Interference with Views (QLD)

Developers, Bodies Corporate or Lot owners who seek to install or to approve the installation of structures which could impact upon an owner’s views should take note of the decision and the four-step test explained below.

On 14 September 2016 QCAT handed down its decision in Miles v Body Corporate for Solarus Residential CTS 41491 & others [2016] QCATA. The issue was whether a pergola installed with the approval of a Body Corporate unreasonably interfered with the use and enjoyment of the unit above, by reducing the upper unit’s water views.

Section 167 of the Body Corporate and Community Management Act 1997 provides that:

The occupier of a Lot included in a Community Title Scheme must not use, or permit the use of, the Lot or the common property in a way that:

(a) causes a nuisance or a hazard; or

(b) interferes unreasonably with the use or enjoyment of another Lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

This section was considered in the context of cigarette smoking some years ago by the then President of QCAT in the decision of Norbury v Hogan [2010] QCATA27. In that case however the primary issue was whether the cigarette smoke constituted a nuisance. In Norbury QCAT determined that use of the word “nuisance” in section 167 is intended to import into the section the common law rules in relation to nuisance. That includes a requirement that the objectionable conduct gives rise to a substantial interference with the use or enjoyment of a Lot.

In contrast section 167(b) speaks to an unreasonable interference with the use or enjoyment of a Lot. In Solarus Senior Member Brown had to closely consider what constituted an unreasonable interference because at common law the loss of a view cannot be a nuisance.

The view which had been lost was a portion of the expansive water views enjoyed by an upper unit. The Body Corporate had approved the installation of pergola structures on a balcony below the unit which, after the pergolas were erected, reduced the upper unit owner’s views of the river and foreshore area. Critically however the upper unit still enjoyed panoramic views over the ocean and out to Magnetic Island. The loss of views were also limited to particular locations within the upper unit. When considered as a portion of the totality of the views the loss of views was only minor.

The upper unit owner had originally brought an application to the Commissioner’s office challenging the Body Corporate’s approval of the pergola structure. In the ensuing adjudication the Body Corporate’s decision to approve the pergola was upheld. The upper unit owners then appealed to QCAT.

Whilst there were a variety of grounds of appeal most relevantly Senior Member Brown considered what could constitute an unreasonable interference with the use or enjoyment of a Lot arising from the loss of a view. In essence a four-step test must be used:

(a) Identify and value the types of views affected;

(b) Identify the part of the Lot from which the views exist and the reasonableness of protecting views from those areas;

(c) Assess the impact of the interference to the views of the whole property, not just for the view that is affected; and

(d) Assess the reasonableness of the proposal that is causing the impact.

Part of the four-step test had been applied by QCAT before, in a case arising under the neighborhood dispute legislation; that is, a dispute involving a loss of views arising from trees. In that case QCAT had not applied the fourth element, as it was not appropriate in that legislative context.

Applying the fourth element of the test in Solarus turned out to have an impact on the final result.

Particularly, the upper unit and other Lots in the scheme had similar pergolas. The developer had not however installed pergolas on all balconies. The Body Corporate had approved the relevant pergola including because it was in keeping with the type of pergola that had been installed by the developer in other Lots, and which other owners had sought and obtained approval to install after the scheme was established. In one sense then the upper unit owner was seeking to deny the owners below what the upper unit owner enjoyed; a pergola to shade their balcony from the harsh tropical sun.

The upper unit owner had led evidence in the adjudication application that they had been involved in the purchase of their Lot from very early in the sales process and had negotiated design changes with the developer. The penthouse owners had taken an active interest in the design of the building and had relied upon various drawings and artists’ illustrations as to what the building would ultimately look like. In addition the upper unit owners argued that the Body Corporate when making its original decision had failed to consider that the owners of the unit below could have continued on with their previous (partial) shade structure which did not diminish the upper unit owner’s views.

In the event QCAT determined that the Adjudicator, and therefore also the Body Corporate, had got the original decision right. The loss of views was, as a matter of fact, only minor when considering the views available to the upper unit as a whole. Further, given the tropical conditions in Townsville it was entirely reasonable that the owners of the Lot below would seek the same sort of protection from the sun that the upper unit owners, and others in the scheme, enjoyed.

Stratum Legal Pty Ltd acted for the successful Body Corporate in both the adjudication application and the appeal to QCAT.

Developers, Bodies Corporate or Lot owners who seek to install or to approve the installation of structures which could impact upon an owners views should take note of the decision and the four-step test.

If you find yourself in that position and would like further advice then Stratum Legal can help.

This article was contributed by Michael Kleinschmidt from Stratum Legal.