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[2026] ACAT 52
ACT Civil and Administrative Tribunal
2026-08-18
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE OWNERS – UNIT PLAN NO 4654 v HURST & ANOR (Unit Titles) [2026] ACAT 52 UT 30/2025 Catchwords: UNIT TITLES – validity of alternative rules – Unit Titles (Management) Act 2011 – external appearance of residents’ property – screens in an enclosed apartment balcony – Executive Committee powers to refuse a screen on a balcony – effect to the external appearance of apartment façade – procedural fairness in Executive Committee actions - sustainability infrastructure in a unit – what constitutes sustainability infrastructure – whether a screen is a sustainability infrastructure – applicability of Executive Committee Code of Conduct to a decision to permit or refuse an installation on a balcony – procedural fairness in Executive Committee decisions – costs of application
Legislation cited: Unit Titles (Management) Act 2011 ss 108, 129, sch 1
Cases cited: Walker Corporation Pty Ltd v The Owners – Strata Plan No. 61618 [2022] NSWSC 1246 Texts/Papers cited: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 22 March 2023 Canberra’s Living Infrastructure Plan
Tribunal: Member M Hanna Date of Orders: 11 August 2026 Date of Reasons for Decision: 11 August 2026 Date of Publication: 18 August 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 30/2025
BETWEEN: THE OWNERS – UNIT PLAN NO 4654 Applicant AND: JEFFREY HURST First Respondent WENDY MESSER Second Respondent
TRIBUNAL: Member M Hanna DATE: 11 August 2026
ORDER The Tribunal orders that:
In accordance with section 129(2) of the Unit Titles (Management) Act 2011 (the Act), the Tribunal declares that Rule 3.6 (1) of the Alternative Rules of the Owners Corporation Units Plan 4654 “Highgate” 260 & 264 City Walk Canberra ACT 2600 (the Alternative Rules), as written, does not contravene section 108(3)(f) of the Act, as it does not prohibit the installation of sustainability infrastructure.
In accordance with section 129(2) of the Act, the Tribunal declares that Rule 3.6.3 of the Alternative Rules is invalid.
As Rule 3.6.3 cannot effectively be severed from Rule 3.6 of the Alternative Rules, Rule 3.6 is invalid in its current form.
The applicant’s request for the Tribunal to direct the respondents to remove, within seven days, the screens and shelves the respondents have erected on their balcony, is denied.
The Tribunal declares that the screens and shelves on the respondents’ balcony are permitted to remain in their current form and location.
The Tribunal denies the application for costs.
The Tribunal notes: 1. The Tribunal notes that alternative rules must be enforced in accordance with the framework of Executive Committees—Code of Conduct found at Schedule 1 Part 1.1 of the Act.
……………………………….. Member M Hanna REASONS FOR DECISION
This application concerns the placement by the respondents of metal shelving, backed with screens, purchased from IKEA, inside the enclosed balcony of their apartment. On the shelves, the respondents have potted and boxed plants of a variety of nature.
The applicant submits this structure: (a) violates Owners Corporation Units Plan rules (specifically Rule 3.6.1 of the alternative rules); (b) has not been approved by the Executive Committee; (c) should be declared by the Tribunal to be an unlawful structure; and (d) ordered by the Tribunal to be removed.
Specifically, the applicant, the Owners – Unit Plan No 4654, seeks the following 1 orders: (a) A declaration under section 129 (2) of the Unit Titles (Management) Act 2011 (“the Act”) that Rule 3.6 (1) of the Alternative Rules is a valid rule, as it does not contravene section 108 (3) (f) of the Act, as it does not prohibit the installation of sustainability infrastructure. (b) An order under section 129 (1) (a) requiring the respondents to remove, within seven days, the screens and shelves they have erected on their balcony. (c) An order under section 129 (1) (a) of the Act directing the respondents to not erect a screen or shelf (or other material that performs the function of a screen) on their balcony without first submitting an application and obtaining approval, as is required in the Rules. (d) An order under section 31 (1) (b) of the Act that the respondents pay the applicant’s costs of these proceedings, that being the ACAT application fee of $379.00. 4. The respondents seek to keep the structure that has been erected in place.
1 Applicant’s submissions dated 30 November 2025 at [40] 5. They “believe that the Alternative Rules contravene the requirements of section 2 108(3) of the UTMA because they restrict the installation of sustainability 3 infrastructure”.
History
There is a detailed history between the parties preceding this application, most of which is needless to repeat here. The history is best summarised that the respondents have been for some time seeking to place some sort of screening on their enclosed balcony within their apartment to diminish the effects of the sun, lower the temperature and create a better environment within their apartment which has been opposed by the Executive Committee.
The current screening is not the first the respondents have placed in their apartment. A previous bamboo screen was refused permission by the Executive Committee and ordered to be taken down by the respondents, which they did. The orders that both parties seek relate only to the current installation on the respondents’ balcony.
Relevant Rules
The rules in question are titled the Alternative Rules of the Owners Corporation Units Plan 4654 “Highgate” 260 & 264 City Walk Canberra ACT 2600.
The applicant relies on two of the alternative rules, the first being Rule 2.4 entitled Erections and alterations.
At subsection 1, Rule 2.4 states that: 2.4.1 General (1) A unit owner must not alter or erect any structure in or on a unit except in accordance with: (a) the written permission given by the Executive Committee on 2 Unit Titles Management Act 2011 3 Respondents’ submissions dated 15 October 2025 at page 6 behalf of the Owners Corporation (b) the provisions of any law in force in the Territory applicable in the circumstances; and (c) the provisions of Policy of the owners Corporation. Subsection 2.4.2 continues: (2) For the purposes of rule 2.4: (d) erecting or altering a structure includes adding structures onto a unit, altering of a unit and fixing things to a unit; and (e) erecting or altering a structure does not include cosmetic changes to a unit that does not attach to, alter or otherwise impact the Building.
The alternative rule at the heart of this application is Rule 3.6 entitled Balconies. Rule 3.6.1 states: (1) In order to maintain the integrity of the design and appearance of Highgate, a unit owner or occupier must not: (a) Store possessions not usually situated on a balcony on the balcony; (b) Erect, install, attach to or place on the balcony a security camera, aerial, sign, advertising material, screen, awning, blind, pergola or other such item; (c) Hang or display rugs, mats, sheets, blankets, clothing or other such items on the balcony surround/balustrades; (d) Put pot plants or other items on balcony balustrades. Rule 3.6 continues at subsection 2: (2) Collapsible washing lines must remain below the height of the balustrade, with all washing to be secured into the line. Washing lines must not be permanently fixed to any part of the balcony.
Subsection 3 of Rule 3.6 deals with permits and regulation of the items listed at Rule 3.1 and 3.2: (3) This rule does not apply to a unit owner or occupier’s use of a balcony if the Executive Committee has given the owner or occupant of the unit written permission for that use, where: (a) Permission may be granted subject to stated conditions; and (b) Permission may be withdrawn by ordinary resolution of the Executive Committee.
It was the applicant’s submission that the items the respondents erected in their apartment on their enclosed balcony were a “structure” and fell within the provisions of Rule 2.4.2 (d), and that Rule 3.6.1 applied to that structure because it acted as a screen and therefore the respondents needed approval to erect such a structure on the balcony in accordance with Rule 3.6.3 which they did not receive. This is the basis for the applicant seeking the Tribunal to order that the respondents remove the items from their balcony within seven days.
The respondents do not deny that in relation to the current “structure” on the balcony, they did not apply for Executive Committee approval. They submitted that they did not, and do not now require Executive Committee approval because Rule 2.4 (e) applied, rather than 2.4 (d) and that any screen they had erected did not violate the Act and was lawful.
The respondents submitted that even if the installation did fall within Rule 3.6.1, and that they had sought approval, the Executive Committee would have rejected any application no matter the merits of the application and not dealt fairly with the application.
Alternative Rule Validity
There are a number of issues raised by the orders the applicant seeks. The first is whether alternative rule 3.6.1 is valid. Is it framed in accordance with the provisions of the Act? Does it contravene section 108 of the Act?
In accordance with the Act, alternative rules may be made if the matters they concern fall within provisions (a) – (j) of section 108.
Section 108 states: 108 Owners corporation may make alternative rules (1) An owners corporation may, by special resolution, make alternative rules to modify the rules of the corporation. (2) In particular, the owners corporation of a retirement village may make alternative rules to make provision in relation to any of the following: (a) people other than residents or employees of the retirement village living in the village; (b) visitors, including overnight or short-stay guests; (c) the making of noise; (d) the parking of motor vehicles; (e) the disposal of garbage; (f) the keeping of pets; (g) gardening and landscaping; (h) the use and operation of services or facilities (including restrictions on their use); (i) security in the retirement village; (j) the external appearance of residents’ premises.
Looking at those provisions, the items named in Rule 3.6.1 could only correspond to section 108(2)(j) — the external appearance of residents’ premises.
On that basis, Rule 3.6.1 appears to be drafted to correspond to issues related to the external appearance of the residents’ premises. This corresponded with the applicant’s submissions.
The nature of the items or “structure” in question
The items in question are a number of items placed together which the applicants submit then became a structure. The respondents described the placement as “metal shelving base with screens placed on top within which are pot plants and planter boxes”. The items were purchased from IKEA.
The applicant argues that these items when put together became a structure that amounts to a “screen” or “screens” and accordingly fall under Rule 3.6.1.
In accordance with Rule 3.6, the applicant argues, the screens then require permission before they can be erected on the balcony, even internally on a residential balcony because such a screen may affect the external appearance of the property.
The applicant submitted that the primary purpose of Rule 3.6 is to monitor and protect the external appearance of the property, to maintain the aesthetics and value of the building and that the respondents’ screen affects external appearance. They are concerned that approval of structures like the respondents’ would allow other owners to erect similar screens and lower the appearance and property value of Highgate because the colour of the respondents’ installation did not blend correctly, it was clearly visible externally and detracted from the aesthetic and monetary value of the property. 4
This they say was particularly so because: Highgate is a 17-storey high rise tower with a consistent architectural style and uniform colour palette. It is highly visible from street level, neighbouring properties and adjoining units. With the exception of some street trees, there is no landscaping to interrupt the view of the building.
The respondents do not deny that the items act to screen the sun and wind inside their apartment, but they deny emphatically that the screen affects or modifies the external appearance of the property in any negative manner.
They submit that the items are not affected by Rule 2.6 (2)(d) and fit more correctly under 2.4 (2)(e) as they constitute an internal superficial change that does not affect common property in the same way that painting internal walls, installing picture hooks, shelving or mirrors, replacing carpet or replacing cupboards or wardrobes are considered cosmetic.
They submit there is no need for approval from the Owners Corporation under Rule 3.6 because the items do not affect the external appearance of the residents’ premises.
Further they submit that the items required no drilling into slabs, cutting or screwing into walls or ceilings or interfering with shared infrastructure such as pipes and drains, and that the items are not fixed or attached to the balustrades of a balcony. The items are all effectively portable and easily dismounted according to evidence given at the hearing by the respondents and whilst they act as a “screen” the items are effectively furniture not a structure and are cosmetic and therefore exempt under Rule 2.4.2 (2)(e).
The external appearance of the respondents’ items on the Highgate façade
4 Applicant’s submissions page 5 at [25]
The most compelling evidence were photos submitted by both parties which showed the exterior of the building as a whole and the balcony of the respondents’ apartment in relation to the exterior façade.
The applicant supplied photos (photos 7-9) that showed other apartment building balconies where sail cloths and awnings that had been added on or erected by owners.
They submitted to the Tribunal that the items placed by the respondents on their balcony were aesthetically discordant, inharmonious with the façade, and lowered the value of the property in a similar manner to the sail cloths and awnings in photos 7-9.
The respondents submitted that the external photos of its apartment and balcony show that the items within their balcony, have almost no visual impact on the façade to an observer, are fundamentally coherent and blend in well with the rest of the building and the aesthetics and design of Highgate. They submit that what they erected internally has cannot be compared to the sail cloths and external awnings depicted in photos 7-9, not only because the items are internal rather than external as with the sail cloths and awnings but because they are virtually invisible and blend in well with the current façade.
The Tribunal agrees that the negative visual impact found at Images 7, 8 and 9 of sail cloths and awnings on other apartment buildings do create a visual disharmony and violate any notion of uniform façade and would correctly be something a vigilant Executive Committee may order removed to protect the external appearance.
On the other hand, it was evident that the photos of the respondents’ balcony and the façade submitted to the Tribunal reveal that the respondents’ balcony is largely indiscernible from the other balconies and external façade. The screen is barely visible. It is not visually disharmonious and blends in well with the colour and design of the current façade.
In the Tribunal’s view, an objective independent observer would be unlikely to notice the difference in the respondents’ balcony from the other balconies, and if they did notice it, they would not consider there was any visual impact on Highgate’s external appearance or that the items placed within the enclosed balcony lowered the aesthetic or property value.
Therefore, in this Tribunal’s view, even if the respondents’ items fall within the classes described in Rule 3.6.1, they do not impact on the external appearance of the residents’ premises and should not be subject to any order preventing their erection or remaining in place in their current form.
What governs an Executive Committee’s decisions
In accordance with Rule 3.6.1 a screen, or other item mentioned at Rule 3.6.1 requires approval from the Executive Committee.
This is covered in Rule 3.6.3 which states: (3) This rule does not apply to a unit owner or occupier’s use of a balcony if the Executive Committee has given the owner or occupant of the unit written permission for that use, where: (a) Permission may be granted subject to stated conditions; and (b) Permission may be withdrawn by ordinary resolution of the Executive Committee.
On review, a problem arises immediately with the wording of 3.6.3. Because the rule does not specify the exact conditions for permission or the objective reasons for which permission can be withdrawn, it is clear that residents are left without clear guidelines on what is permissible, risking unpredictable enforcement.
Rule 3.6.3 as written effectively grants the Executive Committee total discretion without any framework governing how that discretion is employed. Such an unfettered discretion can be unjust, harsh, unconscionable, or oppressive if applied arbitrarily. If the Committee enforces a “blanket ban” or poses arbitrary restrictions on certain residents while permitting others, it would be unreasonable and oppressive.
The respondents submitted that the Executive Committee is unfair in its application of the rule 3.6.3 because it effectively creates a blanket ban. Whether this is true or not would be indiscernible from the ambit of evidence before the Tribunal. However the wording of Rule 3.6.3 is clearly a concern because residents are uncertain of what is permissible, and the lack of a framework opens the door to arbitrary decisions or decisions decided by personal opinion or bias.
The respondents want the Tribunal to declare Alternative Rule 3.6.1 invalid. They submitted there was no point applying for permission as they knew it would be refused even if the screen made no effect on the external appearance. This in effect was confirmed by the applicant who submitted repeatedly that it felt the screens did affect the external appearance and should be ordered removed.
In the Tribunal’s view however, the real problem lies with the unfettered powers and uncertain nature of application of Rule 3.6.3.
As Rule 3.6.1 effectively creates a blanket ban on certain structures, unless they receive permission from the Executive Committee, then the parameters of what is permissible under Rule 3.6.3 must be clear and transparent as well as be permissible in accordance with the governing Act.
Procedural Fairness
The Act states that an Executive Committee, in applying its rules, must comply specifically with Schedule 1.1, the Code of Conduct of an Executive Committee (the Code).
The Code begins as follows: Executive committees—code of conduct 1 Understanding of Act and code An executive member must have— (a) a commitment to acquiring an understanding of the Act, as relevant to the member’s role on the executive committee; and (b) a good understanding of this code. 2 Honesty and fairness An executive member must act honestly and fairly in exercising the member’s functions as an executive member. 3 Care and diligence An executive member must exercise reasonable care and diligence in exercising the member’s functions as an executive member. 4 Acting in owners corporation’s best interests An executive member must act in the best interests of the owners corporation in exercising the member’s functions as an executive member, unless it is unlawful to do so. 5 Complying with Act and code An executive member must take reasonable steps to ensure that the member complies with the Act, including this code, when exercising the member’s functions as an executive member. 6 Nuisance An executive member must not— (a) cause a nuisance on the land; and (b) otherwise behave in a way that unreasonably affects a person’s lawful use or enjoyment of a unit or the common property.
In applying this Code, it is apparent an Executive Committee should be transparent in its reasoning, careful in the exercise of its powers and must not act in a manner which unreasonably affects a person’s lawful use or enjoyment of a unit or the common property.
Such transparency is not reflected in Rule 3.6.3 where power to grant permission or withdraw permission is unfettered and unregulated. There is no framework as to what is approvable, no requirement that reasons for a refusal be issued and no assurance that restrictions and limitations are in line with the Act or the Code.
A rule that allows a committee to withdraw permission at any time, for any reason (or no reason at all), could be said to behave like a “sword” over an owner’s head. Because the committee can act capriciously without having to justify its decision against a community standard, the rule creates an inherently oppressive environment.
For a by-law to be legally enforceable, it must be clear, certain, and predictable. Owners have a right to know the parameters of what is permitted on their property. A rule that fails to state the grounds upon which permission will be managed is invalid for vagueness and uncertainty. Residents cannot effectively comply with a rule if the standards for compliance are unwritten and subject to change on a whim.
In this Tribunal’s view Rule 3.6.3 creates a permit regime for the items listed in 3.6.1 that is uncertain and arbitrary in its application and potentially oppressive to the residents it governs.
This view is supported, amongst other case law, by the decision in Walker Corporation Pty Ltd v The Owners – Strata Plan No. 61618 [2022] NSWSC 1246 where it was held that an owners corporation must act reasonably when making decisions and that a by-law that explicitly omits the basis for decision-making actively invites unreasonable refusals or withdrawals.
Can Rule 3.6.3 be severed?
If the Tribunal severed Rule 3.6.3 as invalid for the reasons above, without an equitable permit scheme, Rules 3.6.1 and 3.6.2 create a total ban on a series of items that may or may not be lawful under the Act.
Thus, severing Rule 3.6.3 as a means to rectify the rule as a whole, is impractical.
Consequently, the only practical step for the Tribunal to take is to declare the whole of Alternative Rule 3.6 invalid so that it can be redrafted to create certainty for residents on what is and is not permitted in accordance with the Act and the Code.
For the reasons above, it follows that the Tribunal denies the application to remove the respondents’ items. They may continue to leave the items as installed on their balcony in their current form and nature.
Are the respondents’ items exempt as sustainability infrastructure?
In light of the above, it might seem unnecessary to discuss whether the respondents’ items installed on the balcony were exempt from the alternative rules of the Owners Corporation as they formed a sustainability infrastructure in accordance with section 108(3) of the Act. However, this was an important aspect of both parties’ submissions so I will examine the issue.
Section 108(3) states that an Owners Corporation may make alternative rules (as this Owners Corporation has) except (emphasis added): (3) An alternative rule is not valid to the extent that it results in the rules— (a) being inconsistent with this Act or another territory law; or … (f) prohibiting or restricting the installation, operation or maintenance of sustainability infrastructure in or on the common property or a unit;
In support of their submission that the screen structure was sustainability infrastructure, the respondents argue that the installation they created falls within the parameters of the Canberra’s Living Infrastructure Plan. In support of that proposition, they quoted the then Minister for Planning and Land Management in introducing the Unit Titles Legislation Amendment Bill 2023 who stated 5 (emphasis added): Finally, the bill makes further improvements to the provisions about installing sustainability infrastructure, to clarify when consent may be withheld. Following the stage 1 reforms, the owners corporation cannot unreasonably withhold consent for the approval of the installation of sustainability infrastructure in or on a unit or the common property, or make a rule prohibiting or restricting its installation, operation or maintenance. The installation of these provisions is to ensure that a unit owner can access or improve the sustainability of their unit or subsidiary, as well as improving the overall environmental impact of the units by, for example, reducing carbon emissions or water usage.
The Minister’s speech is reflected in Schedule 1 of the Act at Default Rule 1.4 (3): Erections and alterations (1) A unit owner may erect or alter any structure in or on the unit or the common property only— (a) in accordance with the express permission of the owners corporation by special resolution; and (b) in accordance with the requirements of any applicable territory law (for example, a law requiring development approval to be obtained for the erection or alteration). (2) Permission may be given subject to conditions stated in the resolution. (3) However, if the structure is sustainability infrastructure, the owners corporation’s permission must not be unreasonably withheld.
5 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 22 March 2023 Mick Gentleman, Brindabella—Manager of Government Business, Minister for Corrections, Minister for Industrial Relations and Workplace Safety, Minister for Planning and Land Management and Minister for Police and Emergency Services) Examples—permission not unreasonably withheld • safety considerations • structural considerations • financial considerations • equity of access to common property, easements, facilities or utility services Example—permission unreasonably withheld external appearance of a unit or the units plan
The respondents argued consistently that their installation, “improves the environmental sustainability of the unit and reduces the environmental impact of 6 the apartment”. 7
The respondents submit that: [The installation] has reduced ambient temperature on the balcony and the impact of wind. As a result, we are able to open doors and our need for air-conditioning and heating is reduced. We have potted plants on the shelving including herbs and small vegetables. The small garden area greatly improves our quality of living. The shelving and screens allow us to more fully utilise all of the space available in our apartment.
The applicant argued that there was no independent scientific evidence before the Tribunal that this was the case and that classing the structure as sustainability infrastructure under section 108 was therefore invalid.
The dictionary in the Act defines sustainability infrastructure (emphasis added): sustainability infrastructure— (a) means infrastructure or equipment that— (i) if installed in relation to a units plan— (A) improves the environmental sustainability of the units; or (B) reduces the environmental impact of the owners corporation and the units owners; and (ii) if installed in relation to a unit— (A) improves the environmental sustainability of the unit; or (B) reduces the environmental impact of the unit; and
6 Respondents’ submission dated 15 October 2025, page 1 7 Respondents’ submission dated 15 October 2025, page 1 (b) includes related utility service connections and equipment.
The evidence put to the Tribunal indicates that the respondents installed the items on their balcony to improve the environmental sustainability and to reduce the environmental impact of the unit. They adduced oral evidence to support that submission.
On first impression, it would appear that the structure may fall within the definition of sustainability infrastructure as contained in the Act and within the purposes outlined by the ACT and in the first reading speech.
However, no independent scientific evidence regarding the environmental sustainability of the unit or its environmental impact was put to the Tribunal by either party.
In these circumstances, it is impossible for the Tribunal to make a final determination whether the items, as a unit or structure, fall under the category of sustainability infrastructure.
Conclusions
As detailed above, rule 2.4 states: (a) erecting or altering a structure includes adding structures onto a unit, altering of a unit and fixing things to a unit; and (b) erecting or altering a structure does not include cosmetic changes or a unit that does not attach to, alter or otherwise impact the Building.
The respondents’ installation is freestanding, portable, and not anchored to either a wall or floor. In this Tribunal’s view the changes the installation makes to the apartment are cosmetic.
Further, the installation does not effectively change the external appearance of the property and appears to be harmonious with the visible façade and aesthetics of Highgate. The Tribunal is of the view that, to an objective observer, the installation in question is barely visible and blends in and complements the external appearance of the property.
The Code at Point 6 reads: 6 Nuisance An executive member must not— (a) cause a nuisance on the land; and (b) otherwise behave in a way that unreasonably affects a person’s lawful use or enjoyment of a unit or the common property.
In this Tribunal’s view, if the Executive Committee were to order, as it urged the Tribunal to do, to remove the items installed by the respondent, it would be effectively behaving to unreasonably affect an owner’s lawful use and enjoyment of their unit.
In regard to costs, the Tribunal is of the view that Section 48 of the ACT Civil and Administrative Tribunal Act 2008 applies and that, accordingly, no costs should be awarded and each party should bear its own costs.
For the benefit of all concerned, I enclose photos submitted of the respondents’ apartment from outside and the examples of exterior façades that detract from the façade of apartment properties.
……………………………….. Member M Hanna
Dates of hearing: 14 January 2026, 22 January 2026 Applicant: In person Respondent: Robyn Agnew, authorised representative Annexure A
IMAGES SUBMITTED TO THE TRIBUNAL REFERED TO IN THIS DECISION
Image 6: North face - View of the respondents’ balcony Image 7-9: Example of screens having a negative impact on the visual amenity of a building
Image 7: Sailcloth on an apartment building Image 8: Example of screens having a negative impact on the visual amenity of a building
Image 9: Example of screens having a negative impact on the visual amenity of a building
THE OWNERS – UNIT PLAN NO 4654
HURST & ANOR (Unit Titles)