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

MAINTENANCE - where tiles were replaced with synthetic grass when the body corporate installed a waterproof membrane within a lot, apparently with the permission of the then lot owner; where the membrane has since deteriorated and/or been damaged by the current lot owner and requires replacement; whether the body corporate must replace the membrane and reinstate tiles.

Act, ss 94(1), 276(1), 280; Standard Module, s 180.

1. Within two months of the applicant informing the body corporate committee of the floor covering it intends to install over the waterproof membrane on the rooftop terrace of lot 17, the body corporate must replace the membrane.
2. The application is otherwise dismissed.

• [1] The body corporate installed a waterproof membrane on a rooftop terrace forming part of lot 17 in late 2021. Tiles were removed from the terrace to allow access to the slab, but replaced with synthetic grass afterwards.
• [2] The applicant subsequently purchased the lot and "discovered the waterproofing product used was not suitable". The body corporate committee initially agreed to replace the membrane, but changed its mind when the applicant insisted it also reinstate the tiles removed in 2021.
• [3] The applicant sought conciliation of the dispute, but the conciliator referred the application back to the commissioner when the committee advised that its members were not available on the scheduled date and asked for the conciliation to be rescheduled.
• [4] The applicant now seeks orders in the following terms:

1. That the current membrane that is breaking down be rectified/replaced and the tiles be reinstated in my lot that were previously removed by the body corporate.

2. For the body corporate to reimburse me the cost of my conciliation and adjudication application fees.

• [5] The body corporate must maintain in good condition "roofing membranes that are not common property but that provide protection for lots or common property", such as the waterproof membrane on the roof terrace of lot 17.[1] The only evidence of the present condition of the membrane is a report by J.C. Engineers, who inspected the terrace on 7 November 2024.
• [6] Two versions of the report were submitted, dated 11 and 15 November. This was a point of controversy between the parties. The first was longer and included more commentary on the condition of the membrane installed in 2021. I believe some committee members felt the engineer exceeded their scope in the longer version by including commentary on the condition of the membrane on the common property rooftop surrounding lot 17's roof terrace. However, I see that as equally relevant for several reasons:
  1. the first order sought by the applicant concerns "the current membrane that is breaking down" and is not limited to the portion within lot 17
  2. as it is the same membrane in the same location, its condition outside the boundaries of lot 17 is likely to be indicative of its condition within, and
  3. the body corporate is also required to keep the membrane on the common property in good condition.[2]
• [7] The more comprehensive version of the report found:
  1. The membrane is non-UV stabilised and has suffered significant cracking due to prolonged sun exposure. It was also penetrated in places when the artificial grass was cut to fit the rooftop.
  2. Unsealed holes were left in the membrane when the applicant renovated its lot.
  3. The membrane should be replaced with a UV-stabilised alternative and the holes patched.
• [8] The committee says the applicant damaged the membrane and therefore must repair it. The committee refers to a resolution passed at an extraordinary general meeting on 28 November 2023 granting retrospective approval to the applicant's renovations subject to conditions that included:

...the installation will not affect the integrity of the roof structure, including the roof top membrane.

...all future maintenance costs associated with the improvement shall be at the cost of the Owner.

The Owner of the lot shall indemnify the Body Corporate, and or the occupant or invitee of another lot within the complex against any damage, loss, or expense, legal or otherwise, incurred or suffered as a result of these works.

Lastly, should any of the above conditions not be adhered to, the approval may be withdrawn upon giving such notice as is reasonable in the circumstances.

• [9] The committee refers to another condition "that the Owner be responsible for repairing any damage the installation or maintenance of the improvement causes to common property", but the unsealed penetrations left by the applicant's renovations are within lot 17, not on the common property.
• [10] If the applicant has breached the conditions of approval for its renovation, the body corporate might rescind that approval. It does not appear to have done so though.
• [11] Otherwise, the body corporate's statutory obligation is to restore the waterproof membrane to good condition, irrespective of how it was damaged. It may then recover some or all of the cost of that from the applicant if the applicant caused or contributed to the damage.[3]
• [12] I do not accept that the body corporate must reinstate the tiles removed in 2021 though. The committee says they were replaced with artificial grass with the agreement of the then owner of lot 17. It referred to a newsletter to owners in August 2021 that openly discussed the installation of artificial grass to "allow for access should repairs to the membrane be required in future", which was said to be "to everyone's satisfaction". The committee also forwarded an email from the previous owner advising that he had agreed to the body corporate's installation of synthetic grass. The applicant questioned the veracity of the email but provided no evidence to call its authenticity into question.
• [13] The applicant refers to various past orders that held that a body corporate that removes tiles in service of its obligation to maintain the condition of the membrane beneath must reinstate them afterwards. But those orders did not concern owners who agreed to the replacement of the tiles with some other floor covering. The terrace is within lot 17 and the former owner was within his rights to have whatever floor covering he preferred installed there.
• [14] As matters stand, there are no tiles on the rooftop terrace. The body corporate must restore the membrane to good condition, but it will not be necessary to remove tiles for that purpose. No obligation to install tiles afterwards could arise in those circumstances. In fact, installing tiles would amount to making an improvement to the lot, which is beyond the body corporate's functions.[4] However, if the applicant elects to retain the synthetic grass and it must only be removed to allow access to the membrane, the body corporate will be required to reinstate or replace it afterwards.
• [15] The applicant seeks reimbursement of its conciliation and adjudication application fees. I may order reimbursement where the conciliation application was ended "because the respondent failed, without reasonable excuse, to participate".[5] It is a discretionary power that I may exercise if it seems just and equitable in the circumstances.[6]
• [16] The committee replied to the invitation to participate in conciliation by explaining that the committee members were unavailable on the scheduled date due to work commitments and requesting that the session be rescheduled to six days later. The conciliator refused, referring to Practice Direction 36, which states that "normal work commitments" are "generally not sufficient reasons for a reschedule". When the committee members remained unable to attend, the conciliator signed a certificate referring the application back to the commissioner:

... because the Body Corporate have advised that they will not be attending the conciliation conference. Therefore, I consider that the Body Corporate did not make a reasonable attempt to participate in conciliation.

• [17] The committee explains that all four committee members were rostered to work at the time the conciliation session was scheduled. One was a pilot who was rostered to be flying, two were rostered to work shifts at a busy hospital emergency department, and the fourth was struggling financially and could not forego a day's pay.
• [18] The criteria at section 280(1) of the Act have been met, enlivening my power to order the requested reimbursement. However, I am not satisfied that it would be just and equitable in the circumstances. I do not see that the body corporate should be penalised where the committee members had unavoidable work commitments, but responded positively to the conciliation invitation and sought to participate soon after.

• [19] I will order the body corporate to repair or replace the membrane within two months of the applicant advising the committee of the floor covering it intends to install over the membrane, as that will have a bearing on the type of membrane that will be required.
• [20] The application is otherwise dismissed.

[1] Standard Module, s 180(2)(a)(iii).

[2] Standard Module, s 180(1).

[3] Standard Module, s 180(5).

[4] Act, s 94(1).