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

COMMITTEE RESOLUTION; IMPROVEMENT TO LOT; REASONABLENESS - The applicant sought committee approval to renovate his kitchen, including making a new penetration in a post-tensioned floor slab. The committee requested various reports that the applicant provided, but then refused approval for the renovation. The applicant argues the committee acted unreasonably by refusing approval when there are existing penetrations in the slab, and by disregarding the reports it asked him to provide. He asks that the committee's refusal is reversed.

Act, s 100(5); Accommodation Module, s 50.

• [1] Mr Davey of lot 12 wishes to renovate his kitchen, including putting a new penetration through the post-tensioned floor slab to accommodate new plumbing connections. He requires the written approval of the body corporate pursuant to by-law 36, regulating lot renovations.
• [2] The caretaking service contractor advised him he would need to have the floor slab x-rayed and submit a report from a structural engineer in support of his application. He did so, but the body corporate committee nevertheless refused his request on 10 September 2024, advising that it was "not wanting to approve drilling through the concrete slab as the risk is too great to other lots".[1]
• [3] Mr Davey argues the committee acted unreasonably when voting down the motion to approve his kitchen renovation. He seeks the following order:

I am specifically seeking an order requiring the body corporate to agree to Motion 1 - "Lot Improvement Application - Lot 12" of 10/09/2024.

• [4] The committee must act reasonably when making a decision.[2]

The word "reasonably" is used in its ordinary sense and "act reasonably" has a corresponding meaning. Reasonable action is evidence-based and rational.[3]

• [5] Upon learning of Mr Davey's request to put a new penetration through his floor slab, the committee first sought further information. Powerhouse Terraces' caretaking service contractor emailed Mr Davey on 5 August 2024 and advised him the committee would require the following details before it could consider his proposal:

1. A report from a registered structural engineer following an onsite inspection, review of the building's structural drawings, and an x-ray of the concrete. The report should advise whether the penetration would cut through the tension cables in the slab, and detail the installation methodology, including conditions such as:

(i) the diameter of the penetration > > (ii) that it should not coincide with cast-in services, and > > (iii) any minimum distances between the penetration and tension cables, services, beams, columns, walls, or other penetrations.

1. A fire engineer's specification with respect to fire collar material and installation to be used on the penetration.

• [6] On 16 August, Mr Davey submitted reports from Concut Pty Ltd and Peer Consulting Engineers. Concut had scanned the floor slab and marked up a diagram on Mr Davey's floor showing an area found to be "free of in-slab assets" and the positions of nearby tension cables, steel reinforcement, and electrical infrastructure. Peer Consulting Engineers reported they had reviewed Concut's report and conducted an inspection, concluding that a penetration of 75mm could be made in a location indicated with a red dot superimposed on a photograph of the room, provided it was at least 250mm from existing penetrations or the slab edge and did not cut through the reinforcing steel within the slab. Mr Davey also advised that he would use a fire sleeve that complies with Australian Standard AS1530: Part 4: 1997, with a fire rating of -/60/60 and -/120/120, and he had arranged a fire engineer to certify its compliance once installed.
• [7] A week later, Powerhouse Terraces' body corporate manager forwarded an email from the committee chairperson requesting "a floor plan (with measurements) and specification showing the exact location of his request for a new penetration and the connection to existing hydraulics".[4] No measurements had been provided by Concut or Peer Consulting Engineers to precisely locate the proposed penetration within the room without inspecting the lot to observe the diagram drawn on the floor.
• [8] Mr Davey responded on the same day with various superseded floorplans for his new kitchen, and a floorplan of his current proposal. It showed some measurements and not others, such as the width of some benches but not their lengths. He also submitted a marked-up floor plan showing the distances from the proposed new penetration to the internal walls of the room, which he said he had measured with a tape measure using marks left by Concut. He did not provide any details of "the connection to existing hydraulics".
• [9] Following some further correspondence about a new floor covering installed by Mr Davey, and an inquiry by Mr Davey about the committee's progress with its decision, the committee resolved to decline Mr Davey's request on 10 September.
• [10] Mr Davey argues:

The assertion that informed the denial "the risk is too great to other lots" seems unreasonable considering my lot is directly positioned over the garage which has no less than 30 existing slab penetrations. In addition, it seems an unreasonable decision that I was required to provide a certified Xray/sonograph and engineering report as well as engage a fire engineer to be compliant with the committee's request, which seems to have played no part in the decision. If these requirements have been met and I have been provided no other requirements that I needed to comply to I would also suggest the decision is unreasonable.

• [11] The committee says it declined Mr Davey's request because he did not provide information requested on 10 September, 17 October, and 4 November 2024, and because of the risk posed to the structural integrity of the building if the proposed penetration damaged a tension cable. It says the outstanding information consisted of:

• Professional, to-scale floor plans specifying the exact location, size, and purpose of the proposed penetration.

• Structural and hydraulic engineering reports confirming the feasibility and impact of the proposed penetration on the structural integrity of the post-tensioned slab and the building.

• Updated engineer's and fire reports reflecting the penetration specifications (including dimensions).

• Evidence of appropriate certifications, insurances, and qualifications for contractors and the works proposed.

• [12] The committee described the threat to the stability of the building in the following terms:

...the Powerhouse Terraces Level 1 slab is a Transfer Slab where loads from the wall above the level 1 slab, which support level 2, 3 and the roof are transferred to the concrete columns in the carpark beneath the slab.

As the walls above do not align with the concrete columns under, those wall loads are transferred to the concrete columns by the Level 1 transfer slab. It is because of this that if one Lot owner damages a post tensioned cable by core hole drilling the Level 1 slab, it may impact the integrity of the whole building and therefore all other Lot owners.

• [13] For obvious reasons, I attach no weight to the claim that the committee declined Mr Davey's request on 10 September 2024 because he failed to provide information requested on 17 October and 4 November. I have no evidence to indicate anything was requested on 10 September either. As set out above, further information was requested on 5 and 23 August. Mr Davey provided most of what was requested, except:
  1. His engineer did not review the building's structural drawings or state that the tension cables would not be damaged by the proposed penetration (mentioning only the reinforcement steel).
  2. He did not provide anything from a fire engineer, just his own description of the advice he had been given. However, the email of 5 August did not clearly ask for something in writing from the fire engineer, saying only that "a fire engineer would be required to specify the fire collar material and installation". By obtaining advice from a fire engineer and relaying it to the committee, Mr Davey probably believed he had complied with the requirement.
  3. While he provided a floor plan with some measurements and marked up a plan to show the precise location of the proposed penetration, the committee now says it required "professional, to-scale floor plans", though that was not made clear in the chairperson's email forwarded to Mr Davey on 23 August.
• [14] There is no evidence the committee had requested a hydraulic engineer's report at the time of its decision, or requested "evidence of appropriate certifications, insurances, and qualifications". However, by-law 36.2(c) required Mr Davey "in making an application under this by-law...[to] provide evidence that the contractors proposed to perform the work are qualified and licenced", notwithstanding that the committee may not have requested those details.
• [15] The general picture that emerges from this background is that the committee requested relevant information to help it assess the proposal and any risk it may pose to the structural integrity of the building. That was a reasonable approach for the committee to adopt. While Mr Davey objects that his floor slab is over the garage and already has some 30 penetrations, the committee describes the mechanics of how damage to a tension cable may "impact the integrity of the whole building". The fact that other penetrations have been made without damaging tension cables does not guarantee that Mr Davey's penetration will be similarly benign.
• [16] Mr Davey feels that the committee disregarded the information he provided at its request, and that it was unreasonable to refuse his proposal when he had done everything that was asked of him. However, Mr Davey did not provide everything that was requested, as just discussed. For instance, his engineer did not review the building's structural drawings or explicitly state that the proposed penetration would not damage any tension cables, and Mr Davey did not provide details of the proposed new connections to existing plumbing infrastructure.
• [17] Even if he had provided those details, there was never any guarantee that his proposal would be approved by the committee. He was only told that the committee required the information before it could consider his request and make an informed decision. Acting reasonably, the committee was still at liberty to evaluate that information and find it insufficient, or to find that it prompted further relevant questions about the merits of the proposal. For example, the committee questioned in its submission how hot, cold, and wastewater lines could all pass through the 75mm diameter penetration proposed by Peer Consulting Engineers, as Powerhouse Terraces' hydraulic drawings indicate the pipes for those services have diameters of 25mm, 15mm, and 65mm respectively. The committee wondered whether that meant further penetrations might also be required which ought to be considered in conjunction with the proposed 75mm penetration. That was a reasonable query to have in the face of the information submitted by Mr Davey. Far from indicating that the committee had unreasonably disregarded his information, it suggests the committee gave it serious consideration.
• [18] The committee could have delayed its decision while it sought further information from Mr Davey to address its remaining concerns. While it has an initial six week period to decide a motion submitted by an owner, it can extend that by a further six weeks before the motion is automatically taken to have been declined.[5] But I do not take the failure to extend the timeframe as unreasonable action by the committee, indicative of an unwillingness to consider the proposal further. The committee continued to communicate with Mr Davey about his proposal after 10 September, and its submission indicates it remains open to considering it further if its various concerns are addressed. The committee's mind seemingly remains open.
• [19] Mr Davey advanced further grounds in his reply to submissions, arguing that the committee acted unreasonably by:
  1. Punitively delaying the process of putting my motion to the committee by tying it another motion for hard flooring that I had requested not to be prioritised due to the urgent nature of my motion relating to the kitchen.
  2. Setting out requirements for lot improvement that required me to provide a certified xray/sonograph and engineering report as well as engage a fire engineer to be compliant with the committee's request, which seems to have played no part in the decision.
  3. Retroactively tying the decision to requirements that were not shared and have continued to be increased in scope and volume.
  4. Written, verbal and witnessed statements indicating an assumption that the reasons for my lot improvement are only aesthetic and this does not constitute a valid reason for them.
  5. Ignoring my legal request (BCCM form 12) for access to Cody Corporate records.
  6. Breaking the conciliation agreement by adding additional requirements for approval beyond what was agreed in the conciliation.

vii. Exaggerating the scope of my works from moving a sink and complying with standard building and tradesmen licencing and certifications to meet Australian and local government standards - to whole building utility load and whole property engineering, legal, liability and insurance related concerns.

viii.Now spending Body Corporate funds to investigate and validate concerns that were never raised when the initial requirements were set down and quite frankly are in many cases not related to the works I have asked approval for. Funds that could have provided a direction for a path towards rectifying the issues with my lot and ensuring the property is safely maintained.

1. The perfect example of this is the new requirement for a hydraulics engineer.

1. If the body corporate is willing to approve the renovation with a sink connection to the existing utility services to the apartment without a Slab penetration, why is there a requirement for there to be a hydraulics assessment if the renovation has a connection to the same utility services that only service my lot if it goes through a new hole in the slab, next to the existing hole?

• [20] I see no evidence that the committee punitively delayed consideration of Mr Davey's motion. He says he first sought approval on 30 July. His motion was decided six weeks later, as required by the Accommodation Module. Within that period, further relevant information was requested and provided. That does not strike me as an unreasonable delay, nor do I see any indication that the committee has ever sought to punish Mr Davey.
• [21] I have already dealt with Mr Davey's second point above.
• [22] The remaining points all relate to events that occurred after 10 September. They cannot indicate that the committee acted unreasonably when declining to grant approval on 10 September and therefore do not support the order Mr Davey seeks.
• [23] I am not satisfied that the committee acted unreasonably when declining motion 1 on 10 September 2024. Accordingly, the application is dismissed.

[1] Jacinta Kamel, bcsystems, email to applicant, 10 September 2024.

[2] Act, s 100(5).

[3] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23].

[4] Julie Labzin, email of 18 August 2024, forwarded to Mr Davey by Jacinta Kamel on 23 August 2024.

[5] Accommodation Module, s 50.