Owners Units Plan 768 v Lokusooriya

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OWNERS UNITS PLAN 768 v LOKUSOORIYA
(Unit Titles) [2013] ACAT 80

UT 13/16

Catchwords:             UNIT TITLES – construction of front deck protruding on to common property: to address a trip hazard in unit’s verandah step – review of unsuccessful motion before owners corporation meeting – unreasonableness of opposition to motion – section 129(1)(g) of the Unit Titles (Management) Act 2011 – special privilege under owners corporation rules - application for removal of structure – failure to issue rules infringement notice no bar to application

Legislation:Unit Titles (Management) Act 2011, ss 109 and 129,

Cases:Artico Holdings Pty Ltd & The Owners Units Plan 3461(Civil
Dispute) [2012] ACAT 31

Meaney v The Owners Corporation Units Plan 40

(Unit Titles)

[2013] ACAT 72

The Owners Units Plan No 116 & Nicholson and Ors (Unit
Titles) [2012] ACAT 63

Tribunal:                  Mary-Therese Daniel – Member

Date of Orders:  30 October 2013

Date of Reasons for Decision:       3 December 2013

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL                 UT 13/16

BETWEEN:

THE OWNERS UNITS PLAN 768

Applicant

AND:

WARUNA LOKUSOORIYA

Respondent

TRIBUNAL:            Mary-Therese Daniel – Member

DATE:30 October 2013

ORDER

1. Pursuant to section 129(1)(g) the ACAT gives effect to the motion allowing a special privilege for construction of the existing deck at unit 22 of Unit Plan 768; and approving that deck as constructed.

2. The application for an order for removal of the deck is refused.

………………………………..

Mary-Therese Daniel

Member

REASONS FOR DECISION

1. This proceeding was commenced on 9 July 2013 by the Owners Corporation Units Plan No 768 (TOCUP 768) filing an application seeking orders requiring the respondent, Mr Lokusooriya, to remove a front deck attached to the outer wall of his unit, which is unapproved and protrudes on to common property.

2. Mr Lokusooriya opposed that application. On 15 August 2013, he filed a response, and counter claim seeking orders pursuant to section 129 of the Unit Titles (Management) Act 2011 (UTM Act) for, effectively, approval of the construction of the deck and granting of a special privilege for the deck to protrude, as it does, on to common property.

The hearing

1. TOCUP 768 was represented by Mr Veurink of Ray White Canberra in the proceedings, and Mr Lokusooriya was self-represented. 

2. TOCUP 768 provided documentation in support of its application. This included:

   (i)witness statements from body corporate committee members;

   (ii)photographs of the deck at Unit 22;

   (iii)correspondence between the parties in relation to the removal of the deck;

   (iv)a time line of the events leading to this proceeding;

   (v)correspondence of TOCUP 768 about the matter, including:

   (a)     letter from William Dagger Consulting to the body corporate in relation to advice upon the statutory compliance of a small stair flight on the veranda;

   (b)     an email from Mr Ian Brown to Ms Judy Farrelly, strata manager, and members of the body corporate committee confirming evaluation of compliance issues of other units conducted by the committee;

   (c)     copies of emails between the parties, with comments added by Mr…