1. A written request from an ‘interested person’; and
2. The fee prescribed under the regulation module applying to the scheme.

An ‘interested person’ includes an owner, buyer or their agent, or anyone else with a proper interest in the information.

Similarly, the regulation modules provide for committee members to have ‘reasonable access’ to Body Corporate records without the payment of a fee.

The only legislative restrictions on the requirements to provide access to records (to those that are entitled to it) include:

1. Defamatory material; and
2. Relate to legal professional privilege.

Defamatory material

Section 205(3) of the Act provides that the Body Corporate is not required to allow a person to see records if the Body Corporate ‘reasonably believes’ the record contains defamatory material.

Defamatory material is something that will injure another person’s reputation or brings them into hatred, contempt, or ridicule.

If the withholding of material is disputed, the Body Corporate would need to demonstrate the reasonable belief that it is defamatory by:

• Specifically identifying which material or documents it believes to be defamatory; and
• Providing some evidence (such as legal advice or other expert evidence) to support their ‘reasonable belief’ that the particular material is defamatory.

Legal professional privilege

The principle of ‘legal professional privilege’ is that the client of a lawyer should be able to withhold access to documents which are confidential lawyer-client communications.

Although an individual owner will, through their levies, contribute to the cost of legal advice obtained by the Body Corporate, individual owners are not a client of the solicitor in their own right. A Body Corporate is a legal entity that is separate and distinct from the owners.

For this reason, a Body Corporate has the same right to privilege as any other legal client and is entitled under common law (judge-made law) to withhold records that are subject to ‘legal professional privilege’ even from owners in the Body Corporate.

Legal professional privilege applies to lawyer-client communications and documents that are created for the dominant purpose of obtaining or providing legal advice or conducting actual or contemplated litigation.

A Body Corporate is not required to withhold privileged documents and can choose to disclose the information. Usually it is a decision for the committee and their legal counsel whether it is appropriate to claim privilege.

Key takeaways

In summary, when considering any records request, the Body Corporate should consider:

• Does the person have a right to access the information – is this a potential buyer, tenant, lot owner, committee member?
• Has the person has made a written request – a request from a non-committee member must be in writing.
• Has the person paid the required fee – a request from a non-committee member must be accompanied by the prescribed fee.
• Is the information sought a Body Corporate record – this really does extend to anything the Body Corporate has received or sent?
• Does the record contain defamatory material (for example, false statements criticising a person)?
• Is the record is protected by legal professional privilege (for example, confidential communications between a body corporate and a legal adviser).

Ideally, the Body Corporate (usually by their manager) should have in place a system to categorise material when it arrives to confirm whether any of it could be privileged or defamatory and, if it is, that it is not simply openly placed in the Body Corporate records.

Article by Hynes Legal

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Changes to the Terrorism Insurance Act 2003 (Cth)(the ACT) become effective from July 2017, and some mixed-use commercial and residential strata buildings will see new terrorism levies of up to 16%, plus statutory charges on affected policies.

These changes broaden the definition of eligible property to include buildings with at least 20% of floor space being used for commercial purposes, or schemes which have a single building sum insured of at least $50 million (whether used for commercial or other purposes).

Two key changes in terms of classification of strata buildings from the Australian Reinsurance Pool Corporation (ARPC) are:

1. Commercial Strata – Commercial buildings now defined as greater than or equal to 20% commercial floor space ratio, irrespective of tenancy.  The result is that all Strata Community Insurance Commercial Strata policies will attract the ARPC terrorism levy.
2. Residential Strata –  (i) ARPC terrorism levy to be charged on residential schemes where one or more single buildings has a sum insured equal to or greater than $50 million.  (ii) Where ARPC coverage under the Act does not apply for schemes consisting of multiple residential buildings having a combined sum insured greater than $50 million, these schemes remain protected under Strata Community Insurance’s specially negotiated terrorism cover up to $100 million.  (iii) Schemes consisting of single or multiple residential buildings with a combines sum insured of less than $50 million also remain protected under our specially negotiated terrorism cover.

Tiered approach

Location of the schemes will be a significant component with this upcoming change, given application of a tiered levy model under which physical location is used to determine the rate of levy applicable:

• Classification A 16% levy – capital cities with a population over 1 million
• Classification B 5.3% levy – urban areas with a population over 100,000
• Classification C 2.6% levy – rural areas plus all other areas not captured by A and B

From 1st July  2017 Bodies Corporate will be liable to pay terrorism levies for all renewals and new business if the scheme meets the ARPC criteria.

For schemes that fall outside of the criteria for ARPC cover under the Act, Strata Community Insurance’s terrorism cover will continue to apply – up to $100 million.

*Information supplied by Strata Community Insurance

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For dwellings being sold, leased or an existing lease renewed these are the latest smoke alarm requirements.

• Existing smoke alarm manufactured more than 10 years ago must be replaced with photoelectric smoke alarms which comply with Australian Standards.
• Smoke alarms that do not operate when tested must be replaced immediately.
• Existing hardwired smoke alarms that need replacement, must be replace with a hardwired photoelectric smoke alarm.
• For best protection smoke alarms should be installed on each storey, in every bedroom and in hallways which connect bedrooms.
• It is also recommended that smoke alarms be either hardwired or powered by a non-removable 10 year battery and ionisation smoke alarms be replaced with photoelectric type as soon as possible.
• All smoke alarms should be interconnected
• A well practiced fire escape plan is highly recommended
• Property sellers must continue to lodge a Form 24 stating the requirements of the legislation have been met.

Click here for detailed information from the Queensland Government.

Detector placement

Detector placement

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Marblesheen also known as Marblelite is a decorative coating applied to the surface of concrete pool shells with the average thickness between 5-25mm.  It is primarily composed of white cement and white marble chips between 1-2mm in diameter.  If the Marblesheen coating was applied prior to 1990, it may include asbestos.

Cross section view of concrete pool shell

Example of older marblesheen coating

How Do I Identify If A Pool Coating Contains Asbestos?

The only way to confirm if a Marblesheen coating contains Asbestos is to have a sample analysed by a National Association of Testing Authority accredited laboratory.

Is There A Risk Of Exposure To Asbestos From Marblesheen Coatings?

If the Marblesheen coating is in good condition and left undisturbed, it presents as low risk as it is non-faible and the asbestos fibres are bound to the cement.  However if the surface is deteriorated in the way of cracks, breaks and chips or delamination of the coating there may be a risk.

Maintenance, Renovation Or Demolition Of Marblesheen Containing Asbestos

Any work involving the removal of disturbance of Marblesheen coatings assumed or confirmed to contain Asbestos must be done in accordance with the Work Health and Safety Regulation 2011.

To read the complete Queensland Government article click here

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Smoking on common property can only be restricted if it unreasonably interferes with the enjoyment of another lot or the common property.  However, this is not the case when there are substantially enclosed areas of the common property.  Smoking in strata and on those areas would be unlawful under the Tobacco and Other Smoking Products Act .

Bodies Corporate need to make sure they do not act unreasonably or in an oppressive manner when dealing with smoking in strata.  If considering a by-law to handle this situation, care should be taken to ensure the by-law is reasonable.  Adjudicators have previously held that a by-law could only regulate smoking on common property such that is not inconsistent with the standard in the Body Corporate Community Management Act.

In 2015 the Queensland Government said the discussion paper to ban smoking on balconies had taken 18 months and any formal decision would take quite some time.  To date no decision has been made.

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When such motions are submitted to the committee for inclusion on the next general meeting agenda, committees are left wondering how they are meant to deal with them. This is particularly so when the motions submitted are defamatory of owners or occupiers within the scheme.

The first idea that comes to mind is to completely reject the motion and not include it on the general meeting agenda…unfortunately though; this approach will breach the relevant regulation module that applies to your scheme.

The regulation modules require that all motions (provided they are submitted in time) be included on the next general meeting agenda. This rule applies regardless of the content of the motion.

This approach was confirmed by the adjudicator in Circle on Cavill [2015] QBCCMCmr 409.

In that case, the committee had refused to include the applicant’s motions on the AGM agenda because, in their view, the motions were defamatory. The applicant applied to the Commissioner’s Office for various orders including declarations that the committee had acted unreasonably in rejecting her motions and that an EGM be convened to consider her motions. The adjudicator ordered that:

1. The body corporate failed to comply with its statutory duty to include the motions submitted by the applicant on the agenda for the AGM; and
2. The body corporate must include the applicant’s motions on the agenda for the next general meeting on which it is practicable to include the motions.

In considering the committee’s concerns about the allegedly defamatory motions, the adjudicator stated:

…there is simply no discretion for a committee to decide not to include a motion, regardless of the substance or impact of the motion. 

If a committee is concerned that a motion submitted by an owner is invalid or unenforceable, that is not a basis to include the motion on the agenda. Rather, the motion must be listed on the agenda and then the chairperson can rule the motion out of order at the meeting.

We understand the hesitation felt by committee members when an owner submits motions for a general meeting that are impractical, unkind, defamatory or unenforceable.  However, it is important for committee members to know that the legislature did cater for these situations in drafting section 111A of the Body Corporate and Community Management Act 1997 (BCCM Act).

Section 111A is titled ‘Protection of body corporate and committee from liability for defamation’ and essentially provides that the committee and body corporate will not be liable for defamation in circumstances where an owner submits a defamatory motion (including the explanatory note) for consideration at a general meeting.

It is absolutely crucial to understand that section 111A only applies to motions submitted by owners. As such, any motions submitted by the committee must not be defamatory; there is no protection from liability in circumstances where a committee submits a defamatory motion for consideration at a general meeting.

Whilst there is (unfortunately) no basis for refusing to include ridiculous motions on a general meeting agenda, in some circumstances, the person chairing the meeting may be able to rule the motion out of order. On this point, the adjudicator in Circle on Cavill relevantly stated:

“If a committee is concerned that a motion submitted by an owner is invalid or unenforceable, that is not a basis not to include the motion on the agenda. Rather, the motion must be listed on the agenda and then the chairperson can rule the motion out of order at the meeting.”

Unfortunately, ruling motions out of order is not as straightforward as it sounds. It can only be done in certain circumstances and there is a specific procedure that must be followed which we will discuss in a later article.

In concluding, we reiterate that:

1. All motions submitted by owners for consideration at a general meeting, must, no matter how ridiculous, be included on the next general meeting agenda on which it is practicable to include the motions;
2. Failure to include an owner’s motion on a general meeting agenda could result in an adjudicator finding that the committee failed to comply with its statutory obligations;
3. A committee will not be liable for defamation in circumstances where an owner submits a defamatory motion for consideration at a general meeting; and
4. Just because a motion has to be included on the agenda for a general meeting does not necessarily mean it will be voted on. There may be a basis upon which the chairperson can rule the motion out of order.

You can read more of the adjudicator’s reasoning the Circle on Cavill case here.

We have advised many committees on issues pertaining to defamatory motions, ruling motions out of order and general meeting procedures. Please don’t hesitate to get in contact with us if your committee would like our assistance.

Article written by Hynes Legal http://hyneslegal.com.au/

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Changes to smoke alarm systems include the following;

• From 1st January 2017, all smoke alarm installations will need to be fully compliant for new buildings or when significant renovations occur.
• Smoke alarms will need to be interconnected and either hard-wired or powered by a 10 year lithium battery.  They will also need to meet minimum performance standards with Photoelectric-Type smoke alarms acting as the performance baseline.
• All private dwellings are required to comply with the full new smoke alarm requirements within 10 years from commencement.
• As per the requirements under AS 3786-2014, smoke alarms are to have a lifespan of at least 10 years and smoke alarms are recommended to be replaced after 10 years.
• All dwellings that are sold or leased will need to comply at the time a contract for sale or lease agreement is entered into.
• Home owners are required to install additional smoke alarms in every bedroom, between areas containing bedrooms, in any hallway servicing bedrooms and in any other story of a residential dwelling.

It is hoped that the Government will absorb the “early adopter” costs making the changes more affordable for homeowners.

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Property owners and other affected parties are being invited to provide feedback on the future management of the West Indian Drywood Termite.  Feedback is particularly sought with regards to who pays for treatment of the termite.  Under the new Biosecurity Act 2014, which is due to commence on 1st July 2016, a decision needs to be made by the Departments of Agriculture and Fisheries on how to manage the pest in the future.  The Act will feature a general biosecurity obligation, which means everyone has a responsibility to mitigate risks and share responsibility, which includes reporting pests.

Treatment of the West Indian Drywood Termite is costly, at approximately $42,000 for a three bedroom house, so the consultation offers four funding models for consideration.  These include:

• Government organises treatment, with a phase-in of property owner contributions;
• Property owners organize to pay for treatment;
• Government organizes treatment, with owner co-contribution of set costs;
• Government continues to organize and pay for all surveillance and treatment.

The consultation ends 29th February 2016 and you can have your say by responding to the survey here: https://www.getinvolved.qld.gov.au/gi/consultation/2809/view.html

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On the 28th of January 2016, the Queensland Building and Construction Commission made changes to pool safety laws.  The regulations now state, that in some circumstances building work for a fence forming the whole or part of an existing pool barrier does not require a building development approval.

Points to note:

• If the only work being performed is self-assessable building work or work to comply with the pool safety standard, the fence work will not require a building approval if a pool safety inspector is engaged to inspect the pool.
• If the pool owner has been issued a non-conformity notice the work must be carried out within 3 months of receiving the non-conformity notice and the pool owner must arrange for a pool safety inspector to reinspect the pool.
• If the pool complies with regulations then the pool owner must arrange for a pool safety inspector to inspect the fence to make sure it complies with pool safety standards.  The fence must comply within 3 months of arranging the inspection.
• It is an offence for the pool owner to fail to have the pool inspected by a pool safety inspector as required.
• A complying pool is;

i) A pool which has been issued a pool safety certificate.

ii) Pools that have a valid building certificate

iii) Pools with no certificate but that already comply with the pool safety standards.

More information can be found here: http://www.hpw.qld.gov.au/construction/BuildingPlumbing/PoolSafety/Pages/default.aspx

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Brisbane City Council has recently released its flood mapping and associated ‘Flood Work’.  The Brisbane City Council has provided a free interactive mapping tool on their website to help people understand potential flood risks.

Click here to be directed to their website:  http://www.brisbane.qld.gov.au/community/community-safety/disasters-emergencies/types-disasters/flooding/understand-your-flood-risk

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