What constitutes an unreasonable interference with the use and enjoyment of property in a body corporate? - 12 December 2017

In Miles v Gough [2017] QCA 190 the Court of Appeal provided a useful summary of what constitutes an unreasonable interference with the use and enjoyment of property within a body corporate.

The appeal concerned the allegation that awnings installed by a downstairs lot owner obstructed an upstairs lot owner’s view, such that they constituted an unreasonable interference with the use or enjoyment of their property, contrary to section 167(b) of the Body Corporate and Community Management Act 1997 (BCCM Act).

The Court of Appeal confirmed that:

  1. the relevant question under section 167(b) of the BCCM Act is an objective test of whether “ordinary notions of reasonable standards for the use and enjoyment of the applicants’ property were offended”;
  2. the adjudicator had not erred as they had considered both qualitative and quantitative aspects of the loss of the view in finding that the minor obstruction of the view in question did not amount to an unreasonable interference; and 
  3. it is relevant to reasonableness that the structure met a need as if “it interfered with the enjoyment of a neighbour while having no utility for its owner, [that] would point strongly to its erection as unreasonable”.

Consequently, when seeking or granting approval for an improvement to a lot, lot owners and bodies corporate alike should consider the effect it might have on any other lot owner that may amount to an unreasonable interference with their use and enjoyment of their property and/or the common property. 

For more information or discussion, please contact Senior Associate, Hayley Harvey.

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