Forman & York v The Owners - Units Plan 312

Case •

[2015] ACAT 88

•

17 December 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL



FORMAN & YORK v THE OWNERS - UNITS PLAN 312 & ANOR
(Unit Titles) [2015] ACAT 88

UT 15/30

Catchwords:              UNIT TITLES – encroachments – whether survey overrides registered plan – access to common property – restraint of adjoining owner from alleged encroachment – removal of alleged encroachment – circumstances where such orders are appropriate – validity of resolutions – order amending resolution

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 48

Common Boundaries Act 1981 s 10

Land Titles Act1925 s 58

Land Titles (Unit Titles) Act 1970

Legislation Act 2001 s 88

Unit Titles Act 2001 ss 26, 32, 33

Unit Titles Act 1970 (repealed) s 26

Unit Titles (Management) Act 2011 ss 19, 20, 129,161 and 164

Cases cited:    Briginshaw v Briginshaw  (1938) 60 CLR 336

CIC Australia Ltd v ACT Planning and Land Authority,      Mainore Pty Ltd and ACT Civil and Administrative Tribunal   [2013] ACTSC 96; (2013) 277 FLR 26

Forman and York v ACT Planning and Land Authority and Evans and Evans [2013] ACTSC 167

James v Registrar General (1967) 68 SR (NSW) 361

Redland Bricks Ltd v Morris [1970] AC 652

Tribunal:                   Mr B. Meagher SC, Senior Member

Date of Orders:  17 December 2015
Date of Reasons for Decision:         17 December 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL  UT 30 of 2015

BETWEEN:

DAVID FORMAN AND SARA YORK
Applicants

AND:

THE OWNERS – UNIT PLAN 312
First Respondent

JO - ANN HARDIE
Second Respondent

TRIBUNAL:             Mr B. Meagher SC – Senior Member

DATE:  17 December 2015

ORDER

The Tribunal Orders that:

  1. Pursuant to section 129(f) of the Unit Titles (Management) Act 2011 the special resolution of the general meeting of the second respondent held on 26 June 2014 be amended to read:

    “Article 4(e) of the Articles of Unit Plan 312 be deleted and replaced with the following words:

    (e) except in accordance with the express permission of a simple majority of voters at a general meeting of the Corporation and in accordance with the provisions of any law in force in the Territory applicable in the circumstances, erect or alter any structure in or on his, her or its unit.”

  2. The application be otherwise dismissed.

  3. There be no order as to costs.

    ………………………………..

Mr B. Meagher SC

Senior Member

REASONS FOR DECISION

The Proceedings and Parties

  1. This is an application by David Forman and Sara York, the owners of unit 4 of Units Plan 312 seeking orders set out in their amended application dated 17 June 2015. At the hearing the applicants who appeared for themselves helpfully provided a separate typed list of the orders sought and it is set out in paragraph 48. The second respondent is the owner of unit 3 which has a common boundary with unit 4 on its south-western side. She was also unrepresented. The first respondent, the Body Corporate was represented by the other owners Ms Nicole Gaha, Mr Peter Hogan and Ms Jessica Hogan. Peter Hogan spoke on their behalf.

Evidence

  1. The applicants filed an application with a witness statement from both applicants and a number of annexures which are marked DF 1-DF 18. During the course of the hearing I had marked DF 14, a letter and plan from a surveyor Mr Foxlee dated 15 October 2008, as MFI 1[1] but subsequently, with the consent of all the parties, admitted the whole of that material as well as further material subsequently filed by all the parties.[2] In addition there were some further documents tendered at the hearing which were admitted.

    [1] Transcript of Proceedings 2 November 2015 page 10

    [2] Transcript of Proceedings 2 November 2015 page 87

  2. The filed written material that was before the Tribunal consisted of:

    (a)a statement by the applicants with annexures which are marked DF1 - DF18. DF9 was MFI 4[3];

    (b)particulars filed by the applicants on 13 August 2015 which included DF 19 being the Units plan 312 and DF 20-24;

    (c)DF 26 and 27 filed on 27 August 2015[4];

    (d)a statement of facts and contentions (SFAC) by the applicants dated 28 August 2015 which included a witness statement from Eric Martin, an architect;

    (e)DF 28 filed 28 August 2015 a hydraulic plan which was also MFI 3[5]

    (f)a SFAC filed by the second respondent with attachments A-G;[6]

    (g)a SFAC filed by the first respondent with four appendices including an affidavit of Denis Hogan; and

    (h)the applicants’ responses to each respondent.

    [3] Transcript of Proceedings 2 November 2015 page 87

    [4] DF 27 consists of photos of the northern side of unit 3 and was marked MFI 2 - Transcript of Proceedings page 31

    [5] Transcript of Proceedings 2 November 2015 page 38

    [6] Annexure B which was the final approval of the second respondent’s development application dated 2 July 2015 and which was not actually attached, was described as marked MFI 3 at Transcript page 46 but was thereafter referred to as Exhibit 3 and is so marked and placed on the Tribunal file)

  3. The additional documents tendered[7] were:

    Exhibit 3 Approval Letter and attached documents from ACTPLA dated 2 July 2015 in respect of a development application by the second respondent

    Exhibit 4 A plan dated 9 March 2015 by Girder Design prepared for the second respondent in respect of the development application by the second respondent[8]

    Exhibit 5Email from the design draughtsman to Ms Hardie dated 28 October 2015[9]

    Exhibit 6 Two pages being sealed copies of body corporate resolutions of 4 July 2014 and 26 June 2014 obtained by a title search by Ms Hardie at time of purchase[10]

    Exhibit 7A title search by Ms Hardie dated 28 October 2015[11]

    Exhibit 8A letter from ACTPLA to Ms Hardie dated 29 October 2015[12]

    [7] The transcript does not show all the exhibit and MFI numbering and the numbers are those ascribed by me

    [8] Transcript of Proceedings 2 November 2015 page 91

    [9] Transcript of Proceedings 2 November 2015 page 120

    [10] Transcript of Proceedings 2 November 2015 pages 128-129

    [11] Transcript of Proceedings 2 November 2015 page 130

    [12] Transcript of Proceedings 2 November 2015 page 131

  4. In respect of the SFAC and responses I indicated that I would treat all non-evidential material including lay opinion as submissions.[13]

    [13] Transcript of Proceedings 2 November 2015 page 87

  5. I also regarded the statements of facts made by the parties during the hearing as evidence and attended the premises with the parties and saw the areas in question.

  6. There appeared to me to be no relevant credit issues and there was no request for cross examination of anyone. There were some matters raised that have not been necessary to decide which would have required much more rigorous evidence and could well have raised credit issues and I will refer to them where they arise. The parties have helpfully set out what they are responding to in their responding SFACs..

Facts

  1. The background facts, which I find based on the evidence provided either challenged or unchallenged, are as follows.

  2. Swan Place is a complex of four townhouse Class B units in Kingston with a boundary on Giles Street. The units are depicted in a registered deposited plan number 312 and are built on land being Block 7 Section 24 Kingston. The floor plan of the ground floor of the plan is attachment B to the applicants SFAC and is also DF 19.

  3. The second respondent is the current owner of unit 3. The applicants are the current owners of unit 4. In respect of the other two units, unit 1 is owned by Peter and Jessica Hogan and unit 2 is owned by a company associated with Nicole Gaha.

  4. The units were built in the early 1980s.The deposited plan was prepared by a surveyor Mr Foxlee. This survey took place on 9 December 1982 as stated in paragraph 32 of the applicants’ statement. The units plan was registered on 12 December 1983. DF 28 is a plan prepared by the builders in 1982. The south-western side of unit 3 adjoins unit 4. The deposited plan shows the south-western wall that contains the residence as having its face on the boundary. This wall has been described by the applicants as a double brick cavity wall and it is two stories in height. It had been assumed by the respondents that this was the subject of the proposed Order 3. However the applicants made it clear at the hearing and it is reasonably clear from their particulars and their SFAC that this wall is not the subject of the relief sought. I shall call the double brick cavity wall the ‘home wall’. In addition, running from the home wall towards Giles Street are said to be five separate structures. They are identified in paragraph 1 of the particulars provided by the applicant and are contained in their SFAC on page 12. The applicants described the structures as follows (running from Giles Street towards the home wall):

    (a)part of the owner’s corporation wall on the south western side of common property that is currently enclosed in unit 3 gardens;

    (b)a boundary brick fence;

    (c)a brush fence;

    (d)a double brick no cavity nib wall; and

    (e)59 cm of double brick no cavity wall (contiguous and co-linear to the nib wall)

  5. I conducted a site inspection. There are some photos that give an idea of what is identified. DF 13 has the brush fence in the foreground. DF 27 depicts the north-western side and the home wall can be seen in it as well as walls similar to those identified in (d) and (e) above. There is a photo on page 18 of the applicants SFAC showing the home wall and the nib wall. The wall in (e) above is said to be between the sloping part of the nib wall and the home wall. In this photo the brush fence can be seen.

  6. Whilst the applicants have sought to identify all these walls as separate structures, it is clear that the walls in (a) and (b) are the same wall and the walls in (d) and (e) are also part of the same wall. Whilst there may be a distinction between the home wall and the walls in (d) and (e) they are all clearly part of a continuous structure. Both in the photographs, the various plans, and on a site inspection it is obvious that all of the five identified structures are co-linear with the home wall and take a line from it.

  7. In 1994 there was an informal meeting of the owners of the units. Air Marshall David Evans and Dorothy Evans were the owners of unit 3. Mr David Forman was the owner of unit 4. Another unit was owned by Denis Hogan and Kathleen Hogan. The remaining unit was owned by Beverly Stubbing and Tony Wilson. All those people other than Mr and Mrs Evans signed the proposal which is DF 1. They agreed to allow “Mr and Mrs Evans to have permissive occupancy” of common land on the east side of unit 3 on Giles Street. They agreed to allow the existing wall to be removed and replaced with a new wall that enclosed this area.

  8. The effect is partly illustrated by a photo annexure F to the second respondent’s SFAC.

  9. There is a degree of difference between the recollection of Mr Forman as to what was involved and that of Mr Hogan. Mr Forman believes that Mr Hogan was saying that the people actually met at a meeting of which he was the chairman. Mr Forman remembers it being done by Mr Evans giving the document to each party to sign. In Mr Hogan’s affidavit he does not actually say that they all met at the same time to pass the resolution although that may be an inference from what he does say. In any event I do not believe anything turns on the method by which it came into existence. I am prepared to accept that Mr Forman’s recollection as to how it came into existence is correct.

  10. In any event, Mr Evans got approval from the development authority and erected the new wall and provided a gate in it. The approval was in 1995 as is shown in DF 9. Mr Forman stated and I accept that the wall was not erected until about 1999. He agrees however that between 1999 and a time when an issue arose between himself and Mr Evans, no one sought to get access to the common area enclosed by this wall. The first respondent says that the gate was always locked. Mr Forman says in paragraph 5 of his statement that he always understood and believes the other members of the body corporate also understood that Mr Evans did not have ownership of the additional land and that he would continue to give access to the land to all. However, he says no access was attempted. Mr Hogan in his affidavit stated that he had no such belief in relation to access and in fact believed the opposite. The minute does not suggest that there was any ownership being provided and I do not understand the respondents in the application to be asserting that that would be so. It is evident from the terms of the resolution itself that all that was intended was there be a permissive occupancy which conveyed no proprietorial rights whatsoever. On the other hand the resolution says nothing about their being continued access to other members of the body corporate.

  11. Whilst I have no reason to doubt Mr Forman’s credit, the layout of the area, the language of the resolution, the conduct of all parties until the dispute in 2008 and the sheer impracticality of allowing others into the area which was part of a private area for unit 3, make it highly improbable that there would have been such a common understanding. From the history of the matter it seems unlikely that Mr Forman turned his mind to this at all until the dispute arose in 2008. Mr Hogan says that he had no such belief and I prefer his understanding of the situation to that of Mr Forman. From a site inspection and from the other documents, that I have already adverted to, the layout of the area is inconsistent with people, other than the occupiers of unit 3, having access to this area. As was explained in the second respondent’s SFAC privacy would be impossible if that were the case. Part of the resolution was to provide additional security and enhance the privacy of the occupiers of unit 3.

  12. It was not until 2008 that any concerns were expressed. Mr Evans and his wife wanted to make some alterations to their property. He sought development approval. The applicants objected to these alterations. Notwithstanding their objections development approval was given. In the course of that process the original plans by Mr Evans were amended. Eventually the applicants appealed the decision approving the development in the Supreme Court. The facts are set out in a decision of Refshauge J of 23 August 2013.[14] In making objections and appealing the approval, the applicants sought the help of Eric Martin an architect. He suggested that the applicants get a surveyor as he felt that the boundary lines might be wrong. Mr Foxlee was contacted.

    [14] Forman and York v ACT Planning and Land Authority and Evans and Evans [2013] ACTSC 167

  13. Up until that time there was no practical concern expressed, or I infer noticed, by the applicants concerning the structures on the south-western side of unit 3. Mr Foxlee provided a report which is DF 14. The applicants say that this shows that the home wall face was not on the boundary at all but its centre was. Mr Foxlee did not specifically address the other structures but Mr Forman contends that they are collinear with the home wall and there are ‘encroachments’ onto his land of 17 cm at the Giles Street end and 15 cm at the home wall end.

  14. This was not an issue in the Supreme Court case as the applicants accepted that the development application as amended did not encroach by extending as far as the current outer edge of the boundary walls or otherwise.

  15. I will later in these reasons make a finding as to the position concerning the structures.

  16. In any event during the dispute with Mr Evans the applicants sought to get the body corporate to intervene and there were a number of communications and meetings seeking to deal with these matters.

  17. Mr Forman says that Mr Evans agreed to plant some low lying shrubs in the area. There aren’t any there now. Actually the only evidence about low lying shrubs occurs when Mr Evans explained his plans to the development authority at DF 9. It is not apparent that this was ever discussed by the unit owners or that it was a necessary element of any approval.

  18. Mr Forman says the body corporate replaced the original timber gate in 2009 with a Colourbond gate. The gate has been locked ever since. I accept a new gate was put in then but am uncertain whether it was done by the Body Corporate or by Mr Evans. Nothing turns on it. I also accept that the gate was locked. I also accept that whether the earlier gate was also always locked, it was never used by anyone other than Mr and Mrs Evans.

  19. Mr Forman refers to a body corporate meeting on 8 July 2009. At the meeting, he tabled DF 2 (and DF 6), which states “the owners corporation wall, on the south-western side of common property that is currently enclosed in unit 3 gardens, encroaches on unit 4 land.” The applicants said in that document that they intended to ask the body corporate to pay to dismantle the wall. They also say that they asked the owners of unit 3 to allow access to the common property which is presently fenced off and locked. It also indicated they would like to use a quarter of the common property to extend their vegetable garden. It may be observed that that would appear to be inconsistent with there being low lying shrubs.

  20. On 24 February 2010 Mr Forman wrote a letter to the body corporate manager which is DF 4 in which he asked for immediate access to body corporate land locked up by Mr and Mrs Evans. In his statement Mr Forman says he based that request on section 26 of the Unit Titles Act 1970 which reads:

    Common property to be held in trust

    26.  (1)  The corporation shall hold the common property in trust for the persons who are for the time being the members of the corporation as tenants in common in undivided shares proportional to the unit entitlements of their respective units, and shall afford those persons opportunity for the reasonable use and enjoyment of the common property.

    (2)  The estate in the lease of the common property held by the corporation is not capable, either at law or in equity, of being transferred, assigned, sublet or mortgaged.

    It should be noted that the section was replaced by s47 of the Unit Titles Act 2001 and is now in s19 the Unit Titles (Management) Act 2011 being and 20(2). There are some slight differences in language between the sections but they are substantially the same. The 2001 Act applied at the time the dispute arose and the 2011 Act applied at the time of the application and the hearing. It reads

    19“           Common property

    (1)An owners corporation for a units plan holds the common property as agent for—

    (a)if all the units are owned by the same person—the owner; or

    (b)in any other case—the unit owners as tenants in common in shares proportional to their unit entitlement.

    NoteThe owners corporation may, by ordinary resolution, decide to hold sustainability infrastructure installed on common property as trustee for the unit owners (see s 23 (3)).

    (2)The owners corporation must give all members of the corporation opportunity for the reasonable use and enjoyment of the common property.”

  21. On 29 March 2010 the applicants received a letter from the body corporate manager dated 22 March 2010 which is DF 7. Mr Hamilton says:

    With regard to common property issue you raised regarding Unit 3, It appears this matter was discussed and agreed to at a meeting of the Body Corporate held on 21 December 1994. I believe the Body Corporate would not grant you permission to use any part of this area. Should you wish to raise this matter again I suggest you do so at the next AGM.

  22. On 30 March 2010 Mr Forman sent an email to Mr Hamilton which is DF 8. In it he refers to section 26 and seeks to raise this at the next body corporate meeting.

  23. At the AGM on 12 August 2010 Mr Hamilton stated that the other members of the body corporate were convinced that he was not entitled to access although no motion was put.

  24. The court case involving Mr Evans’ application was heard on 21 March 2011 but was not decided until 23 August 2013. The approval was set aside. Mr Evans would have been required to resubmit his development application to ACTPLA to resolve on a proper basis. The judgement does not indicate that there would be no capacity for Mr Evans to develop the property in accordance with his plans, rather that ACTPLA had made mistakes in the process. Mr Evans did not resubmit his development application but instead sold the property to Ms Hardie. From the applicants’ SFAC at paragraph 7 it appears that Ms Hardie and Mr and Mrs Evans entered into a contract to sell the unit on 29 May 2013. The transfer took place on 4 July 2013. Ms Hardie did not pursue the original development application.

  1. On 28 March 2014 Ms Hardie sent a letter to all owners including the applicants proposing detailed changes that she wished to make to unit 3 and asked for feedback before seeking a general meeting to discuss them. There was a meeting between Ms Hardie and the applicants on 11 April 2014. There is a note made by the applicants of the events of that meeting contained in DF 20. At the meeting Ms Hardie said that when she bought unit 3 she was unaware that there was an encroachment on unit 4 land from unit 3 or that a section of the back courtyard of unit 3 was really body corporate common property.

  2. On 6 June 2014 the applicants received a notice of general meeting to be held on 26 June 2014. In it a resolution was proposed as follows “To amend Rule 4, Erections and Alterations (1)(a) of the Default Rules as set out in the Unit Titles Act 2001 by deleting the word ‘unopposed’ and replacing it with the words ‘a simple majority of members who vote’.”

  3. On 26 June 2014 the resolution was passed with Mr Forman, who was absent, voting against it.

  4. On 27 July 2014 Mr Forman emailed Ms Hardie requesting that plants, which had been removed from the common property, be replaced. He received a reply indicating that she was told by the body corporate manager that she did not need approval to remove plants cleared within “our own courtyard.”

  5. At the hearing both Mr Hogan on behalf the first respondent and Ms Hardie made it clear that they understood that the area was common property and there was no suggestion that Ms Hardie had any proprietorial rights over it.

  6. On 28 August 2014 a notice of meeting for 28 August 2014 was sent. It contained proposed resolutions put forward by the applicants as follows:

    ·   ...that unit 3 be advised to allow Body Corporate members access to the body corporate land they have enclosed.

    ·   To resolve that Unit 3 be advised that they needed body corporate permission to remove the shrubs from the (enclosed) body corporate area.

    ·   To resolve that Unit 3 should be asked to replant the body corporate area with the types of low lying shrubs that were there previously…

  7. There was also a motion put forward by unit 3 as follows:

    ·   to resolve by simple majority under the (amended rule ) that the following erections/alterations are allowed.

    ·   Enclosing of the upstairs balcony and the underside of the balcony leading to the garage

    ·   The erection of a stand-alone pergola (entertaining area) in the enclosed backyard

    ·   Conversion of the current brown tiled roof to light white/off-white colour bond roof

    ·   Changing of the window frame colour to white and the front door to timber

    ·   Conversion of the green panelling to a low maintenance timber panelling

    ·   Gas connections to unit 3

    ·   Painting of Gates

  8. The minutes of the meeting are reproduced on page 5 of the applicants’ SFAC. The motions put forward by the applicants were defeated and the motion put forward by the second respondent was carried except in respect of the changing of the colour of the brown tiled roof.

  9. On 24 August 2014 the applicants took photographs of the backyard of the second respondent in unit 3. It shows it looking somewhat unkempt. Ms Hardie has explained that this was at a time during the process of moving. It was certainly not like that when I visited the site on the day of the hearing. Her plan obviously involves developing this area to some extent. The state of the yard does not appear to be an issue.

  10. The applicants again sought a general meeting as emails in DF 15 disclose a meeting was held on 15 October 2014, but the motion proposed by the applicants was defeated as the minutes in DF 16 demonstrate. The motion put was:

    That the body corporate approve removal of the body corporate brick wall and foundations that encroach onto Unit 4 property and replacement by lower brick wall and foundations that do not encroach. The body corporate is asked to pay for this. A gate to be installed in the new wall will be paid for by Unit 4.

  11. The above followed an exchange of emails between the applicants and the second respondent in September and October 2014: see DF 17 and 18.

  12. Subsequently the second respondent made a development application. The original application was not in evidence before the Tribunal. There was in evidence an approval dated 2 July 2015 which in turn incorporates plans dated September 2014. I infer that the application was made in about September 2014. The second respondent made several variations to the original plans in order to satisfy ACTPLA after a number of objections were received from the applicants.

  13. No appeal has been lodged and the time for appeal has passed. The applicants provide some explanation for the decision not to appeal.

  14. The application before the Tribunal was lodged on 17 June 2015.

  15. The hearing took place on 2 November 2015. Leave was given to the second respondent to file an additional submission arising from a site inspection and for the applicants to respond to it. Subsequently, leave was also sought by the applicants to add to their submissions in respect of issues arising from the tender of the development approval, Exhibit 3. Further submissions have been received in respect of that.

  16. In addition, subsequent to the hearing, application was made to amend the application to change the respondents from the owners of the body corporate to individual members. I refused that application and communicated this to the parties as follows:

    After the hearing of the matter an application has been made by the applicants to further amend the proceedings by changing the names of the respondents from the Body Corporate to the other three unit holders.

    The reason for this was because it has been foreshadowed that there will be a resolution by the Body Corporate to have legal costs incurred by it and Ms Hardie in respect of the application paid by the body corporate. This would mean that the applicants would be partly funding the respondents to the application in opposing it.

    The application is refused as 

    1   It is misconceived. The costs have already been incurred by the Body Corporate whilst it has been a party and changing the parties now would not affect the possible entitlement of the Body Corporate at least to be reimbursed.

    2   It is far too late as assuming contrary to the conclusion in 1 it could so change the entitlement it would cause prejudice to the Body Corporate. 

    3   A less fundamental amendment is normally not allowed after the hearing and this proposal is in effect to reconstitute the proceedings completely 

    4   In my view the current respondents are the correct parties and this was the effect of an earlier order made by the President and referred to in her email to the parties 

    5   I am making this order urgently as the meeting is said to be on Friday 27/11/15

    6   The order is not intended to sanction the proposed resolution. Such a resolution is not the subject of the proceedings and any view I might express about it would be premature and would be without having heard the respondents about it. However with that qualification I find it difficult to see why any reasonable and necessary costs incurred by the Body Corporate as a result of being joined in the proceedings should not be paid by it from its own funds. Equally I find it difficult to see how the funds of the Body Corporate ought reasonably be used to pay for any costs incurred by Ms Hardie

The issues

  1. The parties adopted a course of directing attention to orders sought by the applicant in the order they appeared in the amended application as follows:

    (a)Order 1: An order requiring the Second Respondent to refrain from erecting any building which rests upon, encroaches upon or overhangs either Unit 4 property or the common property of Units Plan 312;

    (b)Order 2: An order requiring the Second Respondent to make available to all members of Units Plan 312 access to the common property which adjoins Unit 3 by way of an unlocked gate or provision of a key to the lock she maintains upon the gate to the common property.

    (c)Order 3: An order requiring the First and Second Respondents to remove and re­ position all the brick walls encroaching upon the Applicant’s land. (Ms. Hardie omits the word all)

    (d)Order 4: A declaration that Article 4 (l) (a) of the Default Rules of Units Plan 312 is void for irregularity in that at a meeting held on 26 June 2014, the Owners purported to amend the 2001 Default Rules, rather than the 1970 Default Articles. (Ms. Hardie left out (l)(a))

    (e)Order 5: An order repealing the following resolutions of the general meeting of 28 August 2014:

    •    Resolution allowing Unit 3 to enclose the upstairs balcony and underside of the balcony leading to the garage.

    •    Resolution allowing the erection of a stand alone pergola on Unit 3.

    (f)Order 6: An order giving effect to the following unsuccessful motions for resolution of general meetings of the First Respondent after merits review of the motion:

    •    To resolve by special resolution that Unit 3 be advised to allow body Corporate members access to the Body Corporate land they have enclosed.

    •    To resolve that Unit 3 be advised that they needed Body Corporate permission to remove the shrubs from the (enclosed) Body Corporate area.

    •    To resolve that Unit 3 should be asked to replant the (enclosed) Body Corporate area with the types of low lying shrubs that were there previously, after consultation with Unit 4 as to suitability. Unit 3 should be advised to keep plants in good order. Ms Hardie has used 'plans' instead of 'plants'.

    (g)Order 7: An order asking the second respondent to provide copies of Body Corporate stamped approved plans and for the Tribunal to determine if such plans have been effectively sealed (such as required as a precondition for approval by ACTPLA and for construction to commence).

    (h)Order 8: An order requiring that the representatives/builders of the second respondent do not enter onto adjoining Unit 4 property during construction of the approved extension.

    (i)Order 9: An order requiring that the second respondent does not demolish any part of the brush fence or the brick wall of Unit 3 without prior written approval from the applicant. Ms Hardie has omitted the word "written".

  2. The issues that flow from all these orders are as follows:

    (a)Are there encroachments on the south-western boundary of unit 3 onto unit 4?

    (b)If so should orders be made as sought for the removal of offending structures sought in Order 3?

    (c)Are there threatened additional encroachments in the proposed development of Ms Hardie of unit 3?

    (d)If so should there be an injunction as sought in Order 1 and 9?

    (e)Should access be allowed to the applicants to common property enclosed in unit 3 as sought in Order 2 and effectively in Order 6?

    (f)What is the effect of the special resolution in Order 4 and what should be done if there is an error?

    (g)Should ACAT interfere with the consent of the Body Corporate to allow a Development application encompassing the matters in Order 5? Allied with this is the relief sought in Order 7.

    (h)Is there a threat to trespass as described in Order 8?

Order 3

  1. The applicants identify the brick walls they say encroach concerning order 1 in paragraph 2 of their SFAC. There are five separate structures all on what is described as the south-western side of unit 3 where it adjoins unit 4. I have described them in paragraph 11. The evidence relied on by the applicants is DF 14, a letter and plan from Mr Foxlee a surveyor and the witness statement of Eric Martin. Also relevant is the Units Plan 312.

  2. It is contended by the applicants that the structures built along the south western boundary of unit 3 encroach on to their land. Order 3 and documents filed by the applicants seek removal and repositioning of these walls so as to remove the alleged encroachments.

  3. It is contended by the respondents that it is not established that there are encroachments. It is said that Mr Foxlee’s letter was not signed and it was not the original. It was also said that no weight should be given to his report because he had made an error on the units plan on his own admission and should not be relied on. It was said that Mr Forman had been critical himself of Mr Foxlee. It was also said that Mr Foxlee’s report is confined to the double brick cavity wall and makes no statements about the remaining walls or structures. It is common ground that along the relevant boundary there is a two storey double brick cavity wall. It is shown on the registered units plan as being built with its face on the boundary. Mr Foxlee says the units plan that was prepared by him is wrong and the real boundary line runs down the middle of the double brick cavity wall.

  4. Mr Forman provided a signed copy of the report in his response and I ruled that the lack of the provision of the original was no objection to the document and I would have regard to it.

  5. No survey evidence to the contrary was provided by the other parties.

  6. Mr Martin accepts there is a discrepancy but his statement is not expressly saying that in his opinion the structures are all built as contended by the applicants. He does say that, if the walls are where the 2008 survey says, then the width of the unit 3 garage on the DP survey is wrong and must be less. Mr Martin was not involved until 2008 when the applicants hired him to provide evidence in respect of an earlier development application by the previous owners of unit 3. I do not get much assistance from this statement. Mr Forman however explains the discrepancy in his SFAC at paragraph 5 and the following paragraphs. His analysis is very thorough and generally I accept it.

  7. The units plan was registered in 1982 and the structures have all been there for many years, some at about the time of the initial survey. The double brick cavity wall has been there since then and it was not until 2008 that Mr Forman was aware that there may be an encroachment.

  8. The wall described by the parties as the wing or nib wall that is part of the same structure is not shown on the units plan, but it appears to have been constructed as part of the double brick wall and appears to be of some structural importance. A builder approached by Ms Hardie said both it and the cavity wall were structurally essential to the whole building on unit 3.[15] Mr Forman asserts that it does not have such structural importance. I have seen the walls in question. The nib wall has an appearance of being integral to the double brick cavity wall. There is a picture of it at page 18 of the applicants SFAC. It is not clear why it would be there unless it had a part to play in the support of the cavity wall and in turn the whole structure. The builder, Mr McInnis, says so in his letter to Ms Hardie of 2 October 2015. Mr Forman did not assert that he had any qualifications that might inform his opinion as to the structural significance of the wall. I accept that the nib wall is of structural significance to the rest of the building including the cavity wall that it is adjacent to. Even if I thought otherwise the reasons set out below are such that I would not order its removal.

    [15] see attachment G to the second respondent’s SFAC

  9. I received a further submission from the second respondent providing a plan and a statement from her husband who has some extensive building and bricklaying experience. He says it is structural. Mr Forman asserts the contrary again.

  10. I had already reached the conclusion that more probably than not it was structural and remain of that opinion. The statement of Ms Hardie’s husband is not that of an independent expert and if that was the only evidence on the subject I would be wary of relying on it.

  11. Initially it was thought that the applicants required the removal of the double brick cavity wall but Mr. Forman made clear at the hearing[16] and it is clear from his SFAC that he did not seek that, but did seek removal of the other brick walls but not the brush fence.

    [16] Transcript of Proceedings 2 November 2015 page 122

  12. The discovery of this survey issue arose whilst the applicants were contesting a development application of the former owners. For reasons that do not affect this case that was not an issue in a Supreme Court appeal from ACTPLA.

  13. The former owner did not pursue the development application and sold the unit to Ms Hardie. The development application she made is different from that made by the former owner.

  14. Notwithstanding the arguments made by the respondents, I can find no good reason to reject the evidence of Mr Foxlee, and to the extent that it is of use, the evidence of Mr Martin.

  15. It is apparent from DF 14 and from a site inspection that all the structures complained about are built in the same line as the double brick cavity wall and take their line from it. It is probable that the nib wall was built at the same time although not shown on the Units Plan. It is not known when the remaining walls were erected but they have been there for some time. It is apparent from DF 14 that these walls are between 15 and 17 cm on the side of what the surveyor believes to be the property of unit 4. However, he says that this is because the centre of the double brick wall is on the boundary so it also must extend some distance into the property of unit 3.

  16. The effect of this evidence is that the registered plan contains a survey error. It shows the double brick cavity wall as having its face on the boundary not its centre. The other walls, being in line with it, are also positioned so that their face is on the boundary. As I understand it, Mr Foxlee has come to this conclusion because the internal measurements are otherwise inconsistent as there is not enough room to fit everything into the footprint as he has drawn it.

  17. However, whilst it might be correct that the deposited plan is in error the boundaries of the units are legally those contained in the plan. Ms Hardie bought the unit for value and on her evidence without notice of any issue about the boundaries as depicted on the deposited plan.[17] There is no indication on the title search (Exhibit 7) of any exception to that, nor would there be.

    [17] see sections 32 and 33 of the Unit Titles Act2001 and the Land Titles Act1925 and the Land Titles (Unit Titles) Act 1970

  18. The parties made no legal submissions in the material though I had raised the question of indefeasibility during the hearing. Ms Hardie in her SFAC referred to an extract from a legal text at paragraph 14. The principle of indefeasibility of title has some exceptions. The relevant section of the Land Titles Act 1925 is section 58(1) (c). It provides:

    (1)     Notwithstanding the existence in any other person of any interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, a person becoming registered as proprietor of land or of any interest in land under this Act shall, except in case of fraud, hold the land or interest, subject to such interests as are notified on the folium of the register constituted by the grant or certificate of title of the land, but absolutely free from all other interests whatsoever except as to—       

    ...

    (c)     any portion of land that may by wrong description of parcels or of boundaries be included in the grant, certificate of title, lease or other document or instrument evidencing the title of the registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value; and (my emphasis)

  19. Ms Hardie is a purchaser for value. The buildings have been there for many years and no issue had ever arisen about the measurements which are minimal in their effect until 2008 some 26 years after the deposited plan was registered. She owns the area as depicted on the deposited plan. The fact that Mr Foxlee made a mistake and the registered deposited plan is wrong does not alter that. For that reason there is no encroachment. There is a power for the Registrar of Titles or the Supreme Court to correct the record in sections 160 and 161 of the Land Titles Act but it ought not where there is a bona fide purchaser for value without notice, unless section 58 made an exception. It does, but not where the holder acquired the land for value.[18]

    [18] see James v Registrar General (1967) 68 SR (NSW) 361

  1. Assuming I am wrong, there is a further argument that the correct position for dividing common walls is along the centre line of the structure concerned. The Units Titles Act 2001 provides this for Class A units but there is no provision for Class B units.[19]

    [19] see sections 14 and 15

  2. The Common Boundaries Act1981 does not specify what the line of any dividing fence must be but section 10 gives the Tribunal power to direct the line where it should be erected. Strictly this is not a situation where section 10 operates as the dividing structures are already built and the fences contemplated in the Common Boundaries Act 1981 are much less substantial structures. In the absence of any statute to the contrary it seems fair and logical that any dividing structure should run so that it extends equally on both sides into the adjoining properties. The same would not be said about the building of the unit itself as it solely benefits the unit holder concerned and it ought fairly not to be over the boundary at all. However the applicants do not seek the removal of the cavity wall.

  3. The nib wall is part of that structure but the applicants do seek its removal. It is on the same line as the cavity wall and is in fact part of the same structure. Whilst, if the conclusion I reached in [68] is correct, it would be correctly positioned, it is probably not a common dividing wall. Thus assuming the conclusion in [68] is wrong it has the boundary line down its centre. The question then arises is should it be removed and repositioned, or to put it another way would it otherwise be appropriate to order that it be removed?

  4. In my opinion that would be inappropriate as:

    (a)it is necessary for the structural integrity of the whole building to which it is attached. Even if not, the remaining considerations below would still lead me to this conclusion;

    (b)the intrusion into the land of Unit 4 is at that point no more than 15 cm;

    (c)it has been there for many years without complaint or concern to the applicants;

    (d)there is no realistic affectation of their enjoyment of their property associated with its position;

    (e)it became an issue solely because of the concern with the development application by the former owner;

    (f)at the hearing I asked the applicants what harm the location of the walls did them. In the final articulation of this answer Mr Forman fairly described that they were adversely affected by the proposed development by a loss of view[20] and the placement of the nib wall was a means of seeking to stop such adverse effect. I can see why the applicants are so concerned about the proposed development as it will affect their view and must at certain times of the day affect their only source of north-eastern sun into their glassed kitchen area. However, this is because of the proposed development, not because of the wall. This application is not an appeal against any approval by ACTPLA and such considerations that may have been used to argue that the development application be rejected are not relevant to what if any orders should be made here;

    (g)the cost and inconvenience of knocking over the walls and rebuilding them some 15-17cm away from where they are is out of all proportion to the impact of losing such space;

    (h)the order sought is in the nature of a mandatory injunction. In considering such relief Courts are reluctant to make such intrusive orders as explained in Redland Bricks Ltd v Morris [1970] AC 652. It is necessary to show grave damage; that damages are not a sufficient remedy; to consider whether the defendant had behaved wantonly and whether hardship would not be caused to the defendant by the order;

    (i)here there appears to be little damage, if any, flowing from any such encroachment and even if there were, damages would be an adequate remedy. The second respondent is an innocent buyer and the error is that of the surveyor not her. The order would cause her hardship as well.

    [20] Transcript of Proceedings 2 November 2015 page 135

  5. The reasons relevant to whether an order should be made, assuming an encroachment, except for [72] apply equally to the remaining structures. Additionally they are in the nature of dividing fences which fairness would indicate should be equally borne by the centre of the structures running along the boundary. I was given the opinion of her draftsman by Ms Hardie as Exhibit 5 but I do not regard it of any weight and have reached the conclusions above without relying on it at all. I would not regard dividing walls that were built so that they intruded equally on both sides of the boundary ordinarily as being properly the subject of any application for their removal. In a different case they could be but here, they were there when Ms Hardie bought her unit and have been in situ for many years

Summary in respect of order 3

  1. The survey evidence in this case cannot displace the legal effect of the existing Deposited Plan and there is no encroachment

  2. If that is wrong the Tribunal should not make the orders sought anyway.

Orders 1 & 9

Injunction in respect of planned development by Ms Hardie

  1. All of the contentions and evidence in support of these orders by the applicants depended on earlier versions of the plans that were submitted to ACTPLA. Ms Hardie tendered at the hearing the actual approval as Exhibit 3 which showed the plans had been amended several times to meet detailed submissions by the applicants to ACTPLA and the plan was not approved until ACTPLA was satisfied that these concerns had been addressed. The approval contains a statement showing what ACTPLA considered and that it had been concerned about possible encroachment and was satisfied there would be none. Ms Hardie made clear that the brush fence was not being removed and that was not part of the approved plans. She said that apart from one matter there was no part of the plan that involved any intrusion onto other property and none onto unit 4 land. The exception was that there was a small overhang onto the common property enclosed in her block and not onto unit 4. The applicants had not seen this approval[21] before and wondered whether supporting plans that had been submitted to ACTPLA may be inconsistent with this. Ms Hardie did not have them and explained that it would cost her an amount of money to get them from her draftsman but assured the applicants and the Tribunal that they were only approved because ACTPLA were satisfied that there were no such issues. Exhibit 3 is completely consistent with these assurances. It was common ground that the applicants, for reasons of their own, had decided not to appeal the ACTPLA approval. The matters considered by ACTPLA and their correctness are not matters that the Tribunal can consider in this application and must be presumed to be correct.

    [21] Exhibit 3

  2. I gave leave to the applicants to file additional submissions on this point as they had not seen Exhibit 3 before. They point out that the plans have to be resubmitted and that the footings have to be inside the boundaries. In fact this was the situation referred to in Condition A1, but the letter of 2 July 2015 makes it clear that this has now been done. This is also supported by Exhibit 8.

  3. Mr Martin, relying on what he was told was the relevant plan but which has since been superseded, thought there would be an intrusion into the common property by some 2.5m. This is evident from Exhibit 4. However, it seems that this will not be part of the extension of the bedroom but an area over a BBQ area and I understand will involve a pergola.[22] Mr Forman says that by extending so far, his ability to have the access he seeks in Order 2 at paragraph 15 of his SFAC would be destroyed. Leaving aside a potential encroachment issue for which approval from the Body Corporate is needed, the adverse effect on the applicants is a matter that was specifically considered by ACTPLA and it was not persuaded to reject the plan in so far as it may be the same in this respect as before. I am not convinced it is the same anyway. The plan attached to Exhibit 3 does seem to show some protrusion. So long as the first respondent approves the plan then that is a matter for it and not the applicants. Ms Hardie says she had the original plans with the more obtrusive dimensions approved by the Body Corporate when she sought their approval. The first respondent did not raise any objection at the hearing to the current or original proposal. Subject to any view I have about the resolutions, the subject of other orders sought or about the access issue sought in Order 2, then that aspect of the proposed development would not warrant the use of the Tribunal’s power to order an injunction.

    [22] see the applicants SFAC at paragraph 15

  4. Mr Martin is also guessing as to what may be involved in the remainder of the plans and admits that he is not sure. The applicants are not either. This is discussed by them in their SFAC at page 28 and following, particularly paragraph 31. They candidly admit that they intend to achieve the same result as they might if they had appealed the ACTPLA approval by challenging the right of unit 3 to encroach on their property and common property. They assume that the proposals will encroach on their property because there are existing encroachments arising from the faulty survey. I have disagreed that these survey errors can be described as encroachments any more. ACTPLA have required the development to be within the boundaries. Any building must be in accordance with the approval. It is possible that ACTPLA have proceeded on the assumption that the boundaries are as depicted in the deposited plan and not as depicted or revealed in the later Foxlee survey. It is improbable that they have approved anything that is an encroachment otherwise. The earlier versions of the plans do not show any encroachment that exceeds the deposited plan boundaries that I can see but they could involve compounding the asserted encroachments revealed by Mr Foxlee. As I have decided that as a matter of law they are not encroachments, there is no basis for intervening. Assuming nonetheless that as a matter of law they are encroachments, there is no evidence that establishes as a matter of probability that the current approval and the building that would follow will encroach. The applicants recognise that by asking in their post hearing submission for more documents to be provided by Ms Hardie. This is in fact seeking to amend the application by asking for another order after the hearing. There has to be a limit to the proceedings. Ms Hardie in her response to this request points out the time and stress that the process has created. There is no evidence that any proposal would amount to an encroachment in excess of the boundaries on the deposited plan There is evidence that there could be some minor ‘encroachments’ in that the building will extend to the boundaries incorrectly surveyed. I am not persuaded that there is a case on the balance of probabilities that there is any intended encroachment either beyond the deposited plan boundaries.

  5. If it was to be argued that notwithstanding this there could be some part of the building that extended to where the current structures are on the south-western boundary of unit 3 as I have held above, such structures do not encroach. Thus, in the absence of such a case it would be inappropriate to make such an order. It will also be inappropriate to order Ms Hardie to provide even more documents to the applicants after the hearing was concluded in order to assist them to make a possible case. However, the plan provided by Mr Glen Hardie in the post hearing submission shows the nib wall being extended up to be the same height as the home wall. This is 15cm further into unit 4 on the 2008 survey plan. It will affect the view. This effect however will be the same even if it were 15cm back from unit 4. The impact on the view was a matter that had to be considered by ACTPLA. It was not persuaded to reject the development application. It may have assumed that the nib wall was within the boundary. I have decided that the structures are not encroachments and even if they are, they can remain. In those circumstances, it is not appropriate to make an order restraining the second respondent form proceeding with her approved development application.

  6. Specifically in respect of Order 9, Ms Hardie states categorically that she has no intention of removing the brush fence[23] and stated that if she did intend to do so, she would seek Body Corporate approval whether she needed to or not. Whilst in an earlier version of the plans that the applicants refer to they say that is shown as being contemplated, I accept what Ms Hardie has said.

    [23] In her SFAC at paragraph 60 and in Transcript of Proceedings page 132

  7. Finally, even if there was a case that the proposed development did involve an encroachment in that it involves more building up to the south western boundary as depicted in the deposited plan, there are a number of cogent discretionary reasons to refuse any such relief namely:

    (a)assuming my legal conclusion is wrong, Ms Hardie is still a bona fide purchaser for value without notice of any such encroachments;

    (b)the reasons listed in paragraph 72 for not ordering the existing structures be removed apply equally to whether it is appropriate to restrain Ms Hardie from utilising the boundaries as depicted in the deposited plan.

Orders 2 and 6

  1. The history in respect of the wall around the common property starts in 1994. The owners of the units all agreed to let that occur. The evidence of such agreement is DF 1.

  2. There is a difference between Mr Forman and the affidavit of Mr Hogan as to whether it happened at a duly convened meeting or later but there is no doubt it was done by consent.

  3. The respondents do not say that this common property belongs to Ms Hardie and accept it remains common property. Ms Hardie also acknowledges this.

  4. Mr Forman in his statement explains that he believed it was always intended that access be available to the others. However, the layout of the property, the height of the walls built and their positioning which can be seen from a site inspection and from the plans depicting it, make it clear that this is extremely improbable. Material provided that shows the area includes DF 9 (MFI 4) and DF 13. These points are made by the respondents; by Ms Hardie for example at paragraph 22 of her SFAC. There is no evidence that this is what anyone other than Mr Forman thought and it is inconsistent with the evidence of Denis Hogan and it is not part of the resolution.

  5. Ms Hardie has set out in some detail why it is still inappropriate. I do not place any weight on the concerns she expresses in paragraph 25d. She has told the Tribunal that she has notified the police and said she did to protect herself in the ACAT application and for the purposes of this application. I said I would not decide this point and the evidence about it would not allow me to reach any conclusion about it. If any adverse finding was sought against Mr Forman, it would need to be supported by cogent evidence.[24] Thus I make no finding adverse to Mr Forman. However it does underline the reasonable need for privacy. If access were granted with the walls in their current position it would be an invasion of the privacy of Ms Hardie and her family. To enable it to occur there would need to be a new wall enclosing the Giles Street side of Ms Hardie’s property and separating it from the common property.

    [24] see Briginshaw v Briginshaw (1938) 60 CLR 336

  6. Looking at it from the point of view of the applicants they say they, as well as other unit holders are entitled to access by reason of section 26 of the Unit Titles Act 1970. As Mr Hogan on behalf of the Body Corporate said the section refers to reasonable use and enjoyment. The subsequent sections also provide this. When asked why access was required Mr Forman suggested they would like to extend their vegetable patch into that area.[25], Of course such activity would require acquiescence by the Body Corporate which would not be forthcoming. The question is whether the requested access is reasonable. The Body Corporate did not think so and neither do I.

    [25] Transcript of Proceedings 2 November 2015 page 75

  7. All that the current resolution does is give a permissive occupancy and the subsequent disallowance of the request for access by the Body Corporate is not giving any additional rights to Ms Hardie. She does not have any proprietorial rights over the common property and a differently constituted Body Corporate made up by subsequent owners may well seek to change the status quo. I would not without a meritorious reason, seek to overturn the decision of three of the four unit holders whatever it may be and I am not persuaded that orders 2 or 6 should be made.

  8. For completeness, there was an argument that the original resolution providing for the common area to be enclosed was invalid, as it had been made informally. The consent of all the owners and the continued acceptance of it until 2008 must mean that any informality was waived. Even if it could be still argued that the resolution was invalid given the fact that Ms Hardie purchased the property without notice of any such invalidity and that the applicant had consented to the resolution, it would be inappropriate after all these years to undo it. It would also be futile as the resolution is still accepted by the necessary majority.

  9. The orders sought about the shrubs are totally misconceived. The evidence does not show any requirement that there be shrubs or any wish by the other owners that there should be. This relief is inconsistent with the asserted wish of the applicants  to extend their vegetable garden.  

Order 4 Validity of resolution amending the Default Rules

  1. It is not conceded that the wrong rules are referred to in the resolution. In my opinion the applicants are right, the correct rules were the 1970 Articles. When the Unit Titles (Management) Act 2011 was passed, it contained transitional provisions that made the articles under the 1970 Act continue to apply.[26] The transitional provisions have been repealed but continue in force by reason of section 164 of that Act and section 88 of the Legislation Act 2001. Article 4e of the 1970 Articles apply.

    [26] Section 161

  2. Article 4e is the same terms as the 2001 rule. There is no difference in substance between the two provisions and the effect of the resolution is the same no matter what provision is referred to. It is clear that there were the numbers and still are for a special resolution to that effect.

  3. I am asked by the Body Corporate to amend the resolution so as to refer to the correct Article. As this was and is the wish of the numbers needed for a special resolution and as there is no substantive difference, it would be perverse not to do this unless there was a reason on the merits that the resolution should not have been made.

  4. I asked Mr Forman what argument might be put against this. There were essentially two reasons given. The first was that in general terms it was not desirable that in a block of four such a resolution might be made other than unanimously. The fact that this was the default position and that, in the Unit Titles Act 2001, there is a need for unanimity in some cases, for example section 149, gives that some force. However, in a case such as this, where one owner holds out, reasonably or not, it would be impractical to prevent such activities being prevented completely or for there to be a need to approach a court or tribunal to try and get it changed. Whilst the resolution has a particular effect here it applies generally and may be used against the wishes of another owner in different circumstances. On balance I think it is a reasonable alteration as it prevents a UN Security Council type veto but still requires the other three to agree.

  1. In this case the second reason given by the applicants for not allowing the resolution to be effective was that the other owners had colluded to bring about a result which enabled the development application to proceed to the detriment of another owner. If this was unfair to the applicants in oppressing them as a minority there would be some force in that submission. Here however, the other owners the Hogans and Ms Gaha have explained their reasons for so resolving and their reasons do not benefit them but are arrived at by trying to reach a fair outcome for all. It was still open to the applicants to object to any alteration with ACTPLA and they did.

  2. In all the circumstances, I have formed the view that the amended resolution suggested by the first respondent should be ordered under section 129(f) of the Unit Titles (Management) Act 2011.

Orders 5 & 7

  1. Unless there was some more fundamental reason to impugn the proposal there is no good reason to accede to the request to retrospectively withdraw consent to a development application that has already been made and approved. Ms Hardie explained that there had been a lot of extra expense in amending the plans to address issues raised by the applicants with ACTPLA. As we now know the approval and the intended alterations are not going to go beyond the boundaries of the units and in any event the consideration for the body corporate was to rely on ACTPLA to ensure that the development was appropriate and it has done so. If there was some merit in the other arguments then this may be something to be considered, but I have come to the conclusion as set out above that the other orders are not appropriate either.

  2. The point of Order 7 is that it is necessary for ACTPLA to be satisfied that the Body Corporate approve the application. An application so stamped was provided to ACTPLA. Subsequently the application was amended in a way that was still consistent with approval given by the Body Corporate but was more conservative in that it was amended to be less capable of being intrusive in respect of unit 4. Ms Hardie told the Tribunal that ACTPLA regarded what it had approved as having Body Corporate approval. This makes sense as it is unlikely it would approve the application if it thought otherwise. As a matter of merit the other three unit holders were all present and they opposed this order and indicated they still supported the application. A course as suggested in Order 7 would be of no practical benefit to the applicants and it is not appropriate it be made especially as it is opposed by the majority necessary for a special resolution.

Order 8

  1. Ms Hardie informed the Tribunal at transcript page 132 and at paragraph 58 of her SFAC that she would not require the access and there was no intention of entering the property of unit 3. I accept that and in the circumstances see no need for this order.

Costs

  1. Ms Hardie raised the question of costs at transcript page 132 and mentioned she had spent a lot of money on amending her development application to appease the applicants. Section 48 of the ACAT Act gives a very limited power to order costs.[27] I do not think this power applies in this case.

    [27] CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96

  2. I was referred to section 129(d) of the Unit Titles (Management) Act 2011 which allows an order up to $1000. It does not refer to costs. I am not persuaded it is intended to supplant section 48 of the ACAT Act and it appears to relate to a capacity to award a limited amount of compensation.

  3. In any event the expenses mentioned by Ms Hardie are expenses of her development application and not of this matter. Further she only provided the approved application at the hearing and the applicants had until that time believed that the proposal was extending beyond the boundaries. Any order would need to be due to some special reason and there is none. The other parties have not asked for costs. I do not see any basis for making an award of costs assuming I had such a power.

Final observations

  1. I have had the benefit of meeting all the parties in this matter and have formed the impression that they are all well intentioned and in the main are genuinely seeking to achieve a fair outcome. It is unfortunate that some animosity had arisen between the applicants and Ms Hardie and her husband. Although the applicants have not been successful, I know they feel deeply about the matter and I can well understand their disappointment that there will be a development at a height albeit inside the boundaries which may impact on their north-east outlook which currently captures a lot of light and is relatively unimpeded in its outlook. That is something they have lobbied hard to prevent or ameliorate with ACTPLA and it is that decision that they fear will still adversely affect them. That is not a matter that I can consider and, no doubt, for good reasons the applicants have chosen not to appeal that decision.

  2. Mr Forman raised the not unreasonable question of how to go forward from here with the inaccurate units plan. As he said there will be future buyers like Ms Hardie and they will rely on the units plan. It was thought that any future course would depend on this decision. I have found that a buyer in Ms Hardie’s position of any of the units acquires the land contained in the boundaries in the units plan. I also accepted that there were errors in the units plan. The errors are evident by measuring what is there and seeing that the assumed measurements in the units plan are to some extent internally inconsistent. It is too late to correct the errors identified but there may be more. That may not remain of concern to the current owners but there does seem to be a case for getting a comprehensive survey done to see if there are other errors that may be of concern. If so it may worth seeking advice as to how to have the units plan amended in a way that is practical.

………………………………..

Mr B. Meagher SC

Senior Member

HEARING DETAILS

FILE NUMBER:

UT 30 of 2015

PARTIES, APPLICANT:

David Forman and Sara York

PARTIES, 1st RESPONDENT:

The Owners – Unit Plan 312

PARTIES, 2nd RESPONDENT

Jo - Ann Hardie

APPEARING FOR APPLICANT

Self-Represented

APPEARING FOR 1st RESPONDENT

Peter Hogan, Jessica Hogan, Nicole Gaha

APPEARING FOR 2nd RESPONDENT

Self-Represented

TRIBUNAL MEMBERS:

Mr B. Meagher SC

DATES OF HEARING:

2 November 2015

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