Legislation cited: Body Corporate and Community Management Act 1997 (Qld) sch 6

Real Property (Unit Titles) Ordinance 1970

Strata Schemes Management Act 2015 (NSW) s 4

Strata Titles Act 1988 (SA) Dictionary

_Unit Titles Act 2001 s_s 10, 13, 14, 15, 18, 19, 34

Unit Titles Act 1974 (NT) s 4

Unit Titles (Management) Act 2011 ss 14, 15, 24, 129, Sch 4

Subordinate

Legislation cited: ACT Building (General) Regulations 2008 r 23

Cases cited: Castro v the Owners Unit Plan No 246 [2016] ACAT 111

Nolan and Anor v the Owners Unit Corporation No 369 [2014] ACAT 32

The Owners Unit Plan 2737 v Ryan & Anor [2016] ACAT 43

List of

Texts/Papers cited: Christopher Kerin, Guide to ACT Strata Law (Kerin Benson Lawyers Proprietary Limited ABN 53 168 995 266, 2017)

Date of Reasons for Decision: 25 September 2019

1. The respondent, the Owners Corporation - Units Plan 79 (the Corporation) is the owners corporation for a Class A (multistorey) unit complex consisting of 88 units (the complex). The applicants own units in the complex and are members of the respondent corporation. At issue is whether the corporation or individual owners are responsible for the maintenance of large floor to ceiling window/doors featured in the units. These window/doors effectively replace a brick wall.

1. The Tribunal commends the parties for their preparation and conduct of this case. There was a genuine commitment by all sides to put the relevant information before the Tribunal and reach a solution to a problem.

1. The complex was built in 1974 and is situated in the suburb of Lyons in the Australian Capital Territory. It consists of nine 3-storey apartment blocks.
2. Eighty-four of the 88 units in the complex have an entry way comprising a cedar timber, single glazed, floor to ceiling combined window/door (the window/door). On the upper levels the window/door opens onto a balcony, and on the lower it opens onto a small porch that in turn leads to the common area.
3. In 42 upper-level units the front balcony is accessed from the common area stairwell via a single arch door opening. Forty of these 42 units have installed either metal gates or screen doors at the entrance to their balconies.
4. Twenty-six upper-level units have a rear balcony which is accessed from within the owner's unit through the window/door.
5. Sixteen ground level units have a porch area, but this is designated as a balcony on the unit plan. This window/door leads onto the porch area which in turn opens onto the common property.
6. Three upper-level units and one ground floor unit are bedsitter units that do not have a balcony or a window/door.
7. The balcony for each unit is a designated subsidiary of the unit plan. The other subsidiaries for each unit are a carport and storage rooms.

1. The Units Plan was registered in 1973, under the Real Property (Unit Titles) Ordinance 1970 (1970 Act). There have been numerous amendments to this legislation, and the relevant legislation is now the Unit Titles (Management) Act 2011 (UTM Act) and the Unit Titles Act 2001 (UT Act).

1. In 2012 an executive committee (EC) member noticed a bathroom window on a top story unit's external wall was coming apart, such that the glass was in danger of falling to the ground. Upon investigation it was apparent that condensation had led to moisture damage to the cedar timber frame. Further investigations concluded that the windows in other units would be similarly affected, and that, in the long-term, it would be more cost effective to replace all bathroom and bedroom windows with aluminium framed windows than it would be to strip back and repair and repaint the existing timber windows. The EC accepted that the replacement of the windows to all 88 units was a priority and commenced action necessary to raise capital.
2. In 2013 the Corporation agreed that it would take responsibility for the replacement of old bedroom and bathroom windows as well. A series of motions was put forward to the owners at an annual general meeting held on 5 December 2013:

Motion one: that by ordinary resolution the Owners Corporation accepts the quotes from Hanlon Windows to replace the bedroom, bathroom and toilet windows with the installation carried out by J&L Yeomans building.

Motion two: that, by ordinary resolution, the owners Corporation accepts the quote from J&L Yeomans building to replace the balcony railings with the balustrade is composed of aluminium framed grade a safety grass.

Motion three: that, by special resolution, the owners Corporation for the purposes of replacing the bedroom, bathroom and toilet windows, together with the balcony railings:

(i) approves the expenditure of up to $60,000 from the sinking fund; and

(ii) sets a special levy of $330,000 to be paid in two instalments of $165,000, the first instalment due on 15 January 2014 and the second instalment due 15 April 2014.

1. At the 2018 AGM, held on 13 June 2018, an EC member raised the issue of replacing the combined windows/doors leading from living rooms onto the unit balconies. This was because in some units these components were showing the same wear issues as the previously replaced bedroom and bathroom windows. Once again an investigation suggested that, in the long-term, the cost of replacing the windows/doors would be more cost-effective than stripping, repairing and repainting the existing timber structure.
2. Accordingly, the EC put a motion to the owners as follows:

Special purpose fund - balcony window/door replacement

Motion seven: That the Corporation strike a special levy of 210,000+ GST for the period 1 July 2018 to 30 June 2019 to be contributed by members in accordance with their unit entitlements. The special purpose fund levy is to be paid quarterly in advance and used exclusively for replacing the existing balcony doors and associated windows.[1] (Motion 7)

1. Another member read and tabled an objection to this proposal. The objection was to the effect that, as the balcony windows and doors adjoin the living areas, it was an individual owner's responsibility to maintain them. This EC member expressed a view that individual owners should make the decision as to when and how the window/door should be replaced and what style it should be replaced with, for example, whether it is sliding or opening.
2. Accordingly an amendment to Motion 7 was proposed by another owner whereby commencement of the levy would be deferred until January 2019 and the collection timeframe would be extended to four years. Most owners in attendance wanted the issue of responsibility to be clarified. A vote for motion 7 to be amended was deferred pending resolution as to who was responsible for maintaining or repairing the balcony window/door.
3. On 24 December 2018 the EC, taking into account views expressed at the 2018 AGM, passed the following motion:

Resolved: That UP-79 owners Corporation is not responsible for maintaining the window/door adjoining the unit balcony as it is:

• made of glass and therefore not a wall
• not part of the balcony;
• Not located on the boundary wall; and
• Does not adjoin the common property

Resolved: That an individual owner who replaces the window/door adjoining the balcony or porch with a different configuration to the original (e.g. a sliding door replacing a swing door) requires the express permission of the UP 79 owners Corporation in accordance with Rule four (one) (as amended in June 29 this 2009) such change is considered to be a structural alteration.[2]

1. The applicants seek review of Motion 1 and Motion 2 in this proceeding.

1. The above circumstances raise two questions:
   • (a) Who is responsible for maintaining the balcony window/door - the Corporation or individual owners?
   • (b) If individual owners are responsible, is replacing the window/door with a different configuration a structural alteration?

1. The applicants contend that the Corporation has the duty to maintain and, if necessary, replace the window/doors.
2. The applicants rely upon section 24 of the UTM Act. This sets out the maintenance obligations of the corporation as follows:

(1) An owners corporation for a units plan must maintain the following:

(a) for a staged development - the common property included in a completed stage of the development;

(b) for a development that is not a staged development - the common property;

(d) the defined parts of any building containing class A units (whether or not the defined parts are common property);

defined parts, _of a building containing class A units, means - _

(a) the following structures in the building, if load bearing:

1. Pursuant to section 10 of the UT Act, a class A unit includes the unit identified on the units plan, and any unit subsidiary shown on the plan as annexed to the unit.
2. Under the UTM Act:
   1. Common boundaries_ - internal_

If a floor, wall or ceiling separates a class A unit or a unit subsidiary from common property or another unit or unit subsidiary, the common boundary lies along the centre of the floor, wall or ceiling, unless otherwise specified in the relevant unit title application or units plan

_If a class A unit or a unit subsidiary is bounded by an external wall of the building containing the units, then, unless otherwise indicated in the relevant unit title application or units plan - _

(a) the boundary of the unit or unit subsidiary lies along the centre of the wall; and

(b) the part of the wall outside the boundary is common property.

1. The applicants assert, having regard to the above, that for units with a balcony the Corporation is responsible for the maintenance of the window/door adjoining the balcony under section 24(1)(b) and section 24(2)(b).
2. In relation to 24(1)(b), the applicants contend the window/door is part of the boundary wall and the exterior is common property pursuant to section 15(b) of the UT Act. Therefore, the Corporation is obliged to maintain the external half of the window/door.
3. In relation to 24(2)(b), the applicants contend that maintenance of the common property and balconies is an obligation of the Corporation. Given the size and scale of the windows/doors, this should be considered on the scale of maintenance of the building as a whole. The applicants assert that this has been consistent with practice since 1984 as the Corporation has operated as if the maintenance of all windows was their responsibility, and uses levies collected by owners to maintain the outside of the building.
4. The applicants further say that the Corporation cannot exempt itself in this obligation because section 25(a) of the UTM Act prevents them doing so given the likely adverse effect on the appearance of the common property.
   1. Owners corporation may exempt itself from maintenance obligations

_An owners corporation for a units plan may, by special resolution, exempt itself from 1 or more maintenance obligations under section 24(1) if the exemption is not reasonably likely to have a significant adverse effect on - _

(b) the safety of occupiers of the units or of the public

1. Finally, the applicants contend that the replacement of the window/door with a different configuration does not constitute "an erection of structural altercation" (as per Regulation 23 of the ACT Building (General) Regulations 2008, and Nolan and Anor v the Owners Unit Corporation No 369 [2014] ACAT 32 (Nolan)) and therefore Motion 2 is in any case invalid.

1. The respondent submits that the maintenance obligation of an owners corporation for a class A unit complex were examined in Castro v the Owners Unit Plan No 246 [2016] ACAT 111.
2. The starting point is to examine the unit plan, which shows the unit entitlement for each unit including its subsidiaries. The respondent agrees that, pursuant to section 15 of the UTM Act, the boundary between a class A unit or unit subsidiary and either common property or another unit is along the centre of the relevant floor wall or ceiling. However, the respondent submits that in this case, there is no boundary between the window/wall and the common property. Rather, the boundary lies between the unit and a unit subsidiary.
3. The respondent argues that the Corporations' maintenance obligations include walls but only where those walls are load-bearing,[3] and says that there is no evidence that the window/wall is load-bearing. In note that Motion 1 asserts that the window/doors are not walls at all.
4. The respondent also says that the window/wall does not form "part of a balcony" for the purposes of UTM Act section 24(2)(b). The respondent submits that a balcony is an "outside outdoor area" and by analogy the door and windows of a house that open and look onto a porch deck or garden would not be regarded as part of that porch deck or garden, but would instead constitute part of the house. The respondent notes also that 42 upper-level units have the window/door opening onto the front balcony, with an entryway between that balcony and the common property or stairway, and 16 ground units have a rear garden access to the designated balcony.
5. The respondent says that the bedroom and bathroom windows that were replaced were wholly contained within the external walls of the building, and particularly that the framed glass panes are contained within that part of the wall designated as common property pursuant to section 15(b) of the UT Act. That is not the case with the windows/doors.
6. The respondent concedes that the railings are considered part of the balcony and they are clearly within the maintenance obligations of the Corporation under paragraph 24(2)(b) of the UTM Act.
7. In relation to Motion 2 the respondent also relies on the case of Nolan. The respondents submit that it is reasonable to assume that the replacement of the subject structure relevantly impact upon at least the balcony slab of at least two side load-bearing walls, and accordingly this is a matter for consideration by the executive committee.

1. Having regard to the above, and to the terms of section 24 of the UTM Act, the Corporation will have responsibility for the maintenance of the window/doors in one of three circumstances:
   • (a) The window/door is a load-bearing wall - section 24(2)(a)(i);
   • (b) The window/door is part of the balcony - section 24(2)(b); or
   • (c) The window/door is common property - section 24(1)(b).
2. Taking each in turn:

1. There is no definitive evidence, one way or the other, as to whether the wall is load-bearing. Nonetheless, all parties appear to agree that it is unlikely that a window/wall of this kind would be load-bearing, and accordingly I will continue on the assumption that it is not, and therefore that the Corporation is not obliged to maintain the wall pursuant to section 24(2)(a)(i).

Is the window/wall part of the balcony - section 24(2)(b)

1. There is no definition of 'balcony' in either the UT Act or in the UTM Act. Turning to the natural and ordinary meaning of the word, the Macquarie Dictionary defines 'balcony' to mean, relevantly:[4]

1. a balustraded or raised and railed platform projecting from the wall of a building.

1. This definition would seem to suggest that the 'balcony' includes the platform, and the railings on it. It would not include the door leading onto the platform, where that door is part of the wall of the building from which the platform projects.
2. I have examined the unit plan diagrams and there is nothing to suggest that another approach should be taken in this case.
3. As such, on the information before me, I do not think that the window/door could be considered part of the balcony. Consequently, the Corporation is not required to maintain window/doors under section 24(2)(b).

Is the window/wall common property - section 24(1)(b)

1. The "common property" is defined in the UT Act as the parts of the unit plan identified as common property in the unit plan.[5] In practical terms, it is those parts of the complex that are not within a unit or a unit subsidiary.[6]
2. A class A unit is a unit located in a building "with boundaries defined by reference to the floors, walls and ceilings".[7] That is, a class A unit will be located in a building that is defined and enclosed by built structures. That building would generally contain other class A units and common property (staircases, walkways, corridors, etc.).
3. Section 15 of the UT Act sets out where the boundary lies if the unit is "bounded by an external wall of the unit." In such cases, the boundary lies along the centre of the wall, and the outside half of the boundary is common property.
4. Having regard to the above, whether the window/door is common property, or partially common property, depends upon whether the window/door could be considered to be, or to be part of, an 'external wall of the building' for the purposes of section 15.
5. So, what is an 'external wall', and would the window/door meet this definition?
6. Neither the UT Act nor the UTM Act set out a definition of 'wall'. Turning to the ordinary and natural meaning of the word, the Macquarie Dictionary defines 'wall' to mean, relevantly:[8]

noun 1. an upright work or structure of stone, brick, or similar material, serving for enclosure, division, support, protection, etc., as one of the upright enclosing sides of a building or a room, or a solid fence of masonry.

1. Having regard to the definition, a 'wall' would seem to mean an upright, solid (typically brick or stone) structure that encloses or divides the building. I am satisfied that the definition could include a solid glass sheet window, which operates in the same manner as a stone or brick wall. I am less certain whether, on its terms, it includes a 'door' that opens and closes, although it presumably would include any wall that contains the door. In this case, the window/door does 'enclose' the unit, in that it separates it from the outside, and to that end it appears to serve the function of a 'wall' as well as a door or window. I will continue on the basis that the window/door could be considered a wall for the purposes of sections 14 and 15. I note this means that the assertion in Motion 1 that the door is not a wall is potentially inaccurate.
2. It is worth noting that in most other jurisdictions, the definition of a wall often includes a 'window', whether expressly or by likely implication. For example, in the NSW Strata Schemes Management Act 2015:[9]

wall includes a door, window or other structure dividing a lot: (a) from common property or from another lot, or (b) if the lot is a lot in a part strata parcel - from any part of a building that is not within the parcel.

1. The Unit Titles Act 1974 (NT) provides that:[10]

"wall" includes a door, window or other structure dividing a unit from common property or from another unit.

1. The Body Corporate and Community Management Act 1997 (Qld) provides that:[11]

"wall" includes a door, window or other structure forming part of the wall.

1. And the Strata Titles Act 1988 (SA) dictionary provides that:

1. I was unable to ascertain why the ACT legislation did not have such a definition, and whether this is intended to be a point of difference between the ACT legislation and that in other jurisdictions. I could not identify any basis for the distinction in the explanatory material. Given the increasingly common use of glass sheeting for construction, this definition may require legislative amendment.
2. The next question is whether the door/window, to the extent it is a 'wall', is an 'external wall'.
3. There is no definition of 'external' in the Act. Turning to the ordinary meaning, the Macquarie Dictionary defines external to mean, relevantly:[12]

_"_adjective 1. of or relating to the outside or outer part; outer.

3. situated or being outside something; acting or coming from without.

1. I think there is an argument that the window/door is on the external wall of the structure. However, the complicating factor is that they open not onto common property, but onto a unit subsidiary.
2. In the case of the 42 units that have upper-level balconies, and the 16 units with rear-balconies, the window/door opens from the unit to the balcony, which is a designated unit subsidiary. Section 14 of the UT Act provides that where the floor, wall or ceiling separates a class A unit or a unit subsidiary from common property, or another unit or a unit subsidiary, the common boundary lies along the centre of the floor, wall or ceiling, unless otherwise specified in the relevant unit title application or units plan.
3. Again, there is some doubt in my mind as to whether the window/door is a 'wall' for the purpose of section 14. However, if it is, the boundary between the unit and the unit subsidiary lies on the midpoint between the unit and the unit subsidiary. Ultimately, however, it probably does not matter, because at no point does the window/door, whether a wall or not, border common property. Rather, it borders another unit subsidiary. A unit subsidiary which, on the definition of 'unit subsidiary' in section 10 of the UT Act, is part of the unit. The window/door is therefore not an exterior part of the building, as that word may be interpreted in the context of the UT Act and the UTM Act.
4. Accordingly, I am satisfied that the window/doors on balcony units are not the responsibility of the Corporation.
5. The situation is slightly more complicated with the 16 ground floor units. These units are also bordered by a 'unit subsidiary', but the subsidiary is a flat porch rather than a contained balcony. There is no railing or structure surrounding it.
6. Subsection 19(3) of the UT Act provides that the air space above a unit subsidiary which is land must be shown as forming part of that subsidiary, except to the extent of any encroachment:
   1. Unit title applications - unit subsidiaries

_(1) A unit title application must show any unit subsidiary as - _

(a) a building, or part of a building, of a kind prescribed by regulation; or

(b) a building, part of a building, or land, that is suitable for a purpose prescribed by regulation.

Note See the Unit Titles Regulation 2001, s 3 for the permissible kinds of unit subsidiaries and purposes.

(2) The application must show any unit subsidiary consisting of a building or part of a building with boundaries defined by reference to the floors, walls and ceilings of the building.

(3) The application must show any unit subsidiary consisting of land as having boundaries unlimited in height except to the extent of any encroachment at, above or below ground level by another part of the parcel.

(4) The application must show unit subsidiaries as annexed to a particular unit, but need not show unit subsidiaries as adjoining the unit.

1. Section 19(3) of the UT Act requires that unit plans show that unit owners own the airspace above their units subject only 'to the extent of' any encroachment. The respondent's unit plan was registered prior to this provision taking effect, and there was no equivalent provision in the Unit Titles Act 1970. Nonetheless, there is much sense in concluding that a unit subsidiary must include the airspace above it, except to the extent of any encroachment. This is the approach the Tribunal has previously taken[13] and there is no reason not to adopt it in this case.
2. Hence, whether the area outside the door on the ground floor units is a balcony or a porch, it is a part of a unit subsidiary - and subsidiary includes everything from the ground through the airspace, unless there is another structure interceding. As such the window/doors do not adjoin common property, but are rather internal dividing walls between the unit and a unit subsidiary. This being the case, the maintenance of the windows/walls is the obligation of the owner and not the corporation.
3. The three upper-level units and one ground floor unit do not have a balcony. However, there is no suggestion in the material before me that they have the large window/doors that the balcony units have, and it does not appear that I need to determine that question. If they did, this would raise a more complicated issue, as it would then be necessary to further consider the definition of the word 'wall'.
4. I note that this decision applies only to the windows/walls that border balconies (or porches) in the complex. The reasoning would not apply to windows that are located in an external wall of the building - which appears to have been the case with the bedroom and bathroom windows replaced in 2013.
5. Accordingly, I decline to make any further orders in relation to Motion 1, other than to note that the assertion that they are not walls may not be correct.

Can the Owners Corporation make rules about the replacement of the doors?

1. The applicants seek an order under section 129(f) of the UTM Act that Motion 2 of the EC of 24 December 2018 is void because the owner is not making a structural alteration or changing the configuration of the window/door adjoining the balcony so long as it is the same overall size as the original element.
2. On 2 July 2009, the Corporation passed a resolution that provided (Article 4):[14]

A unit owner may erect or alter any structure in or on the unit or the common property only -

1. In accordance with the express permission of the Owners Corporation by special resolution; and
2. In accordance with the requirements of any applicable Territory law.

1. Article 4 is effectively an amended version of default rule 4(i)(a) in Schedule 4 of the UTM Act, which provides that a unit owner may erect or alter any structure in or on the unit or the common property only in accordance with the express permission of the owners corporation by unopposed resolution, and that the permission given may be conditional.
2. None of the words 'structure', 'alter', 'alteration', 'erect' or 'erection' are defined in the UTM Act.
3. In section 24(2), the UTM Act provides that walls, columns, footings, slabs or beams are structural only if they are 'load bearing.' However, under section 34, 'structural parts' may include eaves, gutters or downpipes.[15]
4. Regulation 23 of the Building (General) Regulations 2008 deals with "substantial alterations" to buildings. Subclause (2) of that Regulation provides that neither refitting a building nor replacing the internal elements of the building is an alteration of the building unless the layout and function of the internal spaces of the building have changed. Example 5 of this subclause provides:

A building contains a nightclub where a fire sprinkler system was installed 1 year ago. Plans now propose to upgrade the airconditioning system and floor coverings throughout the building. As the work does not alter the floor area or function of the building it would not amount to a substantial alteration.

1. Turning to the ordinary meaning of the words, the Macquarie Dictionary defines them relevantly to mean:[16]

verb (t) 1. to make different in some particular; modify.

noun 1**.** mode of building, construction, or organisation; arrangement of parts, elements or constituents.

2. something built or constructed; a building, bridge, dam, framework, etc.

1. The nature of a structural alteration for the purposes of default rule 4 was considered by the Tribunal in Nolan. In that case, the applicants requested that the owners corporation consent to a change of the flooring in their unit from carpet to a bamboo floating floor. Under the default rules, unopposed consent was required, and an adjoining owner did not consent. The applicants made an application to ACAT, arguing that the bamboo floorboards would be laid without nailing or gluing and therefore they were not an 'erection or alteration' of the building and did not require approval.
2. Presidential Member Symons said:[17]

Having considered all of the matters before the Tribunal the Tribunal finds that, as this unit complex has adopted the default rules, the removal of carpets and the installation of a floating bamboo floor is not an erection or alteration to the structure as provided in default rule 4(i)(a) in Schedule 4 of the UTMA and it does not require owners corporation approval. The applicants unambiguously stated that the bamboo flooring will not be nailed or glued to the concrete floor.

1. There is no evidence before the Tribunal as to what kind of work would need to be undertaken to install a new door/window with a new configuration. It is certainly probable, as the respondent suggests, that doing so would include some interaction with the slab or the wall, in which case the alteration would be structural. However, I cannot conclude that this would inevitably be the case. The replacement of glass panes alone may not involve structural work.
2. Accordingly, to the extent that Motion 2 purports to 'deem' the replacement of the window/door to be a structural alteration, it is beyond power.
3. Section 129(1)(f) allows the tribunal to make an order repealing or amending a resolution of an executive committee meeting based on a merits review. The applicants need to show that the decision was not the correct and preferable one for the tribunal to intervene. The tribunal does not intervene lightly, as some regard must be had to the 'community democracy' established by the UTM Act. Nonetheless, I am satisfied that Motion 2 is not the correct one, because it purports to deem the installation to be an erection or alteration. Whether it is in fact a structural alteration is a question of fact to be decided in the circumstances of the case.
4. I have considered whether I should amend Motion 2, but my preference, given the circumstances of this decision, is that the owners vote on an alternative proposal.
5. Accordingly, Motion 2 is repealed.

[1] Application by applicants filed 4 January 2019 page 2

[2] Application by applicants filed 4 January 2019 page 3

[4] Macquarie Dictionary, online edition

[6] See Christopher Kerin, Guide to ACT Strata Law (Kerin Benson Lawyers Proprietary Limited ABN 53 168 995 266, 2017) 1.14

[9] Strata Schemes Management Act 2015 (NSW) s 4

[11] Body Corporate and Community Management Act 1997 (Qld) Schedule 6

[13] The Owners Unit Plan 2737 v Ryan & Anor [2016] ACAT 43

[14] Application by applicants filed 4 January 2019 attachment E

[15] Unit Titles Act 2001 s 34 ; Nolan at [11]