den Exter v Magnetic International Resort Hotel CTS 22894
[2011] QCATA 70
•29 March 2011
| CITATION: | den Exter v Magnetic International Resort Hotel CTS 22894 [2011] QCATA 070 |
| PARTIES: | Arend den Exter (Appellant) |
| v | |
| Body Corporate for Magnetic International Resort Hotel CTS 22894 | |
| APPEAL NUMBER: | APL247-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 29 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Appeal dismissed. |
| CATCHWORDS: | APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – COMMUNITY TITLES SCHEME – ‘UTILITY INFRASTRUCTURE’ – ‘UTILITY SERVICE’ – where the appellant’s property shares a common roof, including gutters and downpipes – whether roofing membranes constitute utility infrastructure – whether maintenance of roofing membranes is the responsibility of body corporate or lot owner Body Corporate and Community Management Act 1997, s 152 |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
President:
I have had the advantage of reading the reasons of Mr Barlow SC. I agree with them, and the order he proposes.
Member Kenneth Barlow SC:
This proceeding constitutes an appeal, pursuant to s 289 of the Body Corporate and Community Management Act 1997 (Qld) (the ‘BCCM Act’), from an order of an adjudicator made under Part 9 of Chapter 6 of the BCCM Act. The appellant and his wife, Karen den Exter, in their capacity as trustees of the den Exter Superannuation Fund, are the owners of lot number 83 on Group Title Plan No. 103862, being one of the lots within the community titles scheme of which the respondent is the body corporate.
The appellant’s lot and three other lots (lots 81, 82 and 84) share a common roof, including gutters and downpipes. Other lots within the scheme comprise similar structures: namely, several lots covered by one roofing structure.
It appears to be common ground that the roof over lots 81 to 84 has deteriorated over time, with considerable rust, and damage caused by falling coconuts, leading to substantial leaking, after rain, into the internal areas of each of those lots. The appellant has requested the body corporate to replace the roof sheeting (which is apparently beyond economical repair). The body corporate maintains that the maintenance, repair and (if necessary) replacement of the roof is the responsibility of the individual lot owners.
The essential issue, as accurately described in the appellant’s submission on this appeal, is whether the roofing membranes (overlapping metal sheets), battens and fixings of such a roof is common property, as being ‘utility infrastructure’ and therefore a body corporate maintenance responsibility.
The Adjudicator found that, contrary to the appellant’s contention, the ‘roofing structure’ was not caught by the definition in the BCCM Act of ‘utility infrastructure’. The appellant’s submission, as understood by the Adjudicator, and the Adjudicator’s reasons, are succinctly set out in the following passage from those reasons:
The applicants argue that a roofing structure is “utility infrastructure” because the main function of the roof is to capture and divert rainwater via the gutters and downpipes to the stormwater system which provides drainage. Therefore, they argue, the roof sheeting constitutes “utility infrastructure” which is “common property” and therefore the responsibility of the body corporate, notwithstanding that it is part of a building within a lot registered on a Standard Format Plan.
I am unable to agree with the applicants [sic] contention that the roofing structure is caught by the definition of “utility infrastructure”. Along with the walls and floor, the roof of a lot is a structural element of the building and is not merely a device for the provision of a utility service. A roof structure also provides protection against the elements and ensures that a lot is habitable. The replacement of the roof would benefit only the owners and occupiers of lots 81 to 84. There would be no benefit to the Body Corporate, to common property, or to the owners of other Lots in the scheme. If it was the intention of the legislature that roofing structures would be caught by the definition of utility infrastructure, then there would be no need to specifically make separate reference to roofing structure throughout the legislation.
Utility infrastructure does not include the essential structural components of a building, Rather [sic], it is a device or means which is utilised for the purpose of providing utility services to the building. A utility service is a service designed to improve the amenity, or enhance the enjoyment, of lots or common property. Utility infrastructure means the cables, wires, pipes, sewers, drains, ducts, plant and equipment by which the lot is supplied with utility services.
The respondent chose not to make any submissions in this appeal. Effectively, it appears prepared to abide by the decision of the Appeal Tribunal.
The appellant submits that the Adjudicator incorrectly summarised and understood the submissions below. They (Mr and Mrs den Exter) do not contend that the entirety of the roofing structure is a ‘utility infrastructure’ as defined in the BCCM Act. Rather, they submit that those components of the roofing structure which might be installed by plumbers and drainers, including the overlapping sheets, tiles, battens, ridge capping and flashing, the main function of which (they say) is to capture and divert rain, via gutters and downpipes, into the stormwater system, comprise components of a drainage system and therefore comprise utility infrastructure as defined. They submit that it is a device for the supply of a utility service, specifically drainage. Alternatively, they submit, it is a system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property.
Section 152 of the BCCM Act relevantly provides that the body corporate for a community titles scheme must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners.
Section 20 of the BCCM Act relevantly provides that common property for a community titles scheme includes all utility infrastructure forming part of scheme land other than utility infrastructure that is solely related to supplying utility services to a lot, and within the boundaries of the lot, and located other than within a boundary structure for the lot.
‘Boundary structure’ is defined in that section as meaning a floor, wall or ceiling, other than a false ceiling, in which is located the boundary of the lot with another lot or common property.
This scheme is the subject of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the ‘Accommodation Module’).
Section 157 of the Accommodation Module relevantly provides that the body corporate must maintain common property in good condition. A note to sub-s 157(1) says: ‘For utility infrastructure included in the common property, see s 20 of the Act (Utility infrastructure as common property)’.
Subsection 157(3) relevantly provides that, despite anything in sub-ss (1) and (2), the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that utility infrastructure relates only to supplying utility services to the owner’s lot and is, relevantly, a device providing a utility service to a lot.
Section 168 of the Accommodation Module was also referred to in submissions. It relevantly provides that the owner of a lot included in a community titles scheme must maintain the lot in good condition, but that obligation does not apply to a part of the lot which the body corporate is required to maintain in good condition. Subsection 168(4) provides that the owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of the common property, in good condition and, if the utility infrastructure is in need of replacement, must replace it.
The terms ‘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.
and ‘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;
j)Another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property.
Both of which are defined in schedule 6 of the BCCM Act.
I have not been referred to, nor have I been able to find, any case which has considered and determined the meanings of the various terms in the definitions of ‘utility infrastructure’ and ‘utility service’ under the BCCM Act. Only in one case that I have been able to find has there even been obiter commentary, which was to this effect:
I would [have] expected the “systems” and “services” contemplated in (j) to have something of the enduring nature of those referred to in the preceding items in the definition.[1]
[1]Oceania on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QDC 011, [14].
That does not help in this case.
The appellant submits first that the Adjudicator confused their submission, as in the reasons for decision of the Adjudicator there is continual reference to the term ‘roofing structure’. The appellant points out that, in the accommodation module, the term ‘roofing structure’ is distinguished from the term ‘roofing membranes’, with different obligations as to maintenance arising between the different parts of the roof. They refer to ss 157(2)(a)(iii) and (b)(ii) and ss 171(3)(a) and (b)(ii). Those are the only sections in which the terms appear in either the BCCM Act or the Accommodation Module.
I agree that there is a clear distinction made in the Accommodation Module between roofing structures and roofing membranes. However, it seems to me clear from the Adjudicator’s reasons that, although he referred to the ‘roofing structure’, the parts of the roofing structure which he considered were only those to which the appellant referred, namely those that include, and bear strong similarities to, roofing membranes (to use words from the appellant’s submissions).
In other words, the Adjudicator was intending to refer to those parts of the roofing structure being referred to by the appellant and defined clearly in their submissions as meaning the overlapping metal sheets, battens and fixings of the roof. In this respect, therefore, there is no substance to the appellant’s complaint.
The appellant’s submission that the roofing components to which they refer are ‘a device for the supply of a utility service’ appears to rely upon paragraph (b) of the definition of ‘utility infrastructure’. If that is so, it is misconceived. I do not read that paragraph as meaning ‘a device for measuring the reticulation of a utility service or a device for supply of a utility service’. Rather, it means a device for measuring the reticulation of a utility service or a device for measuring supply of a utility service.
That being the case, it is clear that the roofing components relied upon by the appellant had nothing to do with measuring either the reticulation or the supply of a utility service, whether drainage or otherwise. Therefore they are not utility infrastructure on that basis.
However, I also understand the appellant to be submitting that the roofing components to which they refer are utility infrastructure because they are methods by which lots or common property (in this case, lots 81 to 84) are supplied with utility services. The utility services being supplied are drainage or another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property.
For this submission to be correct, the roofing components referred to by the appellant must constitute one of the types of component described in paragraph (a) of the definition of ‘utility infrastructure’. Clearly the roofing components are not cables, wires, pipes, sewers, ducts or plant and equipment. The real question is whether those components referred to by the appellant may be described as ‘drains’. If they are ‘drains’ they are drains by which lots or common property are supplied, together with the gutters and downpipes, with the utility service of drainage.
The crucial question, therefore, is whether a roofing membrane (in this case the overlapping metal sheets comprising the roof of lots 81 to 84, together with associated components) is a ‘drain’.
In common parlance, a roof would not be considered to be a drain, although it might be (indeed, probably inevitably is) part of a drainage system. The appellant submits, with some force, that as the roof over lots 81 to 84 is an essential component of a drainage system, it is a component of a utility service.
The Macquarie Dictionary defines ‘drain’ as follows:
verb (t) 1. to draw off gradually, as a liquid; …
2. to draw off or take away completely.
…
noun 7. that by which anything is drained, as a pipe or conduit.
The same dictionary relevantly defines ‘drainage’ as:
noun 1. the act or process of draining.
2. a system of drains, artificial or natural.
The definitions of these terms are expanded somewhat in The New Shorter Oxford English Dictionary. That dictionary relevantly defines ‘drain’ as meaning:
4. v.t. cause (a liquid) to come out of or leave something gradually or in small quantities, esp. by means of a pipe, channel, etc; carry off or away thus. …
6. v.t. cause water etc to flow from or out of;
and, as a noun:
1. a channel or pipe along which liquid drains away; esp. (a) a pipe for leading away rain water etc …
That dictionary defines ‘drainage’ relevantly as meaning:
1. the action of draining something; the manner in which something is drained…
3. a system of drains; a means of draining.
These definitions indicate that a drain is something by which a liquid is drained. It is separate from, but a method for draining, the thing from which liquid is drained. So, for example, the guttering of a road and a stormwater pipe are drains by which water is drained from the road and surrounding surfaces.
A roof, including (indeed, in particular) the membrane, is that part of the building which serves to protect the internal parts of the building from rain, sun, falling leaves and other objects, etcetera. When rain water hits a roof it will drain off the roof (that is, run off the roof) unless the roof is so poorly designed, or damaged, that it will cause the rainwater to collect on it. But the roof itself is not a drain. It is not a pipe, or culvert. The guttering and downpipes are a drainage system which allows water to drain from the roof. It is the guttering and downpipes that must be designed to be adequately big enough to cope with the amount of water that will run off the roof.
‘Drains’ therefore do not include roofs in the ordinary meaning of the word. Nor is there anything in the BCCM Act which indicates, to my mind, that Parliament intended that the word ‘drains’ mean anything other than its ordinary meaning. Rather, the roof is that from which water is drained by the drainage system. The drainage system starts with the guttering.
Had Parliament intended otherwise it could be expected to have included, in the list of items in paragraph (a) of the definition of ‘utility infrastructure’, the word ‘roofs’. Alternatively, if it meant ‘drains’ to mean (or include) roofs, one would expect it to have said so by an express definition.
I acknowledge that this appears to be an anomaly in the Accommodation Module. In the case of a community titles scheme created under a building format plan of subdivision, it is the body corporate’s responsibility to maintain roofing membranes that provide protection for lots or common property, even though they are not common property: s 157(2)(iii). That section recognises that roofs in those types of building are normally shared by, and for the benefit of, a number of lots and the common property. But the community titles scheme in this case is a standard format plan, even though each individual lot in the subdivision does not have its own roofing structure and membrane.
I also acknowledge that the Act and the Accommodation Module, in this respect, make it difficult for the owner of one lot that shares a roofing membrane with other lots to repair the roofing membrane without trespassing on the other lots. However there are other methods available at law, in other jurisdictions, which may assist the owner of a lot in such circumstances if unable to obtain agreement with the owners of the other lots to repair or replace a common roof.
But this anomaly and difficulty do not suffice to alter the common meaning of ‘drains’ so as to include roofs.
In the circumstances, I consider that the Adjudicator was correct in dismissing the application and I would, therefore, dismiss this appeal.
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