Paying for a hedge based on the “benefit principle” (ACT)

Sections 29 and 30 of the UTMA might apply: “An owners corporation for a units plan may, if authorised by an ordinary resolution, enter into and carry out an agreement with an owner or occupier of a unit for … b) the provision of facilities or services for the unit (or its owner or occupier). … The owners corporation may recover the cost of carrying out the agreement as a debt from the person with whom the agreement was entered.” So, I think the OC could enter into an agreement that it will provide and maintain a hedge in a particular spot and pay some specified fraction of the cost if the owners of the two units that benefit more agree to pay the remainder of the cost. I think the motion should note these sections and use the wording to make it clear that the agreement is providing a facility (the hedge) that provides a service (improved privacy) primarily to the particular units.

Another option might be to grant a special privilege to the owner of the unit that wants the hedge on common property on condition that they install and maintain a hedge in the location. This would become an owners corporation rule (like a by-law elsewhere) that needs to be registered. It would take a 75% special resolution to create the special privilege rule (and to rescind it later if that is wanted).

If the EC is confident that the hedge would amount to a ‘minor use’ of common property by the benefitting unit owner and that ‘use will not unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation’, then it could approve by an ordinary resolution of the committee. Schedule 2.4  What is ‘minor’ is up for debate. I contend that it depends on circumstances. Eg. In one OC, a few square meters might be a trivial and tiny fraction of the common property. Somewhere else it could be all of the common property. In one place a hedge would not bother anyone but somewhere else it could be an unreasonable impediment.