Bonansea v the Owners - Unit Plan No 421
[2019] ACAT 10
•23 January 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BONANSEA v THE OWNERS – UNITS PLAN NO 421 (Unit Titles) [2019] ACAT 10
UT 6/2018
Catchwords: UNIT TITLES – motion for approval of proposed construction works including extensions to dwelling and swimming pool –motion defeated at a general meeting of owners corporation – application to Tribunal for approval of the motion – two stage process under section 129 of the Unit Titles (Management) Act 2011: merits review of proposal and whether opposition to the motion was unreasonable – consideration of merits review –consideration of whether opposition to motion was unreasonable – consideration at the time the motion was opposed – consideration of the reasons for why the motion was opposed – application for approval of motion dismissed
Legislation cited: Body Corporate and Community Management Act 1997 (Qld) Schedule 5
Unit Titles (Management) Act 2011 ss 10, 107, 129, Schedule 4
Unit Titles Act 2011 s 8
Subordinate
Legislation cited: Territory Plan 2008 RZ1-RZ5
Cases cited:Ainsworth v Albrecht [2016] HCA 40
Clews v The Owners – Units Plan 3069 [2018] ACAT 82
Lanfranchi & Owners Unit Plan 806 [2011] ACAT 73
Nash v the Owners – Unit Plan 2413 & Ors [2018] ACAT 54
Rampala v The Owners – Units Plan 1330 [2018] ACAT 35
The Owners – Unit Plan No 396 v Uren & Blundell [2017] ACAT 100
Uren & Anor v The Owners – Units Plan No 396 [2017] ACAT 51
Texts/Papers cited: Dennis Pearce, Administrative Appeals Tribunal, (LexisNexis Butterworths, 4th ed, 2015)
Tribunal:Presidential Member G McCarthy
Date of Orders: 23 January 2019
Date of Reasons for Decision: 23 January 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 6/2018
BETWEEN:
ALFRED BONANSEA
Applicant
AND:
THE OWNERS – UNITS PLAN NO 421
Respondent
TRIBUNAL:Presidential Member G McCarthy
DATE:23 January 2019
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
1.The applicant is the owner of Unit 5[1] in Units Plan 421. Unit 5 is one of eight units in the form of separated townhouses built to a compatible design at the southern end of Mugga Way, on Block 11, Section 57, Red Hill. Units Plan 421 was registered on 28 October 1986. The townhouses were all built between 1986 and 1987.
[1] I have used the numbers for the different units as identified on the Units Plan and on the drawings for the proposed works, rather than the ‘street address’ numbering used for each townhouse.
2.The applicant purchased Unit 5 in or about May 2017.
3.At a general meeting of all members of the owners corporation on 25 July 2017, the applicant moved a motion for approval of proposed renovations and extensions of Unit 5. All members of the owners corporation (meaning the owners of the other units),[2] save for the applicant, voted against the motion.
[2] Unit Titles (Management) Act 2011 section 10
4.On 6 December 2017, the ACT Planning and Land Authority (the Authority) approved, subject to conditions, the applicant’s proposal for additions/alterations to Unit 5 including additional bedrooms, a front patio, a swimming pool, a covered patio and internal alterations and associated site works in accordance with plans, drawings and other documents that the applicant submitted with his application for approval.[3] The plans bear a stamp dated 24 January 2018 stating “approval granted subject to the conditions set out in the notice of decision[4].”
[3] Exhibit R1 (witness statement of Lawrence Lynch) page 41
[4] Exhibit R1 (witness statement of Lawrence Lynch) page 40
5.At a general meeting of all members of the owners corporation on 22 February 2018, the applicant moved a motion for approval of revised works in accordance with the plans that the Authority had approved, subject to conditions. The applicant had previously provided the plans to the owners corporation for the other unit owners to consider. Again, all members of the owners corporation, save for the applicant, voted against the motion.
6.On 6 September 2018,[5] the Authority approved amendments to the plans previously lodged, referring to plans dated 23 July 2018, in particular the relocation of a swimming pool from the north-western rear corner of Unit 5 to the front of Unit 5 forward of the existing living room.
[5] Exhibit A2 (witness statement of Ted Streatfeild) paragraph 11
7.On the same day, 6 September 2018, at a general meeting of all members of the owners corporation, the applicant moved a revised motion for approval of works in accordance with the revised plans (the proposed works).
8.The minutes of the general meeting record the motion put to the meeting on 6 September 2018 as follows:
Motion 1 (Special Resolution): The proprietor of Unit 5 seeks approval to make the following alterations to their unit: shift
1. Extend the rear and front walls out 3.87 metres
2. Construct a wall at the side of the unit 10.50 metres in length
3. Construct in the new area two bedrooms and a bathroom as per the plans circulated with the notice of meeting
4. Installation of a lift in the garage which exits to the living area outside of the master bedroom as per the plans circulated with the notice of meeting.
5. Enlargement of the existing kitchen as per the plan circulated with the notice of meeting.
6. Construction of a swimming pool (at front of property, amendment from previous plans) as per the plans circulated with the notice of meeting.
7. Construction of a covered patio around proposed swimming pool as per the plans circulated with the notice of meeting.[6]
[6] Exhibit R1 (witness statement of Lawrence Lynch) page 71
9.All members of the owners corporation, save for the applicant, voted against the motion.
10.By application dated 18 September 2018, the applicant applied to the Tribunal for an order under section 129(1)(g) of the Unit Titles (Management) Act 2011 (UTM Act) giving effect to the motion that the applicant moved on 6 September 2018.
11.In his reasons for his application, the applicant stated:
The extensions and alterations have a minimal impact and are Development Application (DA) approved. I believe that the works are not overly large and will have only normal minimal impacts similar to any other ordinary residential development. I believe that that it is unreasonable to refuse to support the proposal(sic).
12.In some ‘unit title’ cases seeking an order that the tribunal give effect to an unsuccessful motion, the tribunal hears oral evidence as to why the motion was opposed, but that was not necessary in this case because the owners corporation produced a document setting out the owners’ reasons for opposing the proposed works.[7] It was received into evidence without objection, and I proceeded by reference to it.
[7] Exhibit R1 (witness statement of Lawrence Lynch) pages 74-80
13.At the hearing, Mr Flint appeared for the applicant. Mr Walker SC appeared for the respondent.
14.Sections 129(1)(f) and (g) of the UTM Act state:
(1) The ACAT may make the following orders:
…
(f)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;
(g)an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after merits review of the motion that opposition to the motion was unreasonable;
15.In Uren & Anor v The Owners – Units Plan No 396 (Uren),[8] Senior Member Sutherland summarised the operation of section 129(1)(g), correctly in my view, as follows:
[8] Uren & Anor v The Owners – Units Plan No 396 [2017] ACAT 51
(a)The provision involves a two-step process, firstly to undertake a merits review to determine which is the correct and/or preferable decision, and then to determine whether opposition to the motion was ‘unreasonable’.
(b)The review is de novo and the Tribunal is able to consider issues of both fact and law.
(c)The ACAT considers and determines issues as at the date of the hearing and is able to consider evidence not available to, or not considered by, the owners corporation at the time of their decision.
(d)When conducting the merits review, there is no threshold question of reasonableness or unreasonableness of the original decision to be determined before the ACAT may proceed to make an order. However, before an order giving effect to an unsuccessful motion is made, the ACAT must be satisfied that opposition to the motion was unreasonable.
(e)The test to determine if the opposition to the motion was unreasonable is not a subjective test of the intentions of the unit owners who opposed the motion. Rather, it is an objective test taking into account all relevant circumstances.
(f)An opponent to the motion is not required to act with altruism or sympathy for the interests of the proponent, at the expense of the opponent’s reasonably held view of their own interests.
(g)Whether or not there is evidence of other pending applications, it may be reasonable to consider the cumulative effect of multiple identical improvements generating an adverse impact in deciding whether to oppose a motion.
18. To the matters above concerning unreasonableness, the Tribunal would add that opposition to a motion may be unreasonable where the opposition is based on discriminatory grounds that are unlawful in other contexts or where the grounds for opposition are essentially de minimis, that is they are so minimal as to be immaterial or subjective in their essential character.[9]
[9] Uren & Anor v The Owners – Units Plan No 396 [2017] ACAT 51 [17]-[18]
16.These observations were not disturbed on appeal in The Owners – Unit Plan No 396 v Uren & Blundell[10] and were cited with approval by the Tribunal in Nash v The Owners – Units Plan 2413 & Ors[11] and in Rampala v The Owners – Units Plan 1330.[12]
Correct and/or preferable decision
[10] The Owners – Unit Plan No 396 v Uren & Blundell [2017] ACAT 100
[11] Nash v The Owners – Units Plan 2413 & Ors [2018] ACAT 54 [footnote 32]
[12] Rampala v The Owners – Units Plan 1330 [2018] ACAT 35
17.Regarding the ‘first step’ in the process requiring a merits review, Pearce, in his oft-quoted work Administrative Appeals Tribunal[13] concerning the role and power of the Commonwealth Administrative Appeals Tribunal, commented on the phrase “correct or preferable decision” as follows:
The basic obligation of the Tribunal is to reach the decision that is considered to be the correct and preferable decision. Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 said: ‘The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made’. This duty may be described as being ‘to make the correct and preferable decision’.
It is usually said that the duty of the Tribunal is to make the correct or preferable decision. However, that there is a distinction between the two formulae is brought out well in Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) (2004) 82 ALD 163 at 194 where the Tribunal said:
The Tribunal may conclude that there is only one decision that is correct on the facts it has found on the evidence and according to the law that it must apply. It then makes its decision accordingly. In other circumstances, it may conclude that more than one decision may correctly be made. If that is so, the role of the Tribunal is to determine which decision is the preferable decision and so the correct and preferable decision.[14]
[13] Dennis Pearce, Administrative Appeals Tribunal, (LexisNexis Butterworths, 4th ed, 2015)
[14] Dennis Pearce, Administrative Appeals Tribunal, (LexisNexis Butterworths, 4th ed, 2015) paragraph 16.4
18.In my view, those observations apply equally when conducting a merits review under section 129(1)(g) for the purpose of determining what is the “correct or preferable decision”, but with an important qualification.
19.The Tribunal’s power to make an order giving effect to an unsuccessful motion arises “after a merits review”, but depends upon its satisfaction that opposition to the motion “was unreasonable”.
20.The Tribunal’s power under section 129(1)(g) contrasts with its power to make an order under section 129(1)(f) of the UTM Act, quoted above, which is “based on a merits review”. In other words, under section 129(1)(f) the Tribunal proceeds according to well-settled principles of administrative review where the Tribunal makes what it considers to be the correct and/or preferable decision based on the evidence and submissions it receives. The hearing of the matter ‘afresh’ permits the Tribunal to receive and consider submissions and evidence that were not before the original decision maker.
21.That is not permissible under section 129(1)(g), which requires the Tribunal to assess whether opposition to the motion was unreasonable. In my view, the grammatical structure of the section requires the assessment to be done at the time the motion was defeated and by reference to why it was opposed. For this reason, the Tribunal may not consider evidence that was not available at the general meeting when the motion was unsuccessfully put, or new reasons for why the motion could (or should) have been opposed. For the Tribunal to do so would also contradict an owners corporation’s prerogative to control its own process, subject to whether opposition to a motion was unreasonable.
22.If new evidence or new submissions are not relevant to the question whether opposition to the motion as put “was unreasonable”, it follows that new evidence and/or submissions are equally irrelevant to the merits review that must first be conducted, especially where the merits review is not determinative of anything. In its statutory context, the precondition of a merits review should be seen as an obligation on the Tribunal to gather and consider the facts known, the evidence available and the law existing at the time the motion was put for the purpose of determining whether opposition to it was unreasonable.
23.As this case involves a motion for approval of the proposed works, the relevant law was the Planning and Development Act 2007 (P & D Act), the Territory Plan made under the P & D Act, the UTM Act and the Rules of the owners corporation made under Part 6 of the UTM Act (the Rules).
24.There was no dispute that the proposed works would comply with the P & D Act and the Territory Plan to the extent that they govern the proposed works. However there was equally no dispute that the proposed works do not comply with Rule 4, described as Article 4, of the owners corporation’s Rules, which provides:
Article 4 Alterations & Erections
(1) A unit owner may erect or alter any structure on the unit or the common property only -
(a)in accordance with the express permission of the owners corporation by resolution not opposed by 2 or more members[15]
[15] Rule (or Article 4) arose from a variation to Rule 4 of the Default Rules in Schedule 4 to the UTM Act, which required express permission of the owners corporation by unopposed resolution. The variation was passed by the owners corporation in 2006
25.Article 4 is a mandatory rule. The applicant cannot lawfully erect or alter any structure in or on Unit 5 unless, in response to an application, the Tribunal concludes by reference to the ‘second step’ in the process that opposition to his motion seeking approval of the proposed works was unreasonable.
26.It follows, referring to the ‘first step’ in the process under section 129(1)(g), that the question of a ‘preferable’ decision does not arise. The only and the ‘correct’ decision must be that the applicant cannot carry out the proposed works unless, by reference to the second step, the Tribunal concludes that opposition to the motion was unreasonable.
27.Arising from Article 4, I also note that the applicant’s claim that he has obtained development approval under the P & D Act for the proposed works is not correct. The Authority approved the application for development approval “subject to the following conditions being satisfied”. Among those conditions is condition A2, which states:
As this development is within a Units Plan, the owner of unit 5 is required to seek approval of the owners corporation prior to the commencement of any building work.[16]
Unreasonable
[16] Exhibit R1 (witness statement of Lawrence Lynch) page 42
28.The legal starting point, when determining whether opposition to the applicant’s motion was unreasonable, is the High Court’s decision in Ainsworth v Albrecht (Ainsworth).[17] In that case, the High Court reviewed the power of an adjudicator under Item 10 of Schedule 5 to the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) to make an order giving effect to an unsuccessful motion considered at a general meeting of a body corporate. Item 10 stated the order that the adjudicator could make, and the basis on which they could make it, as follows:
If satisfied a motion … considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable – an order giving effect to the motion as proposed, or a variation of the motion as proposed.
[17] Ainsworth v Albrecht [2016] HCA 40
29.Section 129(1)(g) of the UTM Act is materially the same as Item 10 of Schedule 5 to the BCCM Act, save that Item 10 directs consideration to whether opposition “is” (not “was”) unreasonable. However it can be seen from the Court’s judgment quoted below that the Court treated the operative question to be whether opposition to the motion was unreasonable. The Court highlighted that that was the only issue for the adjudicator to determine. Its function was not to determine whether the body corporate “acted reasonably” in deciding not to pass the motion, or to reach its own conclusion regarding a reasonable outcome of the motion. The Court said:
The adjudicator described the issue which she was required to address as being “whether the opposition to [the] motion was unreasonable in the circumstances and whether the Body Corporate acted reasonably in refusing to give approval. As indicated above, to state the issue in this way was to fail to appreciate that s94(2) of the BCCM Act did not govern the resolution of the matter. (footnotes omitted)
…
It was no part of the function of the adjudicator under Item 10 of Sched 5 to seek to strike a reasonable balance between competing positions. The adjudicator's attention should have been focused squarely upon whether the opposition by a lot owner or owners to the passing of the resolution was unreasonable. (emphasis added)
…
The adjudicator's task under Item 10 of Sched 5 is not to determine whether the outcome of the vote of the general meeting of the Body Corporate was a reasonable balancing of competing considerations, but whether the opposition of lot owners to the proposal was unreasonable. (emphasis added).
…
Once the Court of Appeal accepted, as it did, that the grounds of opposition to the proposal considered by the adjudicator raised questions in respect of which reasonable minds may differ as to the answer, it is impossible to see how opposition to the first respondent's proposal based on those grounds could be found to be unreasonable.[18]
[18] Ainsworth v Albrecht [2016] HCA 40 [47]-[53]
30.The same approach must be applied under section 129(1)(g) of the UTM Act. The Tribunal must focus upon whether the opposition of the other unit owners to the motion was unreasonable, not upon whether the owners corporation acted reasonably in refusing to give approval or the reasonableness of the motion. Nor is it for the Tribunal to achieve what it thinks is a reasonable balance between competing viewpoints. Referring to Ainsworth, Mr Flint submitted (and I agree) that the Tribunal’s task is first to identify the ground or grounds of opposition to the motion and then to consider whether that ground or those grounds was “a rational basis for opposition.”[19]
[19] Ainsworth v Albrecht [2016] HCA 40 [56]-[57]
31.In Lanfranchi & Owners Unit Plan 806,[20] the tribunal opined that ‘unreasonably’ is to be given its ordinary meaning. The tribunal referred to the Macquarie Dictionary definition of ‘unreasonable’, being: “not reasonable, not endowed with reason, not guided by reason or good sense, not based on or in accordance with reason or sound judgement.”[21] A similar definition from The Shorter Oxford English Dictionary was cited with approval by the Tribunal in Uren.[22]
[20] Lanfranchi & Owners Unit Plan 806 [2011] ACAT 73
[21] Lanfranchi & Owners Unit Plan 806 [2011] ACAT 73 [21]
[22] The Owners – Unit Plan No 396 v Uren & Blundell [2017] ACAT 100 [66]
32.As noted in Uren, the assessment of ‘reasonableness’ is an objective one.[23] The Tribunal must consider the opposition to the motion objectively, rather than by reference to the subjective mindset of the individuals. However, as noted in Clews v The Owners, Units Plan 3069,[24] and I agree, the objective circumstances include the nature and purpose of the units. For example, relevant to this case, loss of amenity may be more significant in relation to residential units than commercial units.
[23] The Owners – Unit Plan No 396 v Uren & Blundell [2017] ACAT 100 [57]
[24] Clews v The Owners – Units Plan 3069 [2018] ACAT 82 [67] – this decision is under appeal
33.Also, applying the High Court’s reasoning in Ainsworth, the “unreasonableness” with which section 129(1)(g) is concerned is unreasonableness on the part of the opposing unit owners having regard to their interests under the Units Plan.[25] It follows, in my view, that opposition[26] must be based on a factor or factors that adversely affect the interests of other unit owners in their use and enjoyment of their units, or in the common property as occurred in Ainsworth.
[25] Ainsworth v Albrecht [2016] HCA 40 [58]
[26] Here, I am referring to opposition to a motion for a unit owner to erect or alter a structure in or on their unit or on the common property
34.As discussed above, the language of section 129(1)(g) requires the Tribunal to focus upon the motion that was put and whether opposition to it “was unreasonable”. Implicitly, this requires the Tribunal to consider why the motion “was” opposed and whether opposition for those reasons “was unreasonable”, not other reasons that might become apparent or new evidence produced after the event. Facts or circumstances that become known after the event may cause a unit owner to bring a further motion, but are not a basis upon which the Tribunal can find that opposition to a motion “was unreasonable” at the time it was considered.
35.Before turning to the facts, I deal with some general propositions stated by Mr Streatfeild although not pressed by Mr Flint.
36.Mr Streatfeild said that if the proposed works comply with the Territory Plan, it is unreasonable for other unit owners to oppose them. The transcript of Mr Streatfeild’s oral evidence states:
Your opinion as to reasonableness and unreasonableness has been judged by reference to whether the development complies with the provisions of the Territory Plan, has it not?---Yes.[27]
[27] Transcript of proceedings 15 November 2018 page 30, lines 45-47
37.With respect, I disagree. That approach would render Rule 4 purposeless and contradict the underlying structure of a units plan as a “compact”[28] between the owners of units in the plan.
[28] Mr Flint described a units plan using this term, appropriately in my view, and I adopt it: Transcript of proceedings 15 November 2018 page 95, lines 6-7
38.Such an approach would also be inconsistent with an important principle that underpins the Territory Plan. Through its many codes, the Territory Plan limits development in many ways (for example, minimum heights and setbacks) to protect the interests of other Crown lessees on other blocks. However within a block, to a high degree the Territory Plan respects the freedom of a Crown lessee to develop (or not) as they wish. Where the Crown lessee is more than one person, it is for them to make development decisions collectively.
39.A Units Plan operates on a similar basis. Under the default rules in Schedule 4 to the UTM Act, Rule 4 provides that a unit owner must have the express permission of the owners corporation by unopposed resolution in order to erect or alter any structure in or on their unit or the common property.
40.In this case, the owners corporation has relaxed Rule 4 so that a unit owner may erect or alter any structure on their unit or on the common property provided it is in accordance with the express permission of the owners corporation by resolution not opposed by two or more members. However the principle remains good.
41.Mr Streatfeild also contended that it is unreasonable of the owners corporation to oppose the applicant’s proposed works where “[t]here is no mention of … more onerous requirements than those requirements set out in the Territory Plan in the Owners Corporation Rules or Units sale documentation.”[29]
[29] Exhibit A2 (witness statement of Ted Streatfeild) paragraphs [29]-[30]
42.Mr Streatfeild accepted that an owners corporation could impose its own planning rules for developments within the units plan, in addition to applicable rules under the Territory Plan,[30] but contended that where the owners corporation for Units Plan 421 has not done so (he said) it is unreasonable for it (or its members) to deny the applicant his wish to proceed with the approved works where they comply with the Territory Plan.[31]
[30] Transcript of proceedings 15 November 2018 page 32, lines 13-45
[31] Transcript of proceedings 15 November 2018 page 33, lines 7-25
43.Mr Streatfeild’s reasoning was elusive. The “Owners Corporation Rules” do contain a ‘planning rule’: Article 4. It is written in clear, absolute terms and it is binding on the applicant. Section 107(1) of the UTM Act provides that there are taken to be agreements under seal between the owners corporation and each of its members, and between each member and each other member, under which the owners corporation and the members — including the applicant — “agreed to be bound by the rules of the corporation”.
44.How to apply Mr Streatfeild’s evidence was also elusive. The central question was whether opposition to the motion seeking approval of the proposed works was unreasonable, yet Mr Streatfeild disavowed any basis for him to comment. In his oral evidence, he said:
who am I to comment on what other people think is reasonable? I’m - I’m a town planner. I look at reasonableness in relation to the territory plan.[32]
The proposed renovations and extensions
[32] Transcript of proceedings 15 November 2018 page 44, lines 18-20
45.I turn to the proposed works, and the grounds upon which all the other unit owners objected to them. The objections, in summary, were as follows:
(a)the scale of the proposal is out of character and context;
(b)negative impacts on amenity;
(c)overlooking and cause loss of privacy to Unit 4;
(d)the proposed swimming pool would create potential for noise and disturbance, as well as water costs which would be shared by other unit owners;
(e)management of stormwater run-off from Unit 5;
(f)approval would create a precedent for similar changes;
(g)absence of consultation and change to unit entitlement; and
(h)unapproved building works.
Scale of the proposal is out of character and context
46.The other unit owners opposed the motion on the basis that the scale of the proposed works would be very large within the context of the existing complex.
47.They said that the proposed works would see Unit 5 increase substantially in size, particularly if the covered patio to the rear of the existing townhouse is included. They said that with the proposed works, Unit 5 would become 50% larger than the average size of the other units, or 58% if the covered patio is included. They said that the proposed works would cause an expansion of the unit “right across the block from boundary to boundary.”[33]
[33] Exhibit R1 (witness statement of Lawrence Lynch) page 75
48.They relied upon the site history for why this would not be appropriate. The history states:
the integrated townhouse group sits within a landscaped setting that integrates the development within its bush context on the edge of the Red Hill Nature Reserve. The form and materiality of the attached dwellings respond to the site’s landscape context, and the residences have been carefully orientated and sited to respond to the site conditions and create a cohesive design and character throughout the development.[34]
[34] Exhibit R1 (witness statement of Lawrence Lynch) page 75
49.They contended that the proposed works would effectively block other unit owners’ current views to Red Hill Reserve.
50.They contended that the benefits of living in this lower density development, compared to high-density developments such as can be found in Braddon or Kingston, “is the very reason why many of the owners chose to purchase a unit in this group.”[35]
[35] Exhibit R1 (witness statement of Lawrence Lynch) page 75
51.Ms McCabe, who owns Unit 4 with her husband, gave the following evidence in the form of witness statement regarding design and siting:
A company called Edil Constructions built the complex and several of the people involved in the design and construction lived there. An Italian, Pier Carlo Tonelli (the engineer) lived behind our house in Unit 5 (now held by Mr Bonansea). His brother Alberto Tonelli (the architect) lived diagonally opposite us in Unit 6 (now held by Mr and Mrs Rolfe). The Project Manager lived in Mrs Rudge’s home at Unit 3.
…
The Tonelli’s were very stylish builders who believed in good design and tried to produce a uniquely liveable development. I remember my father remarking frequently how peaceful life was up on the hill and how clever the design of the units was as we are blissfully unaware of our neighbours.
The Tonelli’s opted to build a low-density development where liveability and amenity were the key. Each unit has large windows and excellent natural light, yet no unit in the original plan overlooked any other unit. Nearly every unit had an unimpeded vista up the hill to the Red Hill Reserve and every unit had long views towards the City.[36]
[36] Exhibit R11 (witness statement of Caroline McCabe) paragraphs 4-7
52.Ms McCabe’s evidence was accepted without objection, and she was not questioned about it. It was rational and reasonable. I accept her evidence.
53.Mr Martin, an architect, gave evidence that in his opinion the proposed development “is totally consistent and compatible with the original design”,[37] despite the increase in size, except for the proposed overhanging eaves which should be removed to maintain consistency of design with other units throughout the complex.
[37] Exhibit A1 (witness statement of Eric Martin, AM) paragraph 6
54.He agreed that consistency of architectural style or design is a matter worthy of consideration.[38] He acknowledged that the additional bedrooms and bathroom would reduce the distance between the built form of Units 2 and Unit 5, but noted that the separation would be similar to the existing separation between Units 6 and 7 and between Units 2 and 3. He did not dispute that with the proposed works, the width (or length) of Unit 5 would increase from about 15m to approximately 23.5m (an increase of approximately 44%), but noted that Unit 5, with the proposed works, would be “not much longer” than Units 2,[39] 4 and 8. He agreed that the proposed works would cause the floor area for Unit 5 to be more than the other units.
[38] Exhibit A2 (witness statement of Ted Streatfeild) paragraph 28; Transcript of proceedings 15 November 2018 page 14, lines 4-6
[39] Transcript of proceedings 15 November 2018 page 16, lines 8-11. Mr Martin might here have intended to refer to Unit 3
55.Mr Martin said he would be surprised if others took a divergent view, or could take a different view in the context of measurements, but on the question whether the proposed works would make Unit 5 “out of character with other units”, Mr Martin responded:
I’d be surprised, but people are entitled to their own opinion.[40]
[40] Transcript of proceedings 15 November 2018 page 17, line 20
56.When pressed upon whether an opinion that the proposed works would cause Unit 5 to be “out of character” with the development was unreasonable, he replied:
I would be tempted to suggest it might - would be.[41]
[41] Transcript of proceedings 15 November 2018 page 18, lines 20-22
57.Mr Martin made clear that he had been asked to comment on “development and design unity” only, and that was all he had commented on.[42] I understood his evidence about whether Unit 5 would be “out of character” to be a comment only on the size, proportion and design of Unit 5 relative to other units, and not on any adverse effect that the proposed works may have by reference to other considerations, for example the amenity of other unit owners.
[42] Exhibit A2 (witness statement of Ted Streatfeild) paragraph 5; Transcript of proceedings 15 November 2018 page 13, line 34
58.Mr Streatfeild said that with the proposed works Unit 5:
will not look substantially different from the other units. The additions are not large on a comparative scale with other Red Hill developments. Architectural style and form, while not exactly the same, will be very similar to existing. For these reasons it is my opinion that the character will also be very similar…[43]
[43] Exhibit A2 (witness statement of Ted Streatfeild) paragraph 28
59.In his oral evidence, Mr Streatfeild agreed that whilst that was his opinion “other people might hold a different opinion.”[44]
[44] Transcript of proceedings 15 November 2018 page 42, lines 1-3
60.Mr Streatfeild confirmed in his oral evidence that when stating that the additions are not large, he was using houses in Red Hill as a comparator. He said:
Well, I think it’s quite reasonable to build a - a large house in Red Hill. That’s -that’s a big point I was making with that statement. And, there are other large houses in Red Hill. That’s basically all I was saying.[45]
[45] Transcript of proceedings 15 November 2018 page 42, lines 28-31
61.The transcript also records:
Do you accept that an owners corporation could take the view that while it might be perfectly acceptable to build a large house in Red Hill, within our particular units plan, we don’t think we should judge things by reference to other large houses along Mugga Way or other parts of Red Hill, we’ll judge it on our units plan only?--- I think that’s an unreasonable thing to do, because if you say that, if you’re going to say - it depends on what your context is. If you’re going to say you can’t have a unit that’s any bigger than the ones that are there, I think that’s unreasonable.[46]
[46] Transcript of proceedings 15 November 2018 page 42, lines 32-40
62.In my view, Mr Streatfeild’s approach should not be adopted to the extent that he regarded houses outside the Units Plan as appropriate comparators. To approach the central question in that way would defeat the purpose of a units plan, and treats each unit holder as if they were separate Crown lessees. In my view, it is not unreasonable for unit owners within a units plan to consider proposed alterations to a unit by reference to the existing style, character and size of other units within the development regardless of what might be built outside the development in other parts of the applicable suburb.
63.Mr Cohen, an urban and regional planner, gave evidence regarding design unity that differed from that of Mr Martin and Mr Streatfeild. In his witness statement, Mr Cohen said:
The designer established a strong uniformity in style, massing, roof form and cladding, fenestration, material and colour pallete(sic) for the buildings within the estate. The result of this design composition: siting, spacing, interface, and building design has been a finely balanced estate with the various elements in concert with each other. This is both a strength and a weakness, because the existing harmony relies on avoiding any disturbance of elements that form the composition.[47]
[47] Exhibit R7 (witness statement of Paul Cohen) paragraph 22
64.Mr Cohen expressed his opinion that the proposed ensuite and covered patio extending to the northern property boundary would, from the road:
give the appearance of an oversize building, out of scale with its neighbours, along the upper level of the Estate.[48]
[48] Exhibit R7 (witness statement of Paul Cohen) paragraph 25
65.Mr Cohen noted that the floor area of the existing residence is 175.95m², and that with the additional two bedrooms and ensuite the floor area would increase to 229.40m², being a 33% increase. If the two proposed patios were added, the floor area would increase to 312.86m², excluding the garage. Mr Cohen noted that the floor area of the other units ranged between 200m² and 230m², giving an average area of 211.88m². He noted that the proposed development would cause Unit 5 to be 47% larger than the average unit size of the development, and 36% larger than Unit 6 which is presently the largest unit in the development.[49]
[49] Exhibit R7 (witness statement of Paul Cohen) paragraphs 13e, 14 and 15
66.Regarding the proposal for larger and different windows and doors, Mr Cohen noted that this would “differentiate [the unit] from its neighbours and break down the design unity that presently distinguishes”[50] the built form of Units 4, 5, 6, 7 and 8. He also observed that the proposed metal roof over the front entrance, whilst a small element in the overall scheme, would further diminish the contribution of Unit 5 to the existing harmony of the complex.[51]
[50] Exhibit R7 (witness statement of Paul Cohen) paragraph 26
[51] Exhibit R7 (witness statement of Paul Cohen) paragraphs 22-26
67.In cross examination, Mr Cohen acknowledged that with the proposed works, Unit 5 would be of similar width to Units 2 and 4, but did not accept that the increased size was therefore acceptable, observing that the increased width would upset the spacing that the original architect put into his design. He said that to have spacing that was similar to the spacing between some of the other units was not to the point because, in his view, the buildings had been carefully spaced not to achieve a uniformity of spacing between the townhouses but to achieve an architectural concept. It was important, he said, to maintain that concept.[52]
[52] Transcript of proceedings 15 November 2018 page 62, lines 27-35; page 63, lines 1-9; page 69, lines 20-24
68.It is not necessary or appropriate for the Tribunal to enter the debate about whether the proposed works would cause Unit 5 to be out of character with the rest of the development. It is enough that the debate exists with reference to different opinions reasonably held. As was apparent from the view conducted prior to the hearing, the townhouses have been built, sited and spaced according to an overall architectural concept. The other unit owners value the original design of the development as a whole, which has been maintained. They have a rational and reasonable basis for wanting to maintain that architectural integrity. I was not persuaded that it was unreasonable for them to want to maintain that integrity.
69.The comments of Nettle J in Ainsworth regarding architectural merit are apposite:
It was not for the adjudicator to reject one set of architectural opinions because she perceived them "to be importing a subjective view of the impact of the alteration" - . Axiomatically, both sets of opinions imported "a subjective view of the impact". Consequently, it was not open to the adjudicator to reject one of them on that basis while, in effect, preferring the other as if it did not. The inconsistency, and hence the error, in that reasoning is manifest. Moreover, as the Tribunal in effect observed, in view of the standing of the architects concerned, it could hardly be said that it was unreasonable to prefer one set of opinions over the other; and there is certainly nothing else in the legislation which purports to subjugate matters of reasonably defensible personal taste and preference to the demands of laissez-aller alteration. Consequently, even if the adjudicator's preferred architectural philosophy was the latter, it was not within the statutory task with which she was entrusted to impose it on those opposing Albrecht's motion.[53] (footnotes omitted)
Negative impacts to amenity
[53] Ainsworth v Albrecht [2016] HCA 40 [103]
70.The other unit owners opposed the motion on the basis that the proposed works would reduce the high level of amenity that is presently provided by the existing design and siting of the townhouses as a whole. They contended that the amenity is created by the significant space between the units, the well landscaped grounds, the views to the adjoining Reserve and the smaller size of each dwelling which contributes to relative peace and quiet.
71.They opposed the motion on the basis that to increase Unit 5 from 3 bedrooms to 5 bedrooms[54] and to install a swimming pool and a deck to the front of the unit facing Unit 4 would increase the potential for increased occupancy and disturbance from Unit 5.
[54] The upper floor plans show 4 bedrooms and a study, rather than 5 bedrooms, but the study to be of a similar size to bedroom 4
72.They opposed the motion on the basis that there is limited visitor parking available on-site, and that this would be further impacted by the increase in occupancy and visitation of Unit 5.
73.They opposed the swimming pool on the basis that it would potentially increase noise, day and night.
74.They opposed enlargement of the front patio and the pool on the basis that it would require a large, high supporting wall facing the other units due to the steep slope which would be out of character with the existing design of Unit 5, and perhaps other units. They said it would also be unsightly and create overlooking issues. Mr Cohen noted from the site plan, and Mr Tilse (an architect) agreed, that because of the slope of the land, the wall to support the pool would be approximately 1.51m above natural ground level at the south-eastern corner and 2.1m above natural ground level at the north-eastern corner.[55]
[55] Transcript of proceedings 15 November 2018 page 74, lines 30-35
75.Mr Neil McCabe gave evidence that all other units have 3 bedrooms, and that the proposed extensions left and right of the existing townhouse would “block our current views available to Red Hill Reserve”.[56] His evidence was not challenged, and I accept it.
[56] Exhibit R2 (witness statement of Neil McCabe) paragraph 11
76.Mr Streatfeild said that “[t]he changes to Mr Bonansea’s home will increase his amenity enormously and are in accordance with the general expectations of modern living to have additional rooms, patio, pool and double-glazed windows.”[57]
[57] Exhibit A2 (witness statement of Ted Streatfeild) paragraph 37
77.Regarding amenity for others, Mr Streatfeild relied upon the zone objectives for the RZ1 Suburban zone in the Territory Plan, particularly objective d) which states:
Ensure development respects valued features of the neighbourhood and landscape character of the area and does not have unreasonable negative impacts on neighbouring properties.
78.Mr Streatfeild said:
In planning terms, the residential codes produced have been designed so that development that is considered compliant will satisfy the objectives of the Territory Plan and, in doing so maintain and deliver an acceptable standard of residential amenity.[58]
[58] Exhibit A2 (witness statement of Ted Streatfeild) paragraphs 39
79.Again, with respect, I do not agree with Mr Streatfeild’s reasoning. It focuses on planning considerations between separate Crown lessees and gives no regard for Article 4 or the legal protections and structure that exist under a units plan. For example, many a person has objected unsuccessfully to the loss of their view consequent upon a development on another Crown lease, but that does not mean that their objection was unreasonable. Mr Streatfeild’s reliance on objective d) for development in the RZ1 Zone is also misplaced: the test is not whether a development has an “unreasonable negative impact”, but whether an objection to it was unreasonable.
80.The main issues concerning loss of amenity were overlooking and the swimming pool, which were put forward a separate reasons for opposing the motion. I have therefore dealt with them in that context. However, with reference to the remaining reasons, I was not persuaded that it was unreasonable for the other unit owners to oppose the proposed works on the basis that it would cause them to lose their view of the Red Hill Reserve which they value or, separately, on the basis that they would be obliged to look at a 2.1m high wall supporting a swimming pool.
Overlooking and privacy
81.The other unit owners opposed the proposed works on the basis that it would “significantly reduce the current interface which exists between Unit 5 and Units 2, 4 and 6.”[59] There was particular concern that the front patio and swimming pool would permit severe overlooking into the habitable rooms of Unit 4.
[59] R1 (witness statement of Lawrence Lynch) page 76
82.Mr Cohen noted that the patio at the front of the building would be 14.07m long and 4.6 m wide. At its closest point the patio/pool would be 3.4m from the site boundary with Unit 4, and 7.4 m from the window of bedroom 3 on the west side of Unit 4.[60]
[60] Exhibit R7 (witness statement of Paul Cohen) paragraphs 13c and 13e
83.Mr Tilse gave evidence about the nature and extent of overlooking from the proposed patio and swimming pool into the windows of Unit 4. His drawing[61] depicted the view that a person presently has[62] and the view that a person would have if the proposed works were completed. Mr Tilse accepted that a person would already have an unobstructed view into a bedroom window of Unit 4, if the view was not obstructed by vegetation, but stated that with the proposed works the person would be able to come well forward and have a more acute view down onto and into Unit 4.[63] His drawing showed that a person would be able to come forward by approximately 4m from approximately 7.4m and look over the existing vegetation into the windows of Unit 4. The Authority required an opaque glass balustrade surrounding the pool as a condition of development approval, but this would not have been to a height that would prevent overlooking.[64]
[61] Exhibit R10
[62] The Tribunal conducted a view of Unit 5 and the other units in Units Plan 421. The Tribunal observed that the applicant has already conducted significant demolition and earthworks that, the Tribunal understands, were not approved
[63] Transcript of proceedings 15 November 2018 page 81, lines 1-26
[64] Exhibit R7 (witness statement Paul Cohen) paragraph 34
84.Mr McCabe, as a co-owner of Unit 4, stated that his daughter uses the bedroom in question. He stated that he raised this concern with the applicant, who responded that he would buy a blind for the bedroom which his daughter could keep shut. I accept that a blind could be used to achieve privacy, as occurs in some homes, but I am not persuaded that it was unreasonable of the owners of Unit 4 not to accept the offer. Mr McCabe’s daughter, or a subsequent occupier of the bedroom, presently enjoys an ability to have unimpeded light entering through the window by day, adding to the enjoyment of the bedroom, without risk of neighbours looking into the bedroom. I am not persuaded that it was unreasonable for the Owners of Unit 4 to want to maintain that amenity, rather than have a blind kept shut, in response to the applicant’s proposed works. As noted in Ainsworth, a person does not act unreasonably by not agreeing to have their rights or amenity overridden, having regard to some standard of sympathy or altruism towards another unit owner.
85.In Uren, the Tribunal reached a conclusion that objection on the grounds of overlooking and loss of privacy was unreasonable, but the facts in that case were very different. In that matter, objection on the grounds of overlooking arose in the context of a “modest window of appropriate design” to be installed in an existing bedroom wall. Also, the objection was in relation to loss of privacy of an external living area, not internal rooms. Also, there was “substantial vegetation in place” mostly within the site boundary of the objecting unit, meaning the unit owners were able to maintain and control that vegetation to maintain their privacy. It appears that there was also an appropriate distance between the window and the external living area that would not change. Last, provision for a modest window included a condition that the unit owner installing it provide a proposed design to the owners corporation and that a consultative process then occur regarding its size and design.
86.In this case, on the facts, I am not persuaded that the objection was unreasonable. The drawings demonstrate that the proposed patio will almost halve the existing setback from the site boundary, enabling a person standing on the eastern end of the courtyard to look into the window of Unit 4 where that is not presently possible.
87.The landscape plan provided with the application for development approval shows that the applicant must plant a hedge of Pittosporum (commonly known as ‘builder’s hedge’) on the site boundary which in time may grow to a sufficient height to obstruct or obscure views into the bedrooms of Unit 4, but I am not persuaded that that obligation answers the objection to the point that the objection was unreasonable. First, because of the slope of the land, there would be a significant lag (presumably some years) before the hedge would grow to a sufficient height to obscure the view from the patio down into the bedroom/s of Unit 4 below. Second, the owners or occupiers of Unit 4 would have no control or ability to ensure the health or maintenance of the hedge on the applicant’s land.
88.In my view, the objection by the owners of Unit 4, and by the other unit owners in support, on the grounds that the proposed forward construction works would give rise to overlooking and loss of privacy to the living areas of Unit 4 was not unreasonable.
Proposed swimming pool
89.The other unit owners opposed the motion on the basis that the swimming pool’s pump and filter, and its usage by people playing and socialising in and around the pool, would create potential for noise and disturbance for extended hours in what is presently a quiet and peaceful environment. They relied upon the proximity of the proposed pool to Units 2, 4 and 6. They objected to the noise from the continual running water from the ‘infinity’ swimming pool into the catch pool 650mm[65] below.
[65] Exhibit A2 (witness statement of Mr Streatfeild) paragraphs 19 and 33
90.Mr Streatfeild stated that noise associated with the pool would be regulated by the Environmental Protection Authority and that the pool pump would (he presumed) meet Australian Standards for noise. In his witness statement, Mr Streatfeild said “it is not an unreasonable expectation to be able to put a compliant pool in the multi-unit property”.[66] In oral evidence he said:
a pool is a normal residential allowance that people can have under the Territory plan. It’s not an unusual thing to put a swimming pool on a residential property if you’ve got the room. He has the room, it’s compliant. I think it’s unreasonable to say that he can’t have a pool. If he could comply with the Territory plan, I think the body corporate should accept that the Code protects them, the Territory plan protects them, the Noise Protection Act protects them. I think they should just treat this as a normal person doing a normal thing. That's basically it.[67]
[66] Exhibit A2 (witness statement of Mr Streatfeild) paragraph 19
[67] Transcript of proceedings of proceedings page 35, lines 22-31
91.Mr Cohen expressed a contrary view, referring to the noise from the pool pump and filters and the noise from the water falling from the infinity pool into the catch pool. In his opinion, these would be “sources of constant noise that could quickly become intolerable for neighbours situated so close to the boundary.”[68]
[68] Exhibit R7 (witness statement of Paul Cohen) paragraph 38
92.The Tribunal’s function is not to decide whether it is reasonable for the applicant to construct the proposed swimming pool and catch pool, but whether the objection to it was unreasonable. That the pool might (or would) comply with noise standards that apply to separate landholders on separate Crown leases is a relevant consideration, but not determinative of whether an objection to the pool from other owners within the Units Plan was unreasonable. Between Crown lessees, the law strives to achieve an appropriate compromise, but within a block (in this case Block 11, Section 57) it is for the owners of the block to decide.
93.The closest edge of the swimming pool would be approximately 3.4m from Unit 5’s site title boundary with Unit 4 and approximately 7.4m from the bedroom window of the townhouse on Unit 4. I am not persuaded that the opposition to the pool and the noise that it would generate was unreasonable, irrespective of whether the noise would be within permissible standards for developments on separate Crown leases. The noise, objectively judged, would necessarily be to the detriment of the use and enjoyment of Unit 4 and probably also Units 2 and 6. I see no proper basis to conclude that it was unreasonable for the other unit owners to oppose it. To adopt the High Court’s observation in Ainsworth, the owners of Unit 4 are not acting unreasonably by “failing to act sympathetically or altruistically”[69] towards the applicant who wishes to construct a swimming pool. It may benefit him, but it would be detrimental to them.
[69] Ainsworth v Albrecht [2016] HCA 40 [57]
94.The other unit owners noted that water costs are shared by all owners of units in the Units Plan so that the cost of filling and maintaining water levels in the applicant’s proposed pool would impact on all other owners. As best I could ascertain, the applicant did not put anything forward when the motion was debated, or at all, to explain why that concern was misplaced or unreasonable.
95.The other unit owners had concerns that because the pool would be between 1.5m and 2.1m above natural ground level at its furthest edge, there was potential for water seepage or leakage. Again, I was not taken to any evidence, for example engineering documents, to explain why that concern was unfounded or unreasonable.
96.However, the primary objection was on the basis of the noise and disturbance that the pool would generate. I was not persuaded that it was unreasonable for the owners of Unit 4, and the other unit owners in support, to oppose the motion for this reason.
Stormwater run-off
97.The other unit owners opposed the motion because of their concerns about increased stormwater run-off from Unit 5 consequent upon the increase in hard surfaces produced by the proposed works which would correspondingly reduce opportunity for rainwater instead to soak into the soil. They noted that Unit 5 is at a high point on Block 11 and higher than other units in the development. They sought further information about how stormwater run-off would be managed, for example by construction of extra sumps.
98.Mr Martin, in his report, observed that the plans for the proposed works did not show any downpipes or how stormwater from the extension or the patio would be managed. He said that this needed to be defined and managed “in some appropriate way”.[70]
[70] Transcript of proceedings 15 November 2018 page 12, lines 12-19
99.Having regard to the report from Mr Martin and the slope of the land from Unit 5 to the units below, in my view it was not unreasonable for the other unit owners to oppose the motion for approval of the proposed works where an acceptable solution for managing stormwater had not been provided.
100.The applicant might in due course have been able to provide an acceptable solution, but that is not to the point. As mentioned earlier, section 129(1)(g) does not permit the Tribunal to conclude that opposition “was unreasonable” based on new and further information that was not available at the time the motion was defeated. If new information is produced, it would be for the unit owners to consider it in the context of a further motion if it were put. That approach respects the overarching entitlement of unit owners in a units plan to control their own process. For the Tribunal, based on new information, to impose its view that stormwater would be appropriately managed would be to err in the manner described in Ainsworth.
101.For these reasons, I was not persuaded that opposition to the motion was unreasonable where there was no evidence to show how stormwater would be managed.
Precedent
102.The other unit holders opposed the motion on the basis that if the proposed works were approved, future purchasers (or owners) would reasonably expect approval of similar changes that they might wish to make to their unit and that the cumulative effect would be “a substantial change to the charm, character and amenity of the existing development.”[71]
[71] Exhibit R1 (witness statement of Lawrence Lynch) page 78
103.They contended that existing owners bought into Units Plan 421 knowing they had the protection of the owners corporation rules, in particular that “no major changes will be made … unless the majority of owners support the change.” They contended that to permit the proposed changes to Unit 5 would defeat that protection.
104.All the other unit owners provided witness statements in which they expressed their concern that if the proposed works were approved it would set a precedent and “open the floodgates” for similar developments that would negatively change the character and amenity of the development that the unit owners enjoy.
105.The precedent or ‘floodgates’ argument was dealt with in Ainsworth. The Queensland Court of Appeal found that if the application did not adversely impact on other owners it was difficult to see how the cumulative effect of multiple identical improvements which generate an adverse impact. The Court found, therefore, that the ‘floodgates’ argument was not a reasonable basis for opposing the proposal.
106.On appeal, Nettle J disagreed. In his view, it was “unreal” to suppose that if the proposed works in that matter were approved, others would not seek similar modifications and expect approval of them consistent with the earlier approval. He agreed that “it was easy to see how the cumulative effect of multiple identical improvements could generate an adverse impact.” He also accepted that further applications would necessitate the body corporate making further decisions as to whether it was reasonable to refuse the application and in turn more division and conflict between owners would arise. In his view, the potential for that kind of disharmony may in itself have provided a reasonable basis to oppose the motion.[72]
[72] Ainsworth v Albrecht [2016] HCA 40 [107]
107.Implicit, I think, in Nettle J’s reasoning is that it is necessary to consider the overall result if other unit holders were to make the same or similar modifications and to ask whether the impact of those modifications, in total, would have an adverse impact on the development and/or unit owners as a whole. If they would not, the precedent argument is more likely to be an unreasonable basis to object to the first of those modifications.
108.That reasoning does not assist the applicant in this case. It can be readily seen that if each of the other unit owners added two additional bedrooms, an additional bathroom, a swimming pool and two outdoor patios, or only some of them were to make some of those additions, the design integrity and amenity of the development as a whole would be destroyed.
Body corporate process
109.The other owners expressed concern that proposed changes have in the past proceeded according to “neighbourly principles” where consultation occurs to ensure that everyone is satisfied with a proposal. They expressed concern that the applicant made no attempt to listen to their concerns, and was seeking an expansion greater than he desired in the expectation that, through compromise, he would obtain that which he actually wants.
110.I acknowledged these concerns, but had difficulty understanding why they were a basis for opposing the motion. Neighbourly consultation is plainly sensible and desirable, but its absence does not seem to be a rational basis for opposing a motion. Indeed, in some cases, a motion for a proposed alteration might be an appropriate mechanism for consultation. It might also be capricious and irrational to oppose a motion simply because the proponent had not consulted with other unit owners about it beforehand. The applicant’s alleged failure to listen to the concerns of the other unit owners might have been to his detriment but, if that were the case, it was — in itself — an unreasonable basis to oppose the applicant’s motion.
111.The other owners also expressed concern that the scale of the proposed expansion of Unit 5, causing it to be “so large relative to the other units … could create unintended issues”[73] for the ongoing management of the Units Plan arising from the need to adjust unit entitlement percentages.
[73] Exhibit R1 (witness statement of Lawrence Lynch) page 79
112.The second issue was not developed. Comments were made about re-apportioning water usage, having regard to the proposed swimming pool, and a possible change of unit entitlement arising from the increased size of Unit 5 and perhaps also its value relative to other units[74] with consequential changes to apportionment of common charges, for example strata management fees. However neither party pressed or resisted a claim that opposition to the motion was unreasonable for any of these reasons. Where there were several other reasons for why the other unit owners opposed the motion, and I was not persuaded that any of them was unreasonable, it was not necessary for me to determine this issue.
Unapproved building works
[74] Unit Titles Act 2001 section 8(1)
113.The applicant has already carried out substantial demolition work in preparation for construction of the proposed works. The area forward of the townhouse has been heavily excavated. The townhouse has, to a high degree, been gutted in preparation for the proposed internal works including removal of the master bedroom windows leaving only the surrounding brickwork. The townhouse is uninhabitable and Unit 5 has become a construction site.
114.There was no suggestion that the applicant obtained ‘the express permission of the owners corporation’ to alter any structure in or on Unit 5 in the manner that has occurred. The other owners contended that the demolition work that has already occurred is not a basis upon which they should now feel compelled to approve the proposed works. They disputed that it was unreasonable for them not to do so, anticipating a claim that because he has “done so much damage [he] may as well go ahead now”.[75]
[75] Exhibit R1 (witness statement of Lawrence Lynch) page 80
115.Mr Walker maintained that position, submitting that the applicant should not profit from his wrongdoing.
116.Why this demolition work occurred without approval from the owners corporation was not explained. The applicant did not give evidence about it, or at all. Mr Flint stated that the applicant was told he could carry out the demolition work without development approval from the Authority, but acknowledged that the applicant was still altering a structure in or on his unit and therefore still needed body corporate approval to do the work which he did not have.[76]
[76] Transcript of proceedings 15 November 2018 page 109, lines 42-44
117.Mr Flint, quite properly, did not suggest that the demolition work that has already occurred is relevant to the question whether it was unreasonable for the other unit owners to oppose the proposed works.
118.In my view, whether the demolition work that has already occurred is treated separately from the work the applicant proposes to carry out, or as a preliminary component of the proposed works, does not affect the result. Either way, it was not permissible without the express permission of the owners corporation by resolution or an order of the Tribunal giving effect to the motion. Neither has occurred.
119.It is not for the Tribunal in the context of this application to comment on rectification work necessary to make good the unlawful alteration of Unit 5 that has occurred.
Conclusion
120.At the close of the hearing, the question arose as to what could be done if the Tribunal found that opposition to some part or parts of the proposed works, but not others, was unreasonable. Mr Flint responded that in such a case the Tribunal could still find that opposition was unreasonable in relation to some parts, but not others, and give effect to an amended motion accordingly. I accept the submission: section 129(1)(g) enables the Tribunal to make an order giving effect to an unsuccessful motion as amended by the Tribunal.
121.The question whether the Tribunal should do so is a separate matter. Mr Walker noted that practical issues might arise in relation to the Authority’s approval of the proposed works which is conditioned upon the owners corporation approving the proposed works, not just some of it. Also, some reasons for opposition to the motion related to the proposed works in their totality, not specific parts.
122.In relation to the internal lift and enlargement of the existing kitchen, the question of whether opposition was unreasonable did not arise: there was no opposition (expressly) to those aspects of the proposed works. However, given the nature and scale of the proposed works, it is not appropriate for me to consider an amended motion in that context.
123.In relation to the balance of the proposed works, there were many reasons for why the motion was opposed. For the reasons given, I was not persuaded that any of them was unreasonable, save for the applicant’s unwillingness to consult with the other unit owners regarding the proposed works.
124.For these reasons, the applicant’s application will be dismissed.
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER:
UT 6/2018
PARTIES, APPLICANT:
Alfred Bonansea
PARTIES, RESPONDENT:
The Owners – Units Plan No 421
SOLICITOR APPEARING, APPLICANT
M Flint
COUNSEL APPEARING, RESPONDENT
P Walker SC
SOLICITORS FOR APPLICANT
Mills Oakley
SOLICITORS FOR RESPONDENT
O’Connor Harris
TRIBUNAL MEMBERS:
Presidential Member G McCarthy
DATE OF HEARING:
15 November 2018
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