Executive Committee Units Plan 116 v Nicholson (Unit Titles)
[2016] ACAT 51
•24 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EXECUTIVE COMMITTEE UNITS PLAN 116 v NICHOLSON (Unit Titles) [2016] ACAT 51
UT 41/2015
Catchwords: UNIT TITLES – maintenance – failing to comply with infringement notice – erection of unapproved structure
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 56, 71
Legislation Act 2001 ss 196, 145
Unit Titles Act 2001 s 9
Unit Titles (Management) Act 2011 ss 6, 16, 28, 31, 35, 109, 110, 111,129, Schedule 2 Part 2.1, 2.5, Schedule 4 Rule 4
Subordinate
Legislation:Court Procedures Rules 2006 Rules Part 2.18 Rules 2000, 2001, 2002, 2442, 6901
List of
Texts/Papers cited: Pearce and Geddes, Statutory Interpretation in Australia (8th
ed, 2014)
Tribunal: Senior Member W Corby
Date of Orders: 24 May 2016
Date of Reasons for Decision: 24 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 41/2015
BETWEEN:
EXECUTIVE COMMITTEE UNITS PLAN 116
Applicant
AND:
HILARY NICHOLSON
Respondent
TRIBUNAL: Senior Member W Corby
DATE:24 May 2016
ORDER
The Tribunal Orders that:
The respondent is to comply on or before 26 July 2016 with the infringement notice dated 29 June 2015 given by the applicant to the respondent.
If the respondent fails to comply with order 1, then the respondent is further ordered on 27 July 2016 to immediately pay to the applicant $280 being the ACAT application fee.
If the respondent complies with order 1 by cob 26 July 2016 then order 2 is discharged.
………………………………..
President M-T Daniel
for and on behalf of the Tribunal
REASONS FOR DECISION
The Executive Committee (‘EC’) of UP116 (‘Wybalena Grove’) (the applicant) on behalf of the Owners Corporation (‘OC’) has applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for an order that Hilary Nicholson (the ‘respondent’), who is the owner of Unit 29 in Wybalena Grove (‘Unit 29’), remove a structure from her property. The applicant also seeks declarations, or orders, that if the applicant fails to remove the structure, that the applicant may authorise tradespeople to enter Unit 29 to remove the structure and that the applicant can then claim as a debt from the respondent the costs it incurs for the removal of the structure and the amount of the application fee it has paid for this application to ACAT.
The respondent asserts that she should not be required to remove the structure. The respondent submits that if she is ordered to remove the structure, that ACAT is not authorised to make the declarations sought by the applicant in relation to entry onto her property, the removal of the structure or the costs that the applicant has identified.
In these reasons for decision when referring to the member who conducted the hearing the term ‘Tribunal’ will be used.
The hearing
At the hearing the applicant was represented by Peter Campbell. Mr Campbell and John Courtney, another member of the EC, attended the hearing. The respondent attended the hearing and was represented by Ms Berry, a solicitor.
The hearing was conducted over two days. The first day of hearing on 1 February 2016 commenced with a view at Unit 29 and other areas of Wybalena Grove, including an inspection from inside Unit 28 Wybalena Grove (‘Unit 28’) of a first floor and ground floor window in the western wall of Unit 28.
The Tribunal, the applicant’s representative, Mr Courtney and other members of the EC attended at the view. The respondent and her solicitor attended the view.
At the end of the second day of hearing on 4 March 2016 the Tribunal reserved its decision. These reasons for decision set out the Tribunal’s consideration of this application and its reasons for the orders made today.
Information considered by the Tribunal
In making its decision the Tribunal took into account documents that were filed in ACAT prior to the hearing, statements and exhibits that were tendered in evidence, oral evidence given at the hearing, and written and oral submissions made by or on behalf of the parties.
The legislative provisions that are referred to in these reasons for decision are either set out in the following paragraphs or included in Schedule 1 at the end of these reasons.
Background
Unit 29 is at the eastern end of a row of units which are attached to neighbouring unit/s by a common wall/s. Unit 28 is at the western end of a row of units which are attached to neighbouring unit/s by a common wall/s. There is no unit immediately to the west of Unit 28 or to the east of Unit 29. There is a common area about three metres wide that separates Unit 28 and Unit 29. The western wall of Unit 28 and the eastern wall of Unit 29 are parallel and on (or just inside) the boundary of that unit with the common area.
In September 2013 a Development Application (‘DA’) was approved for major renovations to Unit 28.[1] The work was completed some time before a Certificate of Occupancy and Use was issued in March 2015.[2] Prior to the renovations, Unit 28 was a single storey ground floor unit. As part of the renovations, the size of Unit 28 was increased to allow for an additional floor to be constructed (the ‘first floor’). A window was built into the western wall on the first floor directly above a ground floor window.[3] Before the renovation the area above the ground floor window was solid wall, however there was a seam of dark wooden paneling that was the same width as the ground floor window. The wood seam extended from the top of the ground floor window to the roof.[4] After the renovation three of these wooden panels remain between the top of the ground floor and the bottom of the first floor windows in the Western wall of Unit 28.
[1] Exhibit A16
[2] Exhibit A17
[3] Exhibit R6, photo 2 in Exhibit R9
[4] Exhibit R4 and Exhibit R11
As a result of submissions made by the respondent to the ACT Planning and Land Authority (‘ACTPLA’) about ‘overlooking’ of her property from the first floor window, a condition was included in the approved DA for Unit 28 that the first floor window was to be “screened either by the use of opaque glazing; by raising the sill height to 1700mm above floor level; or by deletion[5].”
[5] Exhibit A15 at A1 (a)(ii)
The first floor window that was installed has sheer glass. There is a solid pane of glass from the floor to a height of just over 1700mm. Above 1700mm there is a small clear glass window, the same width as the fixed panel, that can be opened. One of the owners of Unit 28, Ms Wolfe, gave evidence[6] that in order to comply with the condition in the DA regarding the first floor window, the owners of Unit 28 had intended to insert a sheet of opaque glass in the fixed portion of the first floor window between double-glazing. However they were advised that this approach would cause condensation issues. She sought advice and was told that, as an alternative to ‘opaque glazing’, ‘obscure film’ could be applied to the inside of the fixed pane. She consulted the Building Certifier who confirmed that use of obscure film could comply with the DA condition. Obscure film was applied to the first floor window and was in place when the Certificate of Occupancy and Use (the ‘Certificate of Occupancy’) was issued. The Certificate of Occupancy stated that the building work was “Completed substantially in accordance with the prescribed requirements.”
[6] Exhibit A23 at [5]-[9]
In early 2015, without seeking consent from the EC, the respondent made the following additions to the outside of Unit 29 (the ‘construction work at Unit 29’):
(a)An area of fence was installed on the south east side near, or on, the boundary of Unit 29 with a common area on the east. The respondent has since removed this fence in response to an infringement notice dated 29 June 2015 [7](the ‘infringement notice’) issued by the applicant.
(b)A wooden pergola (the ‘pergola’) was attached to the north face of Unit 29. There is a first floor balcony on the north face of Unit 29 that is the same width as the unit. The pergola is the same width as the balcony and extends north from under the eaves at roof height of the unit over the full depth, and slightly more than the northern edge, of the balcony. In the infringement notice the applicant advised the respondent that it had approved the pergola.[8]
(c)A section of a wooden ‘privacy screen’ was built. It is perpendicular to the north face of Unit 29 and faces east/west. It is built on top of the ‘return’ on the banister for a set of stairs that run from the first floor north facing balcony to ground level. This section of the ‘privacy screen’ does not extend beyond the northern face of the balcony. It is built to just under the height of the pergola (see (b) above). Both the pergola and this section of the ‘privacy screen’ are higher than and visible above the brick ‘wing wall’ which is on the eastern face of Unit 29. The ‘wing wall’ abuts the common area between Unit 29 and Unit 28. The eastern ‘wing wall’ runs at a steep angle in line with the pitch of the roof of Unit 29 and follows that same angle for its full length. The brick ‘wing wall’ encloses the eastern end of the balcony and the balcony stairs. There is a hand rail that runs for the length of and on the western side of the stairs. In the infringement notice the applicant advised the respondent that although this section of the ‘privacy screen’ is not approved, it does not have to be removed while the respondent is the owner of Unit 29.[9]
(d)A further section of the wooden ‘privacy screen’ (the ‘structure’) extends in line with and at the same height as the ‘privacy screen’ on the balcony (see paragraph (c) above) being just under the pergola to a height of between 4.5 and 5m from ground level. This section of the ‘privacy screen’ extends from the northern edge of the balcony for approximately 1.5m north. At its southern end it is attached to the handrail on the western side of the balcony stairs. The bottom edge of the structure extends north at about the same height as the floor of the balcony and is supported by two poles. One pole is attached to the balcony and the other, near the northern edge of the structure, is attached to the handrail of the stairs to the balcony and extends down to and is secured at ground level. This pole is slightly taller than the structure that it supports. The two poles are about the same height as the pergola at its northern-most edge. In the infringement notice the applicant requires that the structure and the northern pole, down to the height of the handrail, be removed by 13 August 2015.[10] The respondent has not removed the structure or the pole.
The infringement notice
[7] Exhibit A3 at point numbered 1
[8] Exhibit A3 at point numbered 2
[9] Exhibit A3 at point numbered 3
[10] In Exhibit A2 the applicant has indicated, by marking in blue pen, the part of the structure and the northern pole that it requires the respondent to remove
The owners of Unit 28 wrote to the EC on 15 April 2015 complaining about the construction work at Unit 29. The EC wrote to the respondent on 13 May 2015 about the construction work. The respondent replied on 22 May 2015.
The applicant treated the respondent’s letter dated 22 May 2015 as a retrospective application for approval of the construction work at Unit 29. After receiving and considering the respondent’s letter of 22 May 2015, the applicant sent the infringement notice dated 29 June 2015 to the respondent. As noted in paragraph 14 above, the only outstanding aspect of the infringement notice is the requirement to remove the structure and the northern pole.
Rule 12(a) of the Wybalena Grove OC states:
A unit owner must not EXCEPT in accordance with the express permission of the corporation and in accordance with the provision of any law in force in the Territory applicable in the circumstances, erect or alter any structure in or on the unit PROVIDED THAT the Corporation shall not refuse to grant its permission except for aesthetic or safety reasons
The Legislation Act 2001 (ACT) (the Legislation Act) applies to the Rules as if the Rules were a section of an Act.[11] Any function given to the OC, or the EC on its behalf, also gives the power necessary and convenient to exercise the function. This is in addition to any power given under the Rule or the Unit Titles (Management) Act 2011 (‘UTMA’).[12]
[11] Section 112 of the Unit Titles (Management) Act 2011
[12] Section 196 of the Legislation Act
At the hearing the parties agreed that Rule 12(a) is valid. Rule 12(a) replaces default rule 4 in the UTMA[13] that would otherwise apply. Like the default rule, Rule 12(a) requires that in addition to express permission from the OC, the proposed erection or alteration must comply with any applicable law in force.
[13] Schedule 4 Rule 4 of the UTMA
Rule 12(a) operates in several ways that are different from the default rule:
(a)rule 12(a) does not require that permission be given by unopposed resolution of the OC;
(b)it does not expressly deal with conditions that may be attached to permission, although the Tribunal considers that the wording of Rule 12(a) would not prevent the EC attaching conditions to permission;
(c)it provides that permission shall not be refused other than for ‘aesthetic or safety reasons’.
An owner must apply for permission to erect or alter any structure in or on their unit.[14] An owner can expect that the OC will give permission to undertake erections or alterations unless there are aesthetic or safety reasons for refusing permission.
[14] The term ‘unit’ in the UTMA is defined in section 9 of the Unit Titles Act 2001 and is the whole of Unit 29 as it appears in the Unit Plan
A function of the OC is to enforce the rules.[15] The EC exercises the functions of the OC[16] including carrying out the decisions of the OC made at general meetings.[17] As rule 12(a) does not require a resolution of the OC, the EC can exercise the OC’s function in responding to requests by owners for permission to erect or alter any structure to a unit. The EC must exercise that function as directed by OC resolution at a general meeting, or if there is no resolution, then as the EC considers appropriate.[18]
Relevance of compliance with applicable ACT law
[15] Section 16 of the UTMA
[16] Section 35(1) of the UTMA
[17] Section 35(2)(f) of the UTMA
[18] Section 35(3) of the UTMA
In the current matter there is no specific evidence to confirm that the structure complies with applicable ACT laws. The applicant submits that the respondent required ACTPLA approval for the structure. The respondent says that she has read the relevant ACT planning provisions. She also had a telephone conversation with an officer in the ACTPLA officer in which she described the structure. The respondent said that based on her description of the structure to the ACTPLA officer she was provided with certain information. The respondent concluded, based on the information she read and received, that the structure would be considered an ‘exempt’ structure that would not require ACTPLA approval.
The EC wrote to ACTPLA seeking confirmation as to whether or not the structure complies with ACT planning law. On 4 January 2016 ACTPLA responded[19] that it does not intend, currently, to investigate the matter.
[19] Exhibit A1
Based on the available information the Tribunal is unable to conclude whether or not the structure complies with ACT planning laws.
The applicant has applied to ACAT for orders relating to the respondent’s failure to comply with the infringement notice.[20] The infringement notice is based on the EC’s decision to refuse to approve the structure for aesthetic reasons and therefore the respondent’s breach of rule 21(a) in erecting the unapproved structure. In the infringement notice the EC required the respondent to remove the structure. The respondent failed to comply with the infringement notice. Even if the outcome of this application were that the EC should have given permission and approved the structure, if it is ultimately determined that the structure is not in accordance with applicable ACT law, then there are other processes that would operate to address that situation and this too would be a breach of rule 12(a) by the respondent. The EC’s decision to issue the infringement notice was not based on an assertion that the structure did not comply with an ACT law. The Tribunal makes no determination as to whether or not the structure complies with any applicable ACT law.
[20] Section 109(3(f)(ii) of the UTMA
It is clear that both EC permission and compliance with ACT law are required in order for the respondent to comply with rule 12(a).
Is the infringement notice valid?
The respondent asserts that she was not required to seek EC permission to erect the structure. The Tribunal does not accept this assertion. The wording of rule 12(a) makes it clear that an owner must seek express permission to erect any structure in or on a unit. Despite the fact that permission cannot be refused except for aesthetic or safety reasons, an owner’s expectation that permission will be granted does not remove the requirement that permission needs to be sought.
There is no dispute that the respondent failed to seek permission from the EC before erecting the structure. Whilst that failure is a breach of rule 12(a), this is not the basis for the applicant’s action in issuing the infringement notice.
At the hearing Mr Campbell confirmed that the EC does, and in this matter did, consider retrospective requests for ‘approval’ of structures where the owner has not sought permission before undertaking work. In the current matter the pergola was, in response to the Respondent’s 22 May 2015 letter, retrospectively approved. However the other three aspects of the construction work at Unit 29 were not approved. In relation to the structure the EC determined that it was not approved for aesthetic reasons and on this basis, pursuant to rule 12(a), issued the infringement notice requiring the structure to be removed.
The question for determination by the Tribunal concerns that part of rule 12(a) which relates to the EC, on behalf of the OC, refusing permission:
(a)Did the EC validly refuse, retrospectively, permission for the respondent to erect the structure and then issue the infringement notice?
(b)If so, what orders should the Tribunal make?
The respondent asserts that she was denied the opportunity to address the complaint dated 15 April 2015[21] made by Ms Wolfe, one of the owners of Unit 28, to the EC about the construction work at Unit 29. The respondent says that Ms Wolfe did not approach her about the complaint before sending it to the EC.
[21] Exhibit A18 – email from Naomi Wolfe to EC dated 15 April 2015
If a dispute arises between owners of units because one owner (the complainant) reasonably believes that the other has contravened an OC Rule and the contravention is likely to continue, the complainant can ask the OC to give the other owner a rule infringement notice.[22]
[22] Section 110 of the UTMA
The process for seeking permission pursuant rule 12(a) (which will be discussed below) included the need to consult with neighbours. Ms Wolfe gave evidence that the owners of Unit 28 had not been consulted prior to the construction work at Unit 29 being undertaken. Ms Wolfe’s letter[23] of complaint appears to be based on the assumption that the construction work at Unit 29 is not approved and that it contravenes the Rules. Given the nature of the work undertaken, it was reasonable for her to believe that, if this was a contravention of the Rules, the contravention was likely to continue.
[23] Exhibit A18 – email from Naomi Wolfe to EC dated 15 April 2015
The respondent disputes that she failed to consult with the owners of Unit 28 about, and prior to undertaking, the construction work at Unit 29. She says that she raised with the owners of Unit 28 her concerns about overlooking from the first floor window of Unit 28. The Tribunal does not consider that a discussion about the respondent’s concerns about overlooking amounts to consultation about the proposed construction work at Unit 29.
The Tribunal accepts that the owners of Unit 28 did not discuss the construction work at Unit 29 with the respondent before Ms Wolfe sent the letter of complaint about the construction work to the EC.[24] It was clear from the documentation filed and the evidence given at the hearing in this matter that the relationship between the owners of Unit 28 and the respondent had deteriorated during the period of the renovation work at Unit 28 between 2013 and 2015. The Tribunal finds that there was a dispute between the owners of Unit 28 and the respondent about the construction work at Unit 29 and that Ms Wolfe reasonably believed the respondent had contravened the OC Rules and that this would continue. It is possible that the letter of complaint from Ms Wolfe would meet the terms of section 111 of the UTMA, although she does not specifically ask that an infringement notice be sent. However, little turns on this aspect of the matter. Once the letter is received by the EC and where it specifically requests that the EC issue an infringement notice, then the EC must advise the ‘complainant’, here Ms Wofle, that the notice has been sent.[25] It is not clear if this happened and is not relevant to the consideration of this matter by the Tribunal.
[24] Exhibit A18 – email from Naomi Wolfe to EC dated 15 April 2015
[25] Section 109(4) of the UTMA
At the hearing Mr Campbell gave evidence that after receiving the letter of complaint from Ms Wolfe,[26] several of the EC members spoke to the respondent about the construction work at Unit 29 and on 13 May 2015 the EC wrote to the respondent seeking her response. The respondent provided a response on 22 May 2015. Mr Campbell said that in the letter the respondent raised issues of overlooking, provided information about why she had undertaken the construction work and why a DA was not required for the construction work at Unit 29. Mr Campbell gave evidence that in the infringement notice[27] the EC referred to and addressed the matters raised by the respondent in her 22 May 2015 letter.
[26] Exhibit A18 – email from Naomi Wolfe to EC dated 15 April 2015
[27] Exhibit A3
The EC may, on behalf of the OC, give an infringement notice to a person if the EC reasonable believes that a unit owner has contravened the OC rules and that contravention will continue. The infringement notice must include details sufficient to identify the contravention, a reasonable period with an end date by which the contravention must be remedied, and advise the owner that failure to comply with the infringement notice is an offence and that the OC can without further notice apply to ACAT for an order in relation to the failure to comply.[28]
[28] Section 109(1)-(3) of the UTMA
The Tribunal is satisfied that the infringement notice meets the requirements of section 109 of the UTMA. It clearly identifies that the issue, in relation to the structure specifically, is that it contravenes rule 12(a). It identifies that ‘retrospective’ permission for construction of the structure was not given for aesthetic reasons. In the infringement notice the EC provides details of the EC’s basis for that decision. The notice dated 29 June 2015[29] allows the respondent until 13 August 2015 to remedy the contravention by removing the structure and the northern pole. The respondent does not complain that this is an inadequate period. The infringement notice advises the respondent of the consequences of failure to comply with the notice.
[29] Exhibit A3
In her submissions about the infringement notice, the respondent asserts that the EC failed to properly exercise its function pursuant to section 35(3) of the UTMA. In this application the Tribunal is not authorized to review the decision of the EC, but it can conclude that the EC has failed to properly exercise its function. In effect, the respondent says that the EC took into account irrelevant considerations and that based on the information available, should not have come to the conclusion that for aesthetic reasons, permission’ for (by retrospectively approving) the erection of the structure should be refused.
The respondent asserts that the structure and other elements of the construction work at Unit 29, were an attempt to rectify the ‘overlooking’ of Unit 28 when other attempts that the respondent had made to address her concerns had failed. The EC did take these concerns into account when making its decision and before issuing the infringement notice. The EC concluded that this issue had been addressed by the DA requirement about the treatment of the first floor window at Unit 28.
The respondent says that light from the first floor window of Unit 28 intrudes onto her balcony and upstairs north facing rooms, and that light would not be able to pass through opaque glazing. The respondent did not provide any evidence in support of this assertion. The Tribunal notes that the applicant has not approved, but nor has it required the respondent to remove, the section of ‘privacy wall’ on the balcony. This decision by the applicant should, at least in part, address this issue for the respondent.
The respondent also says that due to changes in the treatment of the ground floor window of Unit 28, she now also has a view into the living area of Unit 28. She says the structure screens this view. Having viewed the photos taken before the changes to Unit 28[30] and after the changes[31] the Tribunal does not consider this change, if it occurred, is relevant to the decision by the applicant. There is no suggestion that the ground floor window increases the view from the living area of Unit 28 to Unit 29. Indeed, the residents of Unit 28 complain that the view of the sky and trees from their ground floor window looking west above the wing wall of Unit 29 has been obscured by the structure. The respondent asserts that this ‘view’ from the ground floor window of Unit 28 is not a ‘feature’ of the Wybalena Grove development. Further, she says, the increase in the overall size of Unit 28 as a result of the renovations also reduced her solar access and view of the sky to the east of Unit 29. These were not factors relied on by the EC when it issued the infringement notice, however the applicant did ask the Tribunal to consider the view from the downstairs window in Unit 28 when the view was undertaken on 1 February 2016.
[30] Exhibit R11 and Exhibit R4
[31] Exhibit A2 and Exhibit R6 and Exhibit R9, photo 2
In answer to questions about what action she took, or could have taken, about her concerns in relation to overlooking when the renovations at Unit 28 were proposed/undertaken, the respondent said that she took action by complaining to the EC about the proposed renovations, but the renovations were then approved by the EC. She took further action to have her concerns addressed by ACTPLA and indeed the DA was amended to address her concerns about overlooking from the first floor window of Unit 28. However, when the further change was made during the renovation work and ‘obscure film’ rather than ‘opaque glazing’ was used, and this was then approved when it was ‘ticked off’ as part of the certification process, the respondent says she lost her chance to take further action. The respondent concluded that she did not need approval from ACTPLA or the EC to undertake the construction work at Unit 29. She undertook this work to address her ongoing concerns about overlooking from the first floor window of Unit 28 and to screen from view, or address noise from, other changes made to Unit 28 during the renovations.
The Tribunal accepts that there is a difference between the DA requirement and the current treatment of the first floor window of Unit 28, in that there is now ‘obscure film’ rather than ‘opaque glazing’. This approach was approved when the Certificate of Occupancy was issued for the renovations at Unit 28 in March 2015.[32] The respondent asserts that the temporary obscure film applied to the first floor window has at times, since the renovations were completed, been removed from the window. As the window is clear glass, this does not provide an effective response to her concerns about overlooking. The evidence from Mr Campbell, Mr Courtney and Ms Wolfe supports the conclusion that this film has not been changed since the Certificate of Occupancy was issued. At the view on 1 February 2015 the Tribunal had the opportunity to inspect the first floor window at Unit 28 from inside and outside Unit 28. There were a number of photographs of the window taken from outside Unit 28 tendered into evidence.[33] The Tribunal is satisfied that Unit 29 is not visible from any part of the fixed pane below the height of 1700mm of the first floor window of Unit 28. Mr Campbell submitted, and the Tribunal accepts, that if this situation were to change, e.g. if the obscure film was removed or replaced by less ‘obscuring’ material, then that could be a matter that the respondent could raise with the EC and probably ACTPLA.
[32] Exhibit A17
[33] Including Exhibit A2, R6, R8, R9
The Tribunal concludes that the respondent’s submissions in relation to her ongoing concerns about overlooking of Unit 29 from the first floor window of Unit 28 is not a basis for challenging the validity of the decision made by the EC to refuse to approve the structure or to give the infringement notice.
The respondent says that the structure will only be visible for a short period until the plants – cumquats and wisteria – that she has planted either side of and espaliered against the structure have matured. At the hearing the respondent advised that she intends to replace the wisteria with more espaliered cumquats. The respondent tendered a photo[34] to show how the screening effect was being achieved by the planting she has chosen.
[34] Exhibit R10
Mr Campbell gave evidence that, in the past, permission for additions and alterations has been granted on the undertaking and condition that screen planting will be used. Mr Campbell advised that this approach was no longer being taken because factors such as the choice of plants, the level of maintenance exercised and the frequency of replacing, when necessary, planting could not be controlled and had lead to problems.
The Tribunal accepts that if the EC concluded that the structure could not be approved, that it was reasonable for the EC to have made this decision notwithstanding the respondent’s advice that she intended to disguise and screen it by planting.
Applicant’s decision that structure not approved for aesthetic reasons
The exercise of the applicant’s function pursuant to rule 12(a) is restricted in two ways. Firstly, the EC must give permission unless there are safety or aesthetic reasons for refusing to do so.[35] Secondly, in deciding whether there are relevant aesthetic or safety reason, the EC must act in accordance with any OC resolution that directs that decision.[36] Otherwise, the EC is authorised to make the decision pursuant to rule 12(a) as it thinks appropriate.[37]
[35] Rule 12(a)
[36] Section 35(3)(a) of the UTMA
[37] Section 35(3)(b) of the UTMA
The EC took into account, before issuing the infringement notice, the respondent’s letter dated 22 May 2015. Notwithstanding the information provided by the respondent, the EC concluded that for aesthetic reasons it would not have given permission for the respondent to erect the structure, the fence and the ‘privacy screen’ on the balcony at Unit 29. The EC then exercised its discretion pursuant to section 109(2) of the UTMA to give the respondent the infringement notice.
In the infringement notice the EC advised that, other than the pergola, the construction work was not in keeping with the aesthetics that are evident in the original architecture, and other OC resolutions that provide guidance to the EC when considering approval of alterations.
The term ‘aesthetic’ in rule 12(a) is not defined. The evidence available to the Tribunal confirms that the OC has, by resolution, provided guidance as to how the term ‘aesthetic’ in rule 12(a) is to be interpreted.
In support of its conclusion in relation to the structure the EC advised[38] that:
(a)it projects beyond the roof line of the eastern wing wall; and
(b)it uses materials different from those used in the unit’s original construction – in particular narrow wooden slats rather than broad horizontal timbers evident in other elements (fascia boards, timber beams, weatherboarded sections of unit exterior, that are agreed options for screening fences and originally-constructed pergolas);
(c)it is stained in a non-compliant colour;
(d)there is no comparable structure in the development;
(e)it is clearly visible from common areas to the north; and
(f)when viewed from common areas to the south it is ‘jarring’ – cutting across the ‘V’ shape which is a distinctive feature of Wybalena Grove design.
[38] Exhibit A3 at [4]
The respondent asserted that the EC’s action in issuing the infringement notice was discriminatory. The respondent asserted that there were additions and alterations to other units that were not approved, contravened rule 12(a) and in relation to which no action had been taken by the EC. Mr Campbell gave evidence that whilst he accepted this assertion may be correct in some instances, the EC had taken action in some cases, the EC had to prioritise actions and considered that a recently constructed structure in relation to which there had been a written complaint by another unit owner, presented a situation which required action.
The respondent gave evidence that in the past, and when she was on the EC, there was an accepted practice that if a structure, such as a fence or privacy screen within the boundary of a unit was an exempt structure that did not require ACTPLA approval, and it complied with any applicable Guidelines for Wybalena Grove, then no permission was required from the EC pursuant to rule 12(a).
The respondent asserts that the structure provides a visual screen of a ‘chimney’[39] and a noise barrier in relation to a hydronic heating boiler that were both installed in the western wall of Unit 28 during the renovations. The respondent says that these additions to Unit 28 encroach into the common area between Unit 28 and Unit 29 in breach of the rules and should not have been approved. The respondent conceded that the hydronic boiler is not visible from the balcony of Unit 29 and is not screened from view by the structure but says that the structure is a noise barrier for the boiler.
[39] Exhibit R6 and Exhibit R9 (photo 2)
The respondent identified an addition to Unit 63 which she said provides an example of an approved addition to a unit which is of similar height to the structure. Unit 63, like Unit 29, is the last of a row of units and its eastern wing wall borders a common area. The addition to Unit 63[40] consists of perpendicular, narrow spaced slats that extend from ground level to the height of the first floor balcony balustrade. It extends from the eastern wing wall west for approximately half the width of the north face of Unit 63. Slats of the same colour and width and height are used for the remainder of the balcony balustrade, but these end just below the north face of the balcony floor. The addition at Unit 63 encloses the area under the balcony between the ground and the balcony floor. It does not extend above the height of the eastern wing wall at any point. Mr Campbell gave evidence that this addition to Unit 63 was approved to provide a visual screen for the ground floor north facing area under the balcony of Unit 63 from a carport and walkway located north of Unit 63. The Tribunal considers that this addition to Unit 63 is different from the structure and does not extend above the height of the balcony balustrade or above the eastern wing wall.
[40] Exhibit R7 and Exhibit A24
The respondent asserts that the plants she has used are now quite advanced; as a result only small patches of the structure are now visible. The view of the structure from common areas to the north and south of Unit 29 and from the ground floor window of Unit 28 is limited and will, once the plants have further matured, be fully screened. The effect of this would then be no different than if she had planted high growing plants to achieve the same outcome, however because of plumbing in the area near the stairs to the balcony of Unit 29, she is not able to do this.
The respondent asserts that the visible protrusion of the structure beyond the wing wall is not a relevant matter. Pergolas and other features, of the kind depicted in the architect’s concept drawing,[41] demonstrate this. The applicant asserts that ‘skeletal’ type structures such as pergolas cannot be equated with the structure which is solid and extends well above the wing wall to a height of almost 5m above ground level.
[41] Exhibit R5
The respondent asserts that the infringement notice in relation to the structure is based on a breach of the guidelines in relation to fences and screens. She asserts that as the structure would not require ACTPLA approval it does not require EC approval. The respondent also submitted that the guidelines in relation to fences and screens relates to boundary fences and screens and thus does not specifically relate to the structure and in any event the structure complies with the guidelines and she does not require EC approval.
The applicant submitted that, since at least 1984, there have been various resolutions by the OC that direct or guide the EC’s exercise of its functions in relation to the operation of Rule 12(a) including:
(a) Exhibit A20 – Minutes of AGM 13 December 1984 – the OC resolved to adopt the Wybalena Grove Development Framework (the ‘Development Framework’) dated 22 Nov 1984 (Exhibit A5) including:
i.a preamble noting that the Development Framework will likely be reviewed annually, that it sets out minimum goals and does not restrict the EC from making variations ‘except for major changes such as .. structural alterations’;
ii.the resolution specifically endorsed, in relation to ‘Structure and Alteration Procedures’, the procedures for seeking OC approval as set out in Appendix D[42] (to Exhibit A5) and in particular the need for prior consultation with affected owners of other units;
[42] Although in the Minutes this is referred to as Appendix C – it is clear that in the final document – Exhibit A5 - this motion and resolution relates to Appendix D
iii.the Development Framework at paragraph 2.3 states that the OC ‘shall develop detailed guidelines on structural alterations and additions .. Meanwhile, the Corporation shall operate within the constraints set out in Appendix D’;
iv.in Appendix D – it states that the Corporation ‘shall not … refuse permission .. provided that’ the following requirements are met:
1.Approval is sought at least 2 months before work is scheduled.
2.The proposed work conforms to ACT legislation, ‘this development plan’ and other such requirements.
3.The work is compatible with architectural aesthetics manifest in the original design architecture.
4.The request includes details about the proposed work and materials to be used.
5.Evidence of consultation with and responses by affected neighbouring unit owners.
6.Undertakings by the applicant about how the work will be carried out etc.
7.Undertakings by the applicant about access for inspection by the Corporation.
8.Undertaking by the applicant and requirements that apply if there are to be changes to approved work.
v.under the heading Unit Boundary Treatment (Paragraph 2.2 of Exhibit A5) the general ‘approach’ is expressed in paragraph 2.2.1 that the complete fencing-off and separation of units from common areas is discouraged:
1. consistent with this ‘approach’ paragraph 2.2.2 applies. Relevantly, paragraph 2.2.2(iii) states that ‘screen walls and fences must be constructed entirely within the unit entitlement and require management approval before installation.’ Then –
2. the ‘procedures for alteration or addition to structures are set out in Appendix D’[43]; and
[43] Although there appears to be a typographical error and a reference to ‘1]’ it is clear that this refers to Appendix D to Exhibit A5
3. Appendix E (to Exhibit A5) sets out the guidelines that, if met, will normally result in automatic approval for fences, including screen walls and like structures.
vi.notwithstanding that the heading to paragraph 2.2 is ‘Unit Boundary Treatment’ it appears that paragraph 2.2.2(iii) is not confined to proposed construction on, near or parallel to the boundary of units and common areas. Paragraph 2 in Appendix E states that:
“The Corporation shall discourage any physical separation between northern and southern unit boundaries and adjacent common land, however it will not withhold approval for the construction of these within unit boundaries conforming with” the guidelines set out in Appendix E in paragraphs (a) and (b). The reference to ‘these structures’ appears to refer to “private fences, screen walls and such structures” which are referred to in the first paragraph and in the heading of Appendix E.
vii.Paragraphs (a) and (b) of Appendix E set out specific guidelines for construction “of any structure” within the unit boundary on the south or north side of a unit. Although the term ‘any structure’ is only used in paragraph (a), which relates to the south side of units, the method of determining height is repeated in paragraph (b), which relates to the north side. For the north side, there are more height restrictions, the maximum height permitted, in special circumstances, is 1.9m.
viii.Appendix E sets out the circumstances when an owner who applies can expect that the EC will ‘automatically’ approve proposed work in relation to the structures it addresses. However paragraph 2.2.2(iii) of the Development Framework[44] states that “requests for approval outside the guidelines (in Appendix E) may be submitted and will be considered on their individual merits.” However, in both situations, approval must be sought.
[44] Exhibit A5
As foreshadowed in the Development Framework[45], more detailed guidelines were subsequently drafted and approved, by resolution, by the OC. A copy of those guidelines was provided to the meeting at the AGM on 22 May 1996.[46] A motion was carried that the meeting “endorses the guidelines … to be used by the Committee in applications for approval to undertake extensions/renovations to units.” Mr Campbell gave evidence that these guidelines were subsequently incorporated into the Wybalena Grove Information Booklet.[47] The Information Booklet is provided to all owners. Only extracts from the current version of the Information Booklet revised in September 2015[48] was provided to the Tribunal. It appears that the extracted information reflects the guidelines at the time that the decision in relation to the respondent was made and incorporates the amendments to earlier guidelines that are discussed in paragraphs 65, 66 and 67 below. These Guidelines are largely consistent with the information in the Development Framework. Insofar as they relate to the current matter, the following additional matters are relevant:
(a)Under the heading ‘6.2. Alterations to Units’ it states:
In assessing the compatibility of proposed alterations with the original architectural aesthetics the Committee will be guided by the following principles.
The Roof line profile of the wing wall, which is a characteristic of the architecture throughout Wybalena Grove, should be maintained.
(b)Under the heading ‘6.3 Fences and Screen Walls’
All proposals to build fences, screen walls and similar structures within unit boundaries must be forwarded to the Executive Committee for prior approval.
[45] Exhibit A5 at paragraph 2.3
[46] Exhibit A15 – Minutes of AGM 22 May 1996
[47] Exhibit A6 provided extracts from the current version of the Wybalena Grove Information Booklet Revised September 2015
[48] Exhibit A6
Exhibit A7 – Minutes of the AGM on 29 May 1999[49] – the motion was carried that the EC was to adopt a process whereby when an owner applies for EC approval of a new structure they are to submit a standard form which is to be signed by all other owners whose ‘approval’ is required. This reference to ‘approval’ by other ‘owners’ appears to relate to the need for prior consultation with affected owners when an addition or alteration is proposed. A form was developed and approved by the OC and is now included in the Information Handbook.[50]
[49] Exhibit A7
[50] See Exhibit A6 – Appendix A – Neighbour Consultation Form
Exhibit A8 – Minutes of AGM 24 May 2000 – the motion (Motion 8) was carried that the guidelines in the Information Handbook be amended to permit consideration by the Committee of applications for the incorporation of additional windows in the brick wing walls of units. It is clear from the Minutes that although the OC did not intend to direct the EC in relation to any specific request for approval of an alteration or addition of this kind, the OC confirmed that such requests could be considered and did not direct that they could not be considered by the EC.
Exhibit A9 – Minutes of AGM held 22 June 2010 – a motion (Motion 7) was carried that powder-coated dark green or dark brown weldmesh fencing could be approved, but ‘galvanized finish’ would no longer be approved. Mr Campbell gave evidence that this change in relation to weldmesh fencing was made after powder coated weldmesh fencing became available. He said that the previous approach of approving ‘galvanized finish’ weldmesh fencing on the basis that ‘planting’ would be used to screen it had caused problems when owners or occupiers of units failed to plant or maintain these plants effectively. A note to this resolution reminded owners that they would need to apply to the EC if they wanted to install fencing.
The respondent submits that at the AGM held in 2015 there was discussion about reviewing the Guidelines and perhaps making resolutions whereby the Guidelines would be House Rules with the same force as Rules. In the meantime, the Guidelines do not have the force of Rules and should not be applied as if they did and cannot be relied on by the EC to issue the infringement notice.
The Tribunal’s consideration of this matter is limited to the circumstances at the time that the EC made the decision to issue the infringement notice. Subsequent events are not relevant to that decision and the Tribunal accepts that there may be, as there have been in the past, changes in the approach taken by the EC or to the Guidelines relevant to rule 12(a). The respondent asserts that no decision should be made until the planned review by the owners corporation of the Guidelines is undertaken. The Tribunal is not persuaded that the possibility that the Guidelines will be reviewed in the future is a matter that is relevant to its consideration of this matter.
Findings
The Tribunal finds that:
(a)the guidelines operate to assist the EC in exercising the function of considering applications pursuant to rule 12(a) by owners for permission to erect any structure in or on a unit;
(b)there is no Guideline or other OC resolution that specifically directs the EC’s decision in relation to the structure in the current matter. Therefore the EC was authorised to exercise that function as it considers appropriate;[51]
(c)the respondent required EC permission before undertaking the construction work at Unit 29. The respondent did not seek approval from the EC before undertaking the construction work;
(d)the EC gave the respondent an opportunity to respond before it made the decisions to refuse to ‘approve’ (retrospectively grant permission to construct) the structure and then to issue the infringement notice. The EC took into account the information provided by the respondent in her letter of 22 May 2015 including her concerns about the renovation work undertaken at Unit 28;
(e)there are procedures that have been endorsed by OC resolution that apply when an owner makes an application pursuant to rule 12(a). The respondent did not consult with neighbours or provide the information to the EC required by these procedures before undertaking the construction work;
(f)the EC treated the respondent’s response dated 22 May 2015 as a retrospective application for permission pursuant to rule 12(a) and a request for the EC to approve the structure;
(g)the EC exercised its discretion to approve the pergola and, although it did not approve the ‘privacy screen’ on the balcony because it concluded that for aesthetic reasons it would have refused permission for the respondent to construct it, it has not required the respondent to remedy that breach of rule 12(a). It required removal of the south east fence and the structure and the northern pole;
(h)the matters that the EC relied on in support of its decision to refuse the structure are all matters relating to aesthetic, are all matters that are identified in the policy and guidelines endorsed by OC resolutions that are intended to assist the EC in exercising its function to consider applications by owners pursuant to rule 12(a) of the OC Rules;
(i)the EC has in the infringement notice provided the reasons for its decision in relation to each aspect of the construction work at Unit 29 and provided a specific response to each part of the construction. The EC did not consider that it was compelled to arrive at any particular decision, and indeed, notwithstanding that the EC considered that the ‘privacy screen’ on the balcony is inconsistent with OC approved guidelines, it nonetheless has not required its removal. For the reasons the EC has set out in the infringement notice, it did not come to the same decision in relation to the structure and required the respondent to remove it, and the northern pole that supports it.
[51] Section 35(3) of the UTMA
The Tribunal finds that the EC validly exercised the discretion to refuse to ‘permit’ (by refusing to approve) the structure. The respondent is therefore in breach of rule 12(a). The EC was authorised to send the infringement notice. The infringement notice is valid. The respondent has failed to comply with paragraph four of the infringement notice which required her to remove the structure and the northern pole by 13 August 2015.
Orders sought by applicant
The applicant has sought an order that the respondent comply with the infringement notice by removing the structure and the northern (the ‘compliance order’).[52] At the hearing the respondent indicated that she would require eight weeks notice if the Tribunal made the compliance order.
[52] Exhibit A3 at the conclusion of the paragraphs numbered 4
The applicant also seeks a declaration that, if the respondent does not comply with the Tribunal’s order, the applicant is authorised to appoint trades people to enter the unit, remove the structure and that the applicant is then authorised to recover the costs it incurs in taking this action and for payment by the respondent of the ACAT application fee for this ACAT application (the ‘enforcement orders’).
The respondent submits that ACAT does not have jurisdiction to make the enforcement orders. The respondent says that section 28 of UTMA sets out the limited circumstances in which the EC may enter a unit and the ACAT may not make declarations/orders which authorise access by the EC (or their authorized representatives) in other circumstances.
Section 109(3)(f)(ii) allows the applicant to apply for an order “in relation to the failure to comply with the [infringement] notice”.
Section 129 of the UTMA provides:
(a)ACAT may make an order requiring a party to an application to do something (section 129(1)(a) UTMA).
(b)ACAT may make any other order that it considers reasonably necessary to resolve the dispute (section 129(2) UTMA).
(c)This section does not limit the orders that ACAT can make (section 129(3) UTMA).
The OC does not, without the owner’s consent, have the right to enter a unit other than for the reasons set out in section 28(2), (3) and (4) of the UTMA. This access is for emergency situations or, with notice, to inspect or maintain common property. Rule 9 of the OC Rules[53] authorises a member of the EC, or someone authorised by the EC, with reasonable notice to the owner, to enter and remain in the unit for so long as is necessary to carry out maintenance or do anything the EC is required to do under the UTMA or OC rules. Section 129(1)(l) of the UTMA deals with orders for the removal of an animal and would necessarily require entry to a unit, but there is no other specific provision in section 129(1) that deals with access to units. Section 109(3)(f)(ii) of the UTMA does not restrict the order or orders[54] that ACAT can make in relation to failure to comply with the infringement notice.
[53] Rule 9 of UP116 Rules is in the same terms as Rule 10 of the Default Rules
[54] Section 145(b) of the Legislation Act – words in the singular include words in the plural
One of the objects of the UTMA is to assist in the resolution of disputes in relation to the management of units plans (section 6(c) of the UTMA) and to make the law about management easier to use generally (section 6(d) of the UTMA).
It is a function of the EC, on behalf of the OC, to enforce the rules of the OC.[55] The EC can issue an infringement notice[56] and, if the infringement notice is not complied with, the EC can apply to ACAT for orders. Section 110 of the UTMA also makes it an offence to fail to comply with an infringement notice unless the owner can satisfy section 110(2) of the UTMA. Other legislation applies to offences[57] and that is not a matter for consideration by the Tribunal in the current application. It appears that no action has been taken against the respondent in relation to section 110.
[55] Section 16(1)(a) of the UTMA
[56] Section 109 of the UTMA
[57] Section 5 of the UTMA
In this matter the ‘dispute’ between the parties is that the respondent failed to comply with an infringement notice. The applicant seeks orders to enforce the infringement notice and the respondent says that the infringement notice should not have been issued and should be withdrawn. The Tribunal has found that the infringement notice and the applicant’s decision to give it to the respondent are valid.
ACAT is authorised by section 56 of the ACT Civil and Administrative Tribunal Act 2008 to take any action in relation to an application that it considers appropriate provided this is consistent with the authorising law – here the UTMA. The UTMA sets out ACAT’s powers and the kinds of orders it can make in response to an application of this kind in section 109(3)(f)(ii) and section 129 of the UTMA.
The Tribunal considers that, in appropriate circumstances, it could make an order that the applicant is authorised to enter a unit to undertake ‘maintenance’[58] to achieve compliance with a valid infringement notice and that the EC could then authorise a representative (e.g. a tradesperson) to enter a unit to carry out this work.[59] An order of this kind in the current application would enable the EC to carry out its function of enforcing rule 12(a). Section 31 of UTMA provides for recovery of expenses incurred by the EC.
[58] ‘maintenance’ is defined to include ‘restoration’, ‘building’ is defined in the Unit Titles Act 2001 to include ‘structure’ and ‘improvements’ and ‘improvement’ is defined in s88H of the Land Titles Act 1925 to be a building or structure on or under land
[59] Rule 9 of the OC rules which is the same as default Rule 10 in Schedule
For the reasons set out in the following paragraphs, the Tribunal does not consider that it is reasonably necessary[60] or appropriate[61] to make further orders of that kind in this matter. The Tribunal considers that the appropriate order in this matter should be restricted to extending the time within which the respondent must comply with the infringement notice in relation to the removal of the structure.
[60] Section 129(2) of the UTMA
[61] Section 56 of the ACT Civil and Administrative Tribunal Act 2008
If the respondent fails to comply with the ACAT order then the applicant can take enforcement action in the ACT Magistrates Court[62] pursuant to Part 2.18 of the Court Procedure Rules 2006, and in particular rule 2442. In the Tribunal’s view the Magistrates Court would be able to make the kind of orders being sought by the applicant in relation to compliance with the ACAT order. Schedule 2 Part 2.1, 2.5 of the UTMA would be relevant to any enforcement action by the EC. Legal costs incurred by the applicant may then be recoverable pursuant to section 31 of the UTMA.
[62] Section 71 of the ACT Civil and Administrative Tribunal Act 2008– enforcement of a non-money order
The Tribunal notes that in its application the applicant does not seek to be reimbursed the ACAT application fee unless the respondent fails to comply with an ACAT order. For that reason the Tribunal will order that the respondent is only required to reimburse the applicant the ACAT application fee paid by the applicant, if the respondent fails to now comply with the infringement order by the revised due date.
If the respondent fails to comply with the infringement notice within the further period set out in the ACAT order and if action were then taken in relation to the offence provision in section 110(1) of the UTMA, the Tribunal considers that the findings it has made in this matter would be relevant in those proceedings if the respondent sought to rely on section 110(2) of the UTMA.
The respondent complied with part of the infringement notice by removing the fence on the south east of Unit 29. In response to the current application the respondent has, similar to the terms in section 110(2) of the UTMA, submitted that she has not acted in contravention of rule 12(a) as set out in the infringement notice and therefore should not be required to comply with the infringement notice or to remove the structure. The Tribunal has found that EC validly exercised the discretion to not approve the structure for aesthetic reasons pursuant to rule 12(a). The Tribunal finds that construction by the respondent of the structure contravenes rule 12(a). The infringement notice is valid and the structure and the northern pole should now be removed as required by the infringement notice.
The applicant has indicated in Exhibit A2 what part of the structure and northern pole need to be removed in order for the respondent to comply with the infringement notice. That is all of the area of the wooden horizontal slats which run east west for about 1.5 metres north from the face of the balcony, and that part of the pole, attached at the northern end of the structure, from the level of the western hand rail of the stairs to the balcony to the top of the pole. This pole, which is also attached to the stairs to the balcony and the handrail, from where it is affixed at ground level to the height of the handrail immediately above where it is attached to the stair handrail, can remain. The infringement notice does not require removal of the pole that is attached to the southern end of the structure where it abuts the northern face of the first floor balcony.
At the hearing the respondent advised that she would require at least eight weeks to arrange removal of the structure. The applicant did not indicate a specific time, but did not object to the period suggested by the respondent.
The Tribunal orders –
(a)The respondent must comply with the infringement notice by removing the structure and that section of the northern supporting pole described in paragraph 87 above and depicted in Exhibit A2, by 26 July 2016; and
(b)if the respondent does not comply with the infringement notice by cob on 26 July 2016 then the respondent is to pay to the applicant the sum of $280 being the ACAT application fee paid by the applicant in this matter and amount will be immediately due and payable to the respondent on 27 July 2016 unless the respondent has fully complied with the infringement notice by the date set out in the these ACAT orders.
For the reasons set out above, the Tribunal makes no other orders.
………………………………..
President M-T Daniel
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | UT 41/2015 |
PARTIES, APPLICANT: | Executive Committee, UP116 |
PARTIES, RESPONDENT: | Hilary Nicholson |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Ms. Berry (A Backhouse & Associates) |
TRIBUNAL MEMBERS: | Senior Member W. Corby |
DATES OF HEARING: | 4 March 2016 |
SCHEDULE OF LEGISLATIVE PROVISIONS
ACT Civil and Administrative Tribunal Act 2008
Other actions by tribunal
The tribunal may, by order—
(a)hear an application jointly with another application that arises from the same or similar facts; or
(b)make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or
Example
an order dismissing a proceeding with the consent of the parties to the proceeding
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(c)amend or set aside a tribunal order if—
(i)the order was made after hearing an application in the absence of a party; or
(ii)the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or
(iii)extraordinary circumstances make it appropriate to amend or set aside the order; or
(d)take any other action in relation to an application—
(i)that the tribunal considers appropriate; and
(ii)that is consistent with this Act or an authorising law.
Examples
1an order dismissing a proceeding on the withdrawal of the applicant
2an order dismissing a proceeding for want of prosecution
Note 1The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
Enforcement of orders
(1)A money order or non-money order made by the tribunal is, by force of this section, taken to have been filed in the Magistrates Court for enforcement under the Court Procedures Rules 2006, part 2.18 (Enforcement) on the day the order is made.
(2)In this section:
money order—see the Court Procedures Rules 2006, rule 2000.
non-money order—see the Court Procedures Rules 2006, rule 2000.
Legislation Act 2001
Gender and number
In an Act or statutory instrument—
(a)words indicating a gender include every other gender; and
(b)words in the singular number include the plural and words in the plural number include the singular.
Provision giving function gives power to exercise function
(1)A provision of a law that gives a function to an entity also gives the entity the powers necessary and convenient to exercise the function.
NoteEntity and exercise—see the dictionary, pt 1.
(2)The powers given to the entity under subsection (1) are in addition to any other powers of the entity under the law.
Unit Titles Act 2001
Units
(1)A unit is a part of a parcel shown in a unit title application or a units plan as a unit.
(2)After a units plan is registered, a unit of the units plan includes any unit subsidiary shown on the units plan as annexed to the unit.
Unit Titles (Management) Act 2011
Objects of Act
The objects of this Act are to—
(a)make it clear who is responsible for managing units plans; and
(b)help people who manage, or help in the management of units plans, understand and exercise their functions; and
(c)assist in the resolution of disputes in relation to the management of units plans; and
(d)make the law about the management of units plans easier to use generally.
Owners corporation—functions
(1)An owners corporation for a units plan has the following functions:
(a)the enforcement of its rules;
(b)the control, management and administration of the common property;
(c)any other function given to the corporation under this Act or another territory law.
Note 1The executive committee of an owners corporation exercises the functions of the corporation (see s 35 (1)). The executive committee must exercise its functions in accordance with any decision made by the owners corporation at a general meeting (see s 35 (3)).
Note 2A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).
(2)The owners corporation must comply with all applicable laws in force in the Territory.
Owners corporation—entry to units
(1)An owners corporation for a units plan does not have a right to enter a unit in the units plan without the consent of the owner or occupier, except in accordance with this section.
(2)The owners corporation may enter the unit without notice to the owner or occupier of the unit if the access is required in an emergency.
Examples—emergencies
1 water is flowing from 1 unit into another unit and is causing damage
2 an external glass window in the unit is dislodged and is likely to fall
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3)If entry to the unit is required to inspect or maintain the common property of the units plan, a person may enter the unit on behalf of the owners corporation if—
(a)the executive committee authorises the entry, and the person to enter, by resolution; and
(b)the executive committee gives the owner or occupier written notice that the entry must be allowed on a stated day.
(4)A notice under subsection (3) (b) must be given to the owner or occupier not less than 7 days before the entry it relates to.
Recovery of expenditure resulting from member or unit occupier’s fault
(1)This section applies if an owners corporation for a units plan has in carrying out its functions incurred an expense, or carried out work, that is necessary because of—
(a)a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or
(b)a breach of its rules by a member of the corporation, or an occupier of the member’s unit.
(2)The amount spent or the cost of the work is recoverable by the owners corporation from the member as a debt.
(3)If the owners corporation recovers an amount under subsection (2) from a member for an act, omission or breach of an occupier of the member’s unit, the member may recover the amount from the occupier as a debt.
(4)In this section:
work, carried out by an owners corporation, means maintenance or anything else the corporation is authorised under this Act to do.
Executive committee—functions
(1)The executive committee of an owners corporation exercises the functions of the corporation.
(2)Without limiting subsection (1), the executive committee’s functions include the following:
(a)developing matters in relation to—
(i)the common property; and
(ii)the strategic affairs of the owners corporation;
(b)submitting matters developed under paragraph (a) to the owners corporation for consideration;
(c)monitoring the owners corporation’s financial performance;
(d)approving the annual financial statements and budget for presentation to the owners corporation at the corporation’s annual general meeting;
(e)supervising the treasurer, secretary, manager (if any) and communications officer (if any);
(f)carrying out the decisions of the owners corporation made at general meetings.
(3)The executive committee must exercise its functions—
(a)as the corporation directs by resolution at a general meeting; or
(b)in the absence of a resolution—as the committee considers appropriate.
Note The resolution required under s (3) (a) is an ordinary resolution, unless the Act provides that the resolution should be a special, unopposed or unanimous resolution—see sch 3, s 3.14 (Decision-making at general meetings).
Breach of rules—rule infringement notice
(1)This section applies if the executive committee of an owners corporation reasonably believes that—
(a)the owner or occupier (the person) of a unit has contravened a provision of the corporation’s rules; and
(b)the circumstances of the contravention make it likely that the contravention will continue or be repeated.
(2)The owners corporation may, if authorised by an ordinary resolution of the executive committee, give the person a notice (a rule infringement notice) requiring the person to remedy the contravention.
NoteIf a form is approved under s 146 for this provision, the form must be used.
(3)A rule infringement notice must state the following:
(a)that the owners corporation believes the person is contravening, or has contravened, a provision of the rules;
(b)the provision of the rules the owners corporation believes is, or was, contravened;
(c)details sufficient to identify the contravention;
(d)if the owners corporation believes the contravention is continuing—the period (which must be reasonable in the circumstances) within which the person must remedy the contravention;
(e)if the owners corporation believes the contravention is likely to be repeated—that the person must not repeat the contravention;
(f)if the person does not comply with the notice—
(i)the person commits an offence; and
(ii)the owners corporation may, without further notice, apply to the ACAT for an order in relation to the failure to comply with the notice.
(4)If a rule infringement notice is given to a person following a request under section 111, the owners corporation must, not later than 14 days after the day the request was received, tell the person who made the request that the notice has been given.
Breach of rules—failure to comply with rule infringement notice
(1)A person commits an offence if the person—
(a)is given a rule infringement notice under section 109; and
(b)does not comply with the notice.
Maximum penalty: 5 penalty units.
(2)However, the person does not commit an offence under this section if, when the rule infringement notice is given to the person, the person is not contravening, or has not contravened, the provision mentioned in the notice in the way detailed for section 109 (3) (c).
Breach of rules—request for rule infringement notice
(1)This section applies if—
(a)a dispute exists between the owner or occupier of a unit in a units plan (the complainant) and the owner or occupier of another unit in the units plan (the accused person); and
(b)the dispute arises because the complainant reasonably believes that—
(i)the accused person has contravened a provision of the corporation’s rules; and
(ii)the circumstances of the contravention make it likely that contravention will continue or be repeated.
(2)The complainant may ask the owners corporation to give the accused person a rule infringement notice for the contravention.
Kinds of ACAT orders
(1)The ACAT may make the following orders:
(a)an order requiring a party to do, or refrain from doing, a stated thing;
(b)an order requiring a party to exercise a function under this Act;
(c)an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;
(d)an order requiring a person to pay to the Territory or someone else an amount of not more than $1 000;
(e)a declaration—
(i)that a general meeting or executive committee meeting is void for irregularity; or
(ii)that a resolution of a general meeting or executive committee meeting is void for irregularity; or
(iii)that a rule of the owners corporation is invalid for irregularity;
(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 a merits review of the motion that opposition to the motion was unreasonable;
(h)an order requiring stated accounts of an owners corporation to be audited, whether by a stated person or a person of a stated kind;
(i)an order allowing an applicant to examine records of the owners corporation;
(j)an order requiring an owners corporation to make or repeal a rule and register a copy of the resolution making or repealing the rule;
(k)an order appointing an administrator to exercise all or stated functions of the owners corporation, the executive committee or an office-holder in the committee;
(l)if the dispute relates to a matter mentioned in section 126 (1) (a)—an order to remove the animal from the unit if—
(i)a condition requiring the owners corporation’s consent to keeping the animal is not complied with; or
(ii)the animal is causing a nuisance.
(2)The ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute under this part.
(3)This section does not limit the orders the ACAT may make in relation to a dispute under this part.
Schedule 2Executive committees
Part 2.1What the executive committee must, may and cannot do
2.1Executive committee must keep minutes, and records and accounts
(1)The executive committee of an owners corporation must—
(a)keep minutes of its proceedings; and
(b)keep minutes of proceedings at general meetings of the corporation; and
(c)include in the minutes of proceedings at general meetings a record of every resolution of the corporation (including, for special, unopposed and unanimous resolutions, details of the kind of resolution); and
(d)keep a copy of any court order given to the owners corporation; and
(e)keep any authorisation by the planning and land authority given to the owners corporation; and
(f)keep proper records and books of account in relation to—
(i)the corporation’s assets and liabilities (including all amounts owing to and by the corporation); and
(ii)all amounts received and paid by the corporation.
NoteIf minutes or other records kept by the executive committee contain personal information, the executive committee must comply with the Australian Privacy Principles under the Privacy Act 1988 (Cwlth) in relation to that information.
(2)The executive committee must keep the documents, records and books for at least 5 years.
(3)The executive committee may keep the minutes, records or books of account in an electronic form.
(4)If an owners corporation fails to comply with this section, each executive member of the corporation at the time of the failure commits an offence.
(5)It is a defence to a prosecution for an offence against this section if the defendant proves that—
(a)the defendant took reasonable steps to ensure that the section was complied with; or
(b)the failure to comply happened without the defendant’s knowledge.
Maximum penalty: 20 penalty units.
2.5Decisions about taking legal action
(1)This section applies if the executive committee proposes to take legal action.
(2)The executive committee of an owners corporation must not take legal action on behalf of the owners corporation unless—
(a)the legal action relates to the payment of a contribution under the Act by a member of the corporation to the corporation; or
(b)the costs of taking the legal action are reasonably estimated by the corporation’s legal representative to be not more than the amount prescribed by regulation; or
(c)the corporation approves taking the legal action by ordinary resolution.
NoteSection 2.6 allows urgent legal action to be taken.
(3)For this section, the executive committee of an owners corporation takes legal action if the committee—
(a)begins a proceeding; or
(b)begins to defend a proceeding; or
(c)continues, or continues to defend, a proceeding.
(4)In this section:
costs, of taking legal action, means the legal costs and disbursements incurred by the owners corporation for its legal representation for the legal action.
Schedule 4Default rules
Erections and alterations
(1)A unit owner may erect or alter any structure in or on the unit or the common property only—
(a)in accordance with the express permission of the owners corporation by unopposed resolution; and
Court Procedures Rules 2006
Definitions—pt 2.18
In this part:
account, for a financial institution, includes—
(a)a deposit account or withdrawable share account; and
(b)any record of deposit or subscription for withdrawable shares; and
(c)a loan account that has a credit balance.
charging order—see rule 2401.
NoteThis definition also applies outside this part.
debt redirection order—see rule 2301 (1).
NoteThis definition also applies outside this part.
defendant, for division 2.18.17 (Enforcement—arrest warrants for absconding defendants)—see rule 2551.
earnings, of an enforcement debtor, means any of the following that are owing or accruing to the debtor:
(a)wages or salary, including, for example, any allowance, bonus, commission, fee, overtime pay or other amount received under a contract of employment;
(b)an amount that, although not payable under a contract of employment, is analogous to or in the nature of wages or salary, including, for example, an amount received under a contract for services;
(c)any other amount received, or the value of any benefit gained, as compensation for services or profit arising from a contract of employment, contract for services or position;
(d)a pension, benefit or similar payment;
(e)an annuity;
(f)an amount payable instead of leave;
(g)retirement benefit.
NoteAn example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
earnings redirection order—see rule 2350.
NoteThis definition also applies outside this part.
employer, of an enforcement debtor, means a person who, as principal, rather than as employee or agent, pays, or is likely to pay, earnings to the enforcement debtor.
NoteThis term applies to the Territory as an employer (see Legislation Act, s 121 (Binding effect of Acts)).
enforceable money order, of the court, means—
(a)a money order of the court; or
(b)a money order of another court or tribunal filed or registered, under a territory law or a law of the Commonwealth, in the court for enforcement.
Note 1A territory law includes these rules (see Legislation Act, s 98).
Note 2This definition also applies outside this part.
enforceable non-money order, of the court, means—
(a)a non-money order of the court; or
(b)a non-money order of another court or tribunal filed or registered, under a territory law or a law of the Commonwealth, in the court for enforcement.
NoteA territory law includes these rules (see Legislation Act, s 98).
enforcement creditor, for an enforceable money order of the court, means—
(a)the person entitled to enforce the money order; or
(b)the person to whom the benefit of part of the money order has passed by way of assignment or in another way.
NoteThis definition also applies outside this part.
enforcement debtor, for an enforceable money order of the court, means the person required to pay an amount under the money order.
NoteThis definition also applies outside this part.
enforcement hearing subpoena means a subpoena issued under rule 2103.
enforcement hearing warrant—see rule 2110 (2).
enforcement officer means the sheriff, a sheriff’s officer or a bailiff.
NoteThis definition also applies outside this part.
enforcement order, of the court—
(a)means an order of the court made under this part to enforce an enforceable money order or non-money order; and
(b)includes an order mentioned in rule 2001 (3), but, to remove any doubt, does not include an instalment order.
NoteThis definition also applies outside this part.
exempt property means property that is not divisible among the creditors of a bankrupt under the relevant bankruptcy law as in force from time to time and, for the enforcement debtor for an enforceable money order of the court, includes property of the enforcement debtor to which an order under rule 2202 (1) (Seizure and sale order—additional exempt property) applies.
fourth person, for division 2.18.7 (which is about regular redirections from financial institutions)—see rule 2330.
instalment order—see rule 2150 (1).
instalment order agreement—see rule 2157.
NoteThis definition also applies outside this part.
money order means an order of a court or tribunal, or part of an order of a court or tribunal, for the payment to a person (but not into court) of an amount, including an amount for damages, whether or not the amount is or includes an amount for interest or costs.
Note 1Order is defined in the dictionary to include judgment (see also def made).
Note 2This definition also applies outside this part.
non-money order means an order of a court or tribunal, or part of an order of a court or tribunal, for a form of relief other than the payment of an amount, whether or not the amount includes an amount for costs.
NoteThis definition also applies outside this part.
officer, of a corporation, includes a former officer of the corporation.
order debt, for an enforceable money order of the court, means the amount payable under the money order, and includes any amount payable under these rules without the need for an order.
order for delivery of possession of land—see rule 2451.
NoteThis definition also applies outside this part.
order for seizure and delivery of goods—see rule 2460.
NoteThis definition also applies outside this part.
order for seizure and detention of property—see rule 2470.
NoteThis definition also applies outside this part.
partner includes a former partner.
plaintiff, for division 2.18.17 (Enforcement—arrest warrants for absconding defendants)—see rule 2551.
principal officer, of a corporation, means a person who is or has been—
(a)the chair, or president, (however described) of the governing body of the corporation; or
(b)the general manager, chief executive officer, or other person, (however described) having general management of the affairs of the corporation; or
(c)the secretary, treasurer, or other person, (however described) having the general function of accepting correspondence for the corporation.
regular deposit, for division 2.18.7 (which is about regular redirections from financial institutions)—see rule 2330.
regular redirection order—see rule 2332.
NoteThis definition also applies outside this part.
security interest—see rule 2401.
seizure and sale order—see rule 2200.
NoteThis definition also applies outside this part.
senior officer, of a corporation, includes the principal officer of the corporation and anyone else who (whether alone or with others) has or has had powers of management, direction or control of the corporation.
third person, for division 2.18.6 (which is about debt redirection orders generally)—see rule 2300.
NoteThe Territory may be a third person (see Legislation Act, s 121 (Binding effect of Acts)).
Enforcement orders generally
(1)To enforce an order (the original order) (but not an order for the payment of money into court), a person entitled to enforce the original order may obtain an enforcement order from the court.
NoteOrder is defined in the dictionary to include judgment (see also def made).
(2)An enforcement order may contain any order directed to enforcing the original order.
(3)Without limiting subrule (2), an enforcement order includes the following orders:
(a)a seizure and sale order (see division 2.18.5);
(b)a debt redirection order (see division 2.18.6);
(c)a regular redirection order (see division 2.18.7);
(d)an earnings redirection order (see division 2.18.8);
(e)a charging order (see division 2.18.9);
(f)an order under division 2.18.10 relating to amounts or securities in court;
(g)an order under division 2.18.11 appointing a receiver;
(h)an order for delivery of possession of land (see division 2.18.13);
(i)an order for seizure and delivery of goods (see division 2.18.14);
(j)an order for seizure and detention of property (see division 2.18.15);
(k)an order issuing an arrest warrant or an arrest and detention warrant under division 2.18.16 (Contempt).
(4)An enforcement order may contain 2 or more orders directed to enforcing the original order and may be made to enforce an original order that is a money order and a non-money order.
(5)Without limiting rule 6901 (Orders may be made on conditions), an enforcement order may be made on conditions about the payment of, or giving security for, the estimated expenses of an enforcement officer in enforcing the order.
Enforcement—orders to do or not do an act
(1)This rule applies to an order (the original order) if—
(a)the order is a non-money order that requires a person—
(i)to do an act within a stated time; or
(ii)not to do an act; and
(b)the person contravenes the order.
(2)The original order may be enforced in 1 or more of the following ways:
(a)punishment for contempt of the person liable under the original order;
NoteFor provisions about contempt, see div 2.18.16.
(b)an order for seizure and detention of property against the person liable under the original order;
NoteFor provisions about orders for seizure and detention of property, see div 2.18.15.
(c)if the person liable under the original order is a corporation—without limiting paragraphs (a) and (b), the following:
(i)punishment for contempt of any senior officer of the corporation;
(ii)an order for seizure and detention of property against the corporation.
(3)Subrule (2) is subject to rule 2446 (Enforcement by contempt or seizing and detaining property—preconditions).
(4)Also, if the original order is an order to do an act, the court may—
(a)appoint someone else to do the act; and
(b)order the person liable under the original order to pay the costs and expenses caused by the failure to do the act.
(5)Subrule (4) does not affect the court’s power to—
(a)appoint a person to execute a document by order of the court; or
(b)punish for contempt
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