Case Notes ~ Approving Use of Common Property

Approving use of Common Property - Minor use and Unreasonable Interference

LEI v THE OWNERS – UNITS PLAN NO 592 & ANOR (Unit Titles) [2023] ACAT 21

The Executive Committee of the Owners Corporation gave the Second Respondent approval to install on the common property new water pipes and electricity cables to service the unit. The pipes and cables were secured to the external wall and traversed the windows of the Applicant’s unit.

The Applicant sought to have the pipes and cables removed on the grounds that the approval was in breach of Schedule 2, Part 2.1, Section 2.4 of the Unit titles (Management) Act 2011 (UTMA) in that the installation was not a minor use of the common property, that it interfered with the Applicant’s reasonable use and enjoyment of the common and that there were alternative locations for the pipes that did not involve crossing windows.

The Tribunal noted there was no evidence of formal approval having been given, but discussions between the Second Respondent and the Owners Corporation suggested there may have been informal approval.

The Tribunal took the view that the pipes amounted to only a minor use of the common property, similar to an air conditioner or awning that extended over the common property. However, the availability of alternatives routes did render them an unreasonable interference with the Applicant’s use and enjoyment of the common property when they were installed across his windows.

Accordingly, the Tribunal ordered that the Owners Corporation investigate alternatives for providing water and electricity to the Second Respondent. It made a further order that the Owners Corporation and the Second Respondent share the cost of moving the pipes on the basis that both bore some responsibility for the current installation - the Second Respondent for failing to apply formally for approval and the Owners Corporation for not ensuring the approval process complied with the legislation.