Bewley v The Owners Units Plan No. 596 (Unit Titles)

Bewley was involved in a legal dispute against The Owners Units Plan No. 596 (Unit Titles), with the matter being heard in the Australian Capital Territory Civil and Administrative Tribunal (ACAT). The central issue in the case was whether the lighting of the common property, particularly the driveway, complied with the Building Code of Australia. Bewley argued that the lighting did not meet the Code’s requirements, which are intended to achieve principles such as natural surveillance. Conversely, the respondent claimed that the lighting removal was lawful and that the Code does not apply retrospectively to previously approved developments.

The legal issues before the Tribunal centred on whether the Code should be applied to retrospectively affect the respondent's decision to remove the common property lighting. The Tribunal had to consider the legislative scheme governing the approval and maintenance of developments and whether the respondent acted lawfully in removing the lighting. The key consideration was whether the Code’s provisions applied retroactively or if they only applied prospectively to new developments.

The Tribunal concluded that once the development was approved 25 years ago, the construction could be maintained regardless of later requirements under the Territory Plan or the Code. The Tribunal also found that the Code does not apply with retrospective effect, meaning that the removal of the lighting by the respondent was lawful. The Tribunal emphasised the importance of adhering to community standards and values as encapsulated in legislation rather than allowing subjective views to guide the decision. The Tribunal’s responsibility to make the correct or preferable decision was balanced with the legislative scheme under which the resolution was made, leading to the conclusion that the application should be dismissed.

The Tribunal dismissed the application, upholding the respondent’s decision to remove the common property lighting. The Tribunal’s decision highlighted the importance of considering the legislative scheme and community standards in making decisions, rather than relying on subjective views or idiosyncratic ideas.