Bewley v The Owners Units Plan No. 596 (Unit Titles) - [2016] ACAT 142

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BEWLEY v THE OWNERS UNITS PLAN No. 596 (Unit Titles) [2016] ACAT 142

UT 34/2015
Catchwords: UNIT TITLES DISPUTE – amendment of owners corporation resolution – lighting in common property – merits review – regard for opinion of the unit holders

Legislation cited: Unit Titles (Management) Act 2011 s 129

Subordinate

Legislation cited: Crime Prevention Through Environmental Design General Code
Cases cited:Brudenall & Ors v Owners Corporation Unit Plan No 202 [2016] ACAT 101
Meaney v The Owners Corporation Units Plan 40[2013] ACAT 72
Parker v Owners Units Plan No 36 [2014] ACAT 37

Tribunal: President L Crebbin

Date of Orders: 12 December 2016
Date of Reasons for Decision: 12 December 2016

AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL UT 34/2015
BETWEEN:
TERESA BEWLEY AND PHILIP BEWLEY
Applicants

AND:
THE OWNERS UNITS PLAN No 596
Respondent

TRIBUNAL: President L Crebbin

DATE: 12 December 2016

ORDER

The Tribunal orders that the application is dismissed.

……………………………..
President L K Crebbin

REASONS FOR DECISION

Background

The applicants, Teresa and Philip Bewley, are unit holders in Units Plan 596, which is a small development of four townhouse units on a corner block in Barton. The applicants seek an order section 129(1)(f) of the Unit Titles (Management) Act 2011 (the UTMA) amending a resolution of the executive committee of the respondent regarding outdoor lighting on the common property driveway.
In particular, on 12 May 2015 the executive committee resolved:
two common property lights be decommissioned. The associated electricity meter … be surrendered to ACTewAGL.
The applicants seek an order that the resolution be amended to read as follows:
two common property lights be maintained in situ with power supplied by ACTEWAGL, and be fitted with light-sensitive switching to facilitate their continuous operation during all hours of darkness to meet the standards required in the ACT Government’s protocol “Crime Prevention Through Environmental Design General Code” during all hours of darkness as they apply to “Multi Unit Housing” with “private open space” (page 3) to the standard set out under “Item 3.3 Lighting, Criterion C10”.
The applicants seek the amendment to the resolution on the grounds that the two common property lights are necessary for the safety and security of owners, residents and visitors when walking on the common property driveway at night. In support of their claim regarding the required standard of lighting, the applicants rely upon the lighting requirements under Item 3.3 Lighting, criterion C10 within the Crime Prevention Through Environmental Design General Code (the Code), which is one of the design codes forming part of the ACT Territory Plan.
The applicants contended that the three solar garden lights that have been installed as alternative lighting along the boundary fence are ineffective. They contended that the solar lights do not “actually illuminate the ground and we see [that] as being quite unsafe.”[1] The applicants said that after a series of dark cloudy days, the lights are “typically weak”[2] They acknowledge that sensor lights have been attached at the entrance to the garage for unit 2,[3] and and on the eave of their own garage[4] but that for various reasons these are often defective or insufficient. In particular, the sensor lights on the garage for unit two and on their own garage, they said, do not pick up the movement of someone coming up the driveway until the person has already walked most of the length of the driveway.
[1] transcript, page 4, lines 24-25
[2] transcript, page 5, line 37
[3] transcript, page 9, line 22
[4] transcript, page 22, line 2
The applicants want the mains connected lights to be retained, on timers, so that they are always on during hours of darkness with those hours varying between winter and summer. This is necessary, they said, for the security of owners, residents and guests entering or leaving the property and to deter unwelcome persons who might use the darkness and the adjoining vegetation to avoid being noticed.
The applicants were also concerned that the respondent’s insurers might decline a claim for injury under the respondent’s public liability policy on the grounds that the respondent had removed the level of lighting that existed previously which increased the risk of injury to persons entering on the common property.
The common property lights were installed approximately 25 years ago as part of the overall construction of the four townhouses. They are supported by poles and connected to the electricity mains.
The lights were disconnected from the electricity mains in May 2015 after approximately 12 months of sometimes acrimonious email and oral negotiation between the four unit holders in the units plan. The disconnection was done primarily to avoid the annual ACTEWAGL connection fee of $360 for the meter box that served only the two common property lights.
The respondent resisted the proposed amendment to the resolution on several grounds.
First, the respondent contended that item 3.3, criterion 10, of the Code does not place any legal requirements regarding the standard of lighting in the common property. Also, the respondent said, the Code does not apply retrospectively to an approved development.
Second, the respondent said it is not required by law to operate continuous common property lighting throughout the hours of darkness.
Third, the respondent (on behalf of the other unit owners) maintained its position that the $360 per annum otherwise payable to ACTEWAGL for the independent connection can be better spent on solar lighting, and that individual unit owners could (and have) attached independent sensor lights connected to their separately metered electricity connections. These lighting systems together, the respondent said, provide sufficient lighting of the driveway without the need for the separately metered common property lights.
Mr Hancock, one of the unit owners, told the Tribunal that there is also a “brilliant streetlight” near the entrance to the common property driveway which, he said, “shines a third of the way up the driveway” and a solar activated light in the porch of unit 1 adjacent to the driveway which shines out onto the driveway.[5]
[5] transcript, page 49, lines 28 - 38
Fourth, regarding safety and security, the respondent disputed that the driveway was unsafe or insecure because of insufficient lighting, and noted that residents and visitors to any of the four townhouses, including the applicants’ townhouse, could access each townhouse directly from the street front without having to use the driveway.

Consideration

Section 129(1)(f) of the UTMA empowers the Tribunal to make:
An order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT.
In Parker v Owners Units Plan No 36[6] at paragraphs 40-45, the Tribunal commented on its function when conducting “a merits review”. The Tribunal said:
40.                  In other recent matters, the Tribunal has outlined what a merits review involves [referring to Meaney v The Owners Corporation Units Plan 40 [2013] ACAT 72]. The approach is often summarised as requiring the reviewing body to stand in the shoes of the decision maker and make the correct or preferable decision.
41.       There are some accepted features of merits review which warrant mention. First, the review is essentially de novo, that is, the Tribunal is able to consider issues of both fact and law anew. Secondly, the Tribunal is considering and determining these issues as at the date of the hearing before the Tribunal, not as at the time of that original decision, which means in this case the Tribunal is able to consider evidence not available before the executive committee in reaching its decision. Thirdly, and this is particularly relevant for section 129(1)(f), there is no threshold question of reasonableness or unreasonableness of the original decision to be determined before the Tribunal may proceed to make an order.
42.       In that respect, section 129(1)(f) is different to section 129(1)(g) , which also requires the Tribunal to undertake a merits review but limits action taken by the Tribunal after conducting the merits review to only allow orders to be made where the opposition to the motion was unreasonable.
43.       In looking at the decision of the executive committee in May 2013 to authorise removal of the tree, the Tribunal is entitled to consider all of the facts and the evidence as at the time of the Tribunal’s decision. In some senses, this can feel a little unfair to the executive committee because the Tribunal has before it a report of Mr Mann that the executive committee did not have in May 2013, and they may well have made a different decision if they had had that report.
44.       There is nothing in section 129(1)(f) that requires the Tribunal to find that the original decision was unreasonable on what the executive committee had before it, or reasonable on what it had before it. The Tribunal is simply conducting a merits review of the decision but as at the current date and with reference to the evidence that is currently available.
45.       Another interesting feature of merits review is that the tribunal is not obliged to choose either the orders proposed by Ms Parker or approve the original decision of the Owners Corporation. Rather, the Tribunal is to make the correct or preferable decision on the merits of the case.
[6] [2014] ACAT 37
The Tribunal’s responsibility to make what it considers to be the correct or preferable decision nevertheless requires consideration of the legislative scheme within which the resolution was made. In Brudenall & Ors v Owners Corporation Unit Plan No 202[7] at paragraphs 44 – 47 the Tribunal said:
44.       ... However, finding the ‘preferable’ decision is not as straightforward as simply substituting the individual view of the Tribunal member for that of the owners corporation.
45.       In Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690, the following statements were made about how a Tribunal makes ‘the preferable decision’.
[62] ... The test, however, cannot be subjective. It cannot admit of idiosyncratic ideas. Evaluation in accordance with the decision-maker’s own personal standards or philosophy must not guide the determination.
[64] It must be the case that the proper basis of evaluation, of reaching the preferable decision, in these cases, is reference to community standards or community values. It is not the decision-maker’s idiosyncratic view of what will adequately protect the public which is relevant, but what the decision- maker determines will achieve that result in accordance with community standards or values.
46.       The reference to ‘community standards’ in the preceding excerpt is not a reference to the views expressed by the parties in a particular matter, it is a reference to ‘more permanent values’[referring to In Re Visa at paragraph 79] such as those encapsulated in legislation.
47.       In this regard, the Tribunal notes the corporation’s legislated right to be self-determining, provided decisions and actions are lawful and there is no oppression of a minority.
[7] [2016] ACAT 101
The question therefore is whether the Tribunal should amend the resolution in the way proposed by the applicants or in some other way, based on a merits review, having regard to the competing viewpoints of the parties and the legislative scheme under which the resolution was made.
I refer first to the applicants’ claim that the lighting of the common property, and in particular the driveway, does not comply with the Code. I accept the applicants’ submission that the Code applies to multi-unit housing, as this is, per Table 1 to the Code. I accept too that the intent of the Code is to achieve key principles of natural surveillance, among other things, “through the establishment of clearly delineated and hierarchy of public open space, community open space (meaning shared areas) and private open space”. The Tribunal regards the common property of Units Plan 596 as community open space, being a shared area.
It does not follow, however, that the respondent acted unlawfully by removing the common property lighting. The Territory Plan, and the Code forming part of the Territory Plan, establishes a legislative scheme for determining whether an application for a proposed development should be approved or not. Once a development is approved, as occurred in this case 25 years ago, construction pursuant to the approved development can be maintained regardless of later requirements under the Territory Plan or the Code. The Tribunal accepts the respondent’s submission that the Code does not apply with retrospective effect.
The Tribunal is also not persuaded that item 3.3 of the Code would require mains connected lighting in the common property driveway even if the development were a proposed development. Criterion 10 upon which the applicants rely concern lighting in public spaces and the control of intrusive effects of outdoor lighting. The Tribunal is not persuaded that the common property of Units Plan 596 is a public space: it is a private space owned in common by the unit holders.
Although the applicants did not rely upon it, I also considered criterion 11 of the Code which requires that legitimate users and activities at night are encouraged by lighting entries/exits and paths, and to reduce the casting of shadows that could hide intruders. Again, criterion 11 cannot be applied retrospectively as a legal requirement under the Territory Plan. Also, such lighting requirements are not mandatory: they are simply “encouraged”.
For these reasons, the Tribunal accepts the respondent’s submission that there is no legal requirement under the Code to provide lighting to a particular standard, or to the standards set out in criteria 10 and 11 of item 3.3 of the Code.
The question remains, however, whether – as a matter of merits review – the respondent should be required to maintain the mains connected common property lights and, if so, whether they should be fitted with timers to facilitate their continuous operation during all hours of darkness. The hours of darkness, of course, would vary according to the season. The Tribunal accepts that the applicant’s concerns are legitimate. The considerations in criterion 11 of the Code reflect the applicants’ concerns about safety and security.
The Tribunal has carefully weighed the competing viewpoints, and has concluded that the respondent’s decision to disconnect the mains connected common property lights was reasonable, having regard to the different alternative lighting systems in place and that the decision was supported by three of the four unit holders.
Disconnection of the common property lights has not caused the common property to be in darkness at night. There is a street light at the entrance to the driveway which, the Tribunal was told, shines a third of the way up the driveway. There is another at the driveway outside the house next to the applicants’ townhouse.[8] There are three solar lights along the driveway. Whilst there might be debate about their efficiency, they could be upgraded as technology improves. Also, there is a two way sensor floodlight attached to the garage for unit 2 and another to the garage for unit 4. The Tribunal received evidence that these floodlights are sometimes broken or not in use, but that is a matter of maintenance and operation and not a reason to require the mains connected lights to be reinstated.
[8] transcript, page 64, line 14
The Tribunal was not persuaded that there are sufficient security or safety concerns to warrant continuous lighting at night, rather than only when activated by movement with sensor lights.
The Tribunal received evidence that Mrs Bewley tripped in the driveway on one or two occasions, but there was no clear evidence that this was caused by any hazards on the driveway surface.
The applicants expressed concern for persons visiting townhouses at night, and referred to their granddaughter who once lived with them for several years who said on several occasions that it was dark and that she could not see as she walked up the driveway.[9] Again, if that situation occurred, it was more because of a lack of maintenance of the lighting that had been installed rather than there being no lighting at all. Also, if on occasion the lighting was not working, visitors or persons staying in any of the townhouses were able to access the townhouses directly from the street through the front door without using the driveway.
[9] transcript, page 62, line 44
For these reasons, I was unable to be satisfied that disconnection of the common property lights connected to the mains electricity has created a material safety risk or materially lessened the security of the properties. A lighting system is still in place, but differently sourced.
I have sympathy for the applicants’ viewpoint and it is a matter of great regret that this issue has led to a relationship between close neighbours that appears to be unnecessarily bitter and acrimonious. Ultimately, I must have regard to the legislative scheme under the UTMA which gives an owners corporation legislative right to be self-determining. I refer to Tribunal’s comments in Brudenall quoted above.
I am not persuaded that the system preferred by the respondent is materially inferior to the system preferred by the applicants, and for that reason I have concluded that the Tribunal should respect the resolution of the respondent (reflecting the wishes of three of the four unit holders) to disconnect the common property lights connected to the mains electricity and use a different system.
I am therefore satisfied that the respondent’s resolution should not be amended and that the applicants’ application to the Tribunal should therefore be dismissed.
………………………………..

President L Crebbin

, HEARING DETAILS

FILE NUMBER:	UT 34/2015
PARTIES, APPLICANTS:	TERESA BEWLEY AND PHILIP BEWLEY
PARTIES, RESPONDENT:	THE OWNERS UNITS PLAN No 596
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBER:	President L K Crebbin
DATES OF HEARING:	30 October 2015