Climpson & Anor v Body Corporate for Rolling Surf Resort Celestial Investments Pty Ltd [2013] QCATA 93

CITATION: Climpson & Anor v Body Corporate for Rolling Surf Resort Celestial Investments Pty Ltd [2013] QCATA 93 PARTIES: Mr S.W. Climpson Mr D.R. Hobbs (Appellants) v Body Corporate for Rolling Surf Resort Celestial Investments Pty Ltd (Respondents) APPLICATION NUMBER: APL132-12 APL147-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr C Brabazon QC, Member DELIVERED ON: 19 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Set aside the Adjudicator’s decision of 15 March 2012. 2. Declare that: (a) If the original sails, including their supports, fittings and any replacements, are entirely within the boundaries of a lot, then the lot owner must maintain them. (b) If such sails are entirely outside the lot boundary, then the body corporate must maintain them. (c) If such sails are partly within, and partly outside, the boundaries of a lot, then the body corporate must maintain them. (d) Other sails including those installed for an occupier’s own -- 1 of 6 -- 2 benefit and those installed as an improvement to common property, must be maintained by the lot owner. (Ss 157(3) and 162 of the Accommodation Module Regulation). CATCHWORDS: Home units – strata title – sails on roof terraces – common property and individual lots – responsibility to maintain sails – s9(5) of BUGTA – Body Corporate and Community Management Act 1997 Ss157 & 168 - ―utility infrastructure‖ ―utility service‖. APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The Rolling Surf Resort at Caloundra has a distinctive architectural feature – the top storeys of its three buildings carry numerous sails. The sails are the cause of different opinions about their ownership and maintenance. [2] Those differences led to an adjudicator’s order of 15 March 2012. The body corporate had sought a declaration about who is responsible for maintaining the sails. [3] The adjudicator found that: a) The sails are not ―roofing structures providing protection‖. The body corporate did not have to maintain them in good condition - see ss157(2)(b)(ii) of the Accommodation Module Regulation. b) The owners had to maintain the sails, even if they extended into common property – Accommodation Module 162(4). c) The body corporate can act to maintain the sails if the owner does not do the work – Accommodation Module 169(1) and (2). d) The body corporate had taken down all the sails, without a good reason. [4] The reference in (b) above to s162(4), can only apply to improvements to common property, with the approval of the body corporate. [5] This appeal is about one issue – who is responsible for the maintenance of the sails. Is it the body corporate or the owners of the roof top lots? -- 2 of 6 -- 3 [6] The buildings were constructed and the lots sold according to the statute then in force, the Building Units and Group Titles Act – BUGTA. Section 9 of BUGTA dealt with the registration of building unit plans. Sections 9(5) – (5B) provided for the ownership of the air space over a roof terrace. The rather difficult drafting means that the space is part of the lot. The first step is to note that, ―the common boundary of any lot with another lot or common property shall be the centre of the wall, floor, or ceiling…‖ [7] There must be a connection between the roof garden area, and a part of the lot which has the centre of a wall, floor, a ceiling. That is this case. The roof terraces are reached by stairs or a lift opening onto what appears to be a small foyer, which has a roof. [8] Then, it is helpful to imagine vertical walls of glass around the lots. They rise out of the centre line of the outside walls of the building. [9] Then there is the top boundary of the imaginary roof. It is necessary to locate the edge of the adjoining ceiling. Take the centre of that edge, and imagine a glass sheet over the roof terrace, supported by the vertical glass walls already around the edges of the space. The enclosed space is part of the lot. [10] Once that exercise is done, the space outside the lot will be common property. [11] It is then necessary to see where and how the sails are fitted to the building. The only concerns are with the original sails – it is accepted that those later fitted by various owners have always been the owners’ responsibility. [12] Some basic principles have to be kept in mind. There is a sharp division between privately owned property and common property. It is always necessary to note the extent of a privately owned lot. Here, the approved plans show the lots on level four, leading up to the roof top areas above. Those roof areas extend to the centre of the outside walls of the building - even though balustrades or railings may confine actual use to a smaller area. [13] The various photographs, and the approved plans, show that there are concrete walls, some of which carry flat concrete roofs. There are the ceilings, of the lift foyers. They will have to serve as ―ceilings‖ for present purposes. [14] In any case, accept that the lots do stop at the centre of the surrounding ceilings. The photographs show that sails are within the floor space of several lots. Apart, perhaps, for some fixings above a wall, many sails appear to be fixed onto the tops of walls. That is, the fixing is onto parts of the common property, the roof top being above the centre of the ceiling. [15] The photos also show that sails are secured to poles, on the floor of the terraces. The poles appear to be lower than the ceilings. They are -- 3 of 6 -- 4 attached to the floor of the lot. They are on private property, even though some appear to be outside a balustrade. [16] It seems that the adjudicator was right to find that, ―based on photos and submissions it seems the sails would partly be within lot boundaries and partly in common property airspace.‖ [17] Therefore, there is no easy answer to the question – who is responsible for the expense of maintaining the sails? [18] There has been no submission, that ownership of the sails is divided between the owners and the Body Corporate. It is one or the other, in these cases where some part of a sail might be within a lot, and some of it within common airspace. [19] It is said that that the original sails were paid for by purchasers, as they were included in the contracts of sale. Even if that was part of a buyer’s contract of sale, it would not control the status of the sails, and the responsibility to maintain them, after settlement of the purchaser’s contract. Only the statutes, BUGTA and BCCM, and the Accommodation Module, can do that. Once installed, they are fixed parts of the building. [20] It is helpful to look at other provisions of the present Act. Sections 157(2) and (3) make the body corporate responsible for the maintenance of several things, not in issue here. Section 157(3) then goes on- ―(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‖ [21] Section 162 deals with the case where an owner wants to make an improvement to common property, for the benefit of the owner’s lot. The body corporate may authorise the owner to do that. The body corporate can impose conditions that it considers appropriate, in authorising the improvement. However, if an improvement is made, then the owner must maintain the improvement in good condition, unless excused by the body corporate. [22] Therefore the sails installed by owners, and not by the developer, are the owners’ responsibility. [23] S168(2) provides that ―the owner of a lot included in the scheme must maintain the lot in good condition.‖ [24] S168(3) says – ―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.‖ [25] The body corporate must maintain the common property in good condition – s157(1). It must also maintain in good condition, ―roofing membranes that are not common property, but that provide protection for lots or common property‖ (s157(2)(a)(iii)), and -- 4 of 6 -- 5 (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. (S157(2)(b)(ii)) [26] A dictionary definition of ―membrane‖ is: ―A skin like structure that lines, connects, or covers a part of the body; A thin pliable sheet of material forming a barrier or lining.‖ It might seem reasonable to find that the sails are membranes – they are literally, thin pliable sheets of material, that do provide some protection. The idea of ―protection‖ is not in the above definition. The meaning of ―membrane‖ in this context is different. That is, the reference is clearly to a construction membrane, such as a waterproof layer designed to keep water out of the building. It might protect both lots and common property. Some very large structures have membrane roofs. Here, the relatively slight sizes and shapes of the sails would not amount to ―providing protection.‖ [27] On balance, it seems right to find that they are not caught by that description. The other things in the same section are ―foundation structures‖ and essential supporting framework including ―load-bearing walls‖. Read together, those three things all seem to refer to structures that are much more substantial than the sails. [28] The provisions about utility services should also be noticed. The BCCM Act defines them this way: utility infrastructure means— (a) cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services; and (b) a device for measuring the reticulation or supply of a utility service. utility service means— (a) water reticulation or supply; or (b) gas reticulation or supply; or (c) electricity supply; or (d) air conditioning; or (e) a telephone service; or (f) a computer data or television service; or (g) a sewer system; or (h) drainage; or (i) a system for the removal or disposal of garbage or waste; or (j) another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property. -- 5 of 6 -- 6 [29] It might be argued that the numerous sails installed by the developer amount to ―a system designed to improve the amenity, or enhance the enjoyment, of lots or common property.‖ They help to give shelter from the sun, and they are also meant to be an attractive addition to the building to enhance the enjoyment of the lots. [30] ―Utility infrastructure‖, that is solely related to supplying utility services to a lot, and is within the boundaries of a lot, is not part of the common property. See s20(1) and (2). [31] On balance, the better conclusion is that the sails are not within the definitions of ―utility infrastructure‖, and ―utility service‖. Those expressions seem to cover systems that are more dynamic than a fixed sail. [32] There is presently in force, a resolution of the body corporate, that it should be responsible for maintaining the sails. That has given certainty to a most uncertain situation – while that resolution remains in place. [33] The only issue presently before QCAT is that concerning the maintenance of the sails. It seems that the clearest response that QCAT can make about them is this: 1. Set aside the Adjudicator’s decision of 15 March 2012. 2. Declare that: (a) If the original sails, including their supports, fittings and any replacements, are entirely within the boundaries of a lot, then the lot owner must maintain them. (b) If such sails are entirely outside the lot boundary, then the body corporate must maintain them. (c) If such sails are partly within, and partly outside, the boundaries of a lot, then the body corporate must maintain them. (d) Other sails including those installed for an occupier’s own benefit and those installed as an improvement to common property, must be maintained by the lot owner. (Ss 157(3) and 162 of the Accommodation Module Regulation). -- 6 of 6 --