Unit owners keep balcony screens and shelves as tribunal strikes down strata balcony rule (ACAT, 2026)

What happened

The respondents own an apartment in Highgate, a 17-storey residential tower at City Walk, Canberra. They placed metal shelving from IKEA, backed with screens, inside their enclosed balcony. They put potted and boxed plants, including herbs and small vegetables, on the shelves. They said the setup reduced sun, heat and wind, so they could open their doors and use less air-conditioning and heating.

The owners had been trying for some time to put some kind of screening on the balcony, and the executive committee had opposed it. The executive committee is the elected group that runs the building for the owners corporation. It had earlier refused permission for a bamboo screen and told the owners to take it down, which they did. They did not ask for permission before installing the current shelves and screens.

The building has alternative rules. These are rules an owners corporation adopts by special resolution to change the standard rules set by the law. Rule 3.6.1 says that, to protect the building's design and appearance, owners must not put items such as a screen, awning or blind on a balcony. Rule 3.6.3 says this does not apply if the executive committee gives written permission. Permission can come with conditions and can be withdrawn by the committee at any time. Rule 2.4 requires permission to erect a structure, but says cosmetic changes that do not attach to or affect the building are not structures.

The tribunal looked at photos from both sides. The owners corporation's photos showed sail cloths and awnings on other apartment buildings. The photos of the respondents' balcony showed it was largely indistinguishable from the other balconies. The items were freestanding, portable and not fixed to any wall, floor or balustrade.

What each side wanted

The Owners – Unit Plan No 4654 (the owners corporation) argued that the shelves and screens were a structure that acted as a screen. It said they needed executive committee approval under the balcony rule, and that they hurt the building's uniform look and its value. It asked for four things: a declaration (a formal statement from the tribunal) that Rule 3.6(1) was valid; an order that the owners remove the screens and shelves within seven days; an order that they not put up any screen or shelf without approval; and its $379 application fee as costs. The respondents argued the items were cosmetic furniture, not a structure, and did not affect the outside appearance, so no approval was needed. They said any application would have been refused regardless of its merits. They also argued the items were sustainability infrastructure, which the law says rules cannot prohibit or restrict. On that basis they asked for Rule 3.6(1)(b) to be declared invalid.

What the tribunal decided

The tribunal declared that Rule 3.6(1), as written, does not breach section 108(3)(f) of the Unit Titles (Management) Act 2011, because it does not prohibit the installation of sustainability infrastructure. However, it declared Rule 3.6.3 invalid. Because Rule 3.6.3 could not be cut out on its own, it found the whole of Rule 3.6 invalid in its current form.

The tribunal refused the request to order the respondents to remove the screens and shelves within seven days. It declared that the screens and shelves may stay in their current form and location. It refused the owners corporation's application for costs, so each side bears its own costs.

The tribunal also noted that alternative rules must be enforced in line with the executive committee code of conduct in Schedule 1 of the Act. It noted that any alternative rule that restricts sustainability infrastructure in a unit, except as section 108(3) allows, would be invalid.

Why the tribunal decided it that way

The tribunal said the only matter in the Act the balcony rule could relate to was the external appearance of residents' premises. Based on the photos, it found the respondents' setup was barely visible and blended with the building's colour and design. It was unlike the sail cloths and awnings shown on other buildings. An objective observer would be unlikely to notice it, and would not think it lowered the building's appearance or value. The tribunal also found the items were freestanding and portable, so they were cosmetic changes under Rule 2.4 rather than a structure.

The main problem, the tribunal said, was Rule 3.6.3. It gave the executive committee total discretion. It set no criteria for granting permission, no grounds for withdrawing it, and no requirement to give reasons for a refusal. The Act requires executive committee members to follow a code of conduct. The code requires them to act honestly, fairly and with reasonable care. It also requires them not to behave in a way that unreasonably affects a person's lawful use or enjoyment of their unit. The tribunal said a rule must be clear, certain and predictable so owners know what is allowed. It found Rule 3.6.3 uncertain, open to arbitrary decisions and potentially oppressive. It relied on a NSW Supreme Court case, Walker Corporation Pty Ltd v The Owners – Strata Plan No. 61618, which held that an owners corporation must act reasonably when making decisions.

The tribunal could not simply remove (sever) Rule 3.6.3. Doing so would leave a total ban on the listed items with no permit system at all. So it declared the whole of Rule 3.6 invalid so it could be redrafted. It added that ordering removal of the items would unreasonably affect the owners' lawful use and enjoyment of their unit.

On sustainability infrastructure, the tribunal said the items might at first appear to fit the Act's definition. That definition covers infrastructure or equipment that improves a unit's environmental sustainability or reduces its environmental impact. However, neither side gave independent scientific evidence, so the tribunal could not make a final finding on that point. On costs, it applied section 48 of the ACT Civil and Administrative Tribunal Act 2008 and decided each party should bear its own costs.

What this means if you are in a similar position

If you are in a similar position, this decision shows that ACAT may look closely at how a building's own rules are written, not just at whether someone broke them. A rule that lets a committee grant or withdraw permission with no stated criteria or reasons was found invalid here for being uncertain and potentially oppressive. The tribunal also tested the claimed harm against the evidence. Photos of how the balcony actually looked from outside carried a lot of weight.

The decision also shows the limits of some arguments. The tribunal accepted that items installed to cut heat and wind might count as sustainability infrastructure. It did not decide the point, because there was no independent scientific evidence either way. Each case turns on its own facts, its own building rules and the evidence put forward.

In disputes between unit owners and an owners corporation, the first step people usually take is to put the issue in writing to the executive committee or owners corporation, setting out what is asked and why. If that does not resolve it, either side can then apply to ACAT for orders.

How to apply: our step-by-step guide to a ACAT application. More decisions: ACAT cases and strata and body corporate.

Source: THE OWNERS – UNIT PLAN NO 4654 v HURST & ANOR (Unit Titles) [2026] ACAT 52 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.