Owners Corporation PS507084R v Marley
[2020] VSC 95
•5 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02181
| OWNERS CORPORATION PS507084R | Applicant |
| v | |
| CAMILLA MARLEY | Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2019 |
DATE OF JUDGMENT: | 5 March 2020 |
CASE MAY BE CITED AS: | Owners Corporation PS507084R v Marley |
MEDIUM NEUTRAL CITATION: | [2020] VSC 95 |
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ADMINISTRATIVE LAW – VCAT – Owners Corporation – Application for order recognising implied easement or right of way of necessity – VCAT dismissing application – Appeal on questions of law – Whether Tribunal correctly applied statutory test – Relevant and irrelevant considerations – Subdivision Act 1988 s 12(2); Owners Corporation Act 2006.
ADMINISTRATIVE LAW – Natural justice – Inspection of property – Whether Tribunal relied on matters not communicated to parties.
TRIBUNALS – VCAT – Inspection – Whether VCAT gave reasons as required by statute – Findings on material questions of fact – Victorian Civil and Administrative Tribunal Act 1998 s 117.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Silver | Noble Lawyers Pty Ltd |
| For the Respondent | Mr P Barton | Nanscawen Lawyers |
HIS HONOUR:
The respondent, Ms Camilla Marley, is the registered proprietor of a two level penthouse apartment in Moonee Ponds, located on the fourteenth and fifteenth floors of a sixteen storey apartment building, which is affected by Owners Corporation Plan of Subdivision PS507084R.
Ms Marley owns Lot 62, which has an external terrace. She moved in to the apartment in late January or early February 2017 having completed the purchase in October 2016. The Owners Corporation PS507084R (‘Owners Corporation’) is the body corporate for the building.
Lot 62 was described by one witness as follows:[1]
Lot 62 includes an open space terrace (terrace) abutting the southern and part of the eastern and western boundaries of Lot 62 and which is accessible from part of the common property, being an internal hallway with a lockable door (both of which form part of the common property), at approximately the south–eastern corner of the terrace. There is constructed on Lot 62 an apartment (Marley’s apartment) that abuts the terrace on its eastern frontage.
There is … been affixed to the wall on the eastern end of the northern wall of Marley’s apartment, a ladder providing access to common property on the roof of the Building adjoining Marley’s apartment and upon which is located the Building’s lift, motor–room and the Building’s plant–room and other essential services for the Building and common property, including mechanical ventilation, lightning rod, abseiling equipment and harness access points (collectively essential services).
Further, there is located on the southern and western perimeter of the terrace harness access points (harness access points), which are accessible from the terrace and are required to facilitate essential window cleaning and building repair for the western and part of the southern side of the Building.
[1]Court (Appeal) Book 385 (‘CB’).
The application made to VCAT
On 7 September 2017, the Owners Corporation applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for recognition of an implied easement or right of way over the terrace on Lot 62 pursuant to s 12(2) of the Subdivision Act 1988 (‘Subdivision Act’).
Various versions of the implied easement sought were proposed by the Owners Corporation.
The Owners Corporation’s written application to VCAT sought orders including a declaration that there was an implied easement over Lot 62 for the benefit of each lot in the plan of subdivision, an easement necessary to provide a right of way, passage or provision of services to the essential services and the harness anchor points.
The Owners Corporation sought an order that s 12(2) of the Subdivision Act implies a right of way from a door in the common area foyer on level 14, across Ms Marley’s terrace, to a ladder fixed to the south side of her apartment and the area immediately above the anchor points on the south and west sides of the terrace.
The Owners Corporation claimed that it required access via the terrace to carry out the following tasks:[2]
[2]Owners Corporation PS507084R v Marley [2018] VCAT 1598, [8] (‘VCAT Decision’).
(a) inspection of the anchor points, twice annually, with one day’s access per inspection;
(b) inspection of the lightning rod, once annually, with one day’s access;
(c) external window cleaning, once annually, with five day’s access, requiring use of the anchor points;
(d) external repair of window leaks through caulking when required, requiring use of the anchor points; and
(e) repainting the building every few years, when the Owners Corporation deems it necessary, requiring use of the anchor points.
It was common ground that the Owners Corporation could not carry out the identified functions using the common property alone.
Ms Marley denied the existence of any easement over the property, but was ‘open to granting an access licence to the Owners Corporation’.[3] She also contended that a gantry could be built to enable alternative access points to the roof and abseiling points.[4]
[3]VCAT Decision [9].
[4]CB 786-7.
On 15 October 2018, after hearing the application and conducting a view, the Tribunal determined that no implied easement existed. The Tribunal’s order was:[5]
1. The Tribunal finds that no implied easement or right of way under s 12(2) of the Subdivision Act 1988 exists in relation to the applicant’s proposal to cross the applicant’s terrace.
2. The proceeding is dismissed.
[5]VCAT Decision.
The Owners Corporation now applies for leave to appeal the Tribunal’s order.[6] The appeal is limited to questions of law and it is the Court’s task to decide whether leave should be granted and if so, to decide the grounds of appeal. It is no part of the Court’s function to determine the application for recognition of an implied easement. That was VCAT’s role.
[6]See VCAT Decision.
The main issue in this dispute was whether the easement claimed is necessary for the purposes set out above, or whether there are options or alternatives which are feasible and reasonably available.
The feasible or reasonably available criteria comes from this Court’s decision in Body Corporate No. 413424R v Sheppard,[7] where Pagone J, whose decision was upheld by the Court of Appeal[8] said that if the alternatives were reasonable, although involving some inconvenience or additional cost, an easement would not be implied by operation of s 12(2) of the Subdivision Act.[9]
[7][2007] VSC 203 (‘Sheppard’).
[8]Body Corporate No 413424R v Sheppard (2008) 20 VR 362 (‘Sheppard Court of Appeal’).
[9]Sheppard [14] (Pagone J).
Relevant features of the apartment building and previous arrangements for access to Lot 62
Throughout this section, I will refer to a plan which is contained in ‘Annexure A’ to this judgment, which is based upon a plan provided to the Court by counsel for the applicant. Where I refer to a marked point, it is in reference to the corresponding point marked on the plan.
There are several anchor points both on the roof of the building, approximately 20 – 25 points, and on level 14, approximately five points. These anchor points are marked ‘A’ on the plan (their position is approximate). Access to both the roof anchor points and the level 14 anchor points requires access to the terrace of Lot 62.
As the Member noted, an internal perimeter transparent glass wall has been erected within the terrace on Lot 62. On the west of the south side, there is a door which opens onto an area of about 1.2 metres, between the barriers and the edge. The position of this glass panel fence corresponds with the blue dashed line in the plan. The anchor points are accessible from this 1.2 metre perimeter.[10]
[10]Transcript of Proceedings, Owners Corporation PS507084R v Marley (Supreme Court of Victoria, S ECI 2018 02181, Ginnane J, 17 September 2019) 58 (‘T’).
Previous owners of Lot 62 have permitted workers to enter it through a glass door situated between the common property lobby area and the terrace on the fourteenth floor (marked ‘D1’ on the plan). They would then walk across the terrace to a glass door on its opposite side and exit through it onto the outer perimeter to access anchor points from which they could abseil to lower points of the building (marked ‘D2’ on the plan).[11]
[11]Ibid 58.
To access the rooftop anchor points, workers would enter the same door (marked ‘D1’) and climb a ladder affixed to the south-east wall of Lot 62 (marked ‘L’ on the plan), which leads to the roof. From there, the workers were able to access the roof, the building’s lightning rod and the anchor points required to service the facades of the building.[12]
[12]Ibid 8–9.
A stairway enclosed by concrete walls is accessible from the common lobby area on level 14. By taking these stairs to level 15, access is gained to the plant room,[13] which is located on level 15. It is situated above the level 14 common area (the plant room is marked ‘PR’ on the plan) to the east of the terrace. It is a level above the terrace, which has no floor directly above it, because the building at higher levels tapers in.[14] From the plant room, it is possible to look directly down onto the terrace through a vent (‘V’ on the plan).
[13]Ibid 59.
[14]Ibid 9.
Options considered at Tribunal hearing
In her reasons, the Member listed three options proposed by Ms Marley that were available to the Owners Corporation:
(a) first, a gantry from the plant room to the existing ladder. This would require workers to take the stairs from the common area on level 14 to the plant room on level 15, proceed through the plant room grille, which would be converted into, or replaced by, a door between the plant room and the gantry, walk across the gantry to the ladder and then climb to the roof;
(b) second, a very short gantry to a new ladder leading to the roof, with the existing ladder repositioned next to the plant room grille; and
(c) third, a similar short gantry with a repositioned ladder but additionally extended south over the existing internal glass terrace barrier, accessing the abseiling points adjacent to the terrace without going via the roof.
Ms Marley submitted that these options removed the need for access to the ladder via the terrace and provided other means of access to the level 14 abseil points. If the gantry was installed, a worker could exit through the lift doors into the lobby and climb the stairs to the to the plant room and obtain access to the gantry.
Legislation
Section 12(2) of the Subdivision Act provides that there are implied, over any land affected by an Owners Corporation, and for the benefit of any common property, all easements and rights necessary to provide ‘rights of way’. The relevant provisions are outlined below:
S 12 – Plan must show easements and other rights
(2) Subject to subsection (3), there are implied—
(a) over—
(i) all the land on a plan of subdivision of a building; and
(ii)that part of a subdivision which subdivides a building; and
(iii) any land affected by an Owners Corporation; and
(iv)any land on a plan if the plan specifies that this subsection applies to the land; and
(b) for the benefit of each lot and any common property—
all easements and rights necessary to provide—
(c) support, shelter or protection; or
(d)passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or
(e) rights of way; or
(f)full, free and uninterrupted access to and use of light for windows, doors or other openings; or
(g) maintenance of overhanging eaves—
if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property. (Emphasis added)
The concluding words of s 12(2) require two conditions to be established before an easement or right of way is implied. They are: (1) the easement must be necessary for the reasonable use and enjoyment of the lot or the common property; and (2) the easement must be consistent with the reasonable use and enjoyment of the other lots or the common property.[15]
[15]Sheppard Court of Appeal 366 [22].
In Sheppard[16] in the Court of Appeal Dodds-Streeton JA stated:
The concluding paragraph of s 12(2) imposes two cumulative conditions, both of which must be satisfied to secure the implication. The stipulation in the first condition of an easement or right necessary for the reasonable use and enjoyment of the lot or common property reflects the reference in s 12(2)(b) to ‘each lot and common property’ for whose benefit the easement is to be implied.[17]
[16]Ibid.
[17]Ibid [67].
The Tribunal Member’s reasons
In her reasons, the Tribunal Member identified the issue to be decided as ‘whether the Owners Corporation has a s 12(2) easement, or more particularly, a s 12(2)(e) right of way over Ms Marley’s terrace’.[18]
[18]VCAT Decision [10].
The Member decided that the Owners Corporation had not satisfied the first condition of s 12(2) of the Subdivision Act – that the implied easement was necessary. She concluded that there were alternative options that would provide access to the anchor points in the common property areas, albeit such options may be ‘structurally complex and expensive’.[19] The Member was not satisfied that the Owners Corporation had discharged the burden of proof that the easement, ‘is necessary for the reasonable use and enjoyment of … the common property…’.[20]
[19]Ibid [17].
[20]Ibid [16].
The Member’s reasons are to be taken as accepting the evidence that a gantry could be built to enable access to the roof and to the abseiling anchor points.[21] Options were identified, all providing access from the existing louvered grille in the plant room, itself accessible by an unobstructed path through the plant room, which is common property.[22]
[21]Ibid.
[22]Ibid [16]
The Tribunal did not accept the Owners Corporation’s submission that abseiling from the roof was prevented for safety reasons, noting that it was already used for existing window cleaning.[23]
[23]Ibid [17].
The Member did not make a specific finding about the second requirement in s 12(2), save to say that she accepted Ms Marley’s evidence, given in respect of privacy and security concerns, and that she would not have purchased her apartment if she had known that there was an easement over her terrace.[24]
[24]Ibid [21].
The Owners Corporation’s questions of law and proposed grounds of appeal
The Owners Corporation’s questions of law and proposed grounds of appeal are:
Questions of law
1. Whether the Tribunal, in finding an easement over the respondent's lot was not necessary for the reasonable use and enjoyment of the common property and the other lots:
(a) erred in its construction of subsection 12(2) of the Subdivision Act 1988;
(b)misapplied the test for determining an alternative to an easement is not reasonably available (Body Corporate No 413424R v Sheppard (2008) 20 VR 362).
2. Whether it was reasonably open to the Tribunal to find that:
(a) there are ‘alternative options for access to the anchor points’ to an easement;
(b) there was sufficient evidence of a gantry that can be erected;
(c) the appellant could erect a gantry without the implication of an easement over the respondent's lot;
(d) the evidence of Mr Rodriguez and/or Mr Louden was proof of ‘alternative options’ to an easement.
3.Whether the Tribunal, in deciding a gantry and/or abseiling from a gantry was a ‘reasonably available’ alternative to an easement, failed to take into account relevant considerations, namely:
(a) physical features of the alternative;
(b) the legal restrictions on the alternative;
(c) safety considerations of the alternative;
(d) cost of the alternative.
4.Whether it was reasonably open for the Tribunal to make the factual findings (alternatively, inferences) that it did from its observations during the view.
5. Whether the Tribunal, by relying on its observation during the view but not recording them in the hearing, failed to accord the appellant natural justice.
6.Whether the Tribunal, in its application of subsection 98(1)(b) and 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998:
(a) erred in their construction; and
(b) failed to accord the appellant natural justice.
7. Whether the Tribunal took into account irrelevant considerations, namely:
(a) the respondent's "security and privacy concerns" in deciding the consistency of the easement with her reasonable use and enjoyment of her lot, without determining if the concerns were unreasonable;
(b) that the respondent is willing to grant a licence in lieu of an easement.
8.Whether the Tribunal's reasons, as an error of law, fail to establish its path of reasoning for reaching its decision.
Proposed grounds of appeal:
1.The reasoning and decision of the Tribunal are inconsistent with the meaning of ‘necessary’ in subsection 12(2) of the Subdivision Act 1988, as decided in Body Corporate No 413424R v Sheppard (2008) 20 VR 362. If it were consistent, the matter would have been decided in favour of the appellant.
2. To decide an easement is not ‘necessary’, the Tribunal must consider:
(a) the physical features of the alternative;
(b) the legal restrictions on the alternative;
(c) the safety considerations of the alternative;
(d) the cost of the alternative.
Despite expert evidence from the appellant (specifically, from Stephen Kip), the Tribunal did not consider these factors. If the Tribunal had considered them, it was bound to find an easement was necessary.
3.It was common ground that, as constructed, there is no means of accessing the roof of the appellant's building, other than via the respondent's terrace. But the Tribunal held an easement was not necessary, because the respondent ‘raised other alternatives’ to an easement. Despite this, it was not reasonably open to the Tribunal to accept the respondent's evidence of alternatives.
4.The respondent called evidence of an ‘alternative’ to an easement: to construct a gantry directly above her terrace. The evidence of the gantry was vague, and did not involve a detailed proposal, such as a design or costings. The witness called to give engineering evidence (Mr Rodriguez) had not conducted testing, cited the building design, or drafted a proposal, and his testimony should have been considered unreliable. It was not reasonably open to the Tribunal to accept his evidence, and it ought to have been held that an easement was necessary.
5.Alternatively, the easement claimed by the appellant would still be required to erect and maintain a gantry. The appellant contended this in final submission, but the Tribunal did not address it. If the Tribunal had considered this matter, it would have found for the appellant.
6.The Tribunal, in referring to its observations during a view, held that ‘it is apparent to the Tribunal from its inspection of the development that there are alternatives options for access to the anchor points, albeit such options may be structurally complex and expensive.’ The observations are of technical matters, not matters of law. The decision indicates the observations are not prefaced on expert evidence. The observations were not reasonably open to the Tribunal. If the observations were not made, the Tribunal would have found for the appellant.
7.The Tribunal conducted a view, but on resuming the hearing, did not record a summary of its observations. Despite this, the Tribunal relied on its observations in reaching its decision, including conclusions on technical matters. In doing so, the Tribunal failed to accord the appellant natural justice. If the Tribunal had done so, the appellant would have contended the observations were not reasonably open, and the Tribunal would have found for the appellant.
8.…
9.…
10.Determining if an easement is consistent with reasonable use and enjoyment requires consideration of what is reasonable use and enjoyment of the lot. The Tribunal relied on the respondent's "security and privacy concerns." The Tribunal did not consider if those concerns were reasonable. If it had done so, the Tribunal would have held the concerns were unreasonable, and would have dismissed them. If it had done so, the Tribunal would have found for the appellant.
11.In its decision, the Tribunal relied on the finding that the respondent ‘is prepared to grant a licence for access, at agreed times, which may even provide greater precision than an easement.’ In so doing, the Tribunal took into account an irrelevant consideration. If it had not done so, the Tribunal would have found for the appellant.
12. Despite the Tribunal–
(a) holding the appellant had ‘not discharged the burden of proof’ of showing an easement was necessary; and
(b) re-stating the principles in Body Corporate No 413424R v Sheppard (2008) 20 VR 362;
the Tribunal did not express its factual findings, and did not apply the principles on the availability of an alternative (see Ground 2). In doing so, the Tribunal failed to form or disclose a path of reasoning, and committed a vitiating error of law. If it had not done so, it would have found for the appellant.
Evidence at the Tribunal hearing[25]
Owner’s Corporation witnesses
[25]Affidavits were filed in this proceeding by the solicitors for the parties exhibiting communications between the parties, experts reports and other affidavits and formal documents.
Mr S Kip
Mr Stephen Kip, a fire safety engineer and building surveyor, was engaged by the Owner’s Corporation:[26]
To prepare an opinion in relation to the specific VCAT orders that require that:
The Owners Corporation shall serve an opinion from a suitably qualified expert as to whether there is any alternative access or whether any alteration or addition can be made to the common property to give access to the roof for essential property maintenance and testing.
[26]CB 385 [1.3].
Mr Kip speculated that the original plans for the building accommodated accessing the anchor points without entering the Lot 62 terrace. However, changes to the original plans during construction made the present situation necessary.[27] As the Member stated:[28]
As was set out in Mr Kip’s report, the original design included an additional storey of fire stairs and a larger plant room, which would have provided access to the lightning rod. However, that space is now occupied by Lot 63 at levels fifteen and sixteen which covers three levels and cannot be made available. It is common ground that as built, which is somewhat different to the plan of subdivision, [the apartment building] provides no other means of access to the lightning rod, or the anchor points, other than crossing over Ms Marley’s terrace.
[27]CB 387 [2.2], 637.
[28]VCAT Decision [6].
In Mr Kip’s opinion, none of the solutions proposed by Ms Marley rectified this issue, as each involved accessing her property.[29] His initial opinion was that the gantry proposal was effectively impossible, but later altered his wording to describe the proposal as being ‘…very difficult, and potentially disproportionately expensive…’.[30] In his revised report he stated that:
Part of the plant-room area shown on the drawings is now part of Level 15 (Lot 63) and all of the plant-room proposed on Level 16 is now also part of Lot 63. Given the plant-rooms are now occupied, functional and reduced in size, and the walls serving these areas are structural concrete panels, it is very difficult and potentially disproportionally expensive, to now create internal access to those areas from the common property.[31]
[29]CB 641.
[30]Ibid 389 [2.2]; T 68.
[31]Ibid.
Mr Kip proposed as a solution inserting a second door into the outer working area near the internal common door and a small screen doorway, so that the owners could work out a way of maintaining privacy and security. He said:[32]
An alternative to access to plant–rooms via common property could be to create an enclosed access area (perhaps glazed, but enclosed and secured), for within the outdoor open space of Lot 62 on Level 14 so that access to the ladder does not require access into the private space of Lot 62. The current access door from the lobby could also be reconfigured to create a lobby so that access to the window–cleaning harness access points is also available.
[32]Ibid.
Ms Marley said that this alternative was acceptable to her as part of ’the solution’ of the dispute.[33] I refer below to issues arising from offers of permission to access the terrace.
[33]Ibid 657–8.
In oral evidence, Mr Kip stated that he could not find any alternative to the previous access across the terrace that was achievable through the common property.[34] As previously mentioned, he did not agree that the gantry proposal by Mr A Rodriguez, who was Ms Marley’s expert witness, was structurally possible because of legal issues, building code and regulatory issues.[35] A building permit would be required[36] and he said that the documents that Mr Rodriguez had produced were ‘not one quarter of the documents that you would need’, which would include a site plan and documents distinguishing the existing building from the new work.[37] He spoke of a range of issues that the gantry proposal would raise: whether the surrounding panels or structures could support the gantry, maintenance issues, the need for lighting in the plant room, the construction work involved and the need to modify the ladder and protect adjoining property during construction.[38] The gantry would have to meet standards applying to the construction of walkways.[39] Workers may need authorisation or training to access the plant room, as it was not designed for public access and was very dangerous because it housed energised equipment[40] and a large fan without guards.[41] Mr Kip said that there would be difficulties erecting a gantry at the required height, as scaffolding would have to be erected within Ms Marley’s terrace to do so.[42] The proposed gantry was to be over one owner’s property but the bolts holding it up would be installed on another property.[43] Problems would arise in keeping the replacement door water tight. The proposed gantry would have to be dropped at least 50mm below the concrete slab to create a lip against the weather.[44]
[34]Ibid 636.
[35]Ibid 638.
[36]Ibid 639.
[37]Ibid 647.
[38]Ibid 649-52.
[39]Ibid 647.
[40]Ibid 644.
[41]Ibid.
[42]T 74–6.
[43]CB 638.
[44]Ibid 642.
Mr Kip described the gantry proposal as disproportionately expensive.[45] The cost for installation for the walkway in Mr Rodriguez’s report was estimated to be between $8,000 plus GST to $12,000 plus GST.[46] In his oral evidence, Mr Kip stated that the planning permit is a lengthy process, but is relatively inexpensive; it can sometimes take 15 to 30 days and cost a few hundred dollars.[47] But Mr Kip stated that Mr Rodriguez’s construction cost might be the cost of the building process alone.[48] Before me, counsel stated that Mr Kip estimated the cost of the gantry at $20,000.[49]
[45]T 73–5.
[46]CB 404.
[47]Ibid 650.
[48]CB 640.
[49]T 114.
Mr Kip contended that the whole process was unnecessarily expensive and in his opinion, it created a whole range of other maintenance and legal issues that Mr Rodriguez may not have been asked to consider when he wrote his report.[50]
[50]Ibid 659.
Mr T Trainor
Mr Trainor was called as a witness by the Owners Corporation. His job is to inspect, test and certify anchor points for abseil systems throughout Victoria.
He inspected the building and checked the anchor points on the roofs and on the balcony levels. He said that an annual inspection of the anchor points would only require access to the terrace for 30 to 45 minutes, but that did not include window cleaning. He gave evidence about the number of anchor points and said that they provide access for abseiling, for window cleaning, facade cleaning and painting.[51] The ladder is used to access the top levels on the north and east sides of the building where there are approximately 20 to 25 anchor points on the roof.[52] He disagreed with Mr B Louden’s evidence that abseiling ropes could be placed over constructed glass balustrades.[53]
[51]Ibid 594.
[52]Ibid.
[53]A witness called in Ms Marley’s case.
Ms M Arturi
Ms Maria Arturi is the Owners Corporation manager. She said that after Ms Marley moved into Lot 62 in late January or early February 2017, she placed a lock on the door to the balcony from the common area on level 14 and would not agree to provide access to the terrace. It appears that problems arose following New Year’s Eve 2016, when trespassers entered Ms Marley’s terrace to go to the roof to watch the fireworks.
She said that the Owners Corporation was seeking to use the ladder on the balcony to access the roof for testing of essential services and to address maintenance matters.[54] Its officers were aware of, and sensitive to the fact that, the common property door led onto Ms Marley’s terrace and precautions to be taken when accessing the terrace had been agreed with the previous owners of Lot 62. Ms Marley stated that she was prepared to have sensible and knowledgeable discussions. But further discussions between the parties did not resolve matters.
[54]CB 165.
On 2 May 2017, the Owners Corporation served Ms Marley with a notice to rectify a breach under the Owners Corporation Act 2006, s 155 and the Subdivision Act, s 12(2). The breaches concerned were denying the Owners Corporation access to the roof via the balcony area of Ms Marley’s apartment for the purposes of window cleaning. The window cleaning scheduled for March 2017 had not been able to be carried out.
Ms Marley’s witnesses
Mr A Rodriguez
Mr Alejandro Rodriguez of the firm Structural Engineering gave evidence about the structural practicalities of installing a permanent walkway between the plant room and the existing ladder. He is a structural and geotechnical engineer and a registered building practitioner with experience in design, construction and forensic investigation. He has experience in the structural design of repairs of damaged buildings and houses and structural design platforms and stairs. He has expertise in evaluating existing structures and designs, and determining if they comply with legal standards. He has regularly provided professional advice on balcony and permanent access platforms, installations, inspections, forensics and repairs.
In Mr Rodriguez’s opinion, a walkway could be installed between the plant room and the ladder in its current position. He said:[55]
[55]Ibid 397.
In the terrace of Lot 62 a ladder is currently situated, this ladder provides roof top access for maintenance of the roof, window cleaning and painting. At the moment access to this ladder is only possible by entering the terrace of Lot 62.
Having inspected the terrace access to the ladder and the plant room adjacent to the ladder it is my professional opinion that a walk way can be installed between the plant room and the ladder.
…
It is my professional opinion that there is no structural reason why a walkway from the plant room to the existing ladder, adjacent to Lot 62 … cannot be installed.
The installation of a walk way is not only structurally possible, SM has obtained three quotes for the installation of such a walk way. The three quotes are from experienced installers of walkways and stairs. These companies being: Ancho Point Engineering, Step Form and Sayfa Group. The Prices of the installation of such a walkway range from $8000+GST to $12000+GST.
He included in his report ‘photo examples’ of similar sites where walkways had been installed.
Mr Rodriguez considered that there was ample room for a cantilevered platform to be installed between the plant room and the ladder. Clutter in the plant room would have to be removed and the louvre shutter could be converted into a door.
Mr Rodriguez’s evidence was criticised by the Owners Corporation’s counsel because he did not produce the quotes that he had obtained for the cost of the gantry proposal and they had not been discovered. Objections were made to his estimates, but the Tribunal member said that it is not going to be ‘absolutely cheap’ and noted that costs were going to be borne by all members.[56] The Owners Corporation argued that because the scope of works was not known, Mr Rodriguez had not proved the assumptions upon which his cost estimate was based.[57] But, I consider it was within his experience to assess quotes for gantries and the quotes he obtained were likely to have been based on evaluation of the practicability and possibility of doing the work.[58]
[56]Ibid 733.
[57]T 119.
[58]Ibid 100.
Ms C Marley
Ms Marley, the respondent, gave evidence that she appreciated the high security that Lot 62 provided and described it as her private sanctuary on the top floor. She described herself as a ‘single, vulnerable woman in an apartment on her own’.[59] It was located close to her parents’ home and gave room for her 35 kg bulldog. She said that she would not have purchased Lot 62 if she had known that it was subject to an access easement. She referred to the five days of window cleaning as an example of the problems that the easement would cause her because during that period, she would have to find another home for her bulldog.
[59]Ibid 83; CB 789.
She proposed access options to meet the Owners Corporation’s requirements. These were: first, a gantry along which people could walk; second, a barrier which on notice she could deploy; and third, creating a new door through a glass panel which would separate the dog and the ladder and which would allow access to the roof.[60]
[60]Ibid 83.
Mr B Louden
Mr Ben Louden, a commercial abseiler, was engaged by Ms Marley to give an opinion as to the safety, compliance, feasibility, practicality and ‘extra time’ required to abseil from the fifteenth floor to the fourteenth floor outer balcony on Lot 62’s terrace to gain access to the abseil points when window cleaning.[61]
[61]CB 407, 685; T 69.
He considered that the walkway/gantry proposal would provide access from the plant room to the ladder and would remove the need for access to the ladder via the terrace. It provided an alternative means of access to the Lot 62, level fourteen anchor/abseil points and was feasible. He said that the use of twin rope access/abseiling methods from roof level to the west facing outer perimeter balcony of Lot 62 on level fourteen should result in no more than an additional four hours labour for one technician.[62]
[62]CB 408-9.
Body Corporate No. 41342R v Sheppard
Considerable reference was made by the Tribunal, and in submissions, to the Court of Appeal judgment in Body Corporate No 41342R v Sheppard.[63] That case concerned the Body Corporate’s application for a decision that there was an implied easement permitting access to the roof of an apartment block to provide and maintain building services, including the air–conditioning, fire detection and emergency warning systems, the lifts, the boiler, lighting, plumbing and cleaning the windows and steel beams. Previously, access to the roof had been achieved by using the lifts or walking up the fire stairs. The Body Corporate claimed that rights of way to the balconies on levels 14 and 15 were required to clean the external windows and stainless steel of the building. The issue was whether the climbing of the fourteen flights of stairs was an available alternative for the purposes of s 12(2) of the Subdivision Act.[64]
[63](2008) 20 VR 362.
[64]T 17.
Dodds-Streeton JA, in delivering the judgment of the Court of Appeal,[65] noted that it was common ground that the Body Corporate bore the onus of establishing that the conditions of s 12(2) of the Subdivision Act were satisfied in order to imply an easement or right.
[65]Buchanan JA and Osborn AJA agreeing.
Her Honour noted that an easement is, characteristically, a right existing over one property for the benefit of another. She stated:
Any imprecision in this context springs not from the word ‘necessary’ which is a well–established meaning. Rather, it arises from the need to apply it in context to the complex or varied facts of each particular case and from the flexibility of the notion of ‘reasonable use and enjoyment’.[66]
…
[66]Sheppard Court of Appeal 373 [75].
She considered the meaning of the word ‘necessary’ in the following passage:
In my opinion, the word ‘necessary’ bears its ordinary meaning of ‘essential’. It is not, however, to be construed in isolation, but in the context of the composite phrase, in which it is qualified by the broad concept of reasonable use and enjoyment of the benefitted property. Further, it is the easement, rather than the function it secures, which must be ‘necessary’. The reasonable use and enjoyment of the property not only clearly exceeds mere use, but also admits consideration of the effect on the reasonable use and enjoyment of property if the function to be achieved by the easement is unavailable and of the costs or detriments of securing the function by means other than the easement.
His Honour, in my view, correctly concluded that ‘necessary’ meant that the easement was essential to achieving the specified function, in the sense that no alternative means of achieving the relevant function was feasible or reasonably available. In determining whether an alternative to the easement was reasonably available, all relevant circumstances including physical factors, legal restrictions, safety considerations and costs should be considered.
While the mere possibility of an alternative to the easement would not preclude the satisfaction of the first condition, his Honour did not hold the contrary, but rather, correctly concluded that if the alternative were reasonable, there are involving some inconvenience of additional costs, the implied easement would not be necessary in the relevant sense.
His Honour was entitled, on the basis of the evidence, to conclude that the access sought to be achieved pursuant to the implied easement had been, was currently, and would in future be readily available by alternative means, albeit at a greater cost and entailing some risk to service personnel, while avoiding other greater risk.
Further, in my opinion, even were the appellant’s construction of the first condition of s 12(2) correct, it could not succeed, because the claimed easements are not, on any view, substantially preferable to the current means of access for the use and enjoyment of the respondents’ property. The easement might well constitute a preferable means of access from the perspective of many service personnel, who must currently climb the fire stairs from the ground floor. The fact that service personnel may prefer an alternative means of providing the services has not, however, affected the availability of the services. Nor is the preference of service providers, even on the appellant’s construction, a relevant consideration.[67]
[67]Ibid 374 [82]–[84].
Her Honour also stated in respect of the second condition in s 12(2):
For the reasons set out above, in my opinion, the second condition of s 12(2) is directed only at the property subject to the implied easement, rather than all the property globally.
…
The claimed easements are, in my opinion, inconsistent with the reasonable use and enjoyment of the respondents’ property, whether it be merely an element of, or the sole property relevant under the second condition. The number and frequency of the required service visits, the ambit of the necessary route through the respondents’ key private living areas and the associated conveyance of service equipment and chemicals through those areas would constitute intrusion of a degree and nature wholly incompatible with the reasonable use and enjoyment of a private residence. Such service access could, moreover, pose an unacceptable risk to the personal security and privacy of the occupants. The necessity for, and the schedule of, service visits were acknowledged, and the appellant did not propose any modification of the easements sought. The distinction between the existence and the use of an easement was, in that context, chimerical, and constituted an implicit acknowledgment of the intolerable level of intrusion the claimed easements would represent.[68]
[68]Ibid 375 [88], [90].
Submissions
The Owner’s Corporation’s submissions
The Owner’s Corporation submitted that the Tribunal made two material errors in rejecting its application. First, by finding that alternatives to the implication of an easement were available. Second, by failing to consider if those alternatives were feasible or reasonably available. Rather, the Tribunal merely stated that there were alternatives, even if ‘structurally complex and expensive’. However, the Tribunal’s reasons did not identify the evidence or findings that satisfied it that Ms Marley’s alternatives for access were feasible or reasonably available.
The Owner’s Corporation submitted that it was impossible to create access to the plant room from the common property. It disputed Ms Marley’s contention that there was room for access to a walkway from the plant room. Even if the gantry proposal was implemented, access would still be required to the terrace at least to construct the gantry and maintain access to the south and west anchor points.
The Tribunal did not apply the legal test applying to s 12(2) as it was explained in Sheppard. It did not consider the necessity of the implied easement and did not properly assess the reasonable availability of alternatives. Thus it did not consider if each of the three alternatives was reasonably available based on physical factors, legal restrictions, safety considerations and costs, nor the fact that the alternatives could not be achieved using the Owners Corporation’s land alone. The Tribunal did not consider the issues raised by Mr Kip’s evidence. Mr Rodriguez was not a qualified inspector or a surveyor so could not give evidence on legal restrictions which might prevent the construction of a gantry.
The Tribunal’s approach was novel because its effect was that the implied easement would not be recognized because of the alternatives proposed by Ms Marley but which required construction to be undertaken. Section 12(2) required consideration of the land of the claimant for the easement and whether it provided an alternative to the easement sought. It required consideration of the land affected as it was, and not as it could be.
The Member did not state why Mr Rodriguez’s and Mr Louden’s evidence was preferred to Mr Kip’s if that is what she found. The Tribunal had no basis for dismissing Mr Trainor’s safety concerns about Mr Louden’s opinion that abseiling could occur from the western roof to the west anchors. The Tribunal did not make necessary findings of fact about the alternatives advanced in Ms Marley’s case. While they might minimise the use of her terrace, they did not eliminate the need to access the terrace as none provided an alternative means to accessing the southern anchor points.
The Owners Corporation submitted that there was no authority for the proposition that the possibility of carrying out construction work to provide alternative access defeated a claim for an implied easement. But, the Owners Corporation conceded that if a modification could be made within the common property to allow the functions to be performed, then there was a reasonably feasible alternative to the implication of an easement.
On the question of the costs of the gantry proposal, the Owners Corporation submitted that the use of an easement to provide access needed to be weighed against the costs of any alternative. Mr Kip considered the gantry proposals to be disproportionately expensive. The Tribunal did not have evidence of the cost of constructing the gantry alternative, as the quotes on which Mr Rodriguez relied were not produced nor was a scope of works for its construction. All the Tribunal had was evidence that it was structurally possible. But access to Ms Marley’s terrace would be required for construction of the gantry and from time to time thereafter to maintain it.
The Owners Corporation contended that the Tribunal did not properly consider the second condition of s 12(2), that is, whether the proposed function of the easement was consistent with Ms Marley’s reasonable use and enjoyment of her Lot. This was an objective requirement. It was not relevant that Ms Marley may have purchased the apartment without knowing of the possibility of an easement being implied. An easement will necessarily involve some interference with the servient owner’s use of their land.
The Owners Corporation referred to the inspection that the Tribunal undertook including of the common area, the door, the passageway and the view into the plant room. The Tribunal stated that:[69]
Even so, it is apparent to the Tribunal from its inspection of the development that there are alternative options for access to anchor points, albeit, such options may be structurally complex and expensive.
[69]VCAT Decision [17].
The Tribunal did not state what it saw on the inspection so as to enable an understanding of its conclusions or what the alternative options were.
The Owners Corporation submitted that the Member’s reasons were inadequate because they did not explain her path of reasoning leading to her conclusion that there were alternatives available that satisfied the requirements of s 12(2) and what findings she made about difference in opinion of Mr Kip and Mr Rodriguez.
The Owners Corporation argued that the Member had impermissibly placed weight on the Ms Marley’s willingness to grant a licence for access at agreed times, which she said ‘may even provide greater precision than an easement’. It submitted that there was no authority for the proposition that the offer of a licence was relevant to deciding if an easement was necessary. An easement has the benefit of being practically irrevocable, whereas a licence can be revoked at will and is unlikely to provide a consistent solution.
Ms Marley’s submissions
Ms Marley’s case was that the Tribunal correctly applied the wording of s 12(2). She said that the Owners Corporation’s complaints were about facts and not law and that the Tribunal had sufficient material before it on which to make its findings.[70] The Tribunal correctly concluded that there were alternative options for access available. The Tribunal accepted the evidence of her witnesses.
[70]I discussed with counsel for the respondent the question of who bore the onus of proving that the gantry proposal was a feasible or reasonably available alternative see T 90, 93, but ultimately, in view of the terms of the proposed grounds of appeal, I have not found that issue significant.
The Tribunal correctly stated the law on the onus of proof and that that ‘necessary’ meant ‘essential’ to achieve a specified function. It was entitled to find that alternative means of access to the roof were feasible or reasonably available. The Tribunal correctly found that on the evidence presented by Ms Marley, the gantry or walkway could be built to enable an alternative access to the roof and to the abseiling points. There was no evidence that workers using the gantry would require an easement over Ms Marley’s terrace.
The Member did consider physical factors and legal restrictions that might affect the gantry option. She accepted Mr Louden’s evidence that the gantry proposal and abseiling from the roof were safe. The Tribunal had Mr Rodriguez’s evidence about the cost of the gantry proposal of $8,000 plus GST to $12,000 plus GST. Mr Kip did not dispute that amount as the cost of the structural work, but said that there would be additional costs such as the cost of obtaining the building permit.
Ms Marley submitted that in dealing with the second condition of s 12(2) the Tribunal clearly concluded that her concerns about the effect of the easement on her use and enjoyment of Lot 62 were reasonable.
In respect of the inspection, Ms Marley submitted that the matters that the Member observed were already the subject of extensive evidence. None of the findings on the inspection formed the core of her decision. The only reference to the inspection was in connection with the alternative options for access that were available and they had been discussed in evidence.
Ms Marley also submitted that her licence offers were relevant to the determination of whether the easement was necessary.
Ms Marley describe the Member’s reasons as disclosing her path of reasoning, namely: a summary of the background; a correct statement of the law; a finding that the Owners Corporation had not discharged the burden of proof with reasons and findings and a conclusion.
Consideration and analysis
There is some overlap in the questions of law and the connected grounds of appeal.
Question of law one and proposed ground of appeal one – Was the statutory test in s 12(2) correctly applied?
The Member’s reasons commence at [16] with the clear statement of the Tribunal’s finding that the Owners Corporation had not discharged the burden of proof that the easement ‘is necessary for the reasonable use and enjoyment of … the common property …’. The Member then referred to the evidence that a gantry could be built to enable alternative means of access to the roof and abseiling points and that various options had been identified. Read in the context of the remainder of the reasons, it seems clear enough that the Member found that the Owners Corporation had not proved its case because the evidence in Ms Marley’s case showed alternative options. Thus, in [19] the Member stated that: ‘Accordingly, I am satisfied that there are other options for access to the anchor points, and the common property areas’. If that were all there was, the decision would appear to be a correct application of s 12(2) of the Subdivision Act.
But, in my opinion, it is not, because other passages in the Member’s reasons suggest that her consideration of the options presented did not apply the provisions in s 12(2) as explained in Sheppard. That decision explained that an easement or right of way was not necessary if there was an alternative that was feasible or reasonably available, even if it involved ‘some inconvenience or additional cost’.
Counsel for Ms Marley submitted that the Member had accepted Ms Marley’s witnesses and that it was implied that she considered that the alternative options were reasonably available. In considering that submission I have taken into account that the Tribunal’s reasons are to be read fairly and:
are not to be construed minutely and finely with an eye keenly attuned to the perception of error;[71] and
are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[72]
[71]Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).
[72]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
I have reached the conclusion that the Member did not consider, or at least did not find, that the alternatives proposed to the implied easement were feasible or reasonably available Those last four words are not found in the statute, but are important, as the Court of Appeal used them as a way of considering the test of necessity, which is present in s 12(2). If there are alternatives that are feasible or reasonably available, then those seeking an implied easement will not have proved their case.
Three features of the Member’s reasons lead me to the conclusion that the Member did not apply the approach of assessing and making findings about the feasibility of, or reasonable availability of the alternatives.
First, when describing what she saw on the inspection of the property, the Member said that it was apparent from the inspection of the development, ‘that there are alternative options for access to the anchor points, albeit, such options may be structurally complex and expensive.’[73] Where options are, or may be, structurally complex and expensive, there must be real doubt that they are feasible or reasonably available. But the Member did not address that issue or state whether the options were structurally complex or expensive. And it was an issue expressly raised by the evidence of both Mr Kip and Mr Rodriguez. She never made an express finding about feasibility or reasonable availability of the options.
[73]VCAT Decision [17].
Second, after referring in [17] to ‘concerns about the difficulty of effecting the gantry option’ and noting the argument that the proposal was ‘disproportionately expensive’, the Member said:[74]
Even if the evidence of Mr Rodriguez and Mr Louden should carry little weight, they have raised other alternatives to traversing Ms Marley’s terrace.
[74]Ibid [18].
But the identification of the weight the Member gave to Mr Rodriguez’s evidence, and to a lesser extent to Mr Louden’s, when it conflicted with Mr Kip’s evidence was a critical issue in the determination of whether the alternatives were feasible or reasonably available. Mr Kip’s revised opinion was that the gantry option was ‘…very difficult and potentially disproportionally expensive…’. So, it was important for the Member to state the opinion with which she agreed or preferred and why she did so because it assisted in understanding why the Member concluded that alternatives were available.
In view of Mr Kip’s evidence, it was not self-evident that the gantry options were feasible or reasonably available. While, Mr Rodriguez’s evidence demonstrated that gantries had been used in a range of locations, including high rise buildings, it did not necessarily support a conclusion that they were a feasible or reasonably available alternative when used in the manner proposed in Ms Marley’s case.
The third reason for my conclusion overlaps with the second. Because the Member did not expressly state whether she accepted Mr Rodriguez or Mr Kip’s evidence, it appears she overlooked the important issue – were the options proposed by Ms Marley’s case feasible or reasonably available? I do not consider that read in the context of the matters to which I have referred, but read fairly, that the Member’s findings that there were alternatives access means, addressed the important issue of whether those alternatives were feasible or reasonably available.
The Tribunal had to decide whether an access to the roof was necessary for the reasonable use and enjoyment of each lot in the plan of subdivision. Sheppard establishes that an easement will be necessary if the function cannot be performed or achieved without it, and if an alternative is not feasible or reasonably available.[75]
[75]Sheppard Court of Appeal [80]-[81].
The reasons suggest that the Member decided that there were alternatives to the easement sought, but did not consider and did not state that they were feasible or reasonably available.
This was not an abstract issue without bearing on the outcome of the Owners Corporation’s application. To the contrary, there was a clash between the evidence of Mr Kip and Mr Rodriguez about whether the gantry alternative was feasible or reasonably available. The Member made no express findings about the matters on which the witnesses clashed, and this strongly suggests that she did not apply s 12(2).
I consider that proposed ground one is established because the Member appears to have proceeded on the basis that it was sufficient that alternatives were available, regardless of their complexity or cost. This was not the approach in Sheppard’s case.
Question of law two and four and proposed grounds of appeal three and four – The conclusions not reasonably open grounds
In my opinion, these proposed grounds are not established.
The Member might have found by reference to Mr Rodriguez’s evidence and after a proper balancing of his and Mr Kip’s evidence that the gantry proposal was feasible or reasonably available. Therefore these proposed grounds cannot succeed. I have previously stated my conclusion that the Member did not make a finding about feasibility and reasonable availability, which is why I consider that proposed grounds one and two succeed. But because of Mr Rodriguez’s evidence it cannot be said that it was not reasonably open to the Member to conclude that the Owners Corporation had not proved that the easement was necessary. So, in that sense the proposed ground that her decision was not reasonably open has not been established.[76]
Question of law three and proposed grounds of appeal two and five – Failure to have regard to relevant considerations
[76]See Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, [91]; S v Crimes Compensation Tribunal [1998] 1 VR 83, 91; Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322, [14].
I do consider that ground proposed ground two is established. My primary conclusion is that the Member did not consider the question of whether the access options were feasible or reasonably available. As part of that finding I also find that she did not consider matters such as legal restrictions and safety considerations particularly in respect of the use of the plant room, which were matters mentioned by Dodds-Streeton JA in Sheppard in the following passage:
In determining whether an alternative to the easement was reasonably available, all relevant circumstances, including physical factors, legal restrictions, safety considerations and costs should be considered.[77]
[77]Sheppard Court of Appeal 374 [81] (Dodds–Streeton JA).
I do not agree that the Member was obliged to consider the matters described in proposed ground five – that the easement would still be required to erect and maintain a gantry. The gantry proposal was advanced by Ms Marley and on the evidence, the Member was entitled to assume that Ms Marley was likely to permit any access required to erect and maintain the gantry.
Question of law seven and proposed grounds ten and eleven – Irrelevant considerations
Ms Marley’s ‘security and privacy concerns’
The Owners Corporation submitted that it was inappropriate for the Tribunal to consider the subjective feelings of Ms Marley about security concerns. This was an issue that if relevant, was relevant to the second condition of s 12(2): whether the easement or right was ‘consistent with the reasonable use and enjoyment of the other lots and common property’. The Member did not decide whether the second condition was satisfied, stating that her finding ‘that the first condition of s 12(2) is not satisfied is sufficient to determine this case’. However, she did refer to the submissions made that the easement was not consistent with the reasonable use and enjoyment of Ms Marely’s lot. She then stated:[78]
For the sake of Ms Marley’s privacy, I will not articulate here all the details regarding Ms Marley’s privacy and security concerns, and I accept her evidence that she would not have purchased her apartment knowing there was an easement over her terrace.
[78]VCAT Decision [21].
In my opinion, the Member made no finding about whether the second condition in s 12(2) was satisfied or established. In any event, I would not have considered that Ms Marley’s privacy and security concerns were irrelevant to the proper application of the second condition in s 12(2).
The Member’s consideration of Ms Marley’s security concerns was not an irrelevant consideration, although the question of what is reasonable use and enjoyment is ultimately an objective matter. The Court of Appeal considered personal security and privacy of the occupants relevant when considering the second limb of s 12(2) in Sheppard.[79] By referring to reasonable use, the Court adopted an objective standard which may not lead to the same result as the subjective feelings of the owner. It is important to keep in mind that the existence of an easement or right will often have some adverse effect on the owner’s use and enjoyment of their property.
[79]Sheppard Court of Appeal [90] (Dodds-Streeton JA).
The Tribunal was obliged to apply the words of s 12(2) and decide if the easement was consistent with the reasonable use and enjoyment of the lots and common property, and in doing so was entitled to consider whether a reasonable person would have has the same security concerns as Ms Marley.
Ms Marley’s willingness to grant a licence
The Member noted that in the past the Owners Corporation’s access to its installations had been via licence on terms agreed with the two previous owners of Lot 62. The Member noted that Ms Marley:[80]
… in her evidence submitted that she is prepared to grant a licence for access, at agreed times, which may even provide greater precision than an easement. Ms Marley suggested these may include barriers isolating the licensed area, a new door in the existing glass barrier and agreement on the terms of access through the foyer door. It is noted that the applicant’s access to its installations has been to date via licence on various terms agreed with the respondent and two previous owners of the property.
[80]VCAT Decision [19] (emphasis added).
Ms Marley was prepared to grant a licence to the Owners Corporation on conditions to be agreed to pass from the foyer through the door and then across the terrace to the ladder, of the width of three tiles currently in situ, separated by a movable barrier from the rest of the terrace, for all purposes connected with the Owners Corporation’s essential services and window cleaning.[81] Ms Marley was also prepared for the purposes of the Owners Corporations requirement to test anchor abseiling points to grant it a licence to cross the terrace to the door on the western side of the terrace to the area between the two glass barriers on the terrace.[82]
[81]CB 55.
[82]Ibid.
The Tribunal Member’s consideration of Ms Marley’s willingness to grant a licence was not an error. This consideration was relevant to the proper application of s 12(2) of the Subdivision Act.
Habersberger J dealt with a somewhat similar point in Mantec Thoroughbreds Pty Ltd v Batur.[83] In that case, the defendants claimed an easement over a bridge. His Honour decided not to recognise the easement because there was no evidence that the access to the bridge already available to the defendants was at risk of being lost. He stated that:[84]
Strictly, the defendants must have a licence to cross the bridge over the drainage reserve. But the defendants have never sought a licence, and since 2000 they have crossed the drainage reserve at will, despite not possessing a licence. There is no evidence that this is about to change. Nor is there evidence that they would not be granted a licence… In my opinion, there is no necessity [for the grant of an easement], until such time as the permissive access is closed off to the defendants …
[83][2009] VSC 351.
[84]Ibid [115].
His Honour’s approach supports the conclusion that Ms Marley’s preparedness to grant a licence was a relevant consideration to the Tribunal’s determination of whether a s 12(2) easement was necessary or ‘…essential to achieving the specified function…’.[85]
[85]Sheppard Court of Appeal 374 [81] (Dodds-Streeton JA).
While any licence can be revoked, the Tribunal was entitled to assess the likelihood of that occurring. After all, the Owners Corporation had been obtaining access to the terrace under previous owners by licence. If Ms Marley were to revoke the licence, the reasoning in Mantec’s case suggests that that would be the point in time when relief by way of easement becomes available: ‘there is no necessity, until such time as the permissive access is closed off…”.[86]
[86]Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351, [115].
But while the offering of a licence was a relevant consideration, in my opinion the Member did not address the question of whether the gantry option to which the offer of the licence was attached was feasible or reasonably available was not addressed.
But despite that I do not consider that proposed grounds ten and eleven the irrelevant considerations grounds, have been established.
Question of law five and proposed grounds of appeal six and seven – the inspection
I do not consider that proposed ground of appeal six is established. The Member did not take into account any options or alternatives as a result of the inspection that were not discussed in detail during the hearing.[87] The Member’s findings were capable of being supported on evidence led at the hearing.
[87]See ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27317, 27331 [114]-[116] (Young JA), cited in Ha v R (2014) 44 VR 319, 328 (Priest JA).
Proposed ground of appeal seven is expressed more generally and asserts a denial of natural justice in the manner in which the Tribunal reached conclusions on technical matters. Insofar as it is intended to add to ground six, it has no substance as the core matters on which the Tribunal relied were raised in the evidence before it.
Question of law eight and proposed ground of appeal twelve – Requirement for reasons
VCAT is required by statute to give reasons for its orders, including where written reasons are given, findings on material questions of fact, that is, facts which affected the findings or conclusions of the Tribunal.[88] The reasons must provide an ‘intelligible explanation of the process of reasoning that led to the findings, and where necessary make reference to the evidence and material upon which the findings were based’.[89] In Secretary to the Department of Justice v YEE,[90] this Court considered it ‘insufficient’ to merely recite evidence and provide a statement of findings without providing any insight into why the evidence is said to lead to the findings reached.[91]
[88]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 117; Secretary to the Department of Justice v YEE [2012] VSC 447, [96] (Kyrou J).
[89]Dimatos v Coombe [2011] VSC 619, [20] (Beach J). See also Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216, [52].
[90][2012] VSC 447.
[91]Ibid [95].
As mentioned, the Court is not to scrutinise the Tribunal’s reasons over zealously or over critically.[92]
[92]See, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132.
The extent of the obligation to provide reasons depends on the issues to be determined and how the matter was argued. Here, a key issue was whether, and if so why, the Member preferred the evidence of Mr Kip or of Mr Rodriguez and its finding about whether the options proposed by Ms Marley were feasible or reasonably available.
While VCAT decisions need not be as detailed as a judgment of a court, the reasons provided under s 117 of the Victorian Civil and Administrative Tribunal Act 1998 must make clear the Tribunal’s path of reasoning, especially with respect to important aspects of a case to ensure that the logic of its reason and the conclusions reached can be understood by the parties.[93] Where parties differ on material issues, VCAT is required to explain why it prefers one party’s case over the other’s.[94] It did not do this in this case, for instance in respect of the differing opinions of Mr Rodriguez and Mr Kip and the question of whether the options were feasible and reasonably available.
[93]See, eg, Tower Australia Ltd v Filippis [2007] VSC 236, [13]; Caruso v Kite [2008] VSC 207, [32]; Dimatos v Coombe [2011] VSC 619, [20].
[94]Lucas v Transport Accident Commission [2003] VSC 97, [8].
The written reasons for the Tribunal’s decision do not reveal that the Member took into consideration all of the relevant matters that were required to be considered when determining whether a s 12(2) easement was to be implied.[95]
[95]See Sheppard; Sheppard Court of Appeal.
My conclusion is that the Tribunal did not provide the requisite level of reasons required by s 117. Proposed ground twelve is established.
Abandoned grounds
The Owners Corporation chose not to pursue proposed grounds eight and nine which appear to be linked to question of law six.
Conclusion
Proposed grounds of appeals one, two and twelve are established. Therefore, leave to appeal is granted to the applicant and the appeal is allowed.
The matters contained in those grounds vitiate the Tribunal’s decision. Unfortunately, the Owners Corporation’s application must be heard afresh by VCAT.
The orders of the Member dated 15 October 2018 are set aside and the proceeding is remitted to the Tribunal for rehearing by another Member in accordance with law.
I will hear parties as to other appropriate orders.
The parties should seriously consider discussions, if need be with the assistance of a mediator, with a view to resolving this dispute and avoiding the need for further hearings.
Annexure A – Plan of property
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Level 15
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