Runaway Royale [2010] QBCCMCmr 149 (31 March 2010)

Number of Scheme:	19092
Name of Scheme:	Runaway Royale
Address of Scheme:	264 Oxley Drive COOMBABAH QLD 4216

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

I hereby order as follows –

that the Applicants on payment of the requisite fee to the body corporate and if relevant, postage, may inspect and/or be provided by the body corporate with a copy of the minutes of any committee meeting held on 11th July 2009 prior to the annual general meeting, save where the body corporate alleges that section 205(3) Body Corporate and Community Management Act 1997 is thereby triggered, as further detailed in the reasons set forth herein.

The application for all other outcomes sought is dismissed.

This is an application dated 10th September 2009 and amended on 18th September 2009, 23rd September 2009 and 24th September 2009 by Peter Banks and Olive Banks (the Applicants) occupiers of Lot 6, against the body corporate for Runaway Royale CTS 19092 (the body corporate) for orders as follows –

“Runaway Royale” CTS 19092 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 37 lots in the scheme created under a Group Title Plan of subdivision.

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

(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)).

The Applicants make reference to a conciliation by this Office but I have no access to, nor any knowledge of, anything said or done, nor any documents produced at that conciliation which must remain confidential. An application for adjudication is an application “de novo” in which an applicant must present his or her case which will be assessed on its merits.

The Applicants’ grounds refer to a conciliation agreement which is not a part of this application. They say that since that time there has been no contact from the committee. Other matters concerning the conduct of the body corporate manager and reports of complaints to the police are not within the ambit of this dispute nor of the outcomes sought.

Building at Lot 5 and flooding
In December 2008 the owners of Lot 5 built a roofed patio at the rear of the lot which has reduced sunlight to Lot 6. In about March 2009, sails and cement works were added to the patio of Lot 5 at the rear. In April 2009, a steel shed was erected “almost on the dividing line” between Lot 5 and Lot 6. The shed is green which is not in scheme colours of cream and brown, protrudes above the fence line and does not have gutters or downpipes and water runs from the roof onto the concrete below. The sails also channel water. The Applicants say that it is also possible that the drainage from the roof of the patio is insufficient for the volume of water falling on the patio roof.

The Applicants do not believe that the body corporate and/or the Council has consented to the refurbishments to Lot 5 and advised the body corporate of that on 27th April 2009 and complained to the Gold Coast City Council (GCCC) on 29th April 2009, asking the Council to intervene. They have written letters as follows –

The Applicants have also sent Residential Tenancy Authority breach notices to the on-site managers to correct the drainage situation because it is a health hazard and an inconvenience to them.

On 5th June 2009, the GCCC referred the Applicants to a private certifier in respect of the stormwater issues at the scheme, and said that the Council was not engaged in the assessment or approval of the plans. The Applicants wrote to the private certifier on 10th June 2009.

The body corporate committee on 17th June 2009 wrote to the Applicants saying that the committee at a recent committee meeting had found that the shed at unit 6 was “in keeping with the appearance of the lots” and has been approved by the committee.

The Applicants are also of the view that the building works are contrary to the “rules of the body corporate,” especially By-law 21.

The Applicants say that the lack of sunlight affects their vegetable garden, and the shed is unsightly to visitors to Lot 6. The Applicants now have to use electric light consistently in the lounge room. Rainwater now floods from Lot 5 into Lot 6 and lies at the lounge room and laundry doors, making the backyard of Lot 6 inaccessible, after even short periods of heavy rain. Sand from Lot 5 washes under the fence into Lot 6.

Since 6th July 2009, the western side of the patio of Lot 5 has been reduced by between 50 – 60 cm and the sails have been similarly reduced. The Applicants believe that this was the result of their complaint to the local authority.

In addition, various attempts over the years have also been made to correct intermittent flooding at the front of Lot 6. The on-site manager dug a trench beside the footpath and driveway to Lot 6 but although this was partly effective the ditch crated a hazard to anyone using the driveway or footpath, and the trench was filled in. Sometime after July 2009, the on-site manager dug a trench of almost half a metre in width and 15 cm deep across the middle of the front lawn whilst the Applicants were absent.

Body corporate records
The Applicants have since August 2009 sought a copy of the minutes of the annual general meeting of 2009, and a copy of a committee meeting immediately before it. On 9th September 2009 the Applicants again asked the body corporate manager Sargeant Strata for a copy of the minutes of the Annual General Meeting of 2009 and the minutes of the committee meeting immediately preceding the annual general meeting. They enclosed $20.20 for the copies as the number of pages was not known. On 10th September 2009, the body corporate manager advised that the Applicants might inspect the records at a fee of $24.00 and 50 cents per page for photocopies.

In accordance with section 243(2)(b) Act submissions were sought from all lot owners as well as the respondent body corporate.

Graeme Caldwell and Barbara Caldwell, (Mr and Mrs Caldwell) owners of Lot 5, deny that the construction of the patio by them has diminished sunlight to Lot 6. Lot 6 is one of the middle units in a block of 4 and faces north-east. The sun cannot reach the rear of Lot 6 until about the middle of the day. The patio is also in the shadow of the building for the same time.

Lot 6 has large trees across the rear fence which puts the yard in shadow in the mid- to late-afternoon. They also deny that the tin shed and sail result in flood water flowing from Lot 5 into Lot 6.

They say that the patio, shade sail, garden shed, concrete slab and stormwater drains have been inspected “by a registered third party building certifier” and the Council compliance officer. All the building applications have been approved. An earlier complaint by the Applicants to the Council has been dealt with. On 12th August 2009, the Council advised Mr and Mrs Caldwell that with regard to a ‘show cause’ notice issued on 22nd May 2009 when a Council compliance officer inspected Lot 5 and “identified inconsistencies with the Integrated Planning Act (Qld) 1997”, the breach “has been rectified” and Council would be taking no further action.

The Applicants had lodged a complaint with the Council about their “bright green shed” being next to the boundary and “1m above the fence line.” Both these claims were untrue. The shed is pale eucalyptus green and only 350mm above the fence. They had to alter the shed slightly by reducing it in length by 150mm to comply with Council by-laws.

The fall of the land runs from Lot 5 towards Lot 6 and rainwater would always have run that way. Now that 50% of the yard of Lot 5 is covered by the patio roof, that rainwater is collected and drains into the ground through gutters and downpipes. The garden shed roof slopes away from the boundary with Lot 6 and water falls onto a concrete slab which is sloped into an underground stormwater drain. The shade sail also slopes towards the rear fence of Lot 5 and not towards Lot 6. The water from this also falls onto the new concrete slab and sloped into a new channel drain “running across most of the area” and then into the underground stormwater drainage. They say that no surface water can run into Lot 6 from Lot 5. They have noted a depression in the ground outside the rear doorway of Lot 6 and heavy rain ponds there prior to soaking away into the sandy soil. They deny any run-off from Lot 6 or health issues. They say that the Applicants claims are misleading and mischievous.

Kerrie Speirs, owner of Lot 26 says that she has lived at the scheme for 15 years. She also has water pooling after heavy rain but it disappears quickly.

Colin McKenzie, owner of Lot 10 found much of the application irrelevant to the dispute about drainage. He suggests that the Applicants be treated as vexatious complainants and finds their complaints to be about “miniscule issues.”

Suzanne Pell, owner of Lot 34, says that as tenants, the Applicants first point of contact should be with the landlord/owner. The scheme enjoys quiet and harmony without the constant complaining of the Applicants, who have created discord and upset.

Robert White, owner of Lot 15 says that in his experience the management and committee have always operated fairly and professionally. He is on the committee.

Suzanne de Blaquiere, owner of Lot13, says she has every confidence in the on-site managers and committee and that it will comply with Council regulations. She notes that there is no evidence about the flooding, and that much of the application does not seem relevant. She has not noted a noise problem close to Lot 6 and does not know what the complaint is about “quiet enjoyment.”

Heather Cush, owner of Lot 3 has lived at the scheme for 7 years and been for many years on the committee. She says that the “so-called complaint of stormwater and flooding” has been thoroughly investigated “ and there is no real evidence to support this complaint.” The climate is the cause of occasional very heavy rain. All structural work at Lot 5 has been inspected and passed by the Council.

The body corporate says that it agreed with the Applicants to dig a channel for dispersal of pooled water which worked successfully, but the Applicants now allege it to be a trip hazard. The body corporate does not believe it to be so, but has erected a ribbon barrier and warning signs which will remain until the dispute is resolved.

The main stormwater pipe is the responsibility of the body corporate but adjoining pipes flowing into it are the responsibility of owners. The body corporate has paid for “Gold Coast City Plumbing, Drainage and Gas” to check that the 10-inch stormwater pipe at the rear of lots 5, 6, 7 and 8 was not blocked and on 12th October 2009 it was found to be clear. The company suggested putting “a 300 pitt (sic) and grate in the stormwater line from the back of the doorway entrance facing south of Unit 6 because of the low spot as you walk outside of the door.” It also recommended a “second pitt (sic) be installed in the unit entryway of unit 6 to alleviate surface water as this will rectify and future water problems in storm conditions.” This work and advice cost the body corporate $423.50 which it would like to reclaim from the Applicants as well $328.80 costs in relation to this Application, totalling $752.30 because the application is frivolous and vexatious.

In respect of the building in Lot 5, it says that all structural changes have been approved by the Council. The committee provides a copy of the Final Inspection Certificate for the roofed patio dated 27th January 2009.

The committee says that it does not understand the allegation that the Applicants are not able to have “quiet enjoyment” since no details are provided. It provides a copy of minutes of the annual general meeting of 11th July 2009 and a copy of the previous committee meting held on 27th May 2009, both of which in the adjudication process have now been forwarded to the Applicants.

Marie Hughes, owner of Lot 27, says that she finds the complaints of the Applicants to be frivolous. She has been a resident owner for 15 years. The “flooding issues” occurred when there was torrential rain over a period of a week. Everyone in the district at the time had a water problem. Even when the rain stopped the ground was very wet for “quite a few days.” She thinks that the managers and the committee have dealt with the Applicants’ complaints in a professional manner. There are no details about the “quiet enjoyment” issue, and the committee has not received any details of this complaint. She finds the claims outrageous and exaggerated and without foundation.

Sherrill Harbutt, owner of Lot 29 says she is concerned by the huge volume of correspondence which the Applicants have had with government departments, attacking the on-site managers who have been kind to them. She thinks that a dispute between neighbours over a shed and patio has escalated to become a personal attack on the on-site managers. The owners of Lot 5 “erred in failing to gain body corporate approval for their improvements but since the Council “after requiring modifications to the original patio structure have since passed the completed alterations, the Committee had no choice but to approve them as well.” She finds them tasteful and in keeping with the complex.

Ron Firth and Deslea Firth, owners of Lot 37 say that they do not agree that the dug channel is a trip hazard. They provide photos of the posts and marker tape and a sign saying “caution.” The channel is a couple of inches of lifted soil and reinstated grass. The 10-inch pipe is more than adequate for the job of carrying away stormwater which is normally done by a 4-inch pipe. There is no problem with the pipe.

They believe that the original construction of the patio was not authorised by the body corporate. When the situation was pointed out to the owners of Lot 5, a modification was made to satisfy the Council. They do not know what “quiet enjoyment” is not being offered to the Applicants but they have received a number of complaints about noise issuing from Lot 6. The complaints are that the Applicants leave their garage door open and leave the radio turned up loud and the internal kitchen door open so that loud verbal exchanges can be heard from adjoining units including from the other side of the road.

They note that the Applicants provided no copies of the responses from the various agencies to which the Applicants have complained about the on-site managers, the committee, and the building on Lot 5.

Kevin Canny, owner of Lot 23 says that there are no flooding issues at the front of Lot 6 and that the “so-called” channel is not a tripping hazard, “even for a blind person.” If the channel was removed there would still not be a flooding issue. When there is heavy rain, Lot 6 “fares no worse” than any other dwelling in the scheme. If there was a problem with the drain, it would be up to the owners to rectify it but the tenants should keep the drain entrance clear which is “normal housekeeping.” He is at the bottom of the slope and has no drainage problems. He says that the complaints have no merit. He is of the view that the application is frivolous and a waste of time for all parties concerned.

Angela Nunn, owner of Lot 31 says that the complex is friendly and quiet apart from “some loud noises coming from across the road at No. 6.” She finds the committee work effectively and the complex is well maintained and the on-site managers “are by far the best.” The scheme has ever had.

Nicola Wenham, owner of Lot 20, is also a committee member. She says that criticism of the managers by the Applicants is irrelevant to this dispute. She has lived on site for 9 years and it is a harmonious place to live, and that there is “quiet enjoyment” for everyone else.

Kevin Voltz, owner of Lot 32, and chairman of the scheme says that in respect of the minutes sought by the Applicants, the committee meeting before the AGM resolved only to write to the Applicants saying that the committee had approved the garden shed in Lot 5. At the AGM there was no mention of the Applicants. The committee had not previously provided a copy of the minutes to the Applicants as it had received legal advice, that a tenant was not “an interested person” within the meaning of the Act.

In respect of the second and third outcome sought, the body corporate has already investigated the water pipe, and structural changes to Lot 5, approved by the Council. The Applicants want an excavation dug in their front lawn to correct flooding to be filled in again. He has himself written to the Council to request assistance on the issue of whether structural alterations to Lot 5 could have exacerbated flooding to Lot 6. The Council at last advised that it did not deal with private drainage problems. The body corporate then arranged the drain check with Gold Coast City Plumbing Drainage and Gas who sent a camera down the extent of the stormwater drain to check for blockages. Gold Coast City Plumbing Drainage and Gas recommended a pit and grate to be installed and a second pit in the front entryway to Unit 6. These are matters which will have to be discussed with the owner of Lot 6, who would be responsible “for some of the expense involved.” He finds the claim frivolous and vexatious, malicious and partly unintelligible.

He attaches a letter from himself to the body corporate manager in which, on 9th May 2009 he advises that he has spoken to Mr and Mrs Caldwell and inspected their alterations. They claimed that they were unaware of the need to obtain body corporate approval to erect a garden shed and shade sail and were apologetic. He measured the height of the shed above the wall and found it to be 35cm higher and not 1m. higher as the Applicants had complained on 27th April 2009. He also advised that the shed was not bright green but a colour called “Pale Eucalypt.” He pointed out that the letter sent to the body corporate by the Applicants referred several times to “Lot 5” when it meant to refer to themselves in Lot 6, and was confused and rambling.

They say that they consider each one of the submissions, to be a “breach of one or more sections of the Body Corporate and Community Management Act 1997 and request immediate investigation.” They find the wording in some of the submissions very similar so that they believe “the same hand” has been involved in the preparation of each, which demonstrates “collusion.” They point out that seven of the submissions are from committee members.

They say that in respect to “quiet enjoyment” that they mean it in the legal sense and as used by the Residential Tenancies and Rooming Accommodation Act, meaning “lack of harassment”.

They say that the flooding is a “long standing issues that has existed since the occupants commenced tenancy of Lot 6 on 26th July 2006.” A pit and grate have been installed by Mr Caldwell in Lot 5 at the front of the lot beside the driveway, and this has alleviated the flooding issue in Lot 5. They refer to a previous decision of this Office Runaway Royale (2000) QBCCMCmr (22 June 2000). This was also about flooding and shows “the problem is not of recent origin... It has been around since 2000... It is a possibility that over the years water has sought a channel under the block that comprises Lots 5, 6, 7 and 8, and may account for the breeding of mosquitoes, insects and other parasites, possibly even flea’s.” (sic)

However, they say that there has been no previous flooding of the back yard near the lounge room door before. The pit and grate has done its job at the western end of the back yard. The flow of water from Lot 5 under the fence was heavy. Lot 5 has laid a solid cement base and they say that it is this which is the source of surface water that flows under the fence into Lot 6 and will continue to be a problem until rectified. The representative from Gold Coast City Plumbing Drainage and Gas recommend a second pit, but they suspect that “he has not been fully acquainted with the problem.”

They say that although the patio roof and shade sail have been reduced in size, the Council approval is was for a patio of 24 sq m. but the original was “7 sq.m.” over the approved development. They think it is still over sized as “re-measurement... will reveal.” The shed still does not have guttering or a downpipe into the stormwater drain.

They acknowledge that they have now received the minutes, but not the minutes of the committee meeting immediately preceding the AGM of 2009 which they wish to see.

This application contains voluminous material, much of it irrelevant to the outcomes sought by the Applicants. The additional material eg. complaints about the caretakers of the scheme, which were sent to the Minister, and whether or not the Applicants possess firearms, have been dwelt upon by some submitters and subsequently replied to by the Applicant. I have not considered this material.

It is a matter for the Applicants how they wish to present their case, but it is ultimately for the Applicants to prove their case on the balance of probabilities. This Office does not regulate schemes or investigate alleged breaches of planning laws. “He who asserts must prove”, and whilst the adjudicator has investigatory powers, they are only to be used in further pursuance of resolving the dispute, or to clarify matters which, in the application might have been unclear.

1. A copy of the minutes of the AGM of 11th July 2009 and a copy of the minutes of the committee meeting immediately before that meeting.
A copy of the AGM minutes has now been provided to the Applicants during the course of this dispute resolution, as acknowledged by the Applicants. They say that they still do not have copy of the prior committee meeting on that day, although they now have sight of the minutes of the committee meeting of 27th May 2009, also during the course of this dispute resolution process.

There is no evidence that the committee held a meeting on 11th July 2009. However, the legislation enables an “interested person” to have sight of, and copies of, body corporate records on payment of a prescribed fee.

The legislation defines an “interested person” in respect of section 205 Act as—
(a) the owner, or a mortgagee, of a lot included in the scheme; or
(b) the buyer of a lot included in the scheme; or

(c) another person who satisfies the body corporate of a proper interest in the information sought; or
(d) the agent of a person mentioned in paragraph (a), (b) or (c).

I am satisfied that the Applicants as occupiers in the scheme for several years have a proper interest in the information sought. The Act envisages persons who are not owners being able to inspect body corporate records.

Section 205(1) Standard Module prescribes the fee for such information from body corporate records as follows -
(1) For section 205(2) of the Act—

(ii) if the person inspecting the records is not an owner of a lot—$24.50; and

(b) the prescribed fee for obtaining a copy of a record kept by the body corporate is 50c for each page supplied.

.
The body corporate is not required to allow a person to inspect or obtain a copy of a part of a record if the body corporate reasonably believes the part contains defamatory material. (Section 205(3) Act)

The Applicants should therefore be allowed access to the minutes of any committee meeting on payment of the correct fee and on giving reasonable notice to the body corporate. The body corporate might if convenient also arrange to post it to the Applicants on payment of the fee and postage. I note that the body corporate manager has already offered the Applicants the opportunity to request a search on a form provided by it for that purpose. On 10th September 2009 the body corporate manager advised the Applicants that they might inspect the records at a fee of $24.00 and on paying 50 cents per page for photocopies.

I therefore order that the Applicants on payment of the requisite fee and if relevant, postage, may inspect and/or have copies of the minutes of a committee meeting held on 11th July 2009 prior to the annual general meeting, if such was held, save where the body corporate alleges that section 205(3) Act is triggered.

2. That the flooding issues at the front of Lot 6 are addressed and the excavated channel running from the front of the unit at Lot 6 to the footpath which has become a safety hazard, is removed.
The flooding issues at the front of Lot 6 as evidenced by the Applicants are as follows –

It appears to me that the complaints of flooding of the front garden relate only to two days in June 2009. The Applicants have provided no evidence that there have been any “flooding issues at the front” since the grass ditch was excavated in July 2009.

Subsequent to this application being lodged on 10th September 2009, work has been by the body corporate to address any flooding issues. On 13th October 2009 Gold Coast City Plumbing, Drainage and Gas, having inspected the stormwater pipe at the rear of Lot 6, recommended a “second pitt (sic) be installed in the unit entryway of unit 6 to alleviate surface water as this will rectify any future water problems in storm conditions.”

In a Group Title Plan of subdivision, the owner of the lot is responsible for maintenance of the lot, including gardens or lawns within the lot. However, an owner of a lot would not be responsible for the drainage of water from another part of the scheme land, which, in the opinion of a person with appropriate standing should be drained elsewhere.[1] The Applicants have provided no expert evidence about the reason for the flooding in the front garden, which they say has been happening intermittently since 2006 and probably since 2000. The intermittent flooding might be due to the lie of the land, the type of soil, the original construction of the scheme, or a combination of these circumstances. There may be several ways of alleviating it, and Gold Coast City Plumbing, Drainage and Gas has suggested an improvement which may assist.

The owner of Lot 6, who is not a party to this application, might discuss these suggestions with Gold Coast City Plumbing, Drainage and Gas or commission a report from another expert in the field to make the Applicants’ front garden less soggy after a storm. The Applicants might also commission such an expert report if they wish. Until such time as there is a reason given for the build-up of water, which reason demonstrates a failure of the body corporate, the Applicants have not persuaded me that there is any duty on the body corporate to seek to alleviate intermittent flooding in the front of Lot 6, or that the intermittent flooding is in itself insupportable.

The Applicants have provided no evidence for their theory promoted in the Reply that “it is a possibility that over the years water has sought a channel under the block that comprises Lots 5, 6, 7 and 8.”

Further, the Applicants have provided no evidence whatsoever that the ditch, which appears in photographs to be a shallow impression in the grass, is a safety hazard, or trip hazard. The fact that the body corporate has since placed warning tape along the line of the excavation is not evidence of any liability on the part of the body corporate, but a response to the Applicants’ complaint.

3. That the body corporate undertakes investigation into the stormwater/groundwater pipe at the rear of Lot 6 in order to determine the responsibility for the maintenance of the pipe.
By section 159 Standard Module, the body corporate is responsible for maintenance of the common property in good condition. Section 20 Act includes in the common property of the body corporate, all utility infrastructure such as pipes and cables, save for such utility infrastructure which services only one lot, and is within the boundary of a lot and is not within a boundary structure ( such as a wall) of a lot.

A stormwater pipe used by at least four lots is the responsibility of the body corporate. On 12th October 2009, after the lodging of this application, the body corporate engaged Gold Coast City Plumbing, Drainage and Gas to run a camera through the pipe. The pipe is a 12-inch pipe, and was found to be clear. Whilst the Applicants may have instigated the checking of the stormwater pipe, since responsibility for its maintenance lies with the body corporate, the body corporate may not claim the cost of this investigation from the Applicants, as it has sought to do.

I note that Gold Coast City Plumbing, Drainage and Gas also observed that future work was going to be required where tree roots have broken the pipe behind Lot 8. It thus seems fortunate that the inspection was undertaken when it was.

However, since the body corporate has now undertaken investigation of the stormwater pipe, the application for the outcome sought is now dismissed.

4. That the body corporate investigates the current structural changes to Lot 5 in order to prevent flooding to Lot 6.
The flooding to Lot 6 as evidenced by the Applicants is as follows –

I find that the chronology for the structures now erected at Lot 5 are as follows -
December 2008 – roofed patio
27th January 2009 – Final inspection certificate for “roofed patio” from Private Certifier “Queensland Plan Certification Pty Ltd.” The size of the roofed patio is not given on the certificate
March 2009 – sails and cement works
April 2009 – a steel shed
29th April 2009 - Applicants complain to Council but do not mention flooding;
21st May 2009 – Applicants again complain to Council and mention flooding;
22nd May 2009 - Council issues Show Cause notice to Mr and Mrs Caldwell in respect of the roofed patio and shade sail.
27th May 2009 – committee approve the colourbond shed of 2.2 x 1.5 m and a shade sail 18sq.m.
After 6th July 2009 – patio roof reduced in size; shade sail reduced in size
12th August 2009 – Council notice saying breach identified in the “show cause” has been rectified and there will be no further action by Council.

The Applicants do not say what “investigations” they wish the body corporate to undertake, in order to prevent flooding.
The body corporate has already satisfied itself that the patio and roof erected by Mr and Mrs Caldwell are compliant with Council building requirements. The committee has retrospectively approved the shed and shadesail.

“21.1 No person is to erect, alter or place on any Lot any structure or undertake any improvement, excavation, filling, landscaping, construction, paining, or other works on any Lot or on the exterior of any Lots unless that erection, alteration, placing or undertaking is first approved in writing by the body corporate.

21.1 The Body Corporate shall be entitled to request copies of such plans and specifications as it might consider necessary to enable it to grant its approval under By-law 21.1 and the application for approval shall comply with all such requests.

21.3 Any development approved by the Body Corporate under By-law 21.1 must comply with the following :-

(a) all relevant permits (if any) are to be obtained from the relevant Local Authorities in compliance with regulations and By-Laws.

(c) any damage sustained to Common Property during the course of any renovation or alteration shall be rectified by the Owner.”

It is correct that the structures now situated on Lot 5 were commenced and completed without Mr and Mrs Caldwell seeking authorisation from the committee, as they should have done pursuant to By-Law 21, but that fact alone does not make any structure non-compliant, simply non-authorised. Once those structures are authorised, they are in the same position as if they had been approved in advance of building. Retrospective approval by the body corporate for a lot owner to change the appearance of his or her lot is commonplace. The body corporate might still decide that the owner must remove or change any offending structure, and that is the risk run by an owner who does not seek prior approval. The body corporate is not obliged to approve completed structures which have been erected without authorisation.

The Applicants say that the first flooding in the back garden occurred on 30th April 2009, but they did not complain about flooding until 21st May 2009, in a letter to GCCC, after the second event on 20th May 2009. The roofed patio was constructed in December 2008, and it seems more than likely that if the patio roof was causing or contributing to flooding that say, between January and the end of April, the Applicants would have notice a change. In the Reply, the Applicants say the cause may be the cement slab.

It seems that the Applicants’ concerns were noted by the Council, which issued a Show Cause notice to Mr and Mrs Caldwell about the roofed patio and shadesail on 22nd May 2009. The design of both has been amended since July 2009 say the Applicants. In any event the Council on 12th August 2009 wrote to Mr and Mrs Caldwell and said that it would be taking no further action since the “inconsistencies” with the planning legislation had been remedied. Although the “Show Cause” notice concerned the patio and shadesail, Mr and Mrs Caldwell say that they also had to reduce the size of the shed.

The Applicants provide no material about the required size of the patio and/or shadesail, other than correspondence to others in which they say that measurements have been told to them by GCCC staff. There is no evidence that the roof and/or sail is 7 sq.m. larger than it should be, or was approved at a size larger than any approved drawings. The Applicants’ contention that “it is still oversized as re-measurement will reveal” is without any foundation. Even if the roof and/or sail is larger than any proposed or approved plans, there is still no evidence that the additional size has the effect of causing flooding to Lot 6.

On 27th May 2009, at a committee meeting, the committee approved both the garden shed and a shade sail of 18 sq m, subject to Council approval.

Following the lodging of this application, Gold Coast City Plumbing, Drainage and Gas, engaged by the body corporate, on 13th October 2009 suggested putting “a 300 pitt (sic) and grate in the stormwater line from the back of the doorway entrance facing south of Unit 6 because of the low spot as you walk outside of the door.”

As mooted above, and in the submission of the body corporate, this suggestion should be discussed with the owner of Lot 6, because the pit and grate would be on her land. However, no owner should bear the brunt of water ponding on his or her property which is say, the result of poor drainage on common property, or contributed to by the construction of an adjacent owner. The Applicants have provided no evidence whatsoever that this is the case.
The Applicants have sought assistance from the GCCC, the BSA and the private certifier which approved the plans for the roofed patio, all entities with expertise in building and planning issues. None have apparently provided the Applicants with any reason to support their contention that it is the structures now erected in Lot 5 which are causing rainfall to pond on Lot 6.

Neither the body corporate, nor I, have any expertise in these matters, and without evidence by a properly qualified person, such as a hydraulic engineer, for the reasons for the intermittent flooding, the Applicants must fail.
Further, the Applicants provide no evidence that the body corporate has failed in some duty imposed on it under the legislation. The body corporate has taken steps to make sure that the structures erected by Mr and Mrs Caldwell are compliant with Council requirements.

5. That the body corporate provides quiet enjoyment to the occupants of Lot 6.
I do not entirely understand the Applicants’ claim for “quiet enjoyment” in that there is no duty on the body corporate to provide “quiet enjoyment” to an occupier of a lot, or any evidence that if there was such a duty, the body corporate has breached it . The phrase as used by the Applicants is a legal term relating to an implied term under a lease, and forms part of the backbone of the law of landlord and tenant. Tenants, on paying the agreed rent, are entitled to “quiet enjoyment” and “exclusive possession”. It does not mean that the tenants are entitled to a noise-free environment but that a landlord will not interfere with the tenant’s right of possession, and will not, for example, walk in without notice, or interfere with the tenant’s enjoyment of the premises.

I find that “quiet enjoyment” has no meaning within the Act. This outcome sought is therefore dismissed.

Application for costs.
By virtue of section 270(3) Act an adjudicator has the power when dismissing an application to make an order for costs of up to $2,000 to be paid to the respondent if it seems to the adjudicator that the application was “friovolous, vexatious, misconceived or without substance.” The respondent body corporate, as at the date of making submissions, sought the sum of $752.30.

As I have noted above, $423.50 of that sum was for checking the stormwater drain, and in my view, not a cost to the body corporate which arose solely from this application being made.

The Applicants have sought five outcomes, only one of which has been successful, and it seems that the body corporate was in any event willing to allow the Applicants to inspect body corporate records on payment of the prescribed fee. (See letter dated 10th September 2009, the same date as the date of this application.) In respect of the application to inspect records then, this application does not appear to have been necessary.

The Applicants have failed to provide sufficient evidence to demonstrate that their concerns about floodwater in Lot 6 are caused, or contributed to, by the failure of the body corporate to perform a duty imposed on it under the legislation. However, it appears that the draining of floodwater after storms, could be ameliorated, although this might be a matter for the owner of Lot 6, or the Applicants to investigate further. In addition, the body corporate has taken certain action since this application was made.

Certainly, the tone of the application was unnecessarily accusatory and the application contained much irrelevant material, and unsubstantiated allegations. Clearly there is little love lost between the Applicants and the committee and some of the residents of the scheme.

In this matter I have decided not to ask the body corporate if it wishes to make an application for updated costs. However, the Applicants are warned that if in any future application they resort to innuendo, hysteria and hearsay, and make unsubstantiated claims of collusion, bias, and un-stated breaches of the legislation eg. that they consider each submission made “ a breach of one or more sections of the...Act” that it is highly likely that an application for costs would be considered in the event that their application is similarly dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Runaway Royale [2010] QBCCMCmr 149 (31 March 2010)