A tribunal has allowed an IKEA shelf to remain on the balcony of a City apartment, and found the building's rules create "an inherently oppressive environment".
In an ACT Civil and Administrative Tribunal decision published last week, tribunal member Mark Hanna rejected the unit owner's request for the screens and shelves to be removed.
The people living in the unit had placed potted plants on IKEA metal shelving, inside the enclosed balcony of their apartment at the Highgate units on City Walk in Canberra.
The two people had "for some time" been seeking to place screening on the balcony to limit sun exposure, lower the temperature and "create a better environment within their apartment", the published decision states.
A previous bamboo screen had been removed after it was refused permission by the building's executive committee.
The owners argued the shelves violated owners corporation rules, had not been approved by the executive committee and should be declared an unlawful structure and ordered to be removed.
This was said to be required to "protect the external appearance of the property, to maintain the aesthetics and value of the building and that the respondents' screen affects external appearance".
While the owners said the shelves constituted a structure which needed approval, the residents said they "constitute an internal superficial change that does not affect common property".
The tribunal member found that photographs of the balcony and the building facade "reveal that the respondents' balcony is largely indiscernible from the other balconies".
"The screen is barely visible. It is not visually disharmonious and blends in well with the colour and design of the current facade," Mr Hanna said.
The ACT tribunal found some of the bylaws and powers given to the building's executive committee allow "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," Mr Hanna said.
"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."
The tribunal found that for a bylaw to be legally enforceable, "it must be clear, certain, and predictable".
"A rule that fails to state the grounds upon which permission will be managed is invalid for vagueness and uncertainty," Mr Hanna said.
The presidential member found the shelves were cosmetic and "barely visible" from outside the building.
