Santa Ana [2011] QBCCMCmr 319 (28 July 2011)

Last Updated: 18 August 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Santa Ana [2011] QBCCMCmr 319
PARTIES:	Anita Skinner (applicant) The body corporate for Santa Ana (respondent) All owners (affected persons)
SCHEME:	Santa Ana CTS 1112
JURISDICTION:	Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0212-2011
DECISION DATE:	28 July 2011
DECISION OF:	P Dowling, Adjudicator
CATCHWORDS:	BALCONY REPAIRS – whether the body corporate is responsible to maintain a balcony on a lot, whether the balcony is structurally sound, whether the balcony was damaged by the lot owner. Act, s 152; Standard Module, ss 159, 170.

ORDERS MADE:

I hereby order that the outcome sought that the body corporate replace the structural supporting beam and decking timbers comprising the balcony of Lot 5, is dismissed. I further order that the body corporate must, pursuant to section 280(2) of the Body Corporate and Community Management Act 1997, pay Anita Skinner, the owner of Lot 5, the amount of sixty-three dollars within thirty days of the date of this order.

REASONS FOR DECISION
Introduction

[1] The owner of Lot 5 seeks outcomes that the body corporate replace the structural supporting beam and decking timbers comprising the balcony of Lot 5 and that it reimburse her for the application fees she has paid. The applicant asks that the application be dealt with urgently.
[2] The balcony, on the upper level of Lot 5, would appear to be constructed of cantilevered timber joists. It has a timber floor. There is agreement that parts of the balcony are not in good condition. The applicant believes the body corporate is responsible to maintain the balcony firstly, because it is not in a structurally sound condition and secondly, because the body corporate has previously had work carried out to the balcony. Owners of other lots included in the scheme are of the view the damage to the balcony is attributable to the actions of the applicant.
[3] This application has been made because the owners cannot agree about whether the body corporate is responsible to carry out the maintenance works sought by the applicant.

Jurisdiction

[4] I am satisfied the matters in dispute can be determined under the dispute resolution provisions of the Act (s 227(1)(b) and 238(1)(a), Act).
[5] The commissioner invited the owner of each lot (excluding the applicant) and the committee to make submissions about the matters raised in the application (s 243, Act). Submissions were made by the owners of Lots 1, 3 and 6. The applicant made a written reply to submissions. I have considered this material in determining the application.
[6] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute 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).

Analysis
Maintenance obligations

[7] There are seven lots included in the scheme. The plan of subdivision for the scheme (Building Units Plan 70510) indicates Lot 5 is on two levels on the eastern side of one of the buildings on scheme land. The plan and the submitted photographs indicate the balcony the subject of this dispute is on level B of the building and part of Lot 5. The plan shows that common property is beneath the balcony.
[8] Given the information on the plan and submissions, I consider the outer face of the balcony and the centre of the floor of the balcony (or the centre of the bearers and joists) constitutes the relevant boundaries between Lot 5 and common property (s 48C(1) and 49C(4), Land Title Act 1994 and the Department of Environment and Resource Management’s Registrar of Titles Directions for the Preparation of Plans).
[9] At first glance, the timber decking is within Lot 5 and the responsibility of the applicant to maintain (s 170(2), Standard Module). Given they form the boundary between the lot and common property, the bearers and joists are the joint responsibility of the body corporate and the applicant to maintain (s 159(1) and 170(2), Standard Module).
[10] The body corporate is responsible to maintain essential supporting framework of the balcony in a structurally sound condition (s 159(2)(b), Standard Module). I believe the bearers and joists are essential supporting framework of the balcony. The body corporate is responsible to maintain these elements of the balcony in a structurally sound condition (whether or not either element is within Lot 5). If a bearer or a joist is not in a structurally sound condition, the body corporate may also be responsible to maintain timber decking damaged because of a defect in a bearer or joist or if decking had to be removed to carry out rectification work (Klinger & Anor v Body Corporate for Costa D’Ora Units [2007] QDC 300 at paras 65 to 70).

The condition of the balcony of Lot 5

[11] The applicant states timber decking needs replacing and a tradesman who commenced rectification work in October 2010 deemed the supporting beam needed replacement. The applicant says submitted photographs show the beam is rotten, other beams in various stages of dry rot and rot in the decking timbers.
[12] The owner of Lot 6 (chairperson) acknowledges the balcony is damaged. She provided photos taken in April 2011 showing, she says, the extent of the damage. The owner provided an undated letter (noted as faxed on 5 May 2010) from Greg Malenstein (from éclat - painting and decorating, building and maintenance) stating: “It appears the balcony is of a cantilevered design with the structural beams running from the internal of the unit continuously to the outside supporting the balcony. It would appear that continuous exposure to the elements has resulted, in combination to design in efficiency, rotting of the structural beams and water ingression into the unit”.
[13] I am satisfied from submissions that elements of the balcony, including at least some of the decking timber, are not in good condition. It is argued in submissions that the legislated obligations to maintain the balcony in good condition are affected by the following factors.

The structural soundness of the balcony

[14] Firstly, the applicant believes the balcony is not structurally sound. She says a tradesman has said the supporting beam is unsafe and unable to support the structure, and an insurance assessor has reported structural defects have contributed to the deterioration of the timber decking.
[15] The owner of Lot 3 submits he has been employed by a structural engineer and design firm for five years, has inspected many buildings damaged by the elements and sub-standard workmanship, has read insurance and building inspection reports and has, to some extent, investigated the balcony of Lot 5. He refers to decay in the cantilever joists (not bearers) constructing the balcony. The owner of Lot 6 provided a copy of a quote dated 3 March 2010 from éclat to Bodycorp 101 which (in part) states “Remove and reinstate decking boards to unit 5 balcony. Inspection has revealed structural faults with support beams”.
[16] In reply, the applicant submits she understands the owner of Lot 3 is a draftsperson not a structural engineer and is not qualified to assess structural soundness and éclat is a painting business. She provided a copy of a report by ICPS Australia Pty Ltd dated 20 April 2007 documenting damage for insurance purposes. ICPS reported it found the cantilevered floor joists were poorly sealed to the concrete block work and required sealing. The applicant also provided a timber pest inspection report dated 1 June 2004 by TKO Pest Management.
[17] The onus is on the applicant to prove the balcony is not structurally sound and that the body corporate has, in the circumstances, a legislative obligation to maintain (s 159(2)(b), Standard Module). I do not consider the applicant has established this point. Conversely, the body corporate has not demonstrated the balcony is structurally sound. I am not satisfied from submissions that a person with appropriate qualification or expertise (such as a structural engineer) has made a finding about the condition of the balcony that can be relied on to determine this dispute. In this regard, I am not persuaded by the submitted reports from éclat, ICPS or TKO Pest Management.

Earlier work carried out by the body corporate

[18] Secondly, the applicant refers to 2005 work purportedly carried out on the balcony by the body corporate. She says quotes demonstrate the supporting beam needed replacement in 2005 and the incorrect decking material was used. The owner of Lot 6 submits there is no written correspondence to the committee suggesting the balcony was repaired in a substandard way or the use of inferior materials.
[19] I am not persuaded from the material that the body corporate has a legislative obligation to maintain because of the purported 2005 work, particularly if it is claimed that the damage to the decking material is attributable to the condition of the bearers and joists.

Other causes of damage to the balcony

[20] Thirdly, the applicant submits the lack of maintenance to the awning over the balcony has allowed the flashings to deteriorate which has allowed rainwater on the balcony timbers and no downpipes exist to the guttering of the awning which allows rainwater to fall onto the balcony timbers.
[21] Other owners disagree. The owner of Lot 1 says the current poor condition of the balcony is due to poor maintenance by the applicant. The owner of Lot 3 states the decay in the cantilever joists could only be caused by the timber remaining moist for long periods of time. He believes the pot plants and sprinkler system installed by the applicant was the main contributor to the deterioration of the timber floor structure. The owner of Lot 6 states the damage was caused by water that occurred through neglect, lack of maintenance and contributory water factors by the occupier of Lot 5 such as the regular watering of several pot plants, the air-conditioning overflow leaking onto the balcony timbers, the regular hosing down of the balcony and water dripping onto the balcony from a blind hung on the balcony. The owners of Lots 3 and 6 say the balconies of Lots 3 and 4 do not have water rot.
[22] In reply, the applicant submits she has maintained her balcony, the decking timbers have been painted and oiled four times since 2005, the pot plants had saucers and were not excessively watered, she has not maintained plants on the balcony since 2007, she does not operate the air-conditioning, and the 2005 repairs were incomplete and inadequate. The applicant provided photos of the balconies of Lots 3 and 4 showing she says deterioration and dry rot.
[23] As with the earlier issue with respect to structural soundness, the problem for the parties is that they have conflicting opinions about the cause of the damage to the balcony, none of which is supported by objective evidence, including from a person with appropriate qualification or expertise. The applicant has a personal opinion which is contested by other owners. I am not persuaded the submitted reports provide an objective assessment in this regard.
[24] In the circumstances, I am not satisfied from the material that arguments about these causes of damage warrant making an order in the terms sought.

Conclusion
Is the body corporate responsible to carry out the requested repairs to the balcony of Lot 5?

[25] While it is apparent the balcony of Lot 5 is not in good condition, the cause of the damage has not been established to determine maintenance responsibilities. There are a number of unanswered questions.
[26] There may or may not be a question about the structural soundness of the balcony, the damage to the balcony may or may not be attributable to the actions or inactions of the applicant or the body corporate, or the damage to various parts of the balcony may or may not be due to normal wear and tear. It is not explained that there is a connection between the condition of the beams and/or joists and the condition of the decking timbers.
[27] The predominant cause of the damage (if any) is not known. There is no objective evidence to support the claims being made. As I have stated, I am not satisfied the persons making the submitted reports had the requisite qualification or expertise, or that indisputable conclusions have been reached which can be relied on in resolving this dispute.
[28] The applicant proceeded to making this application on the basis of the submitted material. It is on this material that the arguments presented by the applicant must be assessed. In my view, the applicant has failed to establish that the body corporate has an obligation to replace the structural supporting beam and the decking timber comprising the balcony of Lot 5 and that the body corporate has contravened the Act in failing to do this work.
[29] For these reasons, I have dismissed the outcome sought.
[30] It would seem the way forward is that the damage needs to be objectively assessed. It may be beneficial if the assessment is made by an appropriate person, who might be engaged with the agreement of the applicant and the body corporate. The parties may be able to proceed to remedying the issues in dispute with the benefit of the conclusions and recommendations made by that person. If all reasonable steps are taken, the applicant and the body corporate should be able to resolve issues relating to responsibility to maintain the balcony. However, if a dispute arises about any body corporate decision made, this may necessitate a further dispute resolution application.
[31] If the applicant proceeds and for example, obtains a quote to do work she believes is a body corporate responsibility, she should ensure that the proposal is put to the body corporate in the proper way. If she is uncertain about the correct procedure for doing this, she may consider contacting the information service provided by the commissioner on 1800 060 119 or accessing the commissioner’s website: www.justice.qld.gov.au/bccm.

Is the body corporate liable for the reimbursement of application fees paid?

[32] The applicant seeks reimbursement of the $126 lodgement fees paid for an earlier conciliation application and for this application. On 21 January 2011, the applicant paid $63 for the conciliation application and on 1 March 2011 she paid $63 for this application (s 239(1)(c), Act).
[33] The applicant submits the conciliation application failed because the body corporate declined to participate. She provided a copy of a letter dated 15 February 2011 from Tina Brady (chairperson) to owners saying she declined to participate as: the then committee voted on 8 September 2010 to wait for adjudication; the committee situation has changed and she is the only active committee member (the applicant is the other member and the third member is only contactable by post); and she should not be solely responsible for being the spokesperson and decision maker on behalf of owners at conciliation. In submissions, the owner of Lot 6 states she declined to attend conciliation due to concerns for her safety.
[34] Section 280 of the Act provides that where the conciliation application ended because the respondent (the body corporate in this case) failed, without reasonable excuse, to participate in conciliation and the applicant asks, the adjudicator may order the respondent to pay to the applicant the amount paid by the applicant under section 239(1)(c) as fees for the conciliation application and adjudication application.
[35] It is unknown if the reasons for not attempting conciliation stated in submissions were discussed with the conciliator. It is clear however that conciliation was ended because the body corporate did not, in the view of the commissioner, make a reasonable attempt to participate. Ordinarily, a referral of no reasonable attempt will not be made if there is a concern about the personal safety of a participant.
[36] In the circumstances, I consider it is appropriate that the body corporate pay the applicant the fee for making the adjudication application. The applicant had to pay the fee for the conciliation application; a fee that was not recoverable if the body corporate had participated in conciliation. It seems to me the issues raised in this dispute could have been settled by conciliation; a process which facilitates and assists the parties to negotiate their own resolution of the dispute. A conciliator could have provided information on the legislation to the parties of the nature which I have mentioned. The fact that the adjudication application was not determined in the way sought is not relevant to a determination about the payment of prescribed fees.