lot — which form part of the Lot.

In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 29 January 2009, I inspected Lot 12 and the adjoining common property in the presence of the Applicant and Mrs Rhonda Shepherd, the secretary.

Decision
Lot boundaries
A building format plan of survey “defines land using the structural elements of a building, including, for example, floors, walls and ceilings” (s 48C, Land Title Act 1994). “Except to the extent permitted under a direction given by the registrar ... the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling” (s 49C(4), Land Title Act 1994). To the extent Lot 12 is separated from Lot 13 or common property by a floor, wall or ceiling, the boundary of the Lot is the centre of the floor, wall or ceiling.

It is apparent that parts of BLDG.D adjoin the two courtyard areas of Lot 12. A courtyard is defined in section 9.1 of the Registrar of Titles Directions for the Preparation of Plans Version 3.7 as “a part of a lot, predominately paved and usually at ground level, and which immediately adjoins another part or parts of the same lot on the same level and usually no greater in area than that lot. The features bounding a courtyard need not be a wall, but shall be sufficient to clearly define the area.” The boundaries of those parts of the Lot mentioned as being a courtyard, would in the absence of a structural element such as a wall be the dimensions shown on the plan (s 9.6.2 and 9.6.4, Directions). Given SP106268, the walls of BLDG.D which adjoin the courtyard areas are part of Lot 12 and the boundaries of the Lot incorporating the courtyard areas are designated by the dimensions shown on the Plan.

Applicable law
A scheme is comprised of lots and common property. Common property includes those parts of the scheme not included in a lot (s 10, Act). Common property also includes pipes, drains or ducts (utility infrastructure) other than infrastructure solely related to supplying utility services to a lot and within the boundaries of the lot (s 20(1)(b), Act). The common property is owned by the lot owners as tenants in common (s 35, Act). The owners are the members of the body corporate (s 31, Act).

General functions of a body corporate include administering the common property for the benefit of lot owners (s 94, Act). A body corporate must administer, manage and control the common property for the benefit of lot owners (s 152, Act) and must maintain common property in good condition (s 159(1), Standard Module). In the case of a scheme created under a building format plan of survey, the body corporate must maintain elements on a lot such as foundation structures, roofing structures providing protection and essential supporting framework including load-bearing walls in a structurally sound condition (s 159(2), Standard Module).

The owner of a lot must maintain the lot in good condition (s 170, Standard Module).

Maintenance obligations
Given the abovementioned legislative provisions, the Applicant is responsible to maintain the courtyards and the walls of BLDG.D which adjoin the courtyards of Lot 12. The Body Corporate is responsible to maintain structural parts of the Lot mentioned in section 159(2) in a structurally sound condition. The Body Corporate is also responsible to maintain, in good condition, the common property grassed area to the west of the Lot, the downpipe on the building adjacent to the front courtyard of the Lot and the associated storm water pipe/s.

Decision
The Applicant says storm water rises on the abovementioned grassed area of common property during some rain periods, flows onto her Lot and is trapped on the front courtyard. The Applicant says that the pit installed by the Body Corporate is not totally effective in draining storm water, particularly as during heavy rain the storm water pipe does not effectively drain the water from the roof of BLDG.D. Mrs Shepherd questioned the claimed amount of water flowing from the grassed area. However, she did acknowledge that water can overflow from the storm water pipes during some rain conditions.

The committee’s submissions clearly state its position with respect to this issue. The committee is of the view that nothing else can be done to assist the Applicant. It is apparent the issue has not been submitted for the consideration of owners in general meeting.

I am satisfied from the submissions made and the discussions I had with the Applicant and the secretary at the inspection that there are a variety of drainage issues on scheme land, including in the vicinity of Lot 12. Nothing has been presented to suggest the Body Corporate is solely responsible to remedy these issues. The question to be determined in this dispute is whether the Body Corporate has a legislative duty to carry out work of the nature sought by the Applicant.

The Applicant has demonstrated that QPS is of the view that there is “Poor subsoil drainage in the common area” and that QPS has informed the Body Corporate of this and the possible dangers. Even though it could be argued the QPS statement does not constitute a report derived from a full investigation, it is relevant that it is acknowledged (including by some owners) that drainage issues do exist. The Body Corporate has had drainage work carried out on various parts of scheme land, including Lot 12. However, despite the context of the 1 October 2007 letter and the offer from QPS, it is apparent the Body Corporate has not obtained any material from a person with similar standing to QPS which disputes the opinion expressed about the subsoil drainage, an issue which may be directly related to the concerns being stated by the Applicant. While CMPS has carried out work, there is no evidence that CMPS gave consideration to the QPS conclusion or that CMPS considered the work it carried out would necessarily resolve the drainage issue identified by QPS. The committee has formed a view which is disputed by the Applicant. As I indicated to the Applicant and the secretary at the inspection, in disputes of this nature it is preferable to apply the legislation on the basis of an informed opinion such as one stated by an appropriately qualified or experienced person. It is difficult to objectively assess opinions that may arguably be viewed as being subjective or without any informed basis.

QPS state the flooding problem is potentially dangerous and the entire area is a slip hazard. Other than the alleged consequential flooding problem in Lot 12, this suggests danger lies with the use and enjoyment of common property. While the Body Corporate had work carried out on Lot 12, there is nothing to suggest it has tested the draining adequacy of the adjoining common property. Given the opinion expressed by QPS, it may be appropriate for the Body Corporate acting reasonably to do so, particularly if there is a possibility of liability if for example, a person is injured or property is damaged. I do not consider the Applicant, as the owner of the Lot, is responsible for the drainage of water from another part of scheme land which, in the opinion of a person with appropriate standing should be drained elsewhere. Further, I do not consider the fact that the Body Corporate had the drain installed in the front courtyard necessarily excuses the Body Corporate from any further obligation with respect to this issue.

While I appreciate that the committee has sought to help the Applicant, it is clear that the Body Corporate has not engaged a person with appropriate qualifications or expertise to investigate the claims being made, particularly by the Applicant. In my view, the Applicant has provided material to warrant such action by the Body Corporate given its legislative obligations. Work is necessary to identify whether the Body Corporate has an obligation to have work carried out to properly drain common property. If it does not, the Applicant may need to consider having work carried out on her Lot. On the basis of the findings of an appropriate person, the Body Corporate or individual owners can proceed in accordance with their legislative rights and obligations.

In the circumstances, I consider the Body Corporate is responsible to engage an appropriate person, such as a hydraulic consultant, to investigate and report on the drainage adequacy of the common property in the vicinity of Lot 12. The Body Corporate would also be responsible to have any work carried out that is recommended by the engaged person and which is a Body Corporate responsibility under the legislation. The Body Corporate may choose to extend the scope of work to other parts of scheme land, but this will be a matter for the Body Corporate.

For these reasons, I have ordered the Body Corporate engage a person with appropriate qualifications or expertise to inspect and report on the adequacy of the drainage of storm water from common property adjacent to the front courtyard of Lot 12. Given the information provided the common property that should be inspected includes the common property grassed area to the west of the Lot and the infrastructure adjacent to the front courtyard of the Lot that drains storm water from the roof of BLDG.D. The report to the Body Corporate should include (if necessary) recommendations of the work considered necessary to improve any identified drainage problem.

I have not placed a time frame on the Body Corporate to do any recommended work. However, this work should be carried out as soon as practicable. The time for doing the work may be dependent on factors such as the extent and nature of the work, the proposed cost and the funds available to the Body Corporate. For example, the cost for any recommended substantial work may need to be budgeted for over a period of time by the Body Corporate. Given the fact that the problem has existed for some time, there is nothing to suggest that it is now urgent. However, the Body Corporate should be guided by the recommendations and findings of the report.

At the inspection, the Applicant pointed to a problem she says occurs in the garage of her Lot during rain periods. The Applicant showed photographs of a patch of wet concrete just inside and at the entrance to the garage of the Lot. The Applicant suggests water is rising from under the concrete slab into the garage. The Applicant also pointed to the skirting on a wall in the garage which had had some remedial work affected to it. There may be an issue with respect to water rising from common property through the concrete slab into Lot 12 on which the Body Corporate may need to also obtain advice. The Body Corporate may decide to have this matter also investigated. However, I have not made any provision in the order in relation to this matter as, in my view, it did not form part of the outcome sought.