Albrecht v Ainsworth & Ors [2015] QCA 220

[3] His proposed grounds of appeal, should leave be granted, are that QCATA erred in law:

• (a) (i) in reviewing the correctness of the adjudicator's decision, rather than its legal validity;

[21] She identified the sole issue as whether "there was something unreasonable in the decision not to pass the motion."[22] After referring to BCCM Act s 276(1), Schedule 5, Item 10,[23] and s 94(2),[24] she noted that under Schedule 5 the issue was "whether a body corporate has complied with its obligation to act reasonably,"[25] adding that in this application that question was whether the body corporate acted reasonably "in deciding not to approve the applicant's motion."[26]

[22] In determining the appropriate test for reasonableness, the adjudicator relying on Zenith[27] rejected the Wednesbury[28] test. Rather, the test was objective, requiring a balancing of factors in all the circumstances according to the ordinary meaning of the term reasonable.[29] QCATA had recently accepted this as the appropriate test in Luadaka v Body Corporate for The Cove Emerald Lakes.[30] The legislative objective to act reasonably was satisfied if the decision was objectively reasonable; this required a balancing of factors in all the circumstances according to the ordinary meaning of the term reasonable, a term which should be given a broad, common sense meaning. The question was not whether the decision was "correct" but whether it was objectively reasonable.[31] A logical and understandable basis for a decision was a relevant but not determinative factor in deciding reasonableness which was ultimately a question of a fact.[32] The subjective intention of the individual lot owners who opposed the motion was not the test; the opposition must be considered objectively, taking into account all relevant circumstances:[33] Points North[34] and Ocean Plaza Apartments.[35] What is a material fact will vary from case to case: Zenith.[36] Typically, this involved some balancing of the interests of the majority and minority and questions of fairness.[37] The adjudicator considered her role was to balance "the need to protect the genuine interests of owners and their voting entitlements, and upholding the justifiable position of proponents [in] the face of unfounded or vexatious opposition."[38]

[23] This was not a case where there was only a small minority opposing the motion.[39] The fact that around half of the voters opposed the proposal was not determinative, although it was relevant and significant. Adjudicators are reluctant to interfere with the views of owners expressed through a general meeting vote. But if the body corporate's decision was objectively unreasonable, the motion must be set aside.[40] The adjudicator then determined to consider the basis for the motion and the basis for the objections to it, so as to ascertain first, whether the opposition was unreasonable in the circumstances, and second, whether the decision not to approve it was unreasonable.[41]

[24] The primary purpose of the applicant's proposal, to improve the amenity of his decks which were intentionally designed with limited functionality, was a legitimate interest. But it was only one consideration and must be balanced against the impacts of the proposal on other lots and on the scheme as a whole.[42]

[25] The adjudicator determined that the safety issue relied on by the applicant was not a legitimate consideration for the body corporate in deciding whether to approve the proposal.[43]

[26] The proposal required granting the applicant the right to exclusive use of about 5m² of common property which was airspace only.[44] The right to use this airspace was of value to the applicant but of no material use to any other owner or occupier.[45] The proposed use of common property by the applicant was not a reasonable basis to oppose the motion.[46]

[27] The adjudicator identified but did not accept the submissions and architectural opinions that, if this motion were approved, it would be difficult to refuse other improvements to other lots and the appearance of the scheme would be changed.[47] The body corporate would have to consider any future motions on their merits. If it determined that another deck amalgamation would have no adverse impact on other owners or the scheme as a whole, then the cumulative effect of multiple identical improvements would not generate an adverse impact.[48] The body corporate would be entitled to reject a different proposed alteration on its merits if it had reasonable grounds to do so.[49] There was no evidence of any similar motions and the significant difficulties surrounding this proposal made it unlikely that other owners would consider they had an automatic right to have a future proposed alteration approved.[50] The adjudicator was unpersuaded that the "floodgates" argument was a reasonable basis to oppose the motion.[51]

[28] If the only issue was the impact of the proposal on the appearance of Viridian, the motion could be approved by an ordinary resolution. The requirement for approval of a motion without dissent arose only because the proposal interfered with the exclusive use rights over a portion of common property airspace.[52]

[29] The original architect, Mr Mainwaring, the adjudicator noted, did not consider the applicant's proposed deck extension was consistent with Mr Mainwaring's vision but the body corporate was not obliged to ensure compliance with the original architectural intent.[53] The adjudicator was "not satisfied that it [was] reasonable to seek to prevent any deviation from the original design intent, or indeed any alteration at all to the exterior of the scheme." The architectural design and landscaping code in schedule D of Viridian's community management statement contemplated the possibility of developments to individual lots such as additions and alterations to the exterior appearance.[54] The body corporate was obliged to ensure that any proposed alterations were sympathetic with the current visual and functional design "rather than any subjective intention underlying the design."[55] The architectural opinions objecting to the extension appeared to import "a subjective view of the impact of the alteration rather than an objective one" and did not assist.[56] It was understandable that owners would rely on Mr Mainwaring's view as to the impact of the proposal on Viridian. The adjudicator considered, however, that his opinion took into account considerations that were not relevant for the body corporate when acting reasonably in balancing the competing interests.[57] The adjudicator could not "understand how combining two decks in one lot could conceivably have the broad social and/or economic impacts claimed" by some submissions.[58]

[30] After assessing the material before her, including the competing architectural opinions, the adjudicator was "not satisfied that the opponents of the proposal [had] demonstrated that the proposed modification materially offends the integrity of the architectural design of the scheme. While the deck does not exactly accord with the original design intent ... [no] submission has demonstrated that the extension would have any noticeable detrimental impact on the appearance, structure or functionality of the architecture of the scheme."[59] After viewing "before" and "after" images, the adjudicator found it very difficult to discern any "'visual disruption' or other appreciable change to the appearance, character or 'openness' of the scheme" resulting from the proposed deck alterations.[60] The opinions of the applicant's architects were more supportable.[61]

[31] It was not a relevant consideration that the motion would result in the applicant's lot having a larger useable external floor area if there were no consequential impacts as the applicant would be responsible for maintaining the decks. Nor was it a relevant consideration that allowing the motion would result in the applicant's lot having a higher standard of fittings when this did not affect other lot owners.[62]

[32] In discussing noise concerns, the adjudicator concluded that "[no] submitter has demonstrated that the expansion of the decks will inherently increase the disturbance to other occupiers or users of common property."[63] Whilst the proposed deck extension would result in greater use of the applicant's decks, it could not be assumed that this would lead to increased disturbance and there was no evidence that it would.[64] The current design is restrictive of the functionality of the decks, but improving their function and usability was not a reason to oppose their improvement.[65] Occupiers are entitled to use their lots as they wish provided they do not cause a nuisance.

[33] The owners of lot 10 contended that the deck extensions would adversely impact on their privacy, view and aspect, but the applicant contended that this could be ameliorated by the installation of an additional privacy "blade".[66] The adjudicator found that the level of vision between lot 10 and the applicant's lot may be increased by the deck extension,[67] but there was no common law or statutory right to a view and no general absolute right to privacy or to not be overseen.[68] It would be unreasonable to oppose the motion unless the proposed decks amounted to an unreasonable interference with the use of lot 10.[69] There was opposing evidence as to the impact of the proposal on others' privacy and views, but the adjudicator preferred that of Mr McKerrell as it was the most comprehensive and substantiated. From a practical point of view, he considered there would be no greater overlooking than currently; and the installation of an additional privacy blade would considerably moderate this.[70] After considering the relevant material, the adjudicator concluded that any impact on lot 10's privacy and views would be minimal and was "not satisfied that the comparably slight increase in vision between Lot 10 and [the applicant's lot] resulting from the proposal [would] unreasonably interfere with the amenity of Lot 10."[71] Any impact could be addressed by additional privacy screening. The privacy and view issues were not sufficient for the body corporate to refuse approval for the proposal.[72]

[34] On the material before her, the adjudicator was not satisfied that the structural elements required to support the extended decks presented sufficient concern to reasonably oppose the proposal.[73] There was no evidence that the roofline was to be altered. It followed that submissions about the roofline were not a reasonable basis for opposing the proposal.[74]

[35] The adjudicator was concerned that the body corporate may not have had regard to the fact that the proposed deck was a "permissible development" under the architectural and landscaping code.[75] Further town planning approvals were not required to extend the decks. The only relevant consideration for the body corporate was whether any approval it might give would need to be subject to some further approval by a relevant authority.[76]

[36] As to the submissions concerning detrimental financial obligations arising from the proposal, the applicant would remain responsible for maintaining the decks. Any documented effect on the body corporate's insurance premiums would be paid for by the applicant under ss 180 and 181 of the accommodation module_._ The proposed deck extension had no financial impact on the body corporate and was an irrelevant consideration.[77]

[37] The contention by one submitter that the application was frivolous, vexatious and without substance was not made out; the applicant presented an arguable and substantiated case.[78]

[38] The adjudicator concluded:

[50] Next, QCATA turned to the design integrity issue. The adjudicator considered Mr Mainwaring's opinion that the proposed extended decks were an impermissible alteration to the original design intent was "importing a subjective view of the impact of the alteration rather than an objective one." She dismissed owners' concerns to maintain the original design intent as irrelevant considerations for the body corporate, having regard to balancing the competing interests and acting reasonably.[107] In doing so, she failed to ask the correct question under s 94 and also formed her own view as to the issue of architectural integrity and original design intent, deeming it an irrelevant consideration.[108] The views of the owners who wished to maintain design integrity were objective in the sense that they motivated, justified or explained the decision of those who voted against the motion.[109] The adjudicator had put herself in the position of the body corporate and decided what was "just and equitable" under s 276(1)(b) before deciding whether the conduct was unreasonable.[110]

[51] In deciding whether a body corporate has acted unreasonably it is not necessary or ordinarily required to balance competing interests. Acting reasonably within s 94 does not imply even handedness, a conciliatory approach to a dispute or a recognition of the interests or wishes of others.[111] The adjudicator was not satisfied that the respondents had demonstrated that the proposed extensions materially offended the integrity of the architectural design of the scheme.[112] She then decided, by looking at photographs, that there was no discernable difference between the before and after images and preferred the applicant's architects, notwithstanding there were contrary opinions by other eminent architects. Her reasons do not explain how she resolved this conflict. She merely stated that she was not satisfied the respondents had demonstrated that the modification offended the integrity of the scheme.[113]

[52] QCATA then outlined Mr Mainwaring's design strategy for Viridian, doing away with large decks and instead employing six smaller balconies incorporating a stepping pattern tapered into landscaped breezeways and connectivity spaces with privacy screens. This was intended to avoid appeal to certain segments of the holiday market and to reduce external noise and activity. The proposed extensions could undermine these basic design principles. Viridian had won architectural awards. Since November 2005 Mr Mainwaring had informed the body corporate that an extended deck of this kind would change the verticality of Viridian's architectural elevation. In August 2011 he again contended it would compromise Viridian's architectural integrity and interfere with the privacy and amenity for all residences, particularly if expanded into other dwellings.[114] QCATA considered Mr Mainwaring's arguments were not inherently implausible or unreasonable and received support from other eminent architects including Mr Kerry Clare.[115] The applicant was supported by architects Mr Gutteridge and Mr Robinson, who considered the proposed extensions were sympathetic to the current architectural aesthetic.[116] In purchasing their homes for some millions of dollars, a number of lot owners placed a high priority on the architecture and design principles which they were afraid would be diminished if the proposal were allowed.[117]

[53] Next, QCATA addressed privacy and noise issues. It was difficult to say what effect the proposed extended decks would have but the adjudicator concluded that no submitter had demonstrated that the extension would inherently increase the disturbance to other occupiers or users of common property. She should have asked whether it was reasonable for any of those lot owners to have held those concerns; whether those concerns were reasonably held; and whether the applicant proved that there were no reasonable bases for any of these concerns.[118] The adjudicator accepted there would be some impact on privacy and views from lot 10 but considered them minimal; she was not satisfied that this would unreasonably interfere with the amenity of lot 10; it could be addressed by privacy screening. She did not consider that privacy and view issues amounted to sufficient basis for the body corporate to refuse approval for the proposal.[119] This invited the conclusion that the adjudicator was exercising her own judgment as to the appropriateness of allowing the improvements and engaging in the balancing act she described earlier.[120]

[54] The "floodgates" issue was next addressed. If the advantages the applicant saw in extending the decks were valid, they would be likely to appeal to other lot owners. QCATA's site inspections demonstrated that the development was well established, sympathetically blending into the forested Noosa Hill, with established gardens and backing onto the Noosa National Park. New construction activity would interfere with all this.[121] The adjudicator rejected concerns about "floodgates"[122] as the applicant's difficulties in obtaining approval to extend the decks made a flood of similar applications unlikely.[123] She was naïve to think that if one owner was permitted to extend the decks, others would not seek to follow. Granting the applicant's motion could reasonably lead to a multiplicity of like applications to the body corporate.[124] This would be disturbing for, and likely to lead to division and conflict between, owners. It was a reasonable basis to refuse the motion.[125] The applicant's letter of 13 April 2012 to other owners stating his deep and abiding commitment to ensuring they would not be subjected to similar campaigns to prevent improvements to their residences, whilst not greatly significant, showed that he saw himself as paving the way for other owners to make similar alterations.[126] Stating that there was no evidence that a similar deck extension or other external alterations had been proposed and that she did not consider "floodgate" concerns to be a reasonable basis to oppose the proposal, again suggested that she had reversed the onus and failed to give proper consideration to the "floodgates" argument. QCATA considered that the applicant did not demonstrate that it was not reasonable to refuse the motion because of "floodgate" concerns.[127]

[55] Finally, QCATA considered the absence of compensation for the acquisition of common property rights. The adjudicator identified that the proposal, if approved, would require granting the applicant the right to exclusive use of 5m2 of common property. This area would overhang the common property below and interfere with the airspace above it. To construct the decks would no doubt require access to the common property in the construction period.[128] The respondents submitted that the applicant's failure to offer compensation was a relevant basis to oppose the motion.[129] The adjudicator accepted that the airspace was of value to the applicant and might improve the value of his lot. Valuation evidence before the adjudicator was that the airspace was worth $10,000 and that its value was at least commensurate with the added value to the applicant of the proposed extensions, a sum in the range of $10,000 to $20,000.[130] A real estate agent without valuation qualifications gave evidence for the applicant that the airspace had no value whatsoever and would not diminish the value of the common property or increase the potential sale price of the applicant's lot.[131] The adjudicator did not reconcile this evidence. The better opinion was that of the qualified valuer.

[56] The adjudicator did not deal with whether the applicant's unwillingness to pay any compensation provided a reasonable basis for the body corporate to reject the applicant's motion.[132] In Boston on Belgrave[133] an adjudicator considered that an offer of only nominal compensation for the acquisition of common property in increasing a patio area provided a reasonable basis to oppose a motion as it was reasonable to expect that the body corporate should receive reasonable compensation for granting exclusive use of valuable property.[134] After reviewing One Park Road,[135] Katsikalis v Body Corporate for "The Centre",[136] and Zenith,[137] QCATA concluded that the adjudicator erred in her approach to the valuation evidence of the airspace and in failing to conclude that the absence of any offer from the applicant for compensation was a reasonable basis to oppose the approval of the motion.[138] Had that been the only basis upon which the decision was successfully challenged, QCATA would have ordered that it be a pre-condition to the validation of the adjudicator's orders that compensation of $15,000 be paid to the body corporate by way of compensation. But there were other bases upon which the appeal would be upheld.[139]

[57] In conclusion, QCATA noted that the adjudicator erred in law in a number of material respects. She conducted the adjudication on the papers and the same material "and more" was before QCATA. On the material before her and applying the test that should have been applied, she ought to have held that the applicant had not established that the body corporate acted unreasonably. QCATA allowed the appeal and set aside the orders of the adjudicator.[140]

[61] QCATA further erred, the applicant contended, in considering that the appeal highlighted the tension between provisions of the BCCM Act giving a right to owners to veto certain proposals, and s 94(2) which required bodies corporate to act reasonably.[148] There is in fact no tension, as s 276 read together with Item 10 in Schedule 5 empowered the adjudicator to reject the veto power if satisfied that the opposition is, in the circumstances, unreasonable.

[62] When the decision of the adjudicator was considered as a whole, the applicant contended, it was clear that she appreciated the onus was on the applicant to prove the body corporate did not act reasonably in refusing the motion because under s 276(3) and Item 10 in Schedule 5 the opposition to the applicant's motion was unreasonable. She was an experienced adjudicator who could not have overlooked such a basic point. She found it very difficult to see any difference in the before and after photographs of the proposed extended decks and could not discern the claimed change to Viridian's architectural integrity. These factual findings supported her conclusion that opposition on this ground was unreasonable. Her choice of words in stating that she was not satisfied about various matters reflected the forensic considerations pressed by the respondents in their evidence and submissions, including expert evidence from architects. Once the adjudicator rejected the respondents' individual contentions, it was only a short step for her to conclude that the opposition was unreasonable. The ultimate question was not whether the respondents' views were rationally and reasonably held but whether the opposition was in the circumstances unreasonable.

[63] The adjudicator correctly stated that the legislative obligation under s 94 BCCM Act to act reasonably was satisfied if the body corporate's decision was objectively reasonable and that this objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term "reasonable," a term which should be given a broad, common sense meaning. The question was not whether the decision was "correct" but whether it was objectively reasonable. These principles were well supported by authority see: Waters v Public Transport Corporation,[149] Secretary, Department of Foreign Affairs and Trade v Styles;[150] and Greiner v Independent Commission Against Corruption.[151] The adjudicator also correctly held that whether a decision is reasonable is a question of fact: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission.[152] QCATA wrongly considered the application of these orthodox principles was capable of leading to error[153] and wrongly placed emphasis on McKinnon to develop its own set of principles.[154] McKinnon concerned a different legislative regime and did not justify any departure from the orthodox principles applied by the adjudicator.

[64] QCATA erred, the applicant contended, in criticising the adjudicator for not considering whether the body corporate ought to have recognised the applicant's interest in improving his lot in circumstances where the decks were intentionally designed with limited functionality and all owners purchased with that knowledge. There was no legal foundation for that criticism which was also factually unfair because the adjudicator was obviously aware of the competing interests.[155]

[65] The applicant further contended that QCATA wrongly criticised the adjudicator for not properly considering the original architectural vision submissions when she correctly addressed that question by finding it was not reasonable to seek to prevent any deviation from the original design intent.[156] QCATA criticised the adjudicator for her treatment of privacy and noise concerns as she did not ask whether it was reasonable for the respondents to hold concerns about increased disturbance. But the ultimate issue was not whether these concerns were reasonably held but whether the opposition itself was in the circumstances unreasonable. The adjudicator correctly addressed privacy and noise issues by concluding that they were groundless.[157]

[66] QCATA's discussion of the "floodgates" concern used the language of a merits review, the applicant contended, particularly as QCATA relied upon site inspections which could not have assisted with the identification or determination of any question of law. QCATA erred in unfairly finding that the adjudicator reversed the onus of proof on this question; she was merely stating that opposition based on the "floodgates" concern was unreasonable.[158]

[67] QCATA also undertook a merits review on the compensation issue, the applicant contended. The common property involved was a small area of airspace which was unable to be used by anyone other than the applicant. Its loss would cause no material damage to any other owner.[159] These considerations supported the adjudicator's conclusion that opposition on this ground was unreasonable. There was no error of law and QCATA could not substitute its own factual findings.

[68] The applicant further contended that QCATA erred in law in receiving fresh factual material from the second, third, fourth and fifth respondents in their submissions at the hearing. These submissions impermissibly contained personal views about the impact of the proposed extended decks and untested factual assertions and sought to re-visit the adjudicator's factual findings. The QCATA appeal was limited to a question of law; it was not an appeal by way of re-hearing but an appeal in the strict sense so that QCATA had to decide it on the material before the adjudicator and had no power to receive further evidence. QCATA placed considerable weight on the evidence of Mr Mainwaring which included new evidence as to the design integrity issue. Mr Martoo, who appeared on behalf of the second respondent, was a town planner with asserted expertise in urban design, noise assessment, surveying and body corporate management. He stated the adjudicator misunderstood various factual issues and encouraged a site inspection.[160] This inadmissible material was likely to have influenced QCATA's decision. Further, QCATA engaged in inspections of Viridian over two days.

[69] As to the adjudicator's alleged reversal of onus, the applicant contended that this was an evidentiary point of law: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd.[161] The adjudicator was not bound by the rules of evidence. In any case, when her reasons are read as a whole, it is apparent that she appreciated the applicant had to prove to her satisfaction that his motion failed because the opposition to it was unreasonable.

[70] In response to the respondents' reliance for the first time at the hearing of this application on McColl v Body Corporate for Lakeview Park CTS 20751,[162] the applicant submitted, in a note delivered by leave after the hearing, that McColl concerned s 87(2) BCCM Act. That provision is now repealed and did not contain the words in s 94(2), which replaced it, "including making, or not making, a decision for the sub-section." The ordinary meaning of the terms of s 94(2) is that s 94 applies to a resolution of the members of the body corporate such as the present motion. By way of s 14B(1)(c) Acts Interpretation Act 1954 (Qld), that construction is supported by the relevant explanatory notes. The adjudicator, QCATA and the parties correctly proceeded on the footing that s 94(2) applied to the applicant's motion. The dispute over the applicant's motion was within s 276 BCCM Act: see Independent Finance Group Pty Ltd v Mytan Pty Ltd[163] and Hablethwaite v Andrijevic[164] and s 94 applied.

[71] QCATA's errors of law which concern matters of general importance, the applicant contended, warrant the grant of leave to correct a substantial injustice. The appeal should be allowed and the adjudicator's orders restored.

[77] Further, the respondents contended, QCATA correctly identified at [124] of its reasons[176] that the adjudicator erred in forming her own views as to the issues of architectural integrity in preserving the original design content; privacy; and noise. As QCATA noted, at [107] of its reasons,[177] the adjudicator failed to identify the basis on which she preferred the views of the applicant's architects over the respondents' architects. The respondents also contended that QCATA rightly identified at [143] of its reasons[178] that the adjudicator inappropriately assessed the evidence as to the value of the airspace above the proposed deck extensions and erred in concluding that the fact that the applicant offered no compensation was not a reasonable basis to oppose its approval. QCATA's consideration of the balancing of interests; the design integrity issues; privacy and noise issues; the "floodgates" concern; and the absence of compensation for the acquisition of common property rights was not an impermissible reconsideration of the merits of the application before the adjudicator but an identification of her errors of law. On the compensation issue, QCATA correctly identified the adjudicator's errors of law in her failure to reconcile inconsistent evidence placed before her as to the value of the common property airspace and her failure to identify that the applicant's omission to offer compensation was a reasonable basis to oppose the motion. QCATA, the respondents submitted, rightly identified the errors of law made by the adjudicator and their impact on her decision.

[78] QCATA's reference to J Patterson Holdings was not an error. That case referred to principles relevant to the application of s 276. In any case, QCATA identified the correct test at [55],[179] [58],[180] [84],[181] [85],[182] [94][183] and [105] [184] of its reasons. QCATA correctly identified at [91] of its reasons[185] that the adjudicator had erred in, as she put it, not determining the balance between the need to protect the genuine interests of owners and their voting entitlements and upholding the justifiable position of opponents in the face of unfounded or vexatious opposition. Nor did QCATA err in its reference to McKinnon, a relevant authority dealing with the meaning of reasonableness.

[79] The respondents contended that the applicant had not identified that QCATA made any error of law so that the application for leave to appeal should be refused. In any case, this was not an appropriate case in which to grant leave to appeal as it involved common property airspace of a value of no more than $20,000. The application for leave to appeal should be dismissed with costs.

• [83] In determining the ultimate question of fact (whether the respondents' opposition to the applicant's motion is in the circumstances unreasonable), the adjudicator appreciated that the body corporate could pass the applicant's motion to purchase common property only if there was no dissent.[200] She also appreciated that the BCCM Act allowed the applicant to apply to have the dispute referred to an adjudicator for resolution and empowered her to give effect to the motion if the opposition to it is unreasonable and it is just and equitable to give effect to it. It was also relevant, as she identified, that seven of the 23 Viridian home owners opposed the motion; that the applicant had a legitimate interest in improving his lot; and that the common property airspace required to give effect to the motion was of no use to anyone but the applicant.
• [84] The competing submissions and supporting material in this case, particularly the architectural reports, made the question of unreasonableness difficult to resolve. As the reasons of both the adjudicator and QCATA demonstrate, views as to what was reasonable or unreasonable involved value judgments on which there was room for reasonable differences of opinion, with no opinion being uniquely right.[201] Had QCATA's views as to unreasonableness been the views of the adjudicator, and had the adjudicator made no errors of law, that finding would have been unassailable on a QCATA appeal which was limited to a question of law: see s 289 BBCM Act.[202]
• [85] The respondents contended before the adjudicator that their opposition to the applicant's motion was not unreasonable and that the body corporate acted reasonably in refusing it because of a number of matters. Most relevantly for present purposes these included architectural integrity; "floodgates"; the absence of any offer of proper compensation to the body corporate; noise issues; and privacy issues especially concerning lot 10.
• [86] The fifth respondent, Mr Mainwaring, the highly respected architect of Viridian, purposefully designed the decks so that they were discrete and did not interlink. He and other eminent architects opined before the adjudicator that the proposed deck extension would be harmful to the architectural integrity of Viridian, an architectural award winning development. Seven Viridian owners, having purchased their homes on the basis of Viridian's architectural merit, objected to the applicant's motion for reasons including those based on these architectural opinions. On the other hand, the same number of equally respected architects opined that extending the applicant's decks in the manner proposed would not have any detrimental impact on Viridian's architectural integrity and any appreciable change to its external appearance would be minimal. The applicant's proposed extended decks, the respondents argued, could result in increased use and noise generally and would have some detrimental privacy impacts on lot 10. The body corporate and other owners may be inconvenienced and the attractive Viridian landscaping disrupted whilst the proposed work was undertaken. Other owners would be likely to follow suit and extend their decks (the "floodgates" issue), so that the inconvenience and disruption would be compounded.
• [87] According to the applicant's material before the adjudicator, any increased use would not significantly either increase noise or detrimentally impact on the privacy of lot 10; and disruption to other owners and the body corporate during the building period would be managed and kept to a minimum. Any concern about a "floodgates" issue was unwarranted. And no one other than the applicant had any use for the common property airspace required for the deck extension so that it was of no value to anyone else.
• [88] I have discussed the adjudicator's reasoning in some detail earlier.[203] After considering the competing architectural opinions and relevant photographs, diagrams and drawings, the adjudicator preferred the opinions of the applicant's architects. She found that the proposed extensions would have no noticeable detrimental impact on Viridian's architectural integrity. She considered that she should balance the applicant's interest in improving his lot against the impacts of the proposal on the other owners and on Viridian as a whole.[204] She found that no other owner or the body corporate would have any material use for the 5m2 of common property airspace required by the applicant to extend his decks and it was of value only to him.[205] As to the "floodgates" argument, she noted that there was no evidence of any similar pending applications by other owners to extend their decks. The history of the applicant's proposal showed that no one had an automatic right to have such a proposal approved.[206] Any future application would have to be determined on its merits. If the present application was found not to adversely impact on other owners or Viridian as a whole, it was difficult to see how the cumulative effect of multiple identical improvements would generate an adverse impact. The "floodgates" argument, the adjudicator found, was not a reasonable basis for opposing the proposal.[207]
• [89] The adjudicator was unpersuaded on the evidence that the proposed deck expansion would increase the use of the applicant's decks and noise in a way which would disturb other occupiers or users of the common property and that the unsubstantiated risk of a potential nuisance was not a reasonable basis to refuse the proposal.[208] She accepted the evidence from the applicant's architect, Mr McKerrell, and concluded that there would be no greater overlooking of and from lot 10 than at present and that any slight increase in vision between the lots would not interfere with the amenity of lot 10. Any arising privacy issues could be ameliorated by a privacy blade and would not unreasonably interfere with the amenity of lot 10. This was not a sufficient basis to warrant the refusal of the motion.[209] The adjudicator also considered other issues placed before her to provide support for the respondents' contentions[210] but as these are not relevant to the application before this Court they need not be considered further. The adjudicator therefore was not satisfied that the body corporate acted reasonably in not passing the applicant's motion, and that individual owners in opposing it, whilst perhaps acting in good faith and with genuine concern about architectural and other issues, relied on irrelevant and unsubstantiated considerations.[211]
• [90] The respondents contended the adjudicator applied an incorrect test, as identified by QCATA at [94] of its reasons,[212] and reversed the onus of proof in stating that she was not satisfied the body corporate had acted reasonably in deciding not to pass the motion.[213] That contention is not made out when the adjudicator's reasons are considered as a whole. Early in her reasons,[214] she referred to s 276(1) and set out the relevant portion of Item 10 in Schedule 5, correctly identifying that the issue was whether the opposition to the motion was unreasonable in the circumstances and noting that the applicant argued that the opposition to his motion was unreasonable.[215] She rightly rejected the Wednesbury test for unreasonableness;[216] accepted that the question of reasonableness was objective, requiring a consideration of all relevant circumstances; and that the determination of whether opposition to the motion was unreasonable required a consideration in an objective and fair manner of all the relevant facts and circumstances.[217]
• [91] The adjudicator's reasons make clear that she conscientiously considered all the material and submissions relied upon by the applicant and the respondents, made findings of fact, all of which were open on that material, and was ultimately satisfied as a matter of fact that the applicant's motion was not passed because of the respondents' opposition to it that in the circumstances was unreasonable.
• [92] It is true, as the respondents contended, that from time to time[218] she stated that she was not satisfied that one or other of the respondents' objections was made out. It was, of course, for the applicant to demonstrate that the opposition to his motion was unreasonable. It is also true, as the applicant contended, that there is little practical difference between being satisfied that all the respondents' concerns about the motion were not reasonable and being satisfied that the respondents' opposition to the motion was in all the circumstances unreasonable. In any case, when the adjudicator's reasons are read in their entirety, it is clear that she fully appreciated it was for the applicant to demonstrate the unreasonableness of the respondents' opposition to his motion. She made primary findings of fact, after considering the competing material and submissions, that she was not satisfied the specific objections raised by the respondents were made out. But she did not reverse the onus on the ultimate question. Only after a careful and thorough analysis of all material considerations raised by the respondents and the applicant, was she ultimately persuaded by the applicant that the opposition was unreasonable. Her ultimate finding that she was "not satisfied that the Body Corporate acted reasonably" in not passing the applicant's motion was, in context, a finding by her that the respondents' opposition was based on "irrelevant and unsubstantiated considerations" and so was unreasonable in terms of s 176 and Item 10 in Schedule 5.[219] There can be no doubt from her reasons read as a whole that the applicant satisfied her that the opposition to the motion was unreasonable. She did not apply the wrong test or reverse the onus of proof. QCATA erred in finding that the adjudicator applied the wrong test and reversed the onus of proof.
• [93] QCATA also erred in finding the adjudicator erred in law in making primary findings of fact about architectural integrity, "floodgates", the limited value of the common property airspace to anyone other than the applicant, and privacy and noise issues. These findings of fact were open on the material before the adjudicator. As the adjudicator found as a fact that the airspace was of no value to anyone other than the applicant, she did not err in failing to identify the applicant's omission to offer compensation as a reasonable basis to oppose the motion. Nor did she apply the wrong test in balancing the need to protect the genuine interests of the owners and their voting entitlements against the applicant's interest in improving his lot and the impacts of the proposal on other lots and Viridian as a whole.[220] In referring to these matters, she was rightly taking into account material considerations in determining the ultimate question: whether the respondents' opposition to the motion was in the circumstances unreasonable. QCATA erred in law in wrongly identifying that the adjudicator erred in these ways.
• [94] The appeal to QCATA was limited to a question of law. It was an appeal in the strict sense, not an appeal by way of re-hearing. It had to be determined on the material before the adjudicator. But had QCATA correctly identified an error of law, I do not accept the applicant's contention that its only course was to remit the matter to the same adjudicator for determination according to law. Once an error of law affecting the adjudicator's decision was correctly identified, QCATA could exercise the adjudicator's powers and substitute its own decision based on the material before the adjudicator, consistent with the adjudicator's undisturbed factual findings. So much is clear from the terms of s 294 BCCM Act[221] and s 146 QCAT Act.[222]
• [95] I do not consider QCATA's reliance on McKinnon in discussing the requirements of reasonableness and unreasonableness was an error of law. Although the case did not directly concern s 94 or s 276, Item 10 in Schedule 5, the general discussion of the meaning of "reasonableness" and "unreasonableness" was relevant. Similarly, while J Patterson Holdings may have had no direct relevance to Item 10 in Schedule 5, to refer to authority of only marginal relevance does not usually amount to an error of law and did not in this case.
• [96] QCATA allowed material to be placed before it which was not before the adjudicator. QCATA's approach in not restricting references to facts by unrepresented respondents to those before the adjudicator, for reasons of expediency and practicality, was understandable. QCATA did not unequivocally state at the hearing that it would not consider any material which was not before the adjudicator in determining the appeal. On the contrary, it stated, somewhat confusingly, that the new material would assist it to understand the appeal, although it would not make findings on it.[223] QCATA then referred to the additional material early in its reasons[224] and noted its inspections of Viridian on the judgment coversheet. In the penultimate paragraph of its judgment, however, QCATA stated that, "on the material before the adjudicator", she ought not have found the applicant established that the body corporate acted unreasonably. This suggests QCATA did limit itself to determining the matter on the material before the adjudicator. Unfortunately, it is not unequivocally clear from QCATA's reasons that the material which was before it but not before the adjudicator did not influence QCATA's decision. But in light of my conclusions as to QCATA's other established errors of law it is not necessary to reach a concluded view on this aspect of the applicant's contentions. I note, however, that while an inspection is not usually considered part of the evidence but merely an aid to understanding the evidence,[225] it will often be imprudent in an appeal of this kind for QCATA to undertake inspections, especially when, as here, none were undertaken by the adjudicator.
• [97] In their oral submissions, the respondents relied on McColl v Body Corporate for Lakeview Park CTS 20751.[226] There the court considered the terms of s 87 BCCM Act (now repealed) and the body corporate's statutory responsibility to act reasonably in carrying out its general functions, including enforcing the community management statement. The court stated that this provision did not apply to regulate decisions made at meetings of the body corporate.[227] As the applicant pointed out, however, s 87 has been repealed since and replaced by s 94[228] which, unlike the repealed s 87, now contains the words, "including making, or not making, a decision for the sub-section." It seems likely these changes were enacted to overcome the construction of s 87 taken in McColl. From the ordinary meaning of the terms of s 94; from the s 94 heading, "Body corporate's general functions"; and from the explanatory notes for the relevant amendments to the BCCM Act,[229] it is clear that a body corporate is required to act reasonably in refusing motions such as the applicant's. McColl is of no assistance to the respondents.