Owners Corporation PS 331121R v Hodge (Owners Corporations) [2025] VCAT 959

1. The respondent must now pay the first applicant (the owners corporation) $108,909.60.
2. Costs and interest are reserved. The owners corporation and the third applicant may apply for costs and interest by filing an application and supporting submissions by 21 November 2025.
3. Upon being given 48 hours' written notice, the respondent must give the owners corporation access to lot 601 to enable the owners corporation to remove the door leading onto the lift roof and re-instate the window. Thereafter the respondent must reimburse the owners corporation the cost of removing door and replacing the window.
4. By 23 December 2025 the respondent must reinstate the lift roof common property area by removing all goods, the balustrade, all fixtures and fittings installed by the respondent and remediating any damage to the lift roof.
5. By 23 December 2025 the respondent must repair the fire wall adjacent to the courtyard of lot 602 to be compliant with part 3.7.2 of volume 1 of the Building Code of Australia.
6. If the respondent applies for a building permit for a swimming pool on lot 601 the respondent must provide the owners corporation with a copy of the building permit application, any plans, specifications, engineering drawings and calculations within 7 days of making the application for a building permit.
7. The application is amended to include a claim by the owners corporation for a civil penalty under section 166 of the Owners Corporations Act 2006.
8. The owners corporation has liberty to apply for a monetary order under order 3.
9. The owners corporation has liberty to apply for a civil penalty in the event of non-compliance with order 4.

1. In 1995, the 1930s 5 storey Tramways Board building in Little Collins Street was re-developed into residential apartments. On top of the concrete slab roof of the building, two light weight two storey apartments were built. These townhouses became lots 601 and 602. Each lot had a large terrace surrounding two sides of the townhouse. Lot 601 was initially acquired by Robyn Hodge and in or about 2019 was transferred to Chad Hodge, the respondent in these proceedings. In or about 2013, Robyn Hodge as owner and Chad Hodge as the registered builder, commenced building renovations which resulted in a swimming pool being constructed on the terrace area of lot 601. The pool was built without owners corporation consent or approval and without a building permit.
2. The pool leaked into the lots below. By order of the Tribunal dated 2 June 2021, Mr Hodge was required to empty the pool and not refill it. The pool was dismantled in March 2024. Leaking persisted into the lot below from the faulty membrane beneath the pool. The Hodges were initially unco-operative in allowing inspections and testing to take place. Eventually, in September 2025, after a Magistrates Court order and a Tribunal order to do so, the faulty membrane was replaced. Finally, the leaking seems to have abated.
3. These orders and reasons relate to the damages claim by the owners corporation for the water leak from the swimming pool and the faulty membrane beneath it.

1. To understand the evidence, I have included the following diagrams;

(b) a diagram showing the construction of the swimming pool and

1. The swimming pool was constructed on the terrace in the northwest corner of lot 601. It was constructed on a steel frame which in turn was secured to at least two structural columns of the building. The pool consisted of a tiled fibrocement sheet base with laminated glass panel sides. The pool itself sat about 30cm off the slab. At the slab level on the northern wall of the building are two rainheads, located proximate to the northeast and northwest corners of the pool. The pool overflow water drained to the northeast corner rainhead and the water which collected under the pool mostly drained to the northwest rainhead.
2. At the same time the swimming pool was constructed, the respondent built an extension on the terrace area adjacent to lot 602. The townhouse on lot 601 now extends to the boundary with lot 602.

1. Construction of the pool commenced in 2013. The completion date is not known.
2. In 2016, lot 504, the lot directly below the swimming pool, reported water ingress. The owners corporation commissioned a Roscon report into various water leaks into levels 5 and 6 of the building. The report identified several ongoing leaks into lot 504 with high moisture readings on the walls below the swimming pool. The cause of the leaking into lot 504 was not identified. At the time of the Roscon report, the swimming pool was not implicated in the leaks into 504. There was also leaking into lot 503. These were one-off leaks, rather than gradual persistent leaking. The cause of leaking into lot 503 was not identified. The report noted several unsealed penetrations in the level 6 slab. The report also identified a serious drainage issue between lots 601 and 602 which, as of the date of hearing, has not been resolved. Before Mr Hodge built the extension on lot 601, rainwater runoff from lot 602 terrace drained into lot 601 terrace and then to the northeast corner rainhead. By building the extension without regard to the existing drainage conditions, water now builds up on lot 602 with nowhere to drain and/or ponds under the extension of 601. The water eventually drains to the northeast rainhead. The drainage issue between lots 601 and 602 is not a matter agitated in these proceedings. I mention it because it is an unresolved issue and referred to in most of the expert reports.
3. In September 2018, the owners corporation investigated a one-off leak into lot 503. A faulty dishwasher hose from lot 601 was suspected but not confirmed. The plumber identified unfilled penetrations in the level 6 slab. The owners corporation claims $462.50 from Mr Hodge for the plumber call out. At the time of the leak, it would appear that Robyn Hodge was the owner of lot 601. Chad Hodge admits to being the registered owner from on or around 2019. No title search has been produced. It is not proved how the respondent is liable for the water flow into lot 503. He was not the owner at the time and it is not proven he was an occupier who caused the leak. The claim is not proved and must be dismissed.
4. By May 2020, the leaking into lot 504 worsened. The owners corporation undertook further investigations into the leaking in lot 504. These investigations included:

(a) In May 2020 a quotation to repair the penetrations in the level 6 slab,

(b) On 2 June 2020 a structural engineer's report into slab penetrations at a cost of $1,200. The report has not been produced.

(c) On 2 June 2020 access holes were installed in the ceiling of lot 504 and in common property, thermal imaging and fibre optic inspections were carried out and a report prepared for a total cost of $4994. The photographs, report, video and thermal imaging findings were not produced.

(d) On 23 July 2020 the level 6 slab penetrations were repaired for $8,563.40.

(e) On 27 July 2020 a storm water plumbing investigation and report was commissioned for $1,850. The report was not produced.

(f) On 29 July 2020 a structural engineering report was commissioned for $800. The report was not produced.

(g) On 25 February 2021 a flood testing report and thermal scan investigating the leak into 504 was undertaken for $1,250. The report and scan were not produced.

1. The failure to produce the reports of the investigations carried out from May 2020 to February 2021 was not explained by the owners corporation. An explanation was proffered from the bar table. I requested an affidavit explaining why the owners corporation has not produced the investigation reports. No affidavit was forthcoming.
2. Only the invoices for the reports and investigations were provided. The invoices provided the barest description of the work carried out. The failure to produce the reports does not enable the Tribunal or the respondent to understand what was being investigated, the scope of works carried out, the findings of the investigations and how it is said that the respondent is liable for these reports and investigations. It is also not possible to identify if the work was duplicated because the reports were "lost."
3. For these reasons, the cost of the reports from May 2020 to February 2021 will not be allowed. Further, the owners corporation has the statutory responsibility to repair the slab penetrations. The quotation referred to historical penetrations. The precise location of the penetrations has not been identified. No membrane on top of a slab can be effective if there are large penetrations in the slab. If the owners corporation could prove that the slab penetrations were caused by the respondent, then it might be that the cost of those repairs can be properly charged to the respondent. The reports obtained by the owners corporation regarding the slab penetrations might have shed some light on the reasoning for undertaking this work. It is not clear on the evidence why the owners corporation undertook this work and why the respondent should be responsible for it.
4. I will allow the cost of installing access holes in lot 504 and the common property, as set out in the Checkmate invoice dated 2 June 2020. The access holes were essential in finding the source of the leak. I will allow $2,640, the total cost of installation of the access holes. Otherwise, the claims set out in the owners corporation's amended particulars of loss and damage dated 14 October 2025 numbered 1 to 8 under 1(a) and item 2 under 1(b) are dismissed.
5. By March 2021 water ingress into lot 504 had spread to lot 404, the lot below 504. On 22 March 2021, a plumber from Checkmate identified that "Water appears to be coming from the balcony off 601 and into the rain head and down through the back of the rusted downpipe and through the rendered wall. Water causing damage to ceiling inside apartment and temporary drip trays required." Water testing by Checkmate established that the water entering the rainhead was rain water not pool water. On 22 March 2021, large access holes were cut in the living room and bedroom ceilings of lot 404 to install drip trays to catch the water dripping from above.
6. It does not seem that any of the investigative reporting carried out by the owners corporation during 2020 was provided to the Checkmate plumber to help identify the possible sources of the leaks into lots 404 and 504.
7. In early May 2021, the northwest and northeast rainheads and downpipes were replaced at a cost of $28,093.60. It was found that the northeast and northwest rainheads and downpipes had totally corroded because pool water was constantly being discharged down these pipes. Water testing of the water running into the drainage system proved high levels of chlorine.
8. It was necessary to hire a boom lift, engage traffic management and obtain a council permit to replace this part of the storm water system. It was a large undertaking. I am satisfied that the downpipes and rainheads would not have been replaced for many years but for the fact that pool water had corroded them. There was no evidence that the rainheads and drainpipes were in poor condition before the installation of the pool.
9. On 6 May 2021 whilst the boom lift was on site, the owners corporation arranged for Robert Turnbull, practising builder, T.D & C. Pty Ltd, to inspect the swimming pool. The respondent had refused access to the swimming pool from lot 601 and had not provided any structural drawings of the pool. Mr Turnbull found the steel structure upon which the swimming pool was built was heavily corroded and water was ponding on the slab underneath the swimming pool. Mr Turnbull concluded the swimming pool was leaking. Water samples were taken from the water running into the northwest rainhead to confirm pool water was being discharged into the storm water pipes. Mr Turnbull observed deposits on the western wall of the building indicating that water was seeping from the western end of the pool into the wall of the building.
10. Water testing on 7 May 2021 proved that the water ponding beneath the pool and being drained into the northwest down pipe was pool water, confirming Mr Turnbull's conclusion that the pool was leaking.
11. On 14 May 2021, Mr Turnbull conducted a further inspection. He concluded "A swimming pool on the balcony of Unit 601 is leaking. Pool water is damaging the façade of the building; potentially reinforced concrete floor slabs, beams and column; as well as surfaces and finishes in private lots 404 and 504 located below the pool on the lower levels." At the second inspection Mr Turnbull inspected inside lots 504 and 404. The water damage was most evident in the northwest corner of both lots. Through the access hatches in lot 504, Mr Turnbull found widespread water seepage from the slab above. He considered that not only was the pool leaking, but that the waterproof membrane on the slab had failed. Mr Turnbull recommended that the pool be emptied to avoid further damage to common and private property. He recommended that testing be conducted to determine if any structural damage had occurred to the building.
12. On 2 June 2021 VCAT granted an injunction requiring the respondent to empty the pool and not refill it.
13. On 23 July 2021 the ceiling and walls in lot 404 were remediated at a cost of $2,150.
14. The respondent was served with a building notice on 13 August 2021 and building order on 24 November 2022, requiring the respondent to rectify the faulty membrane causing water to penetrate the common property and the private lots below.
15. Although the pool was emptied following the VCAT order on 2 June 2021, water continued to leak into lot 504.
16. On 18 November 2021 and following the recommendations of Mr Turnbull, Mr May, corrosion engineer, CMET Technology drill tested various parts of the concrete columns and slab to test for structural deficiency. He found the northwest corner column and northeast corner column are suffering from high corrosion risk.
17. On 31 January 2022, Mr May attended for a second inspection. This time he was accompanied by Mr Hodge and Mr David Jones, structural designer of the swimming pool. Mr May described Mr Hodge and Mr Jones as being "helpful and freely provided information on the design and installation of the pool and also discussed possible measures to prevent further leakage from the pool onto the balcony and into the building structure below Apartment 601." Because the swimming pool had not been dismantled, Mr May did not have sufficient access to inspect the condition of the terrace membrane under the pool. Mr May noted that he understood the "original bitumastic membrane was left in place when the penthouse apartments were constructed on the roof of the building and screed was applied and the slab waterproofed with a paint-on membrane." Nevertheless, Mr May considered that it was highly likely that the slab membrane was leaking. Mr May observed that whilst the steel structure had severe corrosion "the maximum depth of corrosion penetration into the 4mm wall thickness was .6mm ie. 15%. This may not be sufficient to affect the structural capacity of the frame, but it will continue to propagate into and along the members producing voluminous corrosion products at the interface with the glass wall panels and also at the interface with the fibocement floor." Mr May considered that the joints, sealed connections and caulking of the pool had been compromised and most likely leaking. Mr May recommended repair of the balcony membrane under the pool and removal of the exiting rust and chlorine contamination from the steel frame before application of a high-quality protective coating system. Mr May did not conclude on a scope of works for rectification of the pool structure. Instead, he noted "Whatever the cause of the water seepage, Chad Hodge, the Owner of Apartment 601 advised that he was in agreement with the Owners Corporation that the water ingress in Apartments 504 and 404 was originating from leaks in the Apartment 601 swimming pool and this issue had to be addressed."
18. In April 2022 remedial works were carried out to Lot 504 to repair the walls, ceiling and skirtings for $6,500.
19. Following a compulsory conference on 24 May 2022, the Tribunal recorded in an Order that Mr Hodge agreed to provide a scope of works to repair the membrane for approval of the owners corporation by 7 June 2022 with works to be completed within four weeks after owners corporation approval.
20. Following remedial works to lot 504, water continued to leak into lot 504. On 15 December 2022, Mr May provided a further report stating that it was necessary to dismantle the pool to carry out the rectification works to the steel structure and the membrane under the pool.
21. On 7 and 11 December 2023, Mr May provided a dilapidation report for lot 504. Mr May noted continued water ingress into lot 504. He reported "Inspection of the suspended ceiling from the access hatch identified dampness on the top surface and water droplets dripping from the slab soffit at about 30 seconds intervals." Even though the pool had been emptied of pool water, it was still leaking water from underneath the pool which eventually found its way through the slab into lot 504. Of particular concern was the finding that the structural column at the northeast corner (which also supported the pool) showed evidence of significant water damage degradation. "This column has the potential to compromise the load bearing capacity of this critical element of the building structure." Mr May also identified and reported on the drainage issues between lots 601 and 602.
22. At a directions hearing on 24 February 2024, Tribunal proceedings were stayed pending the outcome of the Magistrates' Court proceeding to deal with a charge of failing to comply with the building order. On that date, the Tribunal ordered by consent that the swimming pool base be dismantled (but not the steel structure) by 18 March 2024.
23. On 19 March 2024 and on 19 August 2024 the Magistrates' Court ordered that the respondent rectify the faulty membrane causing water to penetrate the common property and the private lots below the respondent's lot. The Magistrates' Court order of 15 August 2024 required the works to be carried out by 15 February 2025. On 19 August 2024 Mr Hodge pleaded guilty to the single charge of failing to comply with the building order. The court dealt with the charge by an adjourned undertaking and payment of $1,000 to the court fund. Mr Hodge did not comply with the Magistrates' Court order to replace the membrane by 15 February 2025.
24. On 25 August 2024, the owners corporation obtained a report from Mr Kingston of Forensic Engineering Solutions to investigate the distress observed on the top of the northeast column. By this time the pool floor had been dismantled and the membrane under the pool could finally be observed. Mr Kingston observed that the waterproof membrane had failed in numerous locations under the pool. He found that water was pooling on the slab around the northeast rainhead. Mr Kingston found that the pooling was caused by an illegal stormwater pipe from lot 601 substantially blocking the stormwater channel leading to the northeast rainhead. The partially blocked channel causes stormwater to pool around the northeast rainhead with water seeping through the failed membrane into the slab and northeast column. As a consequence, the steel within the supporting column has corroded causing the concrete to spall.
25. Mr Kingston reported "The distress observed to the top of the grid 2C (northeast) column appeared to be local spalling of the concrete. In FES' opinion, this type of distress can be caused to concrete members due to corrosion within the re-inforcing, indadequate cover, and imposed loads exceeding the structural capacity of the member." Mr Kingston recommended a structural engineer undertake a further assessment to the northeast column. Mr Kingston reviewed and agreed with a Reviva Crete quotation for $33,600 to remove the concrete cancer, expose the steel reinforcement, treat the steel and then repair the column. Mr Kingston recommended engaging a structural engineer to supervise the works in the Reviva Crete quotation.
26. On 30 August 2024, Mr May provided a further report. He found that "The condition of the paint-on membrane under the pool has been compromised by the presence of numerous visible defects in the coating caused by ageing and embrittlement and mechanical damage which has allowed water to breach the barrier provided by the membrane and penetrate into and through the floor slab to the roof soffit of Apt 504 below."
27. On 26 May 2025 (incorrectly stated to be 26 May 2023 on the Order), I ordered the respondent to repair the membrane in the same terms as the Magistrates' Court order. The owners corporation sought the identical order so it could enforce the order. I ordered the respondent to replace the membrane by 12 September 2025.
28. On 3 June 2025, I heard and determined the third applicant's (the owner of lot 504) damages claim. I ordered that the respondent pay the third applicant $116,283.33 with costs reserved.
29. Works were carried out to replace the membrane in early September 2025. On 10 September 2025 Mr Genitsaris, structural engineer, Gencon supervised and confirmed from two 24-hour flood tests conducted on 5 and 9 September 2025 that the new membrane did not leak into lot 504. "The flood testing confirmed that the water level did not drop. This confirms that the waterproofing membrane has been applied without any leaks and is performing well". Additionally, no water was observed from 504 ceiling space to be leaking from the underside of the slab."
30. Having failed to file and serve witness statements and expert reports during these very long proceedings, the respondent elected to file and serve an expert report and witness statement at 7.13pm on the eve of the hearing.
31. The substance of the respondent's expert report and witness statement is that there is an alternate source of water entry into the building, which may have caused the water damage to the northeast column, namely the faulty installation of the northeast rainhead. Despite the lateness of the expert report and witness statement, I decided to permit them into evidence because if there was another source of water entry into the building it needs to be investigated. The priority must be to make sure the subject building is watertight.
32. Mr Corcoran made a witness statement on 14 October 2025 and gave evidence for the respondent. The witness statement failed to disclose that Mr Corcoran is an employee of the companies of which Mr Hodge is a director. Mr Corcoran was the project manager who supervised the installation of the new membrane and the two flood tests. Mr Corcoran said that when he released the water from the flood tests into the storm water system, he concluded that the storm water pipes were undersized or blocked. He said he formed the opinion that the source of water ingress into the building was the storm water system. He then simulated a water blockage in the northeast rain head and used a hose to fill the rainhead. When the rainhead overflowed it flowed towards the back of the rainhead causing water to flow back into the building. Mr Corcoran concluded that "I am of the opinion that the water ingress affecting Unit 504 is caused by stormwater system defects rather than from Unit 601's balcony."
33. Mr Genitsaris provided a second report dated 14 October 2025. He emphasised that his second report was not a final VCAT report due to the need for further historic documents and photos, further investigation and further testing. Mr Genitsaris admitted he had not read in any detail any of the historic reports by Mr Turnbull, Mr May and Mr Kingston. After conducting the flood testing on 5 and 9 September 2025, Mr Genitsaris attended on site on 15 September and 8 October and conducted the water testing of the northeast rainhead with Mr Corcoran. After the flood test, Mr Genitsaris, applied a moisture meter to the walls and slab above lot 504. He found high moisture readings in the walls directly behind the northwest and northeast rainheads, but all other areas were dry. He concluded that "the water ingress issues are most likely not related to minor defects in the waterproofing membrane on the roof slab." Mr Genitaris concluded that there must be different pathways, including the faulty rainheads for water entry into lot 504.
34. I do not accept Mr Corcoran's opinion that the cause of water ingress into Lot 504 is caused by the faulty rainheads. It is accepted that the rainheads have not been correctly sealed and do not have a reservoir which would direct any overflow away from the building. Mr Kingston gave evidence that the capacity of the northeast rainhead and drain is 9 litres per second which is much greater than the anticipated 2.8 litres per second the drain would receive in a one in one-hundred-year rain event. For there to be any significant water ingress into the building from the northeast rainhead there would have to be a blocked drain causing water to back up and overflow in the rainhead. Most likely, the overflow would be to the back of the rainhead against the wall of the building. The wall at the back of the rainhead is rendered, providing some waterproofing to the wall. It would be necessary for the water to travel uphill through the drainage channel to enter the building. There was no evidence of any blockage in the northeast or northwest drains. The opinion that the faulty rainheads are causing water to enter the building is highly speculative and unlikely. Even if water were entering the building via the rainheads, I accept the evidence of Mr Kingston and Mr May that it would be unlikely that any water ingress from the rainheads could cause the damage to the northeast column. The most likely cause of the water ingress into lot 504 and to the northeast column is the long, slow and continuous water ingress permitted by the faulty membrane under the swimming pool.
35. I do not accept Mr Genitsaris' opinion that the water ingress issues most likely are not related to the waterproofing membrane on the roof slab. Mr Genitsaris did not observe the faulty membrane before it was repaired so I cannot see how he can reasonably say the pre-existing membrane did not cause the water damage in lot 504. Mr Genitsaris did not read the expert reports provided by Mr May and Mr Kingston on the faulty membrane. I do not accept that the faulty rainheads have caused any significant water entry into the building. Mr Genistaris's opinion must be rejected.
36. Instead, I accept the considered and well documented opinions of Mr Turnbull, Mr May and Mr Kingston. I find that the water ingress into lot 504 and the damage to the northeast column was caused by a long and slow seepage of pool water, then rainwater into the northeast column and slab below.
37. I allow the following claims for loss and damage. I am satisfied that the costs were all reasonably and necessarily incurred to establish the cause of the leaking, to ascertain the extent of the damage, to determine the proper remedial action and take remedial action. Mr Hodge did not give evidence or file any material in opposition to any of the amounts claimed.

Cost of investigation of leaking into lots 504 and 404

Bayside flashing- manufacture rainheads 30 April 2021

Checkmate invoice rainhead and downpipe replacement

Checkmate invoice reinstatement lot 404 23 July 2021

1. Mr Guenther on behalf of the respondent argued that many of the expert reports were prepared for VCAT and therefore should not be allowed as damages but as part of any costs order awarded in the applicants' favour. The reports served a dual purpose. They were expert reports for the purpose of VCAT but also investigative reports which investigated the source of leak, reported on the extent of damage and made recommendations for remediation. I find the primary purpose was investigatory with the secondary purpose of providing an expert report to VCAT. I will allow the reports as damages, but if I am wrong and they are properly legal costs, I would allow the reports as legal costs.

1. Lot 503 does not lie directly beneath lot 601 swimming pool. It lies mostly under the original part of the townhouse of lot 601 and partly under the lift shaft control room which is common property.
2. The water damage claimed by lot 503 is not from a continuous leak from the swimming pool (as pleaded) but a one-off water leak in May 2022.
3. Ms Sigal the former owner of lot 503 provided an affidavit and gave evidence. Mostly Ms Sigal deposed to historic incidents of water leaking from a shower base and a faulty dishwasher fitting. Ms Sigal deposed to water coming through the slab penetrations into her lot. In July 2020, the owners corporation undertook work to repair all the penetrations in the level 6 slab. These water damage claims are not claimed in these proceedings.
4. In relation to the claimed water leak, Ms Sigal deposed as follows:

"In May 2022, we experienced another significant leak in our Unit, which resulted in extensive mould growth on our flooring due to prolonged wetting and further damage to the ceiling that required repairs and painting."

1. Thereafter invoices were exhibited to the affidavit supporting the claim for $9,632.50 for remedial works.
2. None of the invoices or any of the evidence explains what the source of the water leak was and if it was fixed. Ms Sigal had difficulty remembering what part of the ceiling in her lot was damaged. She was unable to present a photograph of the damage. Ms Sigal had no idea what caused the leak other than to say the water came from lot 601.
3. The area between lot 503's plaster ceiling and the slab forming the lower boundary of lot 601 is common property. Within that common property are various drains and pipes. Any pipes and drains within common property are common property, even though the liability to pay for the repair and maintenance of them might lie with the lot owner who benefits from the pipes and drains. Part of lot 503 lies underneath the common property lift shaft control room. No evidence was presented to prove that water could not have come from anywhere other than lot 601.
4. The evidence falls far short of proving that Mr Hodge was responsible for the flow of water into lot 503 in May 2022. The claim must be dismissed.

1. The roof area of the lift room is common property and is directly adjacent to the original part of the townhouse on lot 601. Without owners corporation approval or consent, Mr Hodge replaced a window which overlooked the lift room roof with a door to give direct access to the roof area. He installed a balustrade around the roof, applied synthetic grass, and installed garden furniture, thereby converting the common property roof area into a private rooftop garden for lot 601.
2. Mr Guenther on behalf of Mr Hodge correctly conceded there can be no argument about making the orders sought by the owners corporation because Mr Hodge has no legal right to the use of the common property area or change the common property window to a door. I will make the orders requested by the owners corporation noting that the parties may come to a separate agreement about the door and balustrade before the compliance date. If no agreement is reached the balustrade must be removed in accordance with the orders.
3. The roof top garden is an encroachment on common property and a breach of model rule 4.1 (2) which provides: "An owner or occupier of a lot must not without the written approval of the owners corporation, use for the owner or occupier's own purposes as a garden any portion of the common property." I will allow the owners corporation to amend the application to seek the maximum civil penalty under section 166 of the Owners Corporations Act 2006 for each and every day the respondent occupies the lift roof common property area after the compliance date.

OBLIGATIONS ON THE RESPONDENT REGARDING ANY PLANS TO RE-INSTATE THE POOL

1. It is not clear what Mr Hodge's intention is regarding reinstatement of the pool. He has retained the steel structure which gives rise to the apprehension that re-instatement of the pool is at least contemplated. At the hearing on 23 May 2025, Mr Hodge's counsel indicated that the respondent intended to re-instate the swimming pool. The owners corporation requested I re-state my findings regarding the respondent's obligations if Mr Hodge proposes to reinstate the pool. I will do so.
2. The owners corporation must be kept fully informed about any re-instatement of the swimming pool. The owners corporation is entitled to inspect all engineering drawings, calculations and plans. The owners corporation is entitled, amongst other things, to know if common property will be impacted, to request protection works, to undertake its own assessment of engineering calculations, to check whether the proposed run off from the pool is compliant with all regulations. Of particular concern is that at least part of the weight of the pool might be placed on the column proven to being structurally damaged by the water leak.
3. In any proposal to re-instate the pool, the respondent must comply with section 133 of the Owners Corporations Act 2006 (Vic) which is as follows:

A lot owner must give notice to the owners corporation of any application by the lot owner for a building permit or planning permit or the certification of a plan of subdivision affecting the lot.

1. The respondent must comply with the following model rules

4.3.1 An owner or occupier of a lot must not damage or alter the common property without the written approval of the owners corporation.

4.3.2 An owner or occupier of a lot must not damage or alter a structure that forms part of the common property without the written approval of the owners corporation.

5.3 An owner or occupier of a lot must notify the owners corporation when undertaking any renovations or other works that may affect common property and/or other lot owners' or occupiers enjoyment of the common property.

1. To be clear, any penetration into common property requires owners corporation written approval. Any significant load bearing on common property requires owners corporation written approval.
2. The respondent is not entitled to encroach on common property without proving an entitlement to do so.