By Nicole Wilde

1 May 2017

An Owners Corporation for the development at 360 St Kilda Road, Melbourne sought an order from the Victorian Civil and Administrative Tribunal (VCAT) that a lot owner comply with one of the Owners Corporation’s rules which stated:

A Member or occupier of a Lot must not:

without prior written consent of the Body Corporate, alter or permit to be altered the exterior walls of the Lot;

without prior written consent of the Body Corporate maintain inside the Lot anything visible from outside the Lot that when viewed from outside the Lot is not in keeping with the rest of the building.

The Owners Corporation was of the view that the lot owner had performed work to alter his lot which breached the above rule, which included (but was not limited to) relocating a glass wall in a location 27-centimetres different from its ‘original’ location. The lot owner tendered expert evidence that the alteration was not visible from outside the lot. The VCAT Member also stated that she did an unaccompanied external inspection of the lot (which was located on level six of the building). It appears the VCAT Member’s inspection was from street-level only.

Ultimately, the VCAT found that the alteration was visible from the exterior of the lot, and amounted to a technical breach of the Owners Corporation rule. However, VCAT exercised its discretion not to order the lot owner to reinstate the alteration due to the particular circumstances in that case.

Owners Corporations seeking to enforce Owners Corporation Rules should be aware that the technical interpretation of what the rule means is open to detailed legal interpretation. For example, it is open to interpretation whether Owners Corporation rules relating to the exterior of the building are implied to be from the viewing standpoint at street-level (as opposed to other viewing standpoints such as from other lots, neighbouring properties or even ‘Google Earth’ where the photo for this blog was obtained).

VCAT Case Reference: Owners Corporation No 3 PS419703E v Bell (Owners Corporations) [2017] VCAT 494 (10 April 2017)
Who was the VCAT Member that decided this case? VCAT Member L. Rowland

 

Tisher Liner FC Law has a specialist Owners Corporation legal division dedicated to providing practical expert advice to Owners Corporations in Melbourne. If your Owners Corporation wants to clarify its legal obligations or requires effective legal representation please contact Nicole Wilde.

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