Mawarra Palms [2011] QBCCMCmr 519 (23 November 2011)

Last Updated: 9 December 2011

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

CITATION:	Mawarra Palms [2011] QBCCMCmr 519
PARTIES:	Troy Skelton (applicant) The Body Corporate (respondent) All owners (affected persons)
SCHEME:	Mawarra Palms CTS 5359
JURISDICTION:	Sections 227(1) 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:	0793-2011
DECISION DATE:	23 November 2011
DECISION OF:	R. Miskinis, Adjudicator
CATCHWORDS:	MAINTENANCE – obligations of owner and body corporate - ss 159 and 170 Body Corporate and Community Management (Standard Module) Regulation 2008

ORDERS MADE:

I hereby order that the application for the following orders: Body Corporate cover the costs of Motion 2 from the EGM –to facilitate drainage and remove hazard; Body Corporate to cover the costs of Motion 3 from the EGM – to facilitate drainage and remove hazard; Body Corporate to cover the costs for Motion 4 from the EGM – tiles ruined by inadequate drainage and water pooling; Body Corporate to cover all costs associated with reports ascertained and applications submitted & $65 for adjudication application. is dismissed.

REASONS FOR DECISION

Background

[1] Mawarra Palms CTS 5359 consists of 24 lots and common property. The Community Management Statement (CMS) for Mawarra Palms indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme and Queensland Land Registry records show the scheme is registered on a Building Format Plan (previously known as a Building Unit Plan).
[2] This is an application lodged by Mr. Troy Skelton, the owner of lot 8, seeking the following outcomes:

• Body Corporate cover the costs of Motion 2 from the EGM –to facilitate drainage and remove hazard;
• Body Corporate to cover the costs of Motion 3 from the EGM – to facilitate drainage and remove hazard;
• Body Corporate to cover the costs for Motion 4 from the EGM – tiles ruined by inadequate drainage and water pooling;
• Body Corporate to cover all costs associated with reports ascertained and applications submitted & $65 for adjudication application.

Procedure and jurisdiction

[3] In accordance with section 248 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me or adjudication. I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1] 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.

Matters in dispute

[4] The applicant is the owner of lot 8 which incorporates a large podium slab balcony of around 86 square metres.
[5] The applicant states that between 2005 and 2007, when he resided in the unit, he noticed that rainwater would pool on this balcony. Although he subsequently moved out of the unit, his tenants informed him that rainwater was continuing to pool on the balcony and in 2010 it came to his attention that the tiles were starting to lift and break.
[6] The applicant states that he subsequently removed loose tiles and attempted to seal the remaining tiled areas, but the tiles continued to lift. He subsequently consulted with an engineer and various tradesmen regarding the scope of work necessary to rectify the problem.
[7] The recommended remedial work includes the Installation of additional grated drainage points, removal of remaining tiles, laying of new bedding material with sufficient fall to ensure drainage of rainwater and laying of new tiles.
[8] The applicant then submitted the following motions for consideration by the body corporate in general meeting:

• That plumbing rectification works to podium stormwater drainage be carried out to a maximum cost of $5,100 by a licensed and insured contractor to install new branch lines, provide risers and reinstate the concrete slab a detailed on the quotation attached by GR Wise Plumbing Services to facilitate water run off from this area which currently pools on the podium creating a slip hazard.
• That once plumbing rectification carried out to facilitate adequate drainage from the podium slab, the area of 86 sq m be bedded by the acceptance of a quotation sourced by the committee up to the cost of $3,100 by a licensed and insured contractor, monies to pay for this work to come from the buildings sinking fund.
• That once plumbing and rebedding works carried out, the of 86 sq m area be retiled by a licensed and insured contractor, up to the cost of $3,500, monies to pay for this work to come from the buildings sinking fund.

[9] At an extraordinary general meeting, held on 27 July 2011 for the purpose of considering the applicant’s motions, each of the motions was declared lost.
[10] The applicant believes that the balcony area is common property and that the body corporate is obliged to undertake the rectification work. He goes on to state that if the area falls into an exclusive use area the legislation still deems stormwater drainage to be a utility that services more than one lot thus making it the responsibility of the body corporate.
[11] Pursuant to section 243 of the Act, all owners and the body corporate committee were invited to make submissions regarding the outcomes sought by the applicant.
[12] Individual owners opposed the application as did the body corporate. Submissions made by the body corporate included the following:

• Lots 1 to 8 are located on the podium level and each of these lots includes a balcony area which can only be accessed through each unit;
• The previous owner of lot 8 undertook tiling work on the balcony area in 1992. No approval was sought or given, as the balcony is within the boundaries of lot 8. Over the last 19 years these tiles have delaminated due to water penetration through the grout.
• Tiles and bedding material have been lifted by the current owner thereby creating a significantly lower area for water to pond. If tiles were laid with sufficient fall toward the drainage holes, there would be adequate drainage.
• After the applicant requested the body corporate to undertake repairs to his balcony, the body corporate engaged a surveyor to confirm that the area in question is part of lot 8. The surveyor confirmed that the balcony area adjacent to lot 8, comprising 96 square metres, is part of lot 8.

[13] The body corporate understands that it is responsible for:

- repairs and maintenance of common areas;

- utility infrastructure servicing more than one lot; and

- structural components of the building.

However it does not believe that the requested work falls within any of these categories.

Analysis

[14] The applicant is the owner of lot 8 and orders that the body corporate meet the cost of the following works:

• Installation of new stormwater drainage points in the balcony area; and
• Laying of new tiles and bedding material in the balcony area.

[15] The applicant believes the balcony area is common property and therefore the responsibility of the body corporate. The body corporate says that the balcony area is part of lot 8 and therefore the responsibility of the applicant.
[16] I have perused a copy of Building Unit Plan 9980 and note that lot 8 is located on level B. It comprises 161 square metres, which includes the internal living area as well as the adjacent balcony area of approximately 90 square metres.
[17] My reading of the plan is confirmed by a survey dated 21 July 2011 and conducted by a licensed surveyor engaged by the body corporate. The survey report contains the following observations:

• The boundaries of lot 8 are the centreline of the dividing wall with lot 7 on BUP9980 and the centreline of the upstand on the balcony that forms part of the planter;
• The upper limit of the lot is the centre of the ceiling slab, or where there is no ceiling (that is over the majority of the balcony), then the upper boundary is the projection of the centreline of the ceiling slab;
• The lower boundary of the property is the centre of the floor slab (i.e. the podium slab;
• The surface coverings both inside and outside of the enclosed space of the unit are within the lot and the responsibility of the lot owner.

[18] The survey report is consistent with the provisions of the Land Titles Act 1994 and the Directions for the Preparation of Plans issued by the Registrar of Titles.
[19] The Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) imposes certain maintenance obligations on the body corporate and also imposes certain maintenance obligations on individual owners.
[20] Section159 of the Standard Module provides:

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

(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must--
(a) maintain in good condition--

(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not common property in a structurally sound condition--
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including load-bearing walls.

(3) Despite anything in subsections (1) and (2)-

(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier's own benefit; and

(b) the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure-

(i) relates only to supplying utility services to the owner's lot; and

(ii) is 1 of the following types-

• hot-water systems

• washing machines

• clothes dryers

• another device providing a utility service to a lot.

(c) the owner of the lot is responsible for maintaining the tray of a shower that services the lot, whether or not the tray forms part of the lot.

[21] Section170 (1) of the Standard Module provides:

(1) An occupier of a lot included in the community titles 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 the utility infrastructure is in need of replacement, must replace it.

(5) This section applies only to a lot that is not a community titles scheme.

[22] As a matter of law, the balcony tiles are within the applicant’s lot and should be maintained in good condition by the applicant in accordance with subsection 170(2). This means that the applicant is responsible for repairs or replacement of the tiles.
[23] The obligations of the body corporate are limited to ensuring the structural integrity of the concrete slab (e.g. by repairing any “concrete cancer”) and ensuring the integrity of any waterproofing membranes that provide protection for lots or common property.
[24] The next matter that I turn to is the question of who is responsible for the cost of proposed drainage works, which include installation of additional drainage points and upgrading existing drain outlets.
[25] Under section 159 of the Standard Module, the body corporate is obliged to maintain common property in good condition. Common property may include utility infrastructure, although paragraph 159(3) (b) provides that the body corporate is not responsible for maintenance of utility infrastructure that provides a utility service to a particular lot.
[26] I am therefore of the view that the owner of lot 8 is responsible for maintenance of existing drainage points. I am also of the view that the applicant is responsible for the cost of installing additional drainage points for lot 8 because this would involve the making of improvements for the benefit of lot 8.
[27] For the above reasons the application is dismissed.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act.