Pelican Heights [2011] QBCCMCmr 44 (10 February 2011)

Last Updated: 18 March 2011

REFERENCE: 1098-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23876
Name of Scheme:	Pelican Heights
Address of Scheme:	90 Caloundra Road CALOUNDRA QLD 4551

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

David Eising & Jennifer Riseley, co-owners of lot 84

I hereby order that the application for the following orders That the body corporate maintains the common property so that it does not cause damage to a lot as detailed in the letter from Forest Glen Real Estate and the quotation from Uniplumb. That the body corporate proceed with the quotation provided by Uniplumb. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1098-2010

“Pelican Heights” CTS 23876

The scheme

Pelican Heights community titles scheme is regulated by the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). It consists of 84 lots on a standard format plan.

Application

This application was made on 25 November 2010 by J. Rieseley & D. Eising, co-owners of Lot 84, against the Body Corporate seeking the following final outcome:

That the body corporate maintains the common property so that it does not cause damage to a lot as detailed in the letter from Forest Glen Real Estate and the quotation from Uniplumb
That the body corporate proceed with the quotation provided by Uniplumb.

Background

By letter to the committee dated 24 May 2010 the applicant’s agent advised that there was a “water seepage problem” causing water to pool on the grassed area and pavers on the right hand side of Lot 84. Attached to the letter was a quote for $836 from Graymay Pty. Ltd. (T/A as Uniplumb) to supply and install 4 stormwater pits along garden edging and connection to the existing stormwater pipe.

The applicants state that a committee member originally agreed that the work needed to be done but also stated that a second quote would be required without elaborating further. The applicants heard nothing further from the committee so they placed the following motion on the agenda for the last AGM, held on 27 August 2010:

That the body corporate agree to install 4 stormwater pits along the garden edge to rectify seepage and surface water running off the common garden and roadway as per the attached quote from Uniplumb in the amount of $836.00.

This motion was not carried as there were 27 votes against the motion and 22 votes for the motion.
Nevertheless, the applicants believe that the body corporate has a statutory obligation to undertake this work on the common property.

Pursuant to section 243 of the Act, the respondents were invited to make submissions regarding the final outcomes sought by the applicant.

Submissions made on behalf of the body corporate committee included the following:

• The raised garden bed is an embankment that is part of the natural lie or formation of the land and the lot has been created by excavation;
• The embankment purportedly responsible for “seepage and run off” belongs to lot 84. any drainage work would benefit lot 84 only;
• Lot boundaries for the scheme are designated under a standard format plan and owners are responsible for repairs within the lot.
  
• The problem identified by the applicants is within the boundaries of the lot and is therefore their responsibility as per the quote obtained from Currimundi Plumbing in December 2010 which included the following observations: “The boundary pegs on the right hand side of the boundary show that unit 84 own the garden embankment that slopes toward the house. A well established hedge is located on the boundary and the remaining area is a border of approx. 30-40cm that slopes toward the road. At the time of inspection there was no appreciable run off from the garden. Four pits are not required. To install 1 stormwater pit to service lot 84, at the lowest point and connect to the existing stormwater main.- estimated cost $350+ GST.”;
• A review of stormwater drainage was conducted in 2003 when the body corporate undertook works valued at $5,100 to improve the stormwater drainage system. The body corporate believes that they have not only met, but exceeded their responsibility with regards to stormwater drainage.
• a further quotation/report from Pelican Waters Plumbing that contained the following statement: “Asked to investigate wet external area on Northern side of property. Fortunately, at time of inspection it was raining quite heavily and I was able to identify the excess water issue. It was quite evident that the surrounding area to this corner property, re roads x 2 and surrounding gardens, did not appear to be the issue as water is draining away from the property. The actual property is a low block. Drains or possibly landscaping would help to alleviate this problem.”
  

Submissions made by owners opposed to the application included the following:

• The scheme includes 84 free standing homes on 10 acres of land subdivided by a standard format plan;
• The common property is well maintained and blocked drains are promptly cleared;
• Provided the body corporate maintains the common property areas, it is up to individual owners to maintain or improve the drainage to their lot;
• More than half of the garden bed in question is located within the lot owner’s boundary and the other side of the garden bed slopes down toward the kerb;
• During recent storms water running down the road toward lot 84 did not breach the kerb;
• After prolonged rain periods, other owners in lower areas experience seepage leading to the accumulation of water within their yards. A number of these owners have installed additional drainage systems such as “ag pipe” at their own expense.
  

Three lot owners made brief submissions stating that the body corporate should be responsible for installation of the drains within lot 84 because rainwater was coming from common property.

Submissions made in response by the applicants included the following:

• There is no stormwater pit located at the intersection of Moreton Close and Pacific Way;
• There is a steep descent in Moreton Close which branches off to the left and Pacific Way on the right;
• The kerbing is not high enough to stop the flow of water over the kerb and down the embankment into the applicants’ property.
  

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.

Determination

This scheme consists of 84 lots on a standard format plan. Lot 84 is a down-hill, stepped block consisting of 272 square metres, upon which a free standing house has been constructed. The applicants claim that after heavy rain, water accumulates within their yard and that this is due to the failure of the body corporate to maintain common property. However, the applicants do not seek an order that the body corporate properly maintain the common property. Rather, the applicants are seeking an order that the body corporate meet the cost of installing 4 stormwater pits within lot 84 in accordance with a quote dated 20 May 2010, provided by Graymay Pty. Ltd. (T/A as Uniplumb) “to help rectify seepage and surface water problem caused by run off from raised garden next to the roadway”.

With respect to the division of maintenance responsibilities in a standard format plan, the respective responsibilities of the body corporate and owners are set out in the legislation as follows –

In regard to owners, section 120 of the Standard Module states –

170 Obligations of owners and occupiers.

(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition.
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.
(5) This section applies only to a lot that is not a community titles scheme.

In regard to the body corporate, section 109(1) of the Standard Module states –

159 Duties of body corporate about common property.
(1) The body corporate must maintain the common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

Further, section 20 of the Act provides as follows:

Utility infrastructure as common property

(1) Common property for a community titles scheme includes all utility infrastructure forming part of scheme land

I note that the original rainwater drainage system for the scheme was installed in accordance with the development approval. The system was upgraded in 2003 at a cost of $5,100 and further upgraded in 2008. It is not disputed that gutters and drains are functional and properly maintained by the body corporate. Consequently, it is difficult to see how the body corporate has failed to meet its obligations in accordance with section 159 of the Standard Module.

The applicants argue that the body corporate is responsible for the cost of installing additional drainage within lot 84 because at least part of the water accumulation is attributable to rainwater running down Moreton Close, over the kerb and down to lot 84. However this theory is not supported by the two different plumbers/ drainers who were invited by the body corporate to inspect the site during consistent rain periods.

Currimundi Plumbing prepared a report which included the following observations:

“Site inspection during consistent rain 11.30 am on 2 December 2010. The above site is situated on a down hill step block. Other houses are sited above and others below. The boundary pegs on the right hand side of the boundary show that unit 84 own the garden embankment that slopes toward the house. A well established hedge is located on the boundary and the remaining area is a border of approx. 30-40cm that slopes toward the road. At the time of inspection there was no appreciable run off from the garden.
Four pits are not required. To install 1 stormwater pit to service lot 84, at the lowest point and connect to the existing stormwater main.- estimated cost $350+ GST.”;

On 4 December 2010, another inspection was conducted by Pelican Waters Plumbing which advised as follows:

“Asked to investigate wet external area on Northern side of property. Fortunately, at time of inspection it was raining quite heavily and I was able to identify the excess water issue. It was quite evident that the surrounding area to this corner property, re roads x 2 and surrounding gardens, did not appear to be the issue as water is draining away from the property. The actual property is a low block. Drains or possibly landscaping would help to alleviate this problem.”

It is evident that lot 84 is a down-hill, stepped block and during prolonged rain periods, water absorbed by ground further uphill moves on a downhill gradient toward the bottom. I am therefore of the view that the accumulation of water in lot 84 is primarily attributable to the seepage of water from higher ground, rather than a failure by the body corporate to maintain common property.

In any event, even if I was of the view that the accumulation of water in lot 84 was attributable to a failure by the body corporate to meet its obligations under section 159 of the Standard Module, the appropriate order would be for the body corporate to take steps to properly maintain the common property, rather than installation of drains within lot 84.

For the above reasons, the application is dismissed.