Black v Body Corporate OC1-POS539033E [2018] VCAT 185

Introduction

In this case, the Victorian Civil and Administrative Tribunal considered whether a body corporate had unlawfully discriminated against a resident in a residential development by failing to make alterations to the common property to accommodate her disability.

Facts – Black v Body Corporate OC1-POS539033E [2018] VCAT 185

Since 2015, Anne Black had lived in an apartment on the fourth floor of a residential development. In 2015, she developed disabilities that required her to use a wheelchair, which inhibited her from accessing her apartment and other parts of the building.

Ms Black commenced proceedings, pursuant to sections 44, 45 and 56 of the Equal Opportunity Act 2010 (‘the EOA’), against the relevant body corporate, asserting that the body corporate was unlawfully discriminating against her by failing to make alterations to the building so she could access the common areas and her apartment independently. Read together, sections 44 and 45 of the EOA essentially provide that a service provider must not discriminate against a person with a disability by refusing to make reasonable adjustments to a service so the disabled person may access or derive a substantial benefit from the service.

The body corporate’s positon was that its obligations were limited to consenting to Ms Black making reasonable alternations to the common property so long as she paid for those alterations. In support of that position, the body corporate relied on Section 56 of the EOA, which obliges body corporates to allow owners to make reasonable alterations to the common property at their own cost in circumstances where those owners are disabled.

VCAT’s Determination

Senior Member Steele found that section 56 did not exclude the operation of sections 44 and 45 and therefore those sections applied to body corporates as a service provider. However, the question of whether the body corporate had unlawfully discriminated against Ms Black depended upon whether the alterations required by Ms Black were reasonable within the meaning of Section 45(3) of the EOA. Submissions on the reasonableness of Ms Black’s requests were not made at this hearing.

Conclusion

This decision is important for body corporate management, as VCAT held that the body corporate was a service provider and therefore bound by sections 44 and 45 of the EOA. This means that body corporates will be obligated to make reasonable alterations to the common property to accommodate residents with disabilities or they may be held to be unlawfully discriminating against them. What is reasonable in the circumstances for owners, Committee and body corporate management remains to be seen.

If you would like further advice on body corporate management matters, James can be contacted by email at JCollier@moray.com.au or by telephone at 03 8687 7354. Moray Agnew https://www.moray.com.au/