1. For the hearing, the Tribunal had before it the application of each party, and attached documents.
2. Ms Meaney also relied upon her correspondence with TOCUP 40 in relation to the works, photographs of the exterior of the premises, a letter from her general practitioner, an expert's report of Mr Montgomery (a civil and structural engineer), a report of Mr Andrew Woods (a qualified electrician), and a report of Mr David Oxford of Delta AirConditioning, the installer of the air conditioning systems.
3. TOCUP 40 provided to the Tribunal for the hearing the minutes, agenda and other documents relating to the meeting of 7 June 2013.
4. The hearing of 6 September 2013 commenced with a view of the premises. Ms Meaney was present, together with her witness Mr Montgomery. Ms Emery, a member of the Executive Committee of TOCUP 40 was also present together with Mr Zakharoff, from the managing agent of TOCUP 40. Together, all persons present walked around Units Plan 40, pausing at various points to allow identification of features of interest and discussion of preexisting features of the property, together with those works conducted and proposed to be conducted by Ms Meaney.
5. The hearing resumed at the Tribunal on 9 September 2013. At the hearing, Ms Meaney gave evidence as did Mr Montgomery. Ms Emery gave evidence for TOCUP 40. Ms Meaney, Mr Zakharoff and Ms Emery all participated in the hearing by making submissions and, where appropriate, questioning witnesses.
6. From this evidence, I find that the facts of the matter are as follows.

C. The premises and the works for which approval was refused

1. Units Plan 40 is a two-storey three-bedroom townhouse complex in Edmondson Street Campbell, designed by architect Harry Seidler. Ms Meaney owns unit 1 of 4 Edmondson Street, Campbell. Although other aspects of the complex have been heritage listed, unit 1 is not a part of that listing. The building is of double brick construction with reinforced concrete slabs separating the floors. Unit 1, in common with the other units in the complex, is of a multilevel design consisting of 6 to 8 steps between each level, on either side of an open central staircase. On the ground floor is a gated carport from which one enters the family room and kitchen. Stairs then lead up to the living room and a bedroom, and more stairs lead up to the remaining bedrooms.
2. When Ms Meaney bought the property in June 2005, the energy efficiency rating was zero stars, and the score given to the unit was -123. The unit has large single glazed windows in some areas, which face East and West, making the unit hot in summer and cold in winter. It has a flat roof which means that there is no insulation provided by a roof cavity.
3. The property has a gas heater which, on the evidence provided by Ms Meaney, is inadequate to heat the living areas in winter. According to a log kept by Ms Meaney, in winter at around 8:00 am the lounge room would be 10°C, and after running the heater for an hour this would raise the temperature to 13°C. Upon returning from work of an afternoon, Ms Meaney would find the temperature in the room to be 13°C, and after running the heater for two hours the temperature would reach 17°C but would not increase above that temperature.
4. On the unchallenged evidence of Mr Montgomery, this temperature range is outside the ambient temperature comfort conditions accepted as standard in Australia.
5. There was no dispute that Ms Meaney requires a comfortable living environment. She provided evidence from Mr Dr Mills, her general practitioner, as to a medical condition she suffers from, which leads to her having problems with temperature regulation. Dr Mills wrote that as such Ms Meaney "should reside in an air-conditioned environment."
6. At some point after moving into the property, Ms Meaney made the decision to install four separate air conditioning units at the property. She did not first seek approval from TOCUP 40.
7. According to the report provided by Mr Oxford of Delta Air-Conditioning and Heating, due to the double brick construction of the building it was necessary to run the refrigeration pipes from the indoor unit on the ground floor to the outdoor condenser inside a sheet metal cover on the outside of the northern wall of the building. Similarly, the electrical conduit was run on the outside of the northern wall. At the view on 6 September 2013, the tribunal noted that the conduit and pipes have been painted a dull yellow colour which almost matches the brick work. This is unlike other conduits and pipework located elsewhere at Units Plan 40, which are not painted and are more visible. The Tribunal also noted that the air conditioning units themselves were not easily visible from the exterior of the premises, being located behind shrubbery and in the courtyard of unit 1.
8. In terms of noise impact on other residents caused by the air conditioning units, the evidence of Ms Meaney was that she did not run all four units at once, and had had no complaints of noise impact. Ms Emery and Mr Zakharoff advised that there had been no comment or complaint about noise emanating from the air-conditioner units. Ms Meaney said that her neighbour had advised her that she could not hear the air conditioning units.
9. Ms Meaney had proposed by Motion 4 at the special general meeting that the metal gates to her carport be altered. She had proposed that the hinges to the gates be removed from the internal walls and resituated on the exterior front walls of the carport. This would allow Ms Meaney to open the gates back by a further 90° making it easier for her to park when there are stationary vehicles in the driveway. This proposal would mean affixing the hinges to common property, and necessitate the removal and reaffixing of the unit sign.
10. When the hearing recommenced on 9 September 2013, however, Ms Meaney advised that after the view on 6 September Mr Montgomery had suggested to her another method of altering the gate hinges - namely the use of a double hinge - which would obviate the need to situate the hinges on the common property.
11. On behalf of TOCUP 40, Ms Emery and Mr Zakharoff indicated that the double hinge proposal seemed appropriate and would now amount to only a minor alteration with little visual impact.

1. TOCUP 40 queried at the hearing why it would be necessary for four air-conditioners to have been installed, with the associated cabling and pipes on the exterior of the northern wall. Intuitively, it would seem that a smaller number of air conditioning units would result in less visual impact. However, the evidence demonstrates that this is not the case. It was the evidence of Mr Montgomery and Mr Oxford that the construction of the premises leads to difficulties in unobtrusively installing air-conditioning. Mr Montgomery stated in his report that even the provision of a single unit, such as a split system, would not minimise the visual impact of cabling on external walls, and would in addition probably require phase three power to be provided to the property.
2. In addition, Mr Montgomery gave evidence that in his view a split system would not provide the flexibility that individual units provide in relation to closing off levels of the house for individual heating or cooling. Ms Meaney gave evidence that with the multiple units she would only run the unit applicable to the level of the unit in which she was located at the time.
3. TOCUP 40 also queried whether alternative options such as insulation and double glazing had been properly investigated by Ms Meaney. Ms Emery gave evidence that she was aware of another unit in the complex which had installed double glazing and insulation to the flat roof, and reported that they were very comfortable in winter with the gas heater and required no cooling in summer. Ms Emery was unable to say what the expense of these works would have been. Ms Emery said that in her own unit she had no cooling in the summer and was quite comfortable. She suggested that the installation of draft strips on doors and closing the house up in summer were some of the strategies which could be used for keeping the premises warm or cool, as required.
4. Mr Montgomery gave evidence that double glazing would require removing the existing windows which in his view would be quite noticeable from the exterior of the premises. Ms Emery said that that was not her experience. Mr Montgomery also gave evidence that double glazing and insulation would not necessarily provide the thermal requirements inside the apartment which are the standard, thus in his view requiring additional heating and cooling to the unit in any event.

E. The legislation and the legal issues it poses

1. Subsection 129(1)(g) of the Unit Titles (Management) Act 2011 (UTM Act) provides that the ACAT may make:

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 merits review of the motion that opposition to the motion was unreasonable;

1. This provision is unusual in that it marries two legal concepts, that of merits review and that of unreasonableness. The legal model proposed is very different to that set out in the preceding subsection 129(1)(f), which refers to orders that the ACAT may make in relation to successful motions:

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;

1. Section 129 of the UTM Act is in identical terms to section 125 of the Unit Titles Act 2001 (UT Act) as it was prior to passage of the UTM Act. Section 125 of the UT Act was inserted as a consequence of the creation of the ACAT in 2008 by the Unit Titles Amendment Act 2008. Prior to that time, the UT Act had provided jurisdiction to the Magistrates Court to make a 'deadlock order' in appropriate cases. The provisions of the UT Act relating to deadlock orders bear no resemblance to the provision that became what is now section 129 of the UTM Act. Nonetheless, the insertion of this novel provision in 2008 was the subject of little comment in the explanatory statement:

Section 125 Kinds of ACAT orders - specifies the types of orders that the ACAT can make.

The provision further provides that the ACAT can make any other order it considers necessary or convenient to resolve an ACAT dispute but does not limit the orders that the ACAT can make in relation to an ACAT dispute.

1. I explained to the parties when delivering my decision on 9 September 2013 that I was satisfied that what section 129(1)(g) required was for the Tribunal to consider all of the available evidence and whether, with regard to that evidence, opposition to the motion was unreasonable. Only if so satisfied could the Tribunal proceed to make an order giving effect to the unsuccessful motion. I indicated that I would, in these written reasons, set out in more detail the legal issues posed by the wording of section 129(1)(g).

1. The process of merits review usually requires the reviewing body to 'stand in the shoes' of the original decision maker and make the correct or preferable decision. In applying this model to section 129(1)(g), the original decision maker is TOCUP 40.
2. When undertaking merits review, the reviewing body substitutes its own decision for that of the original decision maker, and makes the decision that is correct or, if there is more than one correct decision, the preferable decision.
3. There are a number of accepted features of merits review which warrant mention.
4. First, the review is essentially 'de novo' and Tribunal is able to consider issues of both fact and law anew.
5. Secondly, the Tribunal considers and determines these issues as at the date of the hearing before the Tribunal, not as at the time of the original decision. That means the Tribunal is able to consider evidence not available before the owners corporation in reaching its decision. Although this would seem to conflict with the use of the past tense in subsection 129(1)(g), I am satisfied that the use of the word 'was' is not intended to require the Tribunal to embark on what would be, essentially, a 'judicial-type review' of the original opposition to the motion. The latter approach has the potential to create procedural and legal complexities which would impose a burden upon litigants, inconsistent with the objectives of the ACAT, and would be contrary to the well-established principles of merits review.
6. Thirdly, when conducting merits review there is no threshold question of reasonableness or unreasonableness of the original decision to be determined before the Tribunal may proceed to make an order.

What does it mean for a decision to be "unreasonable"?

1. Section 129(1)(g) places a significant limitation upon the merits review process, by requiring that the ACAT must be satisfied that opposition to the motion was unreasonable before an order giving effect to the motion may be made.
2. The word 'unreasonable' is not defined in the UTM Act. Its ordinary English meaning, according to the Macquarie Dictionary, is:

Unreasonable: adjective 1. not reasonable, not endowed with reason. 2. not guided by reason or good sense. 3. not agreeable to or willing to listen to reason. 4. not based on or in accordance with reason or sound judgement. 5. exceeding the bounds of reason; immoderate; exorbitant.

1. There is an extensive body of authority outlining when administrative decisions are, or are not, considered to be 'unreasonable' and therefore liable to be set aside.
2. An administrative decision may be 'unreasonable' where it is capricious or irrational, is illogical or perverse, is inconsistent with other decisions on like facts, has simply no evidentiary basis or is based on an error of fact which is fundamental to the decision.
3. In some cases, a defect in the process leading to the making of the administrative decision will render the decision 'unreasonable'. For example, where the process leading to the making of the decision lacked natural justice, this may lead to the decision itself being considered 'unreasonable'.
4. Given that the Tribunal is tasked with conducting merits review of the motion, a process usually made available in relation to decisions of an administrative character, it is appropriate to draw on this body of law as providing some guidance as to whether 'opposition to the motion was unreasonable'.

If ACAT is satisfied opposition to the motion is unreasonable, is it required to give effect to the motion?

1. The use of the word 'may' in the prefatory words of subsection 129(1) makes it clear that the power provided to the tribunal by paragraph 129(1)(g) is discretionary. In other words, even if the ACAT is satisfied that opposition to a motion was unreasonable, it is not obliged to make an order giving effect to the motion. It is at this point that merits review would require that the tribunal make the correct or preferable decision, whether to give effect to the unsuccessful motion (either as originally proposed or as amended) or not.
2. It is hard, but not impossible, to conceive of a case in which, opposition to the motion being unreasonable, approval of the motion would not be the correct or preferable decision. Certainly, if the 'unreasonableness' is due to a defect in the process, approval of the unsuccessful motion would not always follow. In such matters, the tribunal might decline to approve the unsuccessful motion notwithstanding that the opposition to the motion was found to be unreasonable.

F. Tribunal consideration of opposition to Motion 1 - the air conditioning units.

1. It is difficult to know for certain why this motion was opposed by five members of TOCUP 40, as they did not all give evidence in these proceedings. Ms Emery gave evidence before the Tribunal, however, and she and Mr Zakharoff in submissions provided their understanding of the two key factors they thought might have motivated some of the owners to oppose motion 1.
2. Some members of the owners corporation may feel that unit owners should adopt sustainable solutions to construction or building issues, where these are effective, and this opinion may be reflected in their voting on motions requesting approval of works. Such reasoning is not illogical or irrational, although it may not be shared by the entire population.
3. Some members of the owners corporation may be concerned that to approve one request for works may 'open the floodgates' to multiple requests which, taken together, would destroy the amenity of residents. This concern is understandable, a failure to be consistent in decision-making may itself render a decision unreasonable.
4. Where guiding principles are to be applied, however, the decision must nonetheless be based on facts which enliven those principles. A decision which is not will be unreasonable.
5. In considering this matter, the Tribunal is in an advantageous position compared to that of TOCUP 40, as it has before it a range of medical and expert evidence that was not available to the unit owners at the general meeting on 7 June 2013. It is appropriate to have regard to this more recent material in determining the unreasonableness of the opposition to the motion.
6. In the current matter, it is clear that Ms Meaney suffers from a medical condition that requires her to inhabit a home with a comfortable ambient temperature. It is also clear that unit 1, as constructed, does not provide a comfortable temperature.
7. Ms Meaney's solution to this problem was to install 4 separate air conditioning units, allowing the temperature of each level of unit 1 to be separately adjusted. Her evidence, and that of Mr Montgomery, was that this solution is effective in dealing with the problem.
8. While it is possible that there are greener solutions to Ms Meaney's predicament, such as installing double glazing and insulation, there was no expert evidence that these actions would provide the ambient temperature required without additional heating or cooling. The evidence of Mr Montgomery was that some form of additional heating and cooling would still be required.
9. There is no evidence that the air conditioning units have any noise impact on neighbours. On the contrary, the evidence is that the neighbours are not disturbed by the noise of running the air conditioning units. Visually, the units themselves are difficult to see. The units on the west side of the premises cannot be seen unless one walks behind and into shrubbery to look for them. The units on the eastern side of unit 1 are located in the walled courtyard of unit 1, and are not easily visible.
10. The conduit and down pipes associated with the installation is visible on the northern wall of unit 1, however it has been painted in a colour close to the shade of the bricks, and is less visually obtrusive than the conduit providing electricity to security lights and other existing pipework located elsewhere at Units Plan 40.
11. In the current case, therefore, I am satisfied that due to Ms Meaney's medical condition and due to the construction and orientation of the unit, there is a need to heat and cool unit 1. The evidence is that this need has been fully addressed by the installation of 4 air conditioning units which are themselves not easily visible, and do not produce any noticeable noise impact on nearby residents. The installation required some conduit on the exterior of the premises, which is visible, however, there is pre-existing conduit on the exterior of the Units Plan which is more visible.
12. In terms of sustainability, the expert evidence is that more sustainable responses to the need for heating and cooling would nonetheless require the installation of additional heating or cooling sources.
13. In terms of the noise and visual impacts on residents, there is in fact no noticeable impact caused by the four units, over what would be caused by one unit. The only impact is visual, and this is negligible in the context of other conduit and pipework previously approved or installed by the TOCUP 40. Considering the need for consistency in granting such approvals, it seems to me that even if every unit owner were to install such discreet air conditioning, there would be no or negligible impact on the amenity of other residents.
14. While the arguments proposed for opposition to the motion were not themselves unreasonable, these arguments are predicated on facts which simply did not exist in this case. That is, the asserted fact that there are more sustainable solutions (there are not); the asserted fact that more sustainable solutions would have lesser impact on other residents (they would not); and the asserted fact that if every resident installed such airconditioning it would destroy amenity (it would not).
15. The opposition to the motion not being rationally supported by the evidenced facts of this case, this means that the opposition to the motion was unreasonable. I proceeded to exercise the power provided by section 129(1)(g) to give effect to the motion. It followed that the application by TOCUP 40 for removal of the air conditioning units should be dismissed.

G. Tribunal consideration of opposition to Motion 4 - the carport gate

1. In relation to the proposal for approval of alterations to the gates, this proposal was amended during the course of the hearing so as to constitute only a minor alteration, not involving the common property and of no real visual impact. It was conceded by the owners corporation during the hearing that such a proposal would be unobjectionable. Accordingly I exercised the power provided by section 129(1)(g) to give effect to the motion as amended.

1. In her application filed 20 March 2013, Ms Meaney sought an order for costs. At the conclusion of the hearing on 9 September 2013, I made the orders indicated above and said that I would publish my reasons. The question of costs was not raised by either party. Subsequently, Ms Meaney contacted the Tribunal to enquire as to whether an order was to be made for costs. I invited the parties to provide written submissions to the Tribunal on this question prior to 1 October 2013, with particular reference to section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
2. Ms Meaney provided a submission in which she explained that the only costs she sought were those of retaining the expert Mr Montgomery, which amount to some $6413. Although other costs were expended by her in relation to the hearing (such as the application fee) and in undertaking further works at the property, she did not seek reimbursement of those sums[1].
3. Mr Zakharoff on behalf of TOCUP 40 submitted that Ms Meaney should not be awarded costs, as section 48 of the ACAT Act provides as a starting point that parties to the proceedings "bear their own costs unless this Act otherwise provides or the Tribunal otherwise orders." Mr Zakharoff submitted that although subsection 48(2) goes on to provide circumstances in which an order for costs may be made, those provisions were not applicable in this case.
4. I am satisfied that the circumstances of this case and the conduct of these proceedings do not enliven any provision of subsection 48(2) which would provide the power to make an order for payment of Mr Montgomery's fees.
5. I have also considered whether there is any power to award costs provided by the UTM Act. There is no express costs power contained in section 129 of the UTM. Subsection 129(2) provides a general power to the ACAT to make "any other order it considers reasonably necessary or convenient to resolve a dispute under this part."
6. I do not consider that subsection 129(2) of the UTM Act provides a general costs power to the ACAT. First, the wording of this subsection refers only to those orders 'necessary or convenient to resolve a dispute'. A costs order is not an order which resolves a dispute, but an ancillary order related to the institution and conduct of the proceedings. Secondly, given the specific wording of section 48 of the ACAT Act, and the clear intention of the UTM Act to adopt the procedural framework provided by the ACAT Act, the wording of subsection 129(2) is not sufficiently clear to amount to a conferral of a costs jurisdiction in UTM Act matters. If it had been intended to provide a general costs discretion to the ACAT in such matters, one would have expected to find a provision providing that power in clear, and unambiguous, terms.[2]
7. Accordingly, I dismiss the application for costs.

1. At the conclusion of the hearing on 9 September 2013, my orders in relation to the substantive applications were as follows.

1. In relation to Ms Meaney's application, being proceedings UT5 of 2013, I order as follows:
   1. The ACT Civil and Administrative Tribunal, having conducted a merits review of the unsuccessful motion 1 for owners corporation consent for the installation of 4 air-conditioning units and associated conduits/pipework at Lot 9 and being satisfied that opposition to the motion was unreasonable, orders that motion 1 be given effect.
      1. The ACT Civil and Administrative Tribunal having conducted a merits review of the unsuccessful motion 4 for owners corporation consent for alteration of the carport gates, orders that motion 4, as amended to specify that the carport gates will be double-hinged, not affixed to common property, and painted to match the existing gate, be given effect.
2. In relation to the application by TOCUP 40, being proceedings UT25 of 2012, I ordered:

1. Application for an order for removal of structure is dismissed.

1. Finally, in relation to the request for costs by Ms Meaney, I order:
   1. Application for costs is dismissed.

[1] The costs of undertaking further works at the property cannot be characterised as costs of the application, and would not ordinarily be included in an order for costs.

[2] See for example section 195 of the Health Practitioner Regulation National Law (ACT) which provides "The responsible tribunal may make any order about costs it considers appropriate for the proceedings."