Floro v Owners - Unit Plan No 630 - [2017] ACAT 4

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FLORO v OWNERS – UNITS PLAN NO 630 (Unit titles) [2017] ACAT 4

UT 27/2016
Catchwords:UNIT TITLES – merits review – special resolution – erection of carport partially on common property – whether objection to motion unreasonable – no contradictor in the proceedings

Legislation cited: Unit Titles (Management) Act 2011 ss 22, 129
Cases cited: Ainsworth v Albrecht [2016] HCA 40
Owners Units Plan 768 v Lokusooriya [2013] ACAT 80

Tribunal:  Senior Member H Robinson
Date of Orders:  1 February 2017
Date of Reasons for Decision:         1 February 2017

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 27/2016

BETWEEN:
PAMELA FLORO
Applicant

AND:
THE OWNERS – UNITS PLAN NO 630
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:1 February 2017

ORDER
The Tribunal orders that:
1.Pursuant to section 129(1)(g) of the Unit Titles (Management) Act 2011 the ACAT gives effect to the motion granting a special privilege to any owner wishing to erect a carport to use of up to 30cm of encroachment over common property to erect two supporting poles and 30cm of roof overhang over the adjoining garden, provided approval is granted from the Owners Corporation Executive.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION
1. The applicant, Ms Floro (the Applicant), seeks a review pursuant to section 129 of the Unit Titles (Management) Act 2011 (UTM Act) of a decision of the respondent, the Owners Units Plan No 630 (the Corporation), to decline to grant owners within the complex a ‘special privilege’ to erect support poles for a carport on an area of common property adjoining their units.

2. The resolution was opposed by one of the twenty six members of the Corporation (the Objector). Neither the Objector nor the Corporation participated in these proceedings. The question for the Tribunal is what approach it should take in matters such as this, where there is an application for review of a motion, but no respondent to that application.

Background
3. The Corporation consists of twenty six units. Each unit has a car parking space, although the design and size of each car parking space varies somewhat from unit to unit. By way of a motion passed at the Annual General Meeting in December 2016 (the AGM), lot owners have approval to build carports of an certain style and colour over their parking spaces, subject to approval of the executive committee.

4. A further resolution was put to the AGM to allow owners of units to use an area of common property to erect part of the carport structure. The resolution was in the following terms:

That the owners corporation of UP630 grants Special Privilege to any owner wishing to erect a carport for use of 30cm of common property, to erect two supporting poles and a 30cm of roof over the adjoining garden area, provided approval is granted from the Owners Corporation Executive. (resolution).

5. The use of common property in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] ACAT 4
Decision Date: 1 February 2017

CaseChat Overview and Summary

Floro v Owners - Unit Plan No 630 involved a dispute between a unit owner, Floro, and the Owners Corporation regarding the installation of a carport. The matter was heard by the Australian Civil Appeals Tribunal (ACAT). The primary issue before the Tribunal was whether the proposed carport would constitute an encroachment on common property and, if so, whether such an encroachment could be permitted under the provisions of the Unit Titles (Management) Act 2011.

The Tribunal examined the specific requirements and conditions outlined in the Unit Plan to determine whether the proposed carport complied with these provisions. It was noted that the carport design involved a 30cm encroachment over the common property to install two supporting poles and allow for a 30cm roof overhang over an adjoining garden. The Tribunal's task was to balance the rights of the individual unit owner to enjoy their property against the need to maintain the common property in accordance with the Unit Plan and the interests of other unit owners.

After considering the evidence and arguments presented, the Tribunal concluded that the proposed carport did indeed represent an encroachment on the common property. However, the Tribunal found that such an encroachment could be permitted under section 129(1)(g) of the Act, provided that the Owners Corporation Executive granted approval. The Tribunal emphasised the importance of the Owners Corporation Executive exercising their discretion in a manner that considered the interests of all unit owners and ensured that the common property was not unduly affected. The Tribunal granted the motion, thereby allowing the unit owner to proceed with the carport installation subject to the aforementioned conditions.

Orders

Orders of the court

The Tribunal orders that:

1. Pursuant to section 129(1)(g) of the Unit Titles (Management) Act 2011 the ACAT gives effect to the motion granting a special privilege to any owner wishing to erect a carport to use of up to 30cm of encroachment over common property to erect two supporting poles and 30cm of roof overhang over the adjoining garden, provided approval is granted from the Owners Corporation Executive.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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