Andergrove Home Park [2011] QBCCMCmr 45 (10 February 2011)

Number of Scheme:	37910
Name of Scheme:	Andergrove Home Park
Address of Scheme:	Beaconsfield Road ANDERGROVE QLD 4740

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Donald Agnew, a co-owner of Lots 16, 18 and 19

I hereby order that the application for an interim order by Donald Agnew, a co-owner of Lots 16, 18 and 19, that Merson Properties Pty Ltd, the owner of Lot 41, reconnects utilities to all properties within the scheme (particularly Lots 16, 17, 18 and 19 on SP 200312) and be restrained from terminating or dealing with any utilities to the properties without the written consent of all lot owners, is dismissed.

The application
This application was made to the commissioner on 24 December 2010 by Donald Agnew, a co-owner of Lots 16, 18 and 19, (applicant) against Merson Properties Pty Ltd, the owner of Lot 41, (respondent). The applicant seeks an interim order that the respondent reconnects utilities to all properties within the scheme (particularly Lots 16, 17, 18 and 19 on SP 200312) and be restrained from terminating or dealing with any utilities to the properties without the written consent of all lot owners.

Jurisdiction and investigation
The commissioner referred the application for adjudication under section 247 of the Body Corporate and Community Management Act 1997 (Act). Section 276(1) of the Act provides an adjudicator may make an order 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. Section 279(1) provides an adjudicator may make an interim order “if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates”.

In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 4 January 2011, I invited submissions from the respondent, Phillipa Merson (director of the respondent) and the owner of Lot 17 regarding the interim order application. On 19 and 27 January 2011, I extended the time for submissions. On 1 February 2011, I invited the applicant to respond to submissions made by the respondent and Ms Merson. The applicant made submissions on 7 February 2011.

Reconnection of utilities
The first part of the interim application is that the respondent reconnects utilities to all properties within the scheme.

There are 5 lots included in the scheme which was established by the registration of SP 200312 (s 24, Act). The applicant is particularly concerned about Lots 16, 17, 18 and 19. It is not claimed either Lot 41 (the fifth lot in the scheme) or common property was or is not connected to utility services and contemplated in the interim order sought.

It is undisputed from submissions that, in or about September 2010, the supply of electricity to Lots 16 to 19 ceased. The respondent does not deny steps were taken to stop the supply of electricity to these lots. There is a question as to whether the respondent also disconnected the supply of water to Lots 16 to 19. The applicant and the owner of Lot 17 submit supply was disconnected on 24 September 2010. The respondent states it did not interfere with the supply of water to Lots 16 to 19.

In replying to submissions, the applicant submits water was disconnected but reconnected in or about November 2010. The applicant also states electricity was reconnected on or about 13 January 2011.

There is nothing to suggest Lots 16 to 19 are not currently being supplied with electricity and water or that any other utility service has been interfered with by the respondent. In this circumstance, there is a question as to whether a dispute exists about the reconnection of utilities to Lots 16 to 19. For the present purposes, I am not satisfied an interim order is necessary in the terms sought.

Terminating utilities
The second part of the application is that the respondent be restrained from terminating or dealing with any utilities to the properties without the written consent of all lot owners. Given the context of submissions, it would seem the applicant is referring to the supply of electricity and possibly the supply of water to Lots 16 to 19. There is nothing to suggest the applicant is concerned about the supply of any other utility service to Lots 16 to 19 or to any other property on scheme land.

The applicant refers to problems encountered when attempts were made to have utility services (primarily electricity) reconnected to his lots. The respondent does not appear to deny these submissions. However, it is evident the utility services that were disconnected have been reconnected. In addition, the respondent has undertaken not to terminate or deal with the utilities without the consent of the owners and to allow access, albeit on particular conditions.

In the reply to submissions, the applicant submits due to unsatisfactory dealings with the respondent in the past and the way this matter has dragged out unless there is an order requiring the respondent not to deal with the utilities without the consent of the effected owners the disconnection could happen again.

The applicant has not however provided any material that demonstrates a likelihood of the disconnection happening again which would justify making the interim order. There is no evidence of continual or endemic problems with the supply of utility services which would necessitate an order in the terms sought. In this regard, the undertaking given by the respondent (while containing certain conditions) is relevant.

I am also not convinced by the material that the place where supply was interfered with, or is claimed could be interfered with, is on scheme land of “Andergrove Home Park”. The applicant has not provided any material clarifying the location where it is claimed the respondent disconnected supply of utility services or could disconnect services even though this was raised as an issue. It appears the relevant electrical board and water supply connection may be located on either of the respondent’s properties: Lot 41 in “Andergrove Home Park” or Lot 39 in “Andergrove Van Park”.

“Andergrove Van Park” community titles scheme 35364 is comprised of common property and 2 lots: Lot 39 and “Andergrove Home Park”. The van park is the principal scheme in a layered arrangement of community titles schemes in which the home park is a subsidiary scheme and member of the principal scheme (s 18 and 31, Act).

If the utility service connection/s mentioned in the application is located on Lot 39 or another part of principal scheme land outside “Andergrove Home Park”, the applicant does not have standing to make a dispute resolution application against the respondent as the owner of Lot 41 (s 227(1) and 238(1), Act). It is not relevant that “Andergrove Home Park” is a subsidiary scheme for the principal scheme. The “Andergrove Home Park” body corporate is the owner of a lot included in the principal scheme, not the applicant (s 19, Act). The subsidiary body corporate may make an application against the principal scheme body corporate or the owner of Lot 39.

On balance, I do not believe an order in the terms sought is warranted or necessary in the circumstances notwithstanding that it is not denied the respondent interfered with the supply of electricity to Lots 16 to 19 and took some time to reconnect supply.

The necessity for an interim order may arise if something happens in the future and it is apparent there is a dispute within the context of the Act. In this regard, it should be noted the occupier of a lot must not, either within or outside the lot, interfere or permit interference with utility infrastructure or utility services in a way that may affect the supply of utility services to another lot included in, or the common property, for the scheme (s 166, Act). A breach of the section is an offence attracting a fine of up to 100 penalty points.

Dealing with utilities
The application raises a number of issues about dealing with utility infrastructure which supplies utility services to a lot or common property, including the responsibility for the management and control of the infrastructure, statutory easements and charging for the supply of utility services. There are a number of legislative provisions relating to utility infrastructure and the supply of utility services that may be relevant in the circumstances.

In the circumstance where the utility infrastructure was not installed by a lot owner, responsibility for its maintenance is primarily related to the location of the infrastructure and the lot/s which is supplied with the service. As I stated above, the location of the infrastructure relevant to the determination of this application is not clear from the material submitted to date. In saying this, I have noted the service location diagram included in schedule D of the community management statement for “Andergrove Home Park” which identifies a water pipe, electricity, an existing sewer line and a proposed sewer line. The diagram shows electricity extending through Lots 16 to 19 and onto the common property for the principal scheme.

While the diagram seemingly shows electricity on lots and not common property for “Andergrove Home Park”, this does not automatically mean each of the lot owners are individually responsible for the maintenance of this infrastructure. A lot owner is not responsible to maintain utility infrastructure which is within the boundaries of the lot if it is part of common property (s 170(4), Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module)).

Section 20(1)(b) of the Act prescribes when utility infrastructure is treated as common property. The subsection provides it is common property unless it is: firstly, solely related to supplying utility services to a lot; and secondly, within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and thirdly, located other than within a boundary structure for the lot. Utility infrastructure is treated as common property if any one of the three elements is not satisfied.

It is conceivable that the electricity shown in the diagram is common property for “Andergrove Home Park” to the extent it is within subsidiary scheme land. This is because it may not be solely related to supplying utility services to a lot. The infrastructure could be common property for the principal scheme from the point it enters principal scheme land.

If this is the infrastructure which the respondent took steps to cease supply of a utility service, there would be a question about the respondent having control of it even though the infrastructure may partly be on a lot owned by the respondent. A body corporate must administer common property for the benefit of the lot owners (s 94(1)(a), Act). It must administer, manage and control the common property reasonably and for the benefit of lot owners (s 152(1)(a), Act). The body corporate must maintain common property in good condition (s 159(1), Standard Module).

An easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services (s 115O(1), Land Title Act 1994 (LTA)). The exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies (s 115O(2), LTA). An easement exists in favour of common property and against the lots for supplying utility services to the lot and common property and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services (s 115P(1), LTA). The exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lots against which the easement lies (s 115P(2), LTA).

Part 7 of chapter 2 of the Act has effect subject to the provisions of an easement established under the LTA (s 67(3), Act). Rights under a statutory easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property (s 68(1), Act). Section 68(2) to (4) of the Act makes provision for entering a lot or common property under a statutory easement.

In addition, the community management statement may also establish rights and obligations ancillary to statutory easements (s 69(2), Act). The community management statement for the subsidiary scheme states common property and all lots are subject to and have the benefit of a statutory easement with respect to “water, electrical, gas, communications, drainage, sewerage, benefit of support, burden of support and shelter”. The community management statement is binding on the body corporate and lot owners (s 59(2)(a) and (b), Act). The body corporate must enforce the community management statement (s 94(1)(b), Act).

Finally, a question has been raised about the cost of the supply of electricity (and possibly water) to Lots 16 to 19. It would seem provisions of the Act such as sections 195 and 196 may be relevant in the circumstances. If utility services are separately measured, supplied and charged, the body corporate and a lot owner is liable to the extent stated in section 195 of the Act. Section 196 provides for the circumstances where there is no practicable way available to a utility service provider to measure use of a service. In the absence of any other arrangement, a lot owner is liable proportionate to the contribution schedule lot entitlement for the lot.

It is uncertain how usage of particular services is being measured. The applicant provided a copy of a letter dated 7 October 2010 from Lever Accountants Pty Ltd (accountants for the respondent) stating the water and electricity to the applicant’s lots are metered to the Andergrove Caravan Park owned by the respondent. Given the abovementioned legislative provisions, it would seem the location of a meter/s is irrelevant to the determination of liability for the use of services.

The issue about connections being separately metered and access should be considered in light of relevant legislative provisions. I am not persuaded by the material this issue is one only for the owners of Lots 16 to 19 and has nothing to do with the respondent or the subsidiary scheme body corporate or the principal scheme body corporate.

This application will now be administered in accordance with the Act and the normal processes of this Office.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Andergrove Home Park [2011] QBCCMCmr 45 (10 February 2011)