ACT CIVIL & ADMINISTRATIVE TRIBUNAL MARTIN v OWNERS UNITS PLAN NO 220 & Ors (Unit Titles) [2017] ACAT 22 UT 19/2016 Catchwords: UNIT TITLES – remedies available under the Unit Titles (Management) Act 2011 – whether the Tribunal can order an owners corporation to issue a rule infringement notice – whether the Tribunal can determine whether an owner or occupier has breached the rules outside of the merits review process in section 129 – whether feeding wild birds is sufficient to amount to caring or feeding them Legislation cited: Legislation Act 2001 s133 Unit Titles Act 2001 s 13 Unit Titles (Management) Act 2011 ss 8, 9, 10, 19, 35, 39, 108, 109, 111, 125, 129 Cases cited: Ainsworth v Albrecht [2016] HCA 40 Commissioner for Social Housing and Gallagher [2016] ACAT 99 Floro v Owners – Unit Plan No 630 [2017] ACAT 4 Owners Unit Plan 768 v Lokusooriya [2013] ACAT 80 Tribunal: Senior Member H Robinson
Transcript
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MARTIN v OWNERS UNITS PLAN NO 220 & Ors (Unit Titles) [2017] ACAT 22
UT 19/2016
Catchwords: UNIT TITLES – remedies available under the Unit Titles (Management) Act 2011 – whether the Tribunal can order an owners corporation to issue a rule infringement notice – whether the Tribunal can determine whether an owner or occupier has breached the rules outside of the merits review process in section 129 – whether feeding wild birds is sufficient to amount to caring or feeding them
Cases cited: Ainsworth v Albrecht [2016] HCA 40Commissioner for Social Housing and Gallagher [2016] ACAT 99Floro v Owners – Unit Plan No 630 [2017] ACAT 4Owners Unit Plan 768 v Lokusooriya [2013] ACAT 80
Tribunal: Senior Member H Robinson
Date of Orders: 3 April 2017Date of Reasons for Decision: 3 April 2017
AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 19/2016
BETWEEN:
ROBYN MARTINApplicant
AND:
THE OWNERS – UNITS PLAN NO 220First Respondent
COMMISSIONER FOR SOCIAL HOUSINGSecond Respondent
JOHN ANDREW McKAYThird Respondent
TRIBUNAL: Senior Member H Robinson
DATE: 3 April 2017CORRIGENDUM 19 June 2017
CORRIGENDUM
The Reasons for Decision handed down on 3 April 2017 are amended as follows:
1. In paragraph 44, replace the word “corporation” with “executive committee members”.2. In paragraph 45, replace the words “owners’ corporation” with “executive committee” and
replace the word “members” with “executive committee”.
ORDER
The Tribunal orders that:
1. The application is dismissed.
………………………………..Senior Member H Robinson
REASONS FOR DECISION
1. The applicant, Ms Martin, is the owner of a unit in a complex (the complex) owned by
the first respondent, the Owners Corporation – Unit Plan Number 220 (the
Corporation). The second respondent, the Commissioner for Social Housing (the
Commissioner) is the owner of another unit in the complex, which is located directly
above the applicant’s unit. The third respondent, Mr McKay is the occupier of the unit
owned by the Commissioner. A dispute has arisen as a consequence of Mr McKay’s
practice on feeding birds from his balcony.
2. The application was brought under Part 8 of the Unit Titles (Management) Act
2011 (UTM Act). The grounds under which the application was brought and the orders
sought are considered further below.
Background
3. A unit title complex is a building, or a number of buildings, divided into individual units
(units) and ‘common property’. ‘Common property’ is defined in the Unit Titles Act
2001 as the common property specified on the units plan. It typically includes walls,
driveways, gardens and other common areas.1
4. The common property is collectively owned by the unit holders through the
establishment of a ‘owners corporation’2 – a body corporate with its own legal
personality3 that holds the common property as agent for the unit holders (the owners).4
The owners are all members of the owners corporation5, and have a right to participate
in decisions about the property and the complex. For example, owners vote on motions
concerning the affairs of the corporation at meetings and participate in the election of an
executive committee to exercise the functions of the corporation.6 The corporation may
also appoint a manager to take care of various day to day tasks and functions
(manager).7
1See definition of ‘common property’ in Unit Titles Act 2001 section 132 UTM Act section 83 UTM Act section 94 UTM Act section 19(1)5 UTM Act section 10(1)6 See UTM Act section 35, 397 UTM Act division 4.2
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5. The UTM Act sets out the various rights and duties of the corporation, the owners, the
executive committee and the manager.
6. The UTM Act also establishes a framework for the internal governance of the
corporation. Owners corporations are intended to be self-governing8, with decisions
made by a vote of the members, or by elected members of the executive committee. The
approach may be described as a form of constitutional residential democracy, with the
UTM Act establishing a framework in which democratic decisions can be made about
the management of the complex by the owners of the units within it.
7. Of course, when people live together in close proximity, sharing common facilities,
there will from time to time have disagreements and disputes. While ideally such
disputes should be resolved informally, or through the internal processes of the owners
corporation, occasionally it will be necessary for parties to seek external assistance. Part
8 of the UTM Act provides that certain of these disputes may be brought before this
Tribunal. One of the issues arising in this case is whether, and when, the Tribunal
should intercede in these processes.
8. While the dispute resolution processes in Part 8 apply to disputes between owners of
units in a unit complex, they do not preclude other avenues of redress – for example,
claims in common law for nuisance or other torts. Some of the remedies sought by
Ms Martin against Mr McKay may have been more appropriately brought in the
Tribunal’s civil jurisdiction. Hence, one of the other issues for the Tribunal was
whether, and to what extent, the UTM Act can or should be used as an avenue for the
recovery of ‘damages’ of a kind recoverable at common law. The reasons for my
reluctance to allow claims of this nature under this jurisdiction as set out below.
The hearing process
9. The application was filed on 18 July 2016, with a further amended application filed
some time later.
10. The parties attended a directions hearing on 26 August 2016, at which time they agreed
to attend mediation. Mr McKay later withdrew his consent to the mediation, and the
process proceeded to a further directions hearing and then to hearing. It was unfortunate
8 Albeit within the framework established by the UTM Act
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that the mediation did not proceed, as mediation or conciliation is nearly always
preferable to litigation in unit titles matters, where the parties live together with the
consequences of any decision. Still, there was little point in compelling parties to attend
a mediation where not all of them are willing to participate.
11. Following the vacation of the mediation date, a further directions hearing was held on
16 September 2016, before then President Crebbin. At that directions hearing, President
Crebbin discussed the application with the parties, including some of the issues likely to
arise. She directed Ms Martin to file an amended application with a particularised list of
the orders she sought under the UTM Act and the evidence she relied upon, including
any ‘quotes, receipts, photos [or] emails’. President Crebbin particularly advised
Ms Martin that she needed to consider what kinds of orders were available to her under
the UTM Act. The respondents were also directed to file various materials.
12. Sometime later Ms Martin filed an undated, lengthy document that set out the orders
sought (amended application). I have set out those orders in my reasons below. The
Commissioner filed submissions on 4 October 2016, Mr McKay on 13 October 2016
and the Corporation on 18 October 2016.
13. The hearing proceeded on 9 November 2016. At that hearing:
(a) Ms Martin represented herself. She had filed a witness statement, gave evidence
in person and was cross examined.
(b) The Corporation was represented by Mr Kerin, a solicitor. He called two
witnesses - Ms Diana Sima, a resident of the complex and member of the
executive committee, and Ms Caroline Mitchell, an employee of the manager.
Both filed witness statements, gave evidence in chief and were cross examined.
(c) The Commissioner was represented by Mr Adkins, a senior manager within
Housing ACT. Mr Adkins did not call any witnesses, but cross examined other
parties’ witnesses and made submissions.
(d) Mr McKay appeared by telephone. He also filed a witness statement and was
cross examined. He did not call any witnesses.
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14. At the conclusion of the hearing, the Tribunal determined to reserve its decision.
Facts
15. For the most part, the facts of this matter were not contested. My findings in relation to
the facts, whether contested or not, are set out below.
16. Ms Martin owns a ground floor unit with a courtyard area of the unit complex (Unit
15A). The Commissioner owns an apartment directly above the applicant’s (Unit 18A).
That apartment is leased to Mr McKay.
17. The balcony of Unit 18A juts over the courtyard of Unit 15A (the courtyard) by about
1.5 metres.
18. Mr McKay puts bird seed out on his balcony to attract wild birds. Magpies, currawongs
and other birds congregate on his balcony and eat the seed. The birds defecate into the
courtyard. They also drop seed and seed husks. On occasion, seed has simply fallen
from Mr McKay’s balcony into the courtyard. It is not seriously in dispute that these
events have led to some degree of mess in the courtyard, and that Ms Martin has had to
clean up that mess.
19. In May 2015 Ms Martin complained to Mr McKay about the falling birdseed.
Mr McKay took steps to minimise the spillage. As best I can determine, this primarily
involved laying planks or pieces of timber between the bottom balustrade and the
balcony floor. The pieces of timber were not affixed to the balcony, but simply rested
against the balustrade.
20. In late 2015 or early 2016, four items fell from Mr McKay’s balcony into the courtyard.
The items included two pieces of the timber barrier, as well as items that were
described, by common agreement, as a blue mat and a plate. Photographs of these items
were before the Tribunal. A glass may also have fallen from the backyard, but no
photographs were available of this item, and I make no findings in relation to it.
21. Ms Martin did not witness the items fall, but Mr McKay agreed under cross
examination that they had been on his balcony prior to being located in Ms Martin’s
courtyard. I am satisfied that two pieces of timber, a mat and a plate fell from
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Mr McKay’s balcony into Ms Martin’s courtyard. I accept Mr McKay’s evidence that
he did not drop or push the items deliberately.
22. Ms Martin said that the presence of the three items in her courtyard has caused her to be
concerned that other items may fall, and that this has compromised her safety, her
comfort and her ability to use her courtyard.
23. Just how often Ms Martin actually used the courtyard area was the subject of much
evidence. She had owned Unit 15A since 2001, but while she apparently resided in it at
some time in the past, by the time of the hearing she lived elsewhere. Her evidence was
that, notwithstanding that she did not live in the unit, she visited several times a week to
make sure it is looked after and to “meet insurance obligations”. She said that before the
items had fallen into her courtyard, she would often make some lunch and sit in the
courtyard and eat it, but she does not feel safe doing that anymore.
24. Mr McKay submitted that Ms Martin’s evidence was not true. He said that he rarely
saw her in her courtyard. He conceded under cross examination, however, that he could
not see the porch area as this was beneath his balcony. I accept that it is possible that
Mr McKay did not see Ms Martin at her unit very often because she remained inside the
unit rather than venturing into the courtyard, or because she sat on the porch. However,
I am satisfied that at all relevant times Ms Martin was an infrequent visitor to her
apartment, and that she certainly did not live in it.
25. As to the state of the courtyard, the evidence was somewhat inconsistent. There was
evidence of bird droppings on items within Ms Martin’s courtyard. However, there was
also evidence of bird droppings within the complex as a whole. Ms Sima’s evidence
was that “bird droppings are common all around the property”. Her evidence was that
on two occasions in October 2016, she wandered around the common property of the
owners corporation and took photographs of the complex, including photographs of bird
droppings. Copies of those photographs were provided. I accept Ms Sima’s evidence as
to the state of the unit complex. The complex has a ‘bush’ ambiance, and the native
trees are undoubtedly part of its attraction to many residents, as well as to the birds.
26. Nonetheless, given the undisputed evidence that Mr McKay feeds birds from his
balcony, I accept that a greater than usual number of birds may congregate on his
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balcony. I accept that this results in more bird droppings falling into Ms Martin’s
courtyard than would otherwise be the case. Just how much more is impossible to tell
from the evidence available.
27. The husks are a different issue. Ms Sima’s photographs did not show bird seed or husks
on the common property, and Ms Sima said she did not see any in the common areas. It
is not in doubt that the birdseed and husks in Ms Martin’s courtyard were a consequence
of Mr McKay feeding birds from his balcony. It is not disputed that from time to time
she has had to clean them up.
28. Further evidence as to the current state of both the common area and Ms Martin’s
courtyard was given by Ms Mitchell. Ms Mitchell was employed by the complex
manager. She has four years experience in her role. She took over the management of
the complex in around April 2016, so had no direct involvement in the matters
preceding this proceeding.
29. On 26 August 2016 Ms Mitchell took some photographs of the applicant’s courtyard.
She said her photographs were “indicative” of the state of the courtyard. The whole
courtyard was unkept, untidy and not well maintained. I accept that some deterioration
in the state of the courtyard may be due to Ms Martin’s reluctance to enter it due to
Mr McKay’s activities. There is little evidence as to what the courtyard looked like in
2015 and early 2016 when this dispute arose.
30. On the same day, Ms Mitchell also took a photograph of Mr McKay’s balcony, as it
appears from the ground. This photograph is evidence only as to the state of the balcony
in August 2016, but there was nothing noticeably untoward about the balcony. Under
cross examination, Ms Mitchell confirmed that she had no communication with
Mr McKay prior to taking the photographs. I accept that he did not clean or tidy his
balcony for the purposes of the photographs.
31. The Commissioner received two complaints about Mr McKay from the unit complex’s
manager, both in 2016. The Commissioner was unable to substantiate the first
complaint. The Commissioner was also unable to substantiate a second complaint that
Mr Martin threw items from his balcony, although he conceded that an item had fallen.
As a consequence of this admission, on 16 June 2016 the Commissioner wrote to
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Mr McKay and reminded him of his obligation, under clause 63 of the Standard
Residential Tenancy Terms9, to take reasonable care of the premises and to keep the
premises reasonably clean. The Commissioner also provided Mr McKay with a copy of
the house rules, and advised that any further complaints will be investigated.
32. For completeness, I note that I accept the document filed by the Corporation and
marked Annex “B” as being a true copy of the house rules of the Corporation.
The Unit Titles (Management) Act 2011
33. Part 8 of the UTM Act sets out a process by which owners, the corporation and other
specified parties can seek dispute resolution through the Tribunal. This process applies
to disputes including:
(a) the owner of a unit and the owners corporation10; and
(b) a dispute between two or more unit owners.11
34. This dispute raises issues that fall under both grounds above.
35. The orders that are available to the Tribunal to resolve disputes are set out in section
129 of the UTM Act. This provision provides as follows:
129 Kinds of ACAT orders(1) The ACAT may make the following orders:
(a) an order requiring a party to do, or refrain from doing, a stated thing;
(b) an order requiring a party to exercise a function under this Act;
(c) an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;
(d) an order requiring a person to pay to the Territory or someone else an amount of not more than $1 000;
(e) a declaration—
(i) that a general meeting or executive committee meeting is void for irregularity; or
(ii) that a resolution of a general meeting or executive committee meeting is void for irregularity; or
(iii) that a rule of the owners corporation is invalid for irregularity;
(f) an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT;
(g) an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;
(h) an order requiring stated accounts of an owners corporation to be audited, whether by a stated person or a person of a stated kind;
(i) an order allowing an applicant to examine records of the owners corporation;
(j) an order requiring an owners corporation to make or repeal a rule and register a copy of the resolution making or repealing the rule;
(k) an order appointing an administrator to exercise all or stated functions of the owners corporation, the executive committee or an office-holder in the committee;
(l) if the dispute relates to a matter mentioned in section 126 (1) (a)—an order to remove the animal from the unit if—
(i) a condition requiring the owners corporation’s consent to keeping the animal is not complied with; or
(ii) the animal is causing a nuisance.
(2) The ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute under this part.
(3) This section does not limit the orders the ACAT may make in relation to a dispute under this part.
36. The various orders sought by Ms Martin are considered below.
Order 1: Infringement Notices
37. Ms Martin seeks (in her own words):
An order that the [Owners Corporation] issue an infringement notice to the Owner of Unit 18A for breaches of rules part 1, 2.6, 2.9 and part 2, 2.1, and 4.1 of the owners corporation (UP 220 House Rules); schedule 4 of the UTM Act (Rules 3, 4, 6 and 7 in relation to this application).
38. As I understand this contention, Ms Martin is seeking an order that the Corporation
issue an infringement notice to the Commissioner and Mr McKay on the basis that they
have breached the Corporation’s house rules and/or the UTM Act.
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39. Both the owner and occupier of a unit in an owners’ corporation are bound by the rules
of that corporation12, although a person who occupies a unit under a residential tenancy
agreement (including Mr McKay) is not bound by the rules if they conflict with the
prescribed terms under the Residential Tenancies Act 1997.
40. The UTM Act provides for that a corporation may deal with persistent breaches of its
rules by an owner or occupier by issuing a rules infringement notice (infringement
notice). A failure to comply with an infringement notice is an offence13. The maximum
penalty for a breach of a notice is $750 for an individual and $3,750 for a corporation.14
41. The Corporation has not issued an infringement notice against either Mr McKay or the
Commissioner. Ms Martin has asked the Tribunal to make an order that the Corporation
issue both with an infringement notice for breach of the house rules. Ms Martin did not
state the ground upon which she believed this order could be made. The Corporation’s
submissions dealt with why, in its contention, no rules had been breached, but did not
address the issue of what power the Tribunal had to order the issuing of an infringement
notice if they had in any detail.
42. There are two means by which a corporation may be authorised to issue an infringement
notice against an occupier or an owner.
43. First, section 109(1) of the UTM Act permits the executive committee to issue a rule
infringement notice if it reasonably believes that:
(a) the owner or occupier (the person) of a unit has contravened a provision of the
corporation’s rules; and
(b) the circumstances of the contravention make it likely that the contravention
will continue or be repeated.
44. Section 109(2) provides that before issuing any such notice the executive committee
must seek the authorisation of the executive committee members, which requires the
45. Two points may be made about the power to issue an infringement notice under section
109. First, the exercise of the power is contingent upon the executive committee
forming a ‘reasonable belief’ as to a state of affairs. It was quite apparent from these
proceedings that the members of executive committee did not hold the beliefs necessary
to exercise the power under section 109(1). Secondly, the exercise of the power to issue
an infringement notice under this section is contingent upon the passage of an
authorising resolution by the executive committee. No such resolution has been passed
(or even put to the executive committee).
46. Section 111 sets out another process by which an individual unit owner may request that
the owners corporation issue a rule infringement notice. This section provides that:
111 Breach of rules—request for rule infringement notice(1) This section applies if—
(a) a dispute exists between the owner or occupier of a unit in a units plan (the complainant) and the owner or occupier of another unit in the units plan (the accused person); and
(b) the dispute arises because the complainant reasonably believes that—
(i) the accused person has contravened a provision of the corporation’s rules; and
(ii) the circumstances of the contravention make it likely that contravention will continue or be repeated.
(2) The complainant may ask the owners corporation to give the accused person a rule infringement notice for the contravention.
47. Again, the exercise of power under this section requires a resolution by the members of
the owners corporation before a rules infringement notice can be issued. There has been
no such resolution in this case.
48. Could an order of the tribunal circumvent these requirements?
49. The Tribunal does have a general power to make an order requiring a party to exercise a
‘function’ under the UTM Act.16 The functions of the Corporation include, pursuant to
section 16(1), the enforcement of the Corporation’s rules. This provision clearly permits
the Tribunal to make various orders requiring an owners corporation to remedy
breaches of the Rules. Section 129(2) of the UTM Act provides that ACAT may make
16 UTM Act section 129(1)(b)
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any other order it considers reasonably necessary or convenient to resolve a dispute
under this part. Again, this could result in a broad range of remedial orders to address
disputes. However, the power to order an infringement notice is clearly prescribed, and
subject to certain procedural requirements. Strict requirements are important, given that
a breach of a valid notice is an offence. In my view, no general power in section 129 of
the UTM Act could not be used to order the executive committee or the corporation to
exercise powers or functions that it is not otherwise authorised to exercise – and in the
above circumstances, the perquisites to the exercise of the powers under section 109 and
111 have not been met.
50. This does not mean that the Tribunal is completely devoid of powers to deal with
infringement notices, only that there are certain processes that must be followed before
such matters can come before the Tribunal.
51. Section 129(1)(g) of the UTM Act provides that the Tribunal may make an order giving
effect to an unsuccessful motion for a resolution of a general meeting if the Tribunal is
satisfied, after a merits review, that opposition to the motion was unreasonable. In
practical terms, Ms Martin was entitled to put a motion to a general meeting asking the
Corporation to give Mr McKay or the Commissioner an infringement notice.17 Had that
motion been unsuccessful, she would then have been entitled to seek a review of that
motion in this Tribunal. That option is not open to her at present, at least on the facts as
set out in her application, as no motion has been put. In this sense, the application by
Ms Martin is premature, as the proper process has not been followed.
52. This leads to my other concern about this aspect of Ms Martin’s application. Were this
matter to come before the Tribunal pursuant to an application for review under section
129(1)(g), in order to overturn the decision, Mr Martin would need to satisfy the
Tribunal that the decision of the owners corporation was ‘unreasonable’. This is a high
burden, which is reflective of the weight given to the right of owners corporations to
manage their affairs along democratic lines.18 By this process Ms Martin attempts to
circumvent these democratic processes, simply asking the Tribunal to step into the
shoes of the representative bodies and order that an infringement notice be issued. To
17 in accordance with UTM Act, section 11118 See Ainsworth v Albrecht [2016] HCA 40; Floro v Owners – Unit Plan No 630 [2017] ACAT 4
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allow this kind of process would mean it would be easier for aggrieved residents to
come directly to the Tribunal for an infringement notice or other remedy, rather than it
would be to put forward a resolution seeking authorisation through the body corporate,
and then seeking merits review if necessary. This would undermine the democratic,
self-governing approach to the management of unit corporations.
53. For completeness, I note that Ms Martin has alleged that on 24 February 2016 the
Corporation manager advised the Commissioner’s office that, if Mr McKay continued
to breach the rules, an infringement notice would be served. This allegation is contested,
but I do not need to make any findings as to what was actually said. Even if the manager
had made such an assertion, the manager had no authority to issue a rules infringement
notice, or to bind the Corporation or executive committee into issuing one. At best, the
manager could bring the matter to the attention of the executive committee and ask that
they consider the issue.
54. According, I dismiss the application for Order 1. I cannot make the orders sought, no
matter whether or not the alleged breaches of the rules are made out.
Order 2
55. Ms Martin seeks orders that (in her words):
the Owners Corporation or its agent inspect the balcony of Unit 18A following the removal of all items from the balcony that have not been approved by the Owners Corporation and to advise the owner of Unit 15A that the courtyard of Unit 15A is now safe from falling timbers and other debris (Order 2, part a); and
an undertaking from the owner of Unit 18A and the occupier of Unit 18A that in future the owner and occupier will jointly and separately comply with the UP 220 house rules and UTM Act default rules as previously set out (Order 2, part b).
Consideration of Order 2, Part (a)
56. During the course of the hearing, Ms Martin clarified that what she was seeking by way
of this order were orders that:
(a) the items on the Unit 18A balcony that were creating a ‘hazard’ were removed
from the balcony; and
(b) an inspection be undertaken to ensure that this was done.
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57. Ms Martin further clarified that the items to be removed were the timbers and “any
other item that could fit between the railings” – for example, the small pot plants.
58. The Tribunal asked Ms Martin if this would require Mr McKay to refrain from drinking
from a bottle on his balcony, and leaving the bottle on his balcony. She said “no”, but
he “...would have to conduct himself in a manner that would prevent that bottle falling”.
59. Ms Martin did not specify the legislative provision under which the Tribunal could
make this order. I assume that she is seeking orders under section 129(1)(a) – that is, an
order requiring a party to do, or refrain from doing, a stated thing.
60. There is little guidance in the UTM Act about what kinds of things the Tribunal would
need to be satisfied of before making an order section 129(1)(a). Presumably, having
regard to the broader context of the Act, the power could be used to remedy breaches of
the house rules, or to otherwise deal with conduct or behaviours causing a ‘dispute’ to
which the procedures in Part 8 of the UTM act apply.
61. The order sought here differs from those sought in Order 1 in that Ms Martin is seeking
enforcement of the house rules, rather than the issuing of a rules infringement notice for
the breaches of those rules. As set out above, if Ms Martin is concerned that the
respondents are breaching the rules of the Corporation, she has the option of asking that
a rules infringement notice be issued in accordance with the process in section 111. She
has chosen not to do so in this case, but rather to come straight to the Tribunal. There is
nothing in the UTM Act that actually requires that an infringement notice be issued as a
pre-requisite to an owner taking action to seek that the rules be complied with by
another owner.19
62. The relevant alleged breaches in this case would be:
(a) Breach of Rule 6, which provides:
Hazardous use of unit
A unit owner must not use the unit, or permit it to be used, so as to cause a hazard to an owner, occupier or user of another unit.
(b) Breach of Rule 7(1), which provides:19 See discussion in Owners Unit Plan 768 v Lokusooriya [2013] ACAT 80 at [22] to [23] re section 109
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Use of unit – nuisance or annoyance
(1)A unit owner must not use the unit, or permit it to be used, in a way that causes
a nuisance or substantial annoyance to an owner, occupier or user of another
unit.
63. In relation Rule 6, I note that this rule applies only to the unit owners. There is no
evidence that the Commissioner has ‘permitted’ the unit to be used in a hazardous
manner. I am satisfied that the Commissioner has made aware of allegations about
Mr McKay’s use of the unit on only two occasions, and acted appropriately on both
occasions. There has been no breach of Rule 6 by the Commissioner.
64. In relation to Rule 7, at common law a ‘nuisance’ is a tort that occurs where a person
unreasonably interferes with an occupier’s use and enjoyment of his or her land. It is
likely that the word ‘nuisance’ has a similar meaning in the context of the house rules.
To establish that Mr McKay has engaged in a ‘nuisance’, Ms Martin would need to
establish that any interference in her property was unreasonable. While I accept that
Mr McKay’s activities have increased the number of birds in the vicinity of
Ms Martin’s courtyard, I simply do not have the evidence to reach a conclusion that
those birds have become nuisance. The evidence is that the complex has a ‘bushland’
setting, and bird droppings are common across the complex, and while I accept that
Mr McKay’s feeding of birds from his balcony may make the situation in Ms Martin’s
courtyard worse, it is impossible to determine how much worse the problem is in
Ms Martin’s courtyard, compared to anywhere else in the complex.
65. In terms of the risk presented by the falling items, I am not satisfied that having four
items, including a mat or a plate, fall from the balcony over the course of the year
amounts to a ‘nuisance’ in the sense of being an unreasonable interference with the
enjoyment of land. There is certainly no evidence that the nuisance is continuing.
66. I am satisfied, however, that the placement of unsecured, loose timbers on the edge of
the balcony has the potential, should one fall, to cause an injury or risk to an occupant in
the unit below. Even if this is not a breach of the house rules, it is potentially dangerous,
and Ms Martin has every right to be concerned.
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67. Does the Tribunal have the power to deal with this issue?
68. Certainly, whatever the extent of the power in section 129(1)(a), I am satisfied that the
Tribunal cannot make an order of the kind sought by Ms Martin in relation to this
matter. The wording of the proposed order is both overly broad and misconceived.
There is no requirement in the UTM Act, nor in the house rules, that requires an
occupier to seek approval from the Corporation to have items on his or her balcony.
There is no house rule that deals with what items can be placed on an owner’s balcony,
other than a prohibition on washing and laundry. Moreover, there are no procedures
through which either the Commissioner or Mr McKay could seek the agreement of the
Corporation to have other items on the balcony, and no power under which any such
permission can be given. Ms Martin did not suggest any alternative wording.
69. Accordingly, I decline to make the order sought.
70. That said, Mr McKay is now aware that some items have fallen from his balcony into
Ms Martin’s yard. The Commissioner is also aware of the issue. The risk is obvious.
Mr McKay should consider this risk, and how to ameliorate it, and should take steps to,
at the least, secure the timbers.
Order 2(b)
71. The Tribunal cannot order a party to give an undertaking in the forms sought by the
applicant, or indeed at all. The parties are, in any case, required by law to comply with
their obligations under the UTM Act, so the giving of an undertaking would be
nugatory. I decline to grant this order.
Order 3
72. Order 3 consists of a series of sub-orders, each of which I have dealt with below.
73. First, the applicant seeks an order that:
The owner and occupier of Unit 18A must not allow to be kept or allow the presence of any animal in the premises, including the balcony of Unit 18A, except with the express permission as provided in UP220 house rules, the UTM Act or the RTA.
74. The order sought by Ms Martin is effectively a restatement of the house rules. Such an
order would be nugatory. Taking a more flexible approach to the application, what
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Ms Martin appears to be seeking is a finding that Mr McKay is “keeping” birds on his
balcony in breach of the house rules, and an order that he stop. Although she does not
specify under what provision she is seeking that this order be made under, I am satisfied
that the only relevant source of power is 129(1)(a) of the UTM Act.
75. The house rule in issue provides that owners and occupiers must not:
Keep any animal in the property except with the prior written consent of the Management Company. Consent must not be unreasonably withheld. Consent may be revoked at the discretion of the Management Company if the animal becomes a nuisance. (the Pets Rule).
76. Section 112 of the UTM Act provides that the Legislation Act applies to the rules of an
owners corporation as if the rules were an Act and as if each rule were a section of an
Act. What this effectively means it that the principles of statutory interpretation in the
legislation act apply to the corporation’s rules.
77. The word ‘keep’ is not otherwise defined in the house rules, nor in the UTM Act, so it is
appropriate to look to its ordinary meaning. The word ‘keep’ is defined in the
Macquarie Dictionary, relevantly, to mean:
2. to cause to continue in some place, position, state, course, or action specified: to keep a light burning.
8. to have the charge or custody of
19. to maintain or support (a person, etc.).
20. to take care of; tend: to keep sheep.
78. Is Mr McKay doing anything that would fall within one of these definitions?
79. I have no evidence as to how many birds regularly congregate on Mr McKay’s balcony,
although I am prepared to assume that the birdseed does attract more than would
otherwise be present. However, I have no evidence, and there does not appear to be any
suggestion, that Mr McKay is causing those birds to “continue in place”, that he is
“taking them into custody” or that he is caging, trapping or otherwise detaining them.
They are free to come and go as they please.
80. That leaves the issue of whether Mr McKay is ‘caring’ for the birds. Is feeding a bird
sufficient to amount to ‘caring’ for it, or ‘keeping’ it?
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81. The Corporation made the point that the birds are not confined and that they come and
go at will. This is not necessarily decisive. Most pets or domestic animals are confined
to some degree, but this is not always the case. A person may, for example, have an
outdoor cat as a pet, with the cat attending the property for food or companionship but
otherwise being free to roam. Perhaps, along similar lines, it may be suggested that by
feeding the birds, Mr McKay is maintaining them or supporting them as he would an
outdoor cat?
82. The problem with such an analogy is that the person who cares for a cat would be able
to identify a particular cat, or even cats, to feed or care for. He or she would be entitled
to detain the cat, to take it to the veterinarian or make arrangements for its care while
away from the premises. He may be liable if he neglects it, or stops feeding it. In such
circumstances, the person is clearly caring for, or ‘keeping’, the cat.
83. By putting out bird seed for any and all birds, Mr McKay may be supplementing the
diets of those birds. Some of those birds may well become dependent upon the food.
But despite those circumstances, I cannot conclude that he is ‘keeping’ the birds, in the
sense of taking ownership of them, or responsibility for them, as those terms are used in
the contest of the pet rule.
84. Accordingly, I am not satisfied that Mr McKay is, in fact, in breach of the Pets Rule.
85. For completeness, it is worth noting that section 126 of the UTM Act provides express
mechanism for dealing with disputes about pets. The section provides:
126 Disputes involving the owners corporation—particular matters(1) This section applies to the following disputes between the people mentioned in
relation to the dispute:
(a) a dispute relating to keeping an animal or allowing an animal to be kept in a unit between—
(i) the owners corporation; and
(ii) an owner or occupier of a unit;
(b) a dispute relating to the return by a former manager of owners corporation property between—
(i) the owners corporation; and
(ii) the former manager.
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(2) A party to the dispute may apply to the ACAT for an order in relation to the other party if the application relates to the dispute.
(3) To avoid doubt, only a party mentioned in this section in relation to a particular dispute may apply to the ACAT in relation to the dispute.ExampleTony is in dispute with his neighbour, Fabian, about the pets Fabian keeps in his unit. The owners corporation is also in dispute with Fabian about the pets. Only the owners corporation can apply to the ACAT for an order against Fabian in relation to the dispute.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(4) In this section:
former manager means a person who was the manager for the owners corporation.
86. The Corporation’s solicitor submitted that any application to the Tribunal for an order
about pets would be in breach of section 126. I do not agree. Section 126 is expressly
stated to apply only to the kinds of disputes listed in section 126(1). The bar on
proceedings in section 126(3) only applies to the kind of disputes governed by this
section. This section provides a mechanism by which owners can seek review of
decisions of the owner’s corporation denying them permission to have a pet. Ms Martin
would not be entitled to bring an application under this section, as the relevant parties
are the pet owner (or potential pet owner) and the body corporate. However, there is
nothing in this section that operates to prohibit a person from relying upon some other
right or entitlement in relation to the keeping of ‘pets’ in the premises – for example,
this would not act as a bar on an application for review of an unsuccessful motion that
an infringement notice be issued because a person was keeping a pet in breach of the
rules. In this case, however, Ms Martin has not established that she has a right of review
under any such ground.
Order 3.1.2
87. Ms Martin seeks an order that (in her words):
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The owner and/or occupier of Unit 18A must arrange for the balcony of Unit 18A have rubbish, including soft rubbish such as faeces, newspapers and seed, and hard rubbish such as timber, metal and glass, and faeces, professionally cleaned off the balcony of Unit 18A in such a way that no rubbish, metal, glass or faeces enters the courtyard of Unit 15A and must meet the costs.
88. During the hearing, Ms Martin clarified that by “professionally cleaned” she meant
“done in a professional manner”, rather than necessarily by a professional cleaner. She
also clarified that her concern was to ensure that the material cleaned from the balcony
not end up in her courtyard.
89. Again, she did not specify under which ground she sought the order be made, and I have
again assumed that she relied upon section 129(1)(a) of the UTM Act, and that she
seeks an order on the basis that there has been a breach of the house rule, although it is
not clear which one.
90. Setting aside the issue of whether there has been a breach of the house rules, the first
difficulty with this aspect of the application is that, on the limited evidence available, I
cannot conclude that there is any “soft rubbish” currently on the Unit 18A balcony.
From the photograph provided by Ms Mitchell, Mr McKay’s balcony looked to be
reasonably tidy and free from anything that is readily identifiable as waste, garbage or
undue mess. The balcony does have loose pieces of timber on it, but Mr Martin
contends that they are not ‘rubbish’ but a barrier erected to prevent loose seed from
falling into the courtyard.
91. An order of this nature is an intrusive order, with grave implications for the
respondent’s privacy and likely the enjoyment of his private space. Were I to make such
an order, it would need to be narrow in scope, and aimed at ensuring compliance with
the rules. As worded, it would be too broad in scope, even if there were some kind of
waste product on the balcony. Ms Martin did not suggest a narrower alternative
wording.
92. Accordingly, I decline to make this order.
Order 3.1.1
93. Ms Martin seeks an order that (in her words):
20
The owner or occupier of Unit 18A must remove all fittings and fixture from the balcony of Unit 18A that have not been expressly permitted by the Owners Corporation or are permitted by the UTM Act default rules or the RTA, including timber and newspapers, and must meet the cost.
94. Again, Ms Martin does not identify the power of the Tribunal to make this order, and I
have again assumed that she relied upon section 129(1)(a) of the UTM Act. Ms Martin
presumably seeks this order on the ground that Mr McKay and/or the Commissioner
have breached house rule 2.9. This rule provides relevantly that:
Owners and occupants must not ... attach to the outside or in the windows of the Property any ...apparatus/fixture or fitting without the prior written consent of the management company.
95. The meaning of fitting and fixture were discussed by this Tribunal in Commissioner for
Social Housing and Gallagher [2016] ACAT 99. Although that decision was in the
context of the Residential Tenancies Act 1997, the definitions are applicable here. The
timbers, pot plants and other items on the balcony are loose and stand under their own
weight. There is no evidence that any item has been ‘fitted’ or ‘affixed’ to the balcony
of unit 18A. Consequently, I have no basis upon which to make this order and decline to
do so.
Order 3.1.4
96. The applicant seeks an order that:
The owner or/or occupier of Unit 18A must arrange for rubbish and faeces to be professionally cleaned off the pavers and rubbish to be removed from the near eastern courtyard gardens or Unit 15A when convenient to the owner of Unit 15A but no later than 21 days from the date of the order and must meet the costs of the removal and leave the courtyard in a clean and tidy state.
97. In order to make an order that the second or third respondents pay damages to the
applicant, I would need to be satisfied that I had a lawful basis upon which to make
such an order. Ms Martin did not state any ground in her application. This part of the
application is presumably based on Ms Martin having established the either Mr McKay
or the Commissioner breached of rule, which she has not done.
98. In any case, there is again a lack of evidence as to the extent of the damage attributable
to the actions of Mr McKay. While I am satisfied that some of the detritus in the
courtyard was due to the actions of Mr Martin, I have little evidence as to how much
21
remained at the time of the application, or what kind of cleaning was be required. The
evidence is that the bird droppings are found across the entire complex. Other detritus
had already been removed. The courtyard appeared to be in ordinary condition as at the
date of the hearing, and that Ms Martin had not been maintaining it.
99. There is simply not enough evidence to make the order sought.
Order 3.1.5 and 3.1.6
100. These grounds were not pressed.
Order 4
101. Finally, Martin sought an order requiring (in her words):
the first, second and third respondents to separately or jointly compensate the applicant a total of $700 for the period between November 2015 (when first reported to the Strata Manager) and July 2016 to compensate for cleaning bird faeces and removing rubbish, bird seed, dead birds and other detritus from the courtyard of Unit 15A.
102. This part of the application raises the same issues as discussed above, under Order
3.1.4. Additionally, I make the following observations.
103. The applicant contended that she spent on average four to five hours per month on
cleaning the mess that had accumulated in her courtyard because of the birds and other
activities on Unit 18A. She said she used vacuum blowers and a hard bristle prune to
clean the courtyard of rubbish and antibacterial cleanser to rid pavers on the porch of
faeces. She had to take the rubbish and other detritus to general waste on the western
end of the complex. She also needed to clean the bird faeces feathers from outdoor
furniture.
104. I have no doubt that this is the case, but again have little evidence as to what portion of
this was due to Mr McKay’s activities. Additionally, there is a question as to what
actions may be a reasonable redress. For example, the evidence available to the Tribunal
is that bird droppings are common throughout the complex, and it is difficult to
conceive of Ms Martin’s courtyard being an exception, even in the absence of
Mr McKay feeding birds. She may have considered cleaning with anti-bacterial solution
22
to be necessary in any case. In the absence of clear evidence, such as comparative
photographs, it is impossible to assess that damage.
105. In any case, the compensation proposed by Ms Martin is not reasonable. She contended
that a handyman would charge from $60-$90 an hour and a professional paver cleaner
from $80-$100 per hour. On this basis, she contended that a total claim of $700 for the
period being hundred dollars per month from November 2015 to July 2016 would be
reasonable. The applicant has provided no evidence that the cleaning was either
required or that it was undertaken. For example the applicant has not filed nor produced
tax invoices, quotes, receipts or anything of that nature in relation to her garbage
disposal costs, cleaning equipment or anything else used. Any cleaning costs that could
be ordered would need to be demonstrated to be the consequence of some form of
breach by one of the respondents and there is no such evidence. There is basis upon
which I could award her professional cleaning rates for performing the work herself.
106. The applicant also suggested that an award of $700 “should provide some incentive for
the owner and occupier of Unit 18A to desist future nuisance and the Corporation to
engage more willingly with owners to ensure compliance with the UP 220 rules”. This
appears to be a request for some kind of punitive damages (albeit, a very modest sum).
There is no basis upon which I could award punitive damages under the UTM Act.
107. Indeed, I have also made no findings against any of the respondents that would warrant
an award of damages.
108. Accordingly, this aspect of the application is dismissed.
Final Observation - the nuisance issue
109. Ms Martin made several references throughout her submissions to Mr McKay’s
activities having caused a “nuisance”.
110. As set out above, a ‘nuisance’ is a common law tort that occurs where a person
unreasonably interference with an occupier’s use and enjoyment of his or her land. A
party who has caused a nuisance may be liable pay compensation or damages sufficient
to returning the plaintiff to the same position they would be in if they had not engaged
in the nuisance.
23
111. There is no prohibition on a resident of a unit complex suing another resident for
common law nuisance.
112. Having regard to some of the material, it appears that Ms Martin may have intended to
bring a common law nuisance claim, but that it not the claim she made. Instead, she has
sought remedies under the UTM Act.
113. The UTM Act and its interaction with the common law can be complex, and it is not
surprising that Ms Martin was not aware of some of the jurisdictional technicalities.
Still, she was not without assistance. She was also entitled to seek legal advice. She also
had the benefit of at least two directions hearings to ask questions about the process and
in one of those (the directions hearing on 16 September 2016) the then President
expressly advised of the need to identify the remedies sought in the context of the UTM
Act.
114. The Tribunal is designed to be quick and informal and to provide an avenue for
members of the public to seek redress without the need for legal representation. It must
be cautious about imposing overly procedural or technical approaches on parties.
Nonetheless, the jurisdiction in which a claim is brought is fundamental to the remedies
that it is open to the Tribunal to make. Moreover, in any case where a party seeks to
change the nature of their application, the Tribunal must balance that party’s interests
against the right of the respondents to know the case against them. It is not appropriate
to allow a party to significantly change, amend, or substitute or re-enliven claims in the
midst of a final hearing so as the claimant can bring the case that should have been
made, rather than the claim that was made.
115. Whether lodging this claim in the Tribunal’s civil jurisdiction would have made a
difference is an open question. The same evidentiary issues would have arisen.
However, it may have been easier for Ms Martin to establish, at least, grounds for the
kind of compensation she has sought in this case. On this point, Mr McKay should note
that there is an obvious risk caused by unsecured items falling from his balcony. He
would be well advised to take steps to address this risk. If he does not, Ms Martin may
well have options available to her through the internal processes of the owners
corporation, if not elsewhere.
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………………………………..Senior Member H Robinson
25
HEARING DETAILS
FILE NUMBER: UT 19/2016
PARTIES, APPLICANT: Robyn Martin
PARTIES, FIRST RESPONDENT: The Owners Units Plan 220
PARTIES, SECOND RESPONDENT: Commissioner for Social Housing
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