This proceedings was a dispute as to which of the parties is responsible to effect repairs to the balcony of Mr Damjanovski’s lot. The balcony is on the top floor of a 5 storey development in Maribyrnong. The parties agree that the balcony tiles are in disrepair, and it is not in dispute that water has been entering the apartments below the balcony for some time.
Mr Damjanovski says that repair and maintenance of the balcony is the responsibility of either Owners Corporation No 1 or Owners Corporation No 2. The Owners Corporations said that the balcony forms part of Mr Damjanovski’s lot and he is responsible to keep it in good repair.
The lot owner sought orders setting aside Notices to Repair issued to him by Owners Corporation No 1 and an order requiring either Owners Corporation No 1 or Owners Corporation No 2 to carry out the repair works to the balcony.
The Owners Corporation No 1 had their own proceeding and sought orders requiring the lot owner to carry out works to repair areas of the tiled balcony in the lot, through which water is said to be flowing into the two units below. The Owners Corporation was previously also seeking that the lot owner repair an area of balcony balustrade which has become loose and unsafe. The Owners Corporation conceded that the balcony balustrade forms part of common property and is the Owners Corporation’s responsibility to repair.
Section 46 and 129 of the Owners Corporations Act 2006 provides that a lot owner is responsible for repair and maintenance of their lot, and the Owners Corporation is responsible for the repair and maintenance of common property and the chattels, fixtures, fittings and services related to the common property or its enjoyment.
The lot owner argued that the balcony to his lot forms part of the “drainage services” within the subdivision, and that, by operation of ss4(b)(ii), 4(b)(iii), 46 and 47 of the OC Act, repair and maintenance of the surface of the balcony, the tiles, supporting screed and waterproofing membrane, are, in consequence, the Owners Corporation’s responsibility.
Mr Damjanovski contended that the drainage of water across his balcony amounts to “balcony drainage services” and that the surface of the balcony is, because rainwater drains across it, either
a. common property within the scope of s4(b)(i) of the OC Act; or
b. a service related to the common property, within the scope of s4(b)(ii) of the OC Act; or
c. a service for which an easement or right exists for the benefit of the land affected by the Owners Corporation or which are otherwise for the benefit of all or some of the land affected by the Owners Corporation within the meaning of s4(b)(iii) of the OC Act; or
d. a service for which an easement or right is implied within the meaning of s47(3) of the OC Act.
Mr Damjanovski contended that the drainage of rainwater across his balcony are ‘drainage services’ that protect the common property and lots below from the effects of rain falling.
Mr Damjanovski says, therefore, the waterproofing of his balcony, through the installation of waterproofing membrane, and the direction of rainfall to drains or to the edge of the balcony, by virtue of the grading of the screed under the tiles, is the Owners Corporation’s responsibility to repair and maintain. He accepts that replacement of the tiles is his responsibility, but says that the Owners Corporation is responsible for the underlying waterproofing and screed base.
The balcony lower boundary is an internal face.
The Owners Corporation contended that the waterproofing and screed was private lot responsibility and not a drainage service.
What did the Tribunal find?
Although there was no equivalent definition of “interior face” prior to the commencement of the 2011 Regulations, the Tribunal considered the meaning of the phrase “interior face” in a plan of subdivision prepared before the commencement of the 2011 regulations, in Owners Corporation PS508732B v Fisher, and found that the interior face of the building means interior face of the structure of the building, and not the top surface of whatever is fixed to the structure of the building. So that where balconies are constructed of concrete and then tiled over, interior face means the upper face of the concrete structure not the tile.
The above principle has been approved by the Tribunal on numerous occasions and represents the current guiding law. The Tribunal found no reason to change the view. The waterproofing and screed are private lot property.
So is the balcony drainage services?
The language of s4(b)(ii) of the OC Act extends the Owners Corporation’s repair and maintenance obligations to “chattels, fixtures, fittings and services related to the common property or its enjoyment”. The Tribunal considered the extended repair and maintenance obligations created by s4(b)(ii) of the OC Act apply only in relation to chattels, fixtures, fittings and services related to the common property or its enjoyment.
The Tribunal said: “Lighting along a common property path would fall within the scope of s4(b)(ii). Water filtration and treatment in a common property swimming pool would fall within the scope of s4(b)(ii). Electricity and water supply to the common property would be within scope, as would storm water pipes to avoid flooding or damp deleterious to common property, or inconsistent with its enjoyment. Each of these can be said, without difficulty, to be related to the common property or its enjoyment.
The balcony does not have gutters along its perimeter, and the experts retained by each party agreed that the balcony had been constructed on the basis that rainwater would flow either to a centrally located drain, or over the edges of the balcony. While I accept that there is potential for the flow of water over the edge of Mr Damjanovski’s balcony to have an impact on the common property, in my view, this is not the same as being “related to” the common property or its enjoyment. In my view, s4(b)(ii) does not assist Mr Damjanovski.”
The lot owner claimed an implied easement, the water flowing on his balcony does not come from other land or from common property; it is rainfall that falls from the clouds and collects on Mr Damjanovski’s lot. To the extent that Mr Damjanovski’s balcony is partly designed to direct water to a down pipe, and partly designed to direct water to “flow to the edge” there might be said to be an implied easement to discharge water into the common property down pipe and onto the common property walls. But such an easement, if it were to be implied, would be an easement benefitting Mr Damjanovski’s lot alone, and would burden the common property and other lots. As the owner of the dominant tenement, arguably any maintenance would be his responsibility.
As for the notice to repair the Tribunal found that they were effective.
So what works were required?
The first point of water ingress caused water and mould damage to the bedroom ceiling of of the lot below. The source of that water is an inadequately sealed penetration, through the floor slab of level 5, for a downpipe located next to an external wall of Mr Damjanovski’s apartment, which carries rainwater from the roof, penetrates through the tiles and slab, and continues under Mr Damjanovski’s balcony, through the cavity between the fifth floor slab and the fourth floor ceiling, to an external rain head located on the outside of the building.
There was no water escaping from the drainpipe itself, but, rather, inadequate sealing of the hole through which the drainpipe passes through the tiles and slab, has allowed rainwater to enter between the tiles, travel through the substrate, travel through the cavity below the slab, and exit below to drip from the fourth floor ceiling.
The second point of water ingress was water which runs down a wall of Lot 407’s balcony, below the balcony of Mr Damjanovski’s lot.
Water was making its way through the join between the floor tiles of Mr Damjanovski’s balcony and an upright wall.
The third area of water ingress is through a “core hole” drilled through the base of the northwestern wall at its base. The core hole had to be filled in and the area fully sealed, or the hole itself should be resealed.
The Tribunal found that the tiles needed to be ripped up and proper waterproofing, screws and tiles be installed with adequate drainage.
The experts recommended that further downpipes would be required and the Tribunal noted that whilst this additional drainage would need to be approved by the Owners Corporation (as it affected common property) the cost of the works were necessitated by the works to the private lot balcony and had to be incurred by the lot owner but once the works were completed the drainage pipes would be become the responsibility of the Owners Corporation to repair and maintain providing they were constructed in accordance with all relevant standards but subject to any conditions imposed by the Owners Corporation of the consent given.
The Owners Corporation was entitled to carry out the works under section 48(3) and charge the lot owner or require the lot owner to do the works.
Summing up
The decision is not unexpected and consistent with the Tribunals interpretation of internal face balconies.
Private lot owners have a statutory obligation to ensure that their balconies are not defective. Balconies require maintenance and tiling has a limited lifespan.
Just because there may be pipes that run through your balcony does not mean that the Owners Corporation is responsible for sealing the penetrations in your balcony tiling.
Need advice or assistance in a VCAT case?
Contact Phillip Leaman who heads the Owners Corporations team at Tisher Liner FC Law. We have extensive experience in assisting Owners Corporations in prosecuting and defending VCAT applications and providing advice concerning the operation of the Owners Corporations Act 2006 and giving opinions on the interpretation of plans of subdivision setting out what is private lot property and what is common property.
