Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

MAINTENANCE UNDER BUILDING FORMAT PLAN - repair of rainwater leak from exterior area of lot to interior - where work involved modification of pergola post by a registered builder who also obtained verification of fixing method from a registered professional engineer_._

Act, ss 152, 160, 276

• [1] Island Quays consists of 48 lots and common property. The Community Management Statement shows the Accommodation Module applies to the scheme.
• [2] The applicant is the owner of lot 45 and is seeking orders regarding work undertaken on the rooftop of lot 40.

• [3] The final outcome sought by the applicant is as follows:

I am wanting the Respondent to provide an "Engineer's Certification" for the structural work she allowed to be carried out on Body Corporate Property, i.e. (her Roof Terrace), without written approval from the Body Corporate and without any Engineering Drawings, or any Certification on completion.

• [4] The applicant says the respondent has contravened by-Laws of the scheme, particularly the following:

• 23.1 An owner or occupier must not renovate or refurbish their lot without obtaining the prior written consent of the Body Corporate.
  • 23.2 In applying for approval the owner or occupier (the applicant) must provide the Committee with the following:-

(a) Details of the scope and duration of the works

(c) Details of any Contractors engaged to perform the renovation (including their licence numbers and evidence of Insurance.)

(i) Where applicable copies of any planning or building certificates

• [5] The applicant says this certification must be provided so that it can be placed on the official record with the Body corporate Manager. He says this is for the protection of the owner, future purchasers, Committee Members and other owners in case there an adverse event in the future.

• [6] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between a lot owner and the body corporate about a claimed or anticipated contravention of the Act or the community management statement (CMS); or the exercise of rights or powers, or the performance of duties, under the Act or CMS.[2]

• [7] The applicant states that following a severe rain event in early 2022, the Committee were inundated with calls from lot owners experiencing water ingress into their lots. The applicant and another committee member were asked to attend lot 40 in order to inspect a serious water leak in the lounge room. On arrival they could see that the carpet had been pulled up, and the owner described the leak as being "like a river flowing across the lounge room floor".
• [8] At the time the Body Corporate Committee had been unsuccessful in obtaining the services of a suitable Contractor to investigate the many leaks affecting the building and it was suggested that if the owner knew of someone suitable, approval would be given for her to engage their services for the investigation of the lounge room leak. The owner chose a fellow resident as her project manager.
• [9] Some months later it was brought to the Committee's attention that a Pergola post on the unit's roof terrace had been removed and replaced with a temporary prop. The applicant says the roof terraces are common property of the Body Corporate and therefore written approval from the Body Corporate is required before any work can take place in that area.
• [10] The applicant also says the by-laws require that where such work is undertaken, an owner is required to submit Engineers Drawings and scope of works, together with Certification on completion. The applicant states that in an email to the Chairman of the previous Committee dated 5 May 2023, the project manager made the following statement:-

"The email below outlines the proposed works and was approved by two members of your committee, that Michele can engage a qualified builder to carry out works to her apartment."

• [11] The applicant says the owner of Lot 40 was given permission to engage a qualified person to investigate the water leak in her lounge room. This leak was not located below where the structural post is positioned on the roof terrace, but on the opposite side of the Lounge Room.
• [12] The applicant says that prior to commencement of the work, the Body Corporate did not receive any information from the Owner, project manager, Builder or Structural Engineer.
• [13] They were later informed by the project manager that he had made a phone call to the Engineer outlining his intentions and had received what he took to be a verbal approval. He also supplied a hand drawn sketch of the proposed work, which the applicant does not believe amounts to "Engineers Drawings", and would render the issuance of an Engineers Certificate impossible.
• [14] In conclusion the applicant says his main concerns are that:
  1. The Body Corporate records do not show that this work has taken place.
     1. Despite the Respondents written statements, Engineers drawings and Certification do not exist.
     2. A future Purchaser of the Unit would not be protected should something untoward happen to these unapproved works.
     3. In the event of serious Weather Event and a failure of the structure, causing property damage, any Insurance claims would be voided due to the lack of proper Certification.
  2. The Waterproof Membrane Warranty that was issued by the manufacture prior to this work taking place is now voided.

• [15] Pursuant to section 243 of the Act the respondent and all other lot owners were given the opportunity to make submissions. A submission was received from the respondent and submissions were also received from 4 other lot owners, apart from the respondent. Each of these submissions oppose the application.
  • [16] The respondent says that on 22 February 2022 there was a torrential rain event on the Sunshine Coast involving rainfall of 300mm in 6 hrs. The respondent experienced a serious ingress of rainwater into the interior of her lot.
• [17] On 28 February 2022 she contacted BCP Strata via email (Email Item 1) with photos of water ingress but did not receive a response. She followed this up on 12 April 2022 by again contacting BCP Strata (Email Item 2) about severe mould growth affecting her health.
• [18] After no response to the above and another communication, the respondent again contacted BCP Strata on 11 May 2022 (Email Item 4A & 4B) after further rainfall worsened the damage. She requested urgent action, stating: "At the very least, a response from the committee would be appreciated as the damage had been ongoing since February.
• [19] On 14 May 2022 the respondent met with Peter Francis and Adrian Wolsey (Email Item 6, Image 6), who both acknowledged the severity of the water ingress issue, describing it as "the worst they had seen at Island Quays," agreeing that it required "immediate attention".
• [20] The respondent requested that they organise a contractor to address the water ingress. Peter Francis explained they had been unable to secure contractors due to high demand following widespread flooding across the Sunshine Coast.
• [21] Therefore the respondent proposed engaging a builder, contingent on their agreement, ensuring the builder was reputable and costs reasonable. Both agreed, with the understanding that upon completion, the invoice could be submitted to the body corporate for reimbursement.
• [22] Following the water ingress issue, the respondent contacted Peter Ambler, an Island Quays resident and a qualified builder who was also recommended by friends living at Edgewater Lake Kawana, a 144-unit complex, where he managed all water ingress to affected units.
• [23] Mr Ambler inspected the problem and contacted Phil Harrison, a builder, who had been engaged by Island Quays to carry out rooftop terrace repairs to 12 units for an approximate contract sum of $275k and asked that the issue be dealt with under his warranty. Phil Harrison carried out the works required with the assistance of Peter Ambler as project- manager / builder. This approach ensured minimal inconvenience and no cost (or very little cost) to the Body Corporate. Despite this, the Applicant has not acknowledged this fact, nor have they noted that there was no financial burden on the Body Corporate to fix her water ingress issues.
• [24] The respondent says that in addition, Peter Ambler consulted with Ebis Engineering (Don Stanfield), the original engineer for the works, to confirm Phil Harrison's proposed solution for water leakage below a rooftop post. When the Committee requested engineering certifications and drawings, she directed them to Peter Ambler or Phil Harrison, as they were qualified to handle the matter.
• [25] The Applicant claims that written Body Corporate approval was required for repairs to rooftop terraces, which the applicant believes to be Body Corporate property. Although she requested this approval in writing (see Item 6), she only received a verbal agreement.
• [26] The respondent says it is worth noting that the repairs were performed by the original tradesperson, Phil Harrison, under his warranty and the original engineer, Ebis Engineering certification. Should anything untoward occur in the future the works are covered under the original works warranty and therefore insurance claims would not be voided. Nor has the waterproof membrane integrity been voided. These works incurred no cost to the Body Corporate and had no negative impact on other owners physically or financially.
• [27] The respondent's submission was supported by submissions from other owners including Mr Ambler, another lot owner who assisted the respondent.
• [28] Mr Ambler states that he holds a Builders Licence & a Coatings licence with the QBCC and has 35 years experience in the building & construction industry. In May 2022 he assisted the respondent to address water ingress at unit 40. His involvement in the process was fundamentally project managing & getting remedial work done to stop the water leaks. He was able to facilitate the process with a NO COST result to the respondent or the Island Quays Body Corporate.
• [29] He had carried out frequent inspections in the roof space during rain events to attempt to isolate the areas of concern. This was done over a period of weeks given that it was necessary to monitor the area when it was raining. Eventually he decided to make contact with the builder that had previously carried out remedial works to the 12 x roof top terraces as he was potentially responsible under his builder's warranty to make good. This of course was subject to where the leak was found & whether he had completed works to that area.
• [30] The builder came to the site & they inspected & discussed possible problems with the existing rooftop post connections entering the concrete slab that could be subject to movement & ultimately cracking of the roof terrace concrete slab and compromising the integrity of the waterproofing to that area. In order to be sure that this was not the cause of the leaks, they came up with a solution to remove the steel post & redesign the base fixing to be on top of the concrete tiles, rather than having the post imbedded into the concrete slab roof terrace.
• [31] A proposed design by the builder was sketched up by him and sent to Mr Strathfield of Ebbis Engineering who was the overseeing engineer for the project previously undertaken by the builder. Mr Strathfield of Ebbis Engineering agreed with the proposed rectification method & subsequently the builder had the new plate fixing method made & installed. Together they flood tested the area and found no sign of leaks. Also attached to he submission was a sketch of the builder's proposal presented to Don Strathfield at Ebbis Engineering.

• [32] 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 CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[3]
• [33] Prima facie, this is a dispute within the context of a community titles scheme and of a nature intended to be dealt with by processes under Chapter 6 of the Act.[4]

• [34] The outcome sought by the applicant is as follows:

I am wanting the Respondent to provide an "Engineer's Certification" for the structural work she allowed to be carried out on Body Corporate Property, i.e. (her Roof Terrace), without written approval from the Body Corporate and without any Engineering Drawings, or any Certification on completion.

• [35] Island Quays consists of 48 lots and common property on a building format plan. This application concerns work involving a pergola post in the respondent's rooftop area. At the outset it should be noted from the relevant plan[5] that that the rooftop balcony area on level F is in fact part of the respondent's lot and not part of the common property.
• [36] The applicant says the respondent has contravened by-Law 23 which provides:

• 23.3 An owner or occupier must not renovate or refurbish their lot without obtaining the prior written consent of the Body Corporate.
  • 23.4 In applying for approval the owner or occupier (the applicant) must provide the Committee with the following:-

(a) Details of the scope and duration of the works

(d) Details of any Contractors engaged to perform the renovation (including their licence numbers and evidence of Insurance.)

(i) Where applicable copies of any planning or building certificates

• [37] There is no evidence that the respondent was undertaking a renovation or refurbishment of lot 40. Rather the respondent was experiencing water ingress into the interior of her lot from above. As the body corporate failed to assist within a reasonable time, the respondent sought the assistance of Mr Ambler who holds a Builders Licence and has 35 years experience in the industry, to address water ingress at unit 40.
• [38] Mr Ambler contacted Mr Harrison, the builder that had previously carried out remedial works to the 12 x roof top terraces. They concluded that a possible source of ingress was a pergola post embedded in the concrete slab. In order to eliminate this fixing method as the cause of the leaks, they came up with a solution to remove the steel post & redesign the base fixing to be on top of the concrete tiles, rather than having the post imbedded into the concrete slab. roof terrace.
• [39] I have perused the by-laws for the scheme and can see no requirement for the provision of an "Engineer's Certification" for building work. Rather the by-laws state that "where applicable copies of any planning or building certificates" may be required.
• [40] In any event I note that that the proposed design of the base plate for the pole was sketched and sent to Mr Strathfield of Ebbis Engineering who was the overseeing engineer for the project previously undertaken by the builder. Mr Strathfield of Ebbis Engineering agreed with the proposed rectification method & subsequently the builder had the new plate fixing method made & installed. I am further advised that this work was done at no cost to the respondent or the Island Quays Body Corporate.
• [41] Having regard to the foregoing, I do not believe that the applicant has established that the respondent has breached the Act, Accommodation Module or scheme by-laws and the application is therefore dismissed.

[1] Sections 227 and 228 of the Act

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